New-York tribune., 1894-10-10
THE COURTS AGAINST HILL.
LONG LIST OF DEMOCRATIC JUDGES WHO
HAVE DENOUNCED THE THEFT
OF THE SENATE.
THE GENERAL. TERM HAS JUST CONFIRMED THE
JUDGMENT OF CONTEMPT AGAINST HILLS
STATE BOARD OF CANVAssERs-TWo
OPINIONS or JUSTICE HERRlCk


STATE BOARD or CANvAssERs-Two
OPINIONS or JUSTICE HERRIcK
SCORING THEIR ACTS.
VeoM TIE REGULAR CoRREsroNDENT OF THR TnIB''NR
Albany oct 9-David B. Hls theft of the Legs-
lature once more has been condemned by the high
courts OF the State Justice Cullen has pointed out
that the true election returns of Dutchess County
were In the hands OF Governor Hi, but that he did
transmit them to the state Board OF can
vassers and thus this Board was enabled. although
illegally. to give certificate OF election to Edward
b. Osborne Democrat who had not been elected
Senator This gave majority in the state senate
and in the Legislature as whole to the Democratic
party Justice Barnard. another Justice Of the Su-
preme Court. repeated the opinion Of Justice Cullen
Both of these judges it should be stated. were Dem
Ocrats.
And now come Justice d. Cady Herrick Democrat.
and John r. Putnam. Republican, of the Supreme
Court, and declare in formal opinion that the
State Board of Canvassers Of 1891. Mr.. HIS ser
wants were guilty of contempt when they disre-
garded the of Justice Edwards Of the Supreme
Court, which affirmed by both the General
Term and the Court of Appeals, commanding them to
canvass the true election return Of Dutchcss County
which had been sent to Albany under court orders
of Justices Cullen and Barnard. and to disregard
the false, 'Myiol." election return from DutchesS
County. This important opinion OF Justices lieTrick
and Putnam has just been handed down by them
at the closing of the General Term OF the supreme
Court they holding with Justice Mdyham IN
Saratoga The opinion was written by Justice Her
rick who it is needless 20 say, is regarded as one
of the leading lawyers of the State. He Is sturdy
Democrat but the evidence of the wrongdoing OF
the members of the State Board of Canvassers-
Frank Rice John Bogart Charles F. Tabor E,iiot
Danforth and Edward Wemple-was so overwhelm-
ing TO him that he could but write the opinion
he did condemnng them in the severest terms Tor
canvassng the false election return from Dutchess
County Justice Herrck in two opinions he has
given to this suit reviews the entire Dutchess
County case. with the decision OF the Court of APP
peals in that matter. brushes away all the excuses
that have been made for David B. Hill and the
State Board of Canvassers and shows with great
cearness the nature Of the crime committed Under
the decision Frank Rice. John Bogart. Elliot Dan
forth. Charles +. Tabor and Edward NempIe W."
be compelled TO pay fine Of from 500 TO s'" bu'
this fine Is small matter the people oi the
State compared with the value TO them oil 1"nlo''i
condemnation Of the theft Of the Legislature py 's
The suit which induced this decision of Justices
Herrick and Putnam Drought by John BROOKS
Leavitt a Democrat and lawyer In New-lo orK'
Mr. Leavtt was convinced that the Legislature
had stolen and pluckily resolved to DO wha ne
could TO punish the thieves. He accordingly APP
piled to the Supreme Court for an order Tor the
members of the State Board Of Canvassers IN 1871
10 show cause why they should not be punished
for contempt In not having obeyed the command
OF the Supreme Court to canvass the true eectloh
returns from Dutchess County; a command reit-
Grated by the Court of Appeals Justice Barnard TO
whom Mr.. Leavitt made this application IN June
1s93 declined to entertain it, holding that the true
election return in the possession. or ought TO
have been in the possession, of the STATE Boafd OF
Canvassers in 1891; and thus intimatng that the
members of this board be punished in some
other way than by contempt In denying |
no braD
bers of the State Board Of Canvassers:
Before the decision by the Court Of Appeals The
OF this court recounted the votes to elect Mr.
Deane. and the vote recouned was certified by
a new County Clerk. the old one having been 1r ie
got the proper officers before the decision by the
this corrected return. If the board violated is /
not contempt Of an order OF any court
1t will be seen however. that Justice Herrick and |
Justice Putnam differed with Justice Barnard upon |
this matter OF its having been contempt Of his |
court. and pointed out TO him certain facts which !
had escaped his view.
Mr.. Leavitt. by permission Of Justice Barnard. re-
newed his application to Justice Edwards, Demo- ,
crat. of the Supreme Court. at Hudson: but that |
Judge also declined to grant the application. Mr.. |
Leavitt appealed from this last decision TO the |
General Term Of the Supreme Court. Here Justices |
Herrick and Putnam. in December 1893, reversed |
the decision of Justice Edwards. holding that there
enough on the face Of the papers for him to |
hear Mr.. Leavitts application and determine its
merits.
Justices Herrick and Putnam concurred in this
opinion, while Justice Mayham dissented Justice |
Herrick wrote the opinion. In this opinion, al ]
ready stated, he reviewed the entire course Of the
election controversy OF 1891 it presented in
the courts. In this noteworthy opinion he says:
After the State election in 1891 a controversy
arose in the county OF Dutchess the canvass
by the Board Of County Canvassers OF the vote
OF the Board OF Canvassers. refused 10 sign the
statements Of canvass as made by the Board OF
ton appointed John J. Myod one Of It's members.
secretary PRO TEN; and directed him as such to
sign and attest said statements which he did. and
such statements. so signed by him. were trans
9 the be b the OF
herein as the State Board of Canvassers
the defendants composing the State Board OF Can
vassers to prevent their can canvassing III" state
T. 1891. at Special Term of the supreme Court an
Sson Is ordeed that w f Of
issue out Of and under the seal Of. this
Board Of Canvassers that they issue certiacate
OF election TO the office OF Senator in the XVIII
so-caled return of the Board OF County Canvassers
Of The county OF Du,chess Which is signed by John
and is not signed by the County Clerk OF Duchess
Clerk but that instead thereof they consider only
such return from the county OF Dutchess as may
County Clerk OF the county of Duchess and the
chairman OF said Board of County Canvassers
and issue under the seal OF said County Clerk and
that in their certificate of election the said State
Board of Canvassers certify and declare that the
person who appears upon the certified returns and
alta tements made by the Boards OF Cenvassers OF
the counties OF Columbia, Putnam and Duchess in
pursuance OF the statute and the order OF the
Court, TO have received the greatest number OF
votes. duly elected Senator from the said
XVIII Senatorial District
This order was affirmed by the General Term
n nd was then taken to the Court OF Appeals (See
people ex rel. Daley v. Rice, 129. " T.. 49,
1t appears from the opinion OF Judge Peckham
hat Court D
peals for sustaining the order in question;
that the OF the county canvasScrS referred
10 in said order not certified by the County
Clerk and the other. that the county canvassers
Illegally threw votes which had been count ed
Tor Mr Deane by The inspectOra OF nlecfnn and |