New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1893-12-07
SENATE THEFT DENOUNCED
CANTASSE'RS IN CONTEMPT.
OPINION OF THE SUPREME COURT IN THE
DUCHESS COUNTY CASE.
ACTION OF TIE STATE BOARD IN CANvAsSING
TIE MYLOD RETrW DECLARED TO BE
ILLEGAL AND IN CONTEMPT OF THE
COURTS ORDER-STRONG WORDS

COURTS OHDER-STRONG WORDS
FROM JUDGE HEIRTCK.
Try TELEGRAPH TO THE TRiBrSEl
Albany Dec 6-The theft of the state Senate
in 1891 by David Il. Ill., Isaac H. Maynard and
the members of the Democratic State Board OF
Canvassers. namely. Frank Rice, Secretary OF
State; Edward Wempe. Controller Elliot Dan
forth state Treasurer: Charles +. Tabor. At
torney-Ceneral and John Bogart. State Engi-
ncer was Denounced in legal phraseology TO-
day by the General Term Of the Supreme Court.
The Supreme Court Judges who gave utterance
to this wholesome sentiment were ID. Cady Her
rick Democrat and John r. Putnam, Repub-
Hcan The decision which they gave was upon
the application Of John Brooks Leavitt, Demo-
crat of Ncw-York City. for the punishment OF
the members of the State Board of Canvasscrs
of 1891 for contempt Of court in having cam
vassed the so-called Mylod election return from
Dutchess County.
This Mylod return fraudulent one. and
had been so declared by the Supreme Court.
It falsely stated the result Of the election for
Senator in Dutchess County. The state Board
Of Canvassers by recognizing the Mylod return
as true election return. obtained a basis for
counting in" Edward B. Osborne Senator.
Moreover they paid no attention to a true cleo
ton return from Dutchcss County. which had
been filed with Governor Hi. Secretary of State
Rice and Controller Wempe. Judges Herrck
and Putnam sustain Mr. Leavitts application
for the punishment of the State Board Of Can
vassers for considering the Myod return. Judge
Herrick. In his opinion. thus forcibly condemns
the State Board Of Canvassers:
JUDGE nEEEICK'S OPINION.
"whatever other returns the State Board OF
70 mi
pressly forbidden by an order Of the Special
Term Of this court affirmed by the General
Term and the Court Of Appeals. to canvass the
said Mylod return Yet in the evening Of the
same day that the opinion Of the Court Of APP
peals was handed down, and after the same had
been read by counsel for the defendant, and. as
appears from tha case communicated to at least
some Of the defendants. but infer before the
filing Of the remittitur and the entry Of an order
making the judgment OF the Court OF Appeals
that Of the Supreme Court the Board Of state
Canvassers met and canvassed the vote for Sen
ator In the XVIII District. In doing they
failed to disregard the Mylod return. They used
that return in making their canvass. Without
discussing the question whether or not there
was a corrected return before the board. which
they could and should have canvasscd. II Is suf-
ncient to say that there order Of the
Special Term affirmed by the General Term and
the Court Of Appeals. in force. directing man.
damus TO issue to the defendants. fOrbidding the
use of the Mylod return In making their can
vass. This order had been served upon the de-
fondants and they had appealed from II ana
knew the r,sul, Of such appeal. Whether or
not the rcmlttitur Of the Court Of Appeals had
been filed or judgment entered thereon when
the defendants acted in making IN" said can
vass IL seems 10 me. is not important The
order. as affirmed by the General Term. was In
full force until the judgment oi the Court "i
Appeals was made that Of the supreme Court
THE FACTS UNCONTEADICTED.
"If when the defendants canvasscd tho Myod
returns the judgment Of the Court Of Appeals
was not made that Of the supreme Court then
the order Of the General Term was in full force.
If. on the contrary its rcmittitur was filed and
order entered thereon the judgment Of the
Court Of Appeals affirmed that Of the General
Term as 10 the Myod return. The only papers
before the Special Term this Application. and
before this court those Of the moving
parties; their statements are uncontradictcd, tne
defendants have submitted no opposing am
davits or records. and from the record ~ u now
is before this court the fact seems 10 be cstab-
Hshcd that. while the order Of December :. 1881,
held by the Court of Appeals To have been prop
crly granted on the papers on when IL was
based was in full force, providing for the issu-
/ ance Of mandamus 10 defendants directing
! them to disregard the Mylod return. the defend
ants deliberately disobeyed such order and can
vasscd the MylOd return. 1t Is not desirable
to discuss the merits Of the case any iurlher
than is necessary to decide this appeal. y pre-
judgment OF the merits Of the principal case
is to be avoided If possible. but on the case
as II now appears before the Court cannot es-
cape the conclusion that IN canVasslng the go
called Mylod return the defendants were guilty
Of contempt OF court
1T was the Mylod return the defendants were
forbidden to canvass; il was the MylOd return
they canvasscd and the fact that there was
another return also Illegal. which was at
tempted TO be substituted in its place. makes no
difference as 10 tn" duty OF the DEFENDANTS III
reference to the Mylod return
THE DEFENDANTS CLEARLY IN CONTEMPT.
"Thc case Is a very embarrassing and delicate
one involving as 1t does a proceeding against
a considerable portion Of coordinate branch
Of the State Government. and | would gladly
have been relieved from its consideration; but
being here, it must be treated the same as
proceeding against any other body Of men. and
so treating it can. from the record before us
and for the reasons herein stated, reach no
| other conclusion than that the defendants have
disobeyed the order Of this court and are In
| contempt. | conclude. therefore. that the order
Of Justice Edwards should be reversed. with
| $40 costs and printing and other disbursements
| and that The motion for an order to snow cause
| should be granted"
| Frank Rice Secretary Of state. and Elliot
| Danforth state Treasurer, are the only members
Of the State Board Of Canvassers Of 1881 who
| are now connected with the State Government.
| the then Attorney-Goneral. Charles F. Tabor
| having gone to Buffalo To- live; Edward Wemple.
| then Controller having retired 10 Fultonville To
| live in obscurity. and John Bogart. the former
| state Engineer having gone into the engineer
ing business in New-York. Frank Rice was
! I'm Albany tonight, but declined TO say anything
| upon the decision Of Judges Herrick and Put
| nan, so severely condemning the State Board Of
| Canvasrers. The friends of the implicated men
| say that they will appeal from the decision 10
the Court Of Appeals The Court Of Appeals
! itself will thus pass upon the conduct Of Messrs
| Rice Tabor Wempe. Danforth and Bogart In
| dsreg lrding It's prohibition concerning the use
| of the Mylod election return.
| AIWORTHY TIE DEFAULTER. DEAD.
| ,,to,oi.pd Dec "a dspatch from Hamilton