New-York tribune., 1894-10-10
striking out the provisions recurring return to

: return to be certified by and to come from the
County Clerk OF Dutchcss County. and issued IN,
from as so modified be affirmed, without costs.
sd - out h 2iurn IN to the be- o rea by
and to come from the County Clerk Of Duichess 5;,
/ by the Special Term would read &C follows:
/ at is ordered that writ Of perempory mandamus
commanding and requiring the State Board Of Can
vassers that they issue certificate Of election to
the oAico Of Senator in the XVIII District OF this
State. disregardng the return II the Board Of Coun-
ty Canvassers Of the county Of Dutchess. which Is
board pro tenn. but instead thereof they consider
@ tha n Tu ic ccrca,a @ may Sf eecon the said state
Board Of Canvassers certify and declare that the
statements made by the Boards of Canvassers Of
the counties Of Columbia Putnam and Dutchess. in
pursuance Of the and the order If the Court
have received the greatest number Of votes was
torial District"
Justice Herrlck has thus ably summed up the
who.e against Governor Hn and the members
Of the State Board Of Canvasscrs Then. c0ntinu-
ng mis- opinion. he frames the following crushing
indictment Of them:
Whatever other return the Board Of state Can
forbidden by order OF the Specal Term OF this
Court. affirmed by the General Term and ;he Court
of Appeals 10 canvass the so-called "Mylod re-
turn yet in the evening Of the same DAY that the
opnon OF the CouTi OF App,ais was nanaep M uow b
10 ana M & as o m 5o% goandant ns Gise b
infer. before the filing of the remttitur and the
entry of an order. making the Judgment Of the
Court of Appeals that Of The supreme Court the
Board of State Canvasscrs. mot and carvdssed the
votes for senator in the Xvth District ana in doing
They used that return in making their canvass.
-. Without discussing the question whether or & no,
which they could ana should have canvassed. 1t l.
] r to say Tmdi 41 G by bS was %m qr r o' anG @
the Court of Appeals IN force directing mandamus
"Mylod' return in making their canvass. This order
hdI been served upon the Defendants and they haI
Whe her he rcmtitIr Of tie Court OF Appca.'
bad been filed judgment entered thereon when the
eeems to me is not important. The order affirmed
by the General m az Term & was va IN ig force nn hn lnf
In Sixth Avenue Rai'roai Company vs. Gilbert Ele-
waited Railroad Company G y. y. i@ it Is held that .
an appeal from Judgment restraining action on the
thereon. does not affect the valijy or erect Of the
nb6Ted o ne g Gny % obcen H M pe @2.
miited to do that which the judgment prohibits
application and before this Court are those Of the
moving parties their statements are uncontfadctei. |
or records and from the record as it Is now before
this court the fact seems to be estah;nei thai /
Court of Appeals TO have been properly granted on
p3evng I4e fiS' ST on h s Te Of 5 10 De-
PENDANTS directing them to disregard the "Alyioi"
order order and ri canvGsscd the .Myoi return
1t is not desirable to discuss the merits Of the
case any further than is necessary to decide This
appeal: prejuagment Of the merits OF the principal
to be avoided II possible, but the
it now appears before the Cour, cannot escape the
conclusion that in caHyassing The so-calied Myod"
return the defendants guilty OF contempt OF
court.
Upon the state Of facts here recited an ex parte
application made Justice Barnard for
order directing the defendants show why
they should not be punished for contempt Such
application was denied with leave. however. 10 re-
new the same before some other judge. In denying
the application the learned Justice in the course OF
his ODniOn. made the following statement.
1T was made question whether the County clerk
must certify the return. and the Court OF Appeals
nt'a ahai hoaru m Gi & was
another person than the County clerk II he refused
wards order had only this pon, In IT. Before the
decision by the Court Of Appeals the Supervisors
50 to elect Mr.. Deane. and the vote 40 recounied
was certified by new County clerk. the old one
having been removed by the Governor. and this
amended return got TO the Proper officers before %
the decsion came the state Canvassers had. or
ought 10 have had, this corrected return II the
board violated its duty and counted the uncorrected
return. II was not contempt OF an order oi any
legal return Of the canvass % the votes and when
it was filed the duty Of the Court was accom-
The learned Justice was in error in supposing
that the only pcint in the appeal from Justice Ed
certify the return As we have seen IN the cx-
tracts We have made from the decision OF he
lions and Wine the "Hiyiod" return was held lcgd
rronds Again Win great respcei IT o seems i TO- n
that the learned Justice erred IN his statement that
the order of the Court simply provided legal
more; it provided that the "Mylod" return should
The is a very embarrassing and delicate one.
involving, as 1t does. proceeding against so con
State government. and | would gladly have been
relieved from Us consideration, but being here Il
must be treated IN the same way as proceeding
against any other body OF men. and 50 treating IT,
sons herein stated. reach no other conclusion than
that the defendants have dsobeyed the order Of
fiG fFftfr and. In slft..
fore that the order Of Justice Elwarls should DE
reversed with SO costs Of printing and other dis
burso ments. and that the motion for order TO |
show cause should be granted"
Justice Edwards upon receiving this decision heard
argument upon the matter. Mr.. Leavitt arguing
his case. and j. Newton Flero appearing for
the State Board Of Canvassers OF 1891. Justice Ed
wards. after hearing the argument. adjudged that
sessrs Rice. Bogart. Danforth. Wemple and Tabor
guilty of contempt of Court in disobeying the
order OF the Supreme Court that they should {
vass the true election returns Of Duchess County.
and imposed upon them fine the REALTORS costs
and expenses. Mr.. Flero appealed from this de-
'ision The General Term Of the Supreme Court. q
through Justices IIerrck and Putnam affirm
this opinion of Justice Edwards. Justice Herrick.
as before. writes the opinion lie stands by his
former opinion. and adds:
IN this case the order Of the Court directing the =
ssuance OF "A mandamus was granted and there ani :
men stipulation was entered into by the counsel /
or the parties that an appeal be Immediately taken
nht tHH 'dHN@ss NoitS IpI senator III tHc as
rlct In question be suspended until the decision OF
ne Court OF Appeals upon such appeal. provided a
uch decision should be made prior to December 80, g
SSl. and that the certificate OF the result OF the J.
election should be made and issued by the appel
ants in accordance with the decision OF the Court
II Appeals. IL appears that the decision OF the
,ourt OF Appeals was rendered about o'clock In d
he afternoon Of the 18th OF December and that the
anVass OF votes was made by the appellants during
he evening OF the said 18th day Of December. II
VII tnuS be seen that the defendants by their
ct IN enternS into the stipulation rendered un- \
writ OF mandamus originally. and by their precipta g
ION IN canNassing the votes the evening OF the
anne day OF the decision OF the Court OF Appeals
hey performed the prohibited before a remit
itur from the Court OF Appeals could be issued A
ma an order Of the Supreme Court making the
Judgment OF the Court of Appeals the judgment Of
he supreme Court and the issuing of a formal u