The sun. [volume] (New York [N.Y.]) 1833-1916, 1893-12-07
THE DUTCaESS COUNTY CASE.
4 REMINDER or TINE CONTEST ron
THE SENATE IN 1891

were Expressly Forbidden 10 Canvass it.
ALBANY. Dec. o.-some months ago Judge
Edwards refused to grant the application In
the case OF the people ex rel Platt against
Frank Rice. Secretary Of State. and other mem
bers OF the State Board OF Canyassers. The
application asked that an order bio issued Tor
the members OF the State Board OF Canvassers
TO show cause why they should not be pun
ished for contemp ut in disObeying the order OF
the Supreme Court prohibiting the Board from
canvasslnG the Mylod tDutchess county, cleo
ton return In 1891. This was the time when
the Democrats secured control Of the State
Senate by awarding the Dutchets seat In the
Senate to the Democratic candidate on the face
of tho Mylod returns. The General Term In
session here to-day reversed the order OF
| Judge Edwards and granted the motion Tor
the order to show cause. The opinion Is writ
ten by Judge Herrlck Judge Mayham dissent
ing. Judge Herrick in his opinion reviews the
circumstances leading up to the fling OF the
Mylod return at Albany and to the order Of
the Special Term which prohibited the can
wasting Of the Mylod return. and says:
Tho order was affirmed by the General
| Term, and was then taken to the Court OF APP
| peals. 1t appears from the opinion OF Judge
| Peckhnm that two grounds were urged In the
| Court OF Appeals for sustaining the order In
ouestion-one. that tho return OF the county
| Cn0NnESeTB W III bhlu OIuSN WAS hpe
| certified 10 by the County Clerk. and the other.
that tho county canvassers Illegally threw out
votes that had been counted for Mr. Dean by the
inspectors OF election aud illegally transposed
votes canvassed by said in spectors: that the
| Board Of County Canvassers illegally canvass
| ed the returns from the inspectors Of election
| in the whole county. and made IN their own
canvass in opposition to such returns.
AS to the first ground, the Court held that
I IL was not necessary that the return Of the
| Board OF County Canvassers should be signed
or certified by the County Clerk In disposing
OF that question the Court said:
I'VE think under tho fSct the steps taken to certify
and authenticate the stptement were valid. and the
proceedings by which they were sent to and received
by the secretary OF State and other State officers was
SUFFICIENT TO entie them to be filed and canvasssd BY
the Bo rd Of state Canvaers the properly certified
result OF the OF the Board Of County Canvass
ers The other ound foe directing the state canvass
ers to omit the returns remains to be
sidered."
The Court then. after reviewing the facts as
to tho second ground Of objection to canvass
ing such returns proceeded as follows:
Upon these facts standing uneontradictsd. we think
the court below in It's proper branch would have the
power to command the State Canvassers to canvass
without regard to such a return. Ast contained the
result Of illegal and erroneous canvass by tho Board
OF County CanvAssers In excess OF its jursd and
which thereby will alter the result OF election. the
court should not permit It to be canvassed II another
return should be duly sent to tho Board properly
thenicated and containing the result of the legal
ton OF the Board OF County Canvassers tho state
Board could IT, We think as result thatths
order for the writ and the writ be podned
by striking out the provisions requiring return to be
certified BY and to come from; the county clerk Of
modified the order 10 affirmed"
THE remlttitur OF the Court OF Appeals upon
such decision was as follows:
iS S 'Ga saT S ne S Ssdtf OF s;
the General Term .,tm IN the .ats and the sane
Isqu!rlnE return 20 Dc esr,hed y and 20 come from
his sss and that The SAID order 40 sppSssa rom and
Ps the ors ,hs spsss Term
90 Dc c,riih. BY and to from The County
issued Sy the ss.si. TENN Would read a. foo%
81 and anSe s e
ing and requiring me state Board OF Csnyassrs tina.
ssSs.of IN the Pifesnth Senatorial district In the
sSS suay Isiin
s n'a q Gss ~ County g s1a
sGay but S ss ns. saa' ere s . Sr sa.S
saeh return. from S.% the county 81 DSch... may
o election G ss ..a Bosa Of Sat. s ssrsy
and declare TIA; ths p.r,0n who appssr' upon tue
Csnyasssrs OF the counties OF Columbia Putnam and
Il. 20 Sa"s ss me nussr
votes duly elected from the said Fifteenth sena.
Whatever other returns the State Board OF
Canvassers might canvass, they were thus
Term Of this court. affirmed by the General
Term and the Court OF Appeals. to canvass the
ssd Ms9d a6S y1s On es
peals was handed down. and after the same
had been read by counsel for the defendant
and. as appears from the case, comm unicated
to at least some Of the defen dants hut. Infer.
before the hlng Of the remitttur aud the en-
Court OF Appeals that Of the Supreme Court, the
Board OF state Canyassers met and canyassed
In doing so they failed to disregard the Msioi
return; They R gsed tnat return IN making
tion whether or not there was q corrected re-
turn before the Board which they could and |
should have osnvasssd il Is .suiiieisnt e say
affirmed by the General Term aud the Court |
Of Appeals. In force directing q mandamus to
the Mylod return in making their canvass. |
This order had been served nnon the de;
Knew the result 81 such Appeal w anu
Whether or not the reinittitur OF the Court |
tered thereon. when defendants acted In |
making the said canvass, Il seams to me Is I'M |
erai Term was In iIil force until the Judgment
Of the Court OF Appsals was made that OF the
cSG SIe When Mnsn hs 5,
Court OF Appeals was not made that Of the
supreme Court; Then tha order Of the Gen
entered thereon, the judgment Of the Court
VI ApUodlb VA Term
as 70 the Mylod return. The only papers
before the Special Term on this aPpll-
cation and before this court are those
OF the moving parties Their state
msnts are uncontradicted. The defendants
have submitted no opposing affidavlts or rec
ords. and from the record as It now Is before
this court the Tact seems to he established
that. while the order OF Dec. z. 1901. held by
the Court Of Appeals to have been properly
granted on the papers on which IL was based.
VAS In full force providing for the Issuance Of
q mandamus to defendants directing them TO
disregard the Mylod return, the defendants
deliberately disobeysd such order aud cam
VAssed the NJ lod return.
II is not desirable to discuss the merits Of
the case any further than Is necessary TO de-
elde this appeal. prSjudgment OF the srits
oi the principal case Ia TO bs avoided II possl-
PIE. but on the case as II now appears before
the court cannot escape the conclusion that
IN eanvAssing the so-ealled Mylod return the
defendAnts were guilty OF contempt OF court
Of course. these views may 10 changed when
the defendants submit their versions of the
tIansAetlon. ana II Is sincerely hoped that they
may be able 10 show such stRts OF facts as
Tlli sesolSs them, The suggestion that the
Va. The Supervisors. held At the returns from |