New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1893-10-07

wherein Judea Barnard made his order OF De-
cember g. They were both granted In new
proceeding between new parties asking new re-
lief-the making of a new corrected statement
To that proceeding Mr.. Emans was not parry!
The ex parte order Of Judge Fursman. made
In a proceeding 10 which the County CLERK was
not a party was wholly imperative upon inc
County Clerk and could not control or arect
the performance Of his statutory duties
Moreover. the stay included In Judge Furs-
mans order vacated BY the order OF me
Special Term Of the Supreme Court. made by
Mr.. Justice Cullen in Brooklyn on the 18th OF
December. In immediate view OF which CieiK
Emans mailed the corrected returns That or
der was that day reduced 10 Writing settled
by the Judge. signed by the clerk of the supreme
Court and entered In the minutes OF the Su-
prenc Court In Brooklyn. IL thereupon became
a valid and effectua order. The one conse-
quence Of its not being also Immediately entered
in Duchess County was that under Eule OF
the supreme Court. II II was not mus entered
within ten days it might be vacated for irregu-
larity. The statute prescribing what constitutes
an order the rule of the Supreme Court ana the
decisions under IT are conclusive upon TINS point
JUSTICE INGRAH,Ms ORDER
The order Of Judge Ingrahan was not served
on the County Clerk until after he had mailed
the corrccted returns; and at the time OF mail
ing them he'had no knowledge that the order
had beer made. He so testified In the contempt
proceedings before Judge Cullen: and Judge Gull
len found In his decision in that proceeding
II is idle to say that a public officer was not
bound 70 perform a statutory duty. because III
a case to which he was not party a Juuge,
out of court had made an order of which Al the
time of performing the duty the officer had
never heard
The County Clerks transmission of the re-
turns of the Dist was regular and iawfui. On
the morning Of the 22d they were regularly ana
lawfully in the respective offices of the Gov
ernor. the Secretary OF state and the Controller
The Secretary of State. under the statute. was
bound TO procure the two copies In the oiiccs
of the Governor and Controller And those
officers had right in law To deliver THESE
copies to any other person than the secretary Oh
State.
Judge Cullen. in subsequent proceeding to
punish the County Clerk for contempt IN not
obeying his order in forwarding the returns
held that there had been complete transinis,
sion Of these returns to the officers prescribed
by the statute; He SAYS: -. o,orr no,h
by the statute and the order Of this Court was to
transmit SIN It is clear that at some POM IS
for the returns devolved upon other oihcers Inc
person who was clerk might aftsrward pario ou MA
not be official misconduct. but personal crime nor
would 1t be the OF re eT reached the
officers to whom by the law and the court man nan
sion of the returns to the officers prescribed ny
STATE canvassers not because Of any defcc, in the
Transmission nor of disobedience Of the order OF
the Court but because by the action OF the Srcre-
tarv of State the Governor and the counsel OF the
Controller the returns were taken from the seversl
ceved and were given to Mr Emahs'
THE REMOVAL WITHOUT WARRANT.
Even IL the stays were valid. as to the County
Clerk and the amended statement was transmit
ted by him in violation Of the stays. this. in our
opinion would afford no justification for their
removal by Judge Maynard. The situation OF
the County Clerk with difference to the stays
did not authorize Mr.. Maynard To remove the
document in question from the office OF the Con-
trolcr
The removal Of those returns. therefore, on
the morning of December p. by Judge May
nard and Mr. Emans. entirely without any
warrant justification in law. to be iound IN
any order of stay.
Your committee closes this review OF the
grounds upon which Judge Maynard has en-
deavored to justify his action In respect 10 the
corrected Duchess County returns. by express,
ing their conviction that 1t Is as "hole ana
in all it's parts. insufficient.
Your committee now proceeds to consider
Judge Maynard's connection with the aclloh OF
the Board Of state Canvassers in refusing 10
canvass the corrected return. and canvassing
in place thereof what is called the MyIou re-
turn"
that the corrected statements transmitted by
mall by the County Clerk Of Duchess County
to the Governor, the Secretary OF state and the
Controller had been recovered and taken back
bv him in the manner Indicated the members
of the Board OF state Canvassers had been
served with authenticated copies of the amended
statement.
Judge MAYNARD now disclaims any connection
with that action; and states that his connection
with the cases ended when the decision OF IN"
Court Of Appeals was announced: but he fails
to state how or why that connection was tor
minated This omission is not without signih-
canoe
CANNOT FvADE RESPONSIBILITY.
Under the existing circumstances. in our opin-
Ion he could not be Invested Of responsibiity'
he saw the Board of State Canvassers violating
the law and issuing false certificate upon
false return. and making his act in removing
tho true return the pretext for their action.
He cannot evade just responsibilities by assert
ing that his relations TO the case had ceased.
1t seems to quite clear that the removal
and the suppression Of the corrected returns
could have had no other purpose than me one
actually accomplished. The original order oil
Judge Edwards in express terms directed The
counting OF such returns as may hereafter De
filed" The parties and counsel on both slhes
were well aware that a corrected return hau al
ready been ordered. and would be soon IN the
hands of the State Canvassers, unless us trans
mission could be prevented. by means lawful or
unlawful. The only way In which CsOo nI
could be counted In was by suppressng the cor
rectcd return and counting the Illegal one AS
matter of fact. the Illegal return was counted.
As matter Of fact. the corrected return was sup
nreased The action Of Judge Maynard. and Of
Emans who acted under his advice II seems
very clear TO us could have possibly had no
other end in view except the one thdt WAS
actually accomplished.
Judge Mavnard's letter furnishes evidence
against himself stronger than any that we pre-
yiou.lv hal in our possession. on his own
statement on December %. when the Mylod
return was counted In the face Of the opinion
of the Court OF Appeals, upon IN" pretrHt that
the corrected return was not before me StI,e
Beard he was present and remained silent.
although he was well aware Of the fact that the
decision Of the Court Of Appeals required me
counting Of the corrected return, in the removal
of which he was the chief party concerned.
STATE PRISON OFFENCE
II we correctly stated the facts. the offence
committed by judge Maynard is one Of the
gravcst known to the law
our Penal Code seems explicit. Section 81 Is
as follows:
A person who wfuy and unlawfuy removes,
M i,ilatcs. destroys concedls or obiItsrat.ss rs,
record map book, paper, document, or other thinS
filed or deposited in public Office or win any
nubIIc officer by authority Of law, Is punishable
he IMPRISONMENT for not than five years. or
by n fine OF not more than 500 or by both.
The Supreme Court Of the state Of Pennsyl-
lsl NH nlA