The record-union., 1893-12-20

delayed doing so in order that the cues
tlon OF the validity of the charter might
be determined before the lst of January
The object sought to be Obtained by this
delay was, he thought, impracticable, but
had 1t been shown that they intended to
finally deprive the otficers-elect of their
| certificates? He did not so understand it.
In the course OF his remarks Judge Cat
lin observed that the contention that two
| of the charter Freeholders were not quali-
he'd to act as such would not hold good
now. If there was anything in that allie
gatlon, the time to protest against their
exercising the functions of Freeholders
was before the result of their work was
submitted and adopted.
Mr.. White further argued the matter.
He said the intentions of the defendants
could only be judged by their actions
Even assuming that they intended to per-
form their duty when compelled to do sc,
1t would be wrongful act for them 90
force an officer elect TO resort to the courts
! to compel them to do their duty. They
wanted lawsuit, and they have got it.
If it is not the kind of one they sought it
is their own fault, not that of the officers
elect. Ii the certificates were issued now
the officers-elect would not have the
twenty days allowed by law in which to
give their bonds.
On the question of intent, counsel
quoted authorities to show that antici-
pated ultimate good results'' could not
be regarded as a defense, because a man
would have no right to Obstruct a navi-
gable stream, even though ultimately the
navigability of the river would be i'm
proved. Neither had a man a right to
forge check because ultimately he in
tended to make the amount good. Vari-
Gus other illustrations were cited,
Mr.. White concluded by saying that,
after having persistently done wrong for
several weeks, the defendants had no
right to claim immunity now by claim
ing that they intended ultimately to do
what was rightly issuing the certifi-
Gates after having forced some one to sue
them and get decision against them. If
the ola officers insist on holding over
after the time for the new charter to take
effect, and the officerS-elect do not set up
q de tacto city government, state OF an
archy will prevail, for the old charter dies
the moment the new one should go into
effect
Mr.. Devlin replied to Mr.. White, say
ing that the defense had hoped in the pro-
ceedings at bar to reach the question of
the validity of the new charter, but finding
this lmpracticable, had made the PROPOSE
ton to issue the certificates and end this
proceeding. AS to the charge that the de-
PENDANTS had willfully refused to do their
duty, ne contended that the matter of the
issuance Of the certificates had simply
been delayed for good purpose, and that
the defendants had no intention of def
nltely refusing to issue them. There is
no specified time for canvassing election
returns, and the board had the right to
defer the matter from time to time under
the circumstances-nam the prospect
of a test as to the validity of the new
charter, and that it would be settled be-
fore the lst of January.
Counsel contended that the action taken
by the board was in pursuance of an i'm
piled agreement with the officers-elect.
1t was necessary for the board to refuse
to do some act in order to lay the ground
work for a mandamus suit, and for this
reason the votes for all the candidates
were counted, with the exception of one,
the City Attorney-elect. the understand
ing being that he was to begin the ex-
pected action. Subsequently Mr.. Brown
declined to bring the action.
Mr.. Devlin argued at considerable
length to show that there was no willful
or malicious intent shown by the defend
ants In delaying the issuance of certifi-
Gates to the ot1icers-elect The only per-
sons concerned in having the new char
ter take effect on the first Monday in JaLs
uary are those who claim to have been
elected to office. The public would be
j lSG DIS w Oil SONSIl uIuCE LlG OIQ
ter. The Trustees acted wisely in at
tempting to avert the possibility of
clash of authority between the old and
the new officials on the Sth day of Jam
uary. What they did was on legal ad-
vice, and not through corrupt motives.
Judge Catlin said the act complained of
was an omission to perform certain duties.
He thought it one of the official duties of
the Trustees to have canvassed the election
returns and declared the result. The
Supreme Court had decided that mere
error of Judgment in the discharge of
ones official duty should not subject the
defendant to severe penalty. In the case
before the court it was shown that the
defendants had acted with good intent,
they believing that the question of the
validity of the charter could and would
be speedily determined. There had been
protest against their canvassing the re-
turns of the election. They need not
have noticed it, but they did so, and
afterward called a meeting of the officers
elect TO see il some method could not be
agreed on for settling the matter of the
validity of the charter before it was to 60
into effect. 1t was shown that they had
taken legal advice, and also that an
agreed proceeding had been determined
upon, or understood, and the court be-
lieved the defendants acted in good faith,
although there really had been an un-
reasonable delay. The judgment of the
court was that the proceeding be dis
missed.