The Jersey City news. (Jersey City [N.J.]) 1889-1906, 1897-04-17
TEST OF THE LAWYERS OPINION

The Executive Committee of the Repub-
lican County COMMITTEES met last evening
in the Union League Club House, for the
purpose OF considering the advisability
cf Mayor Wanser and the other officials
whose successors were elected On Tues
Gay sI.rreneesiag their Offices on May 3,
or Of their holding on and allowing the
Democrats 20 take the matter into Court.
It Izs known that an opinion would be
read fro4ss CoTbin & Corbsn, which would
sic lheI.4 the law for their proposed rev.
clutionary action, and on that opinion
thsy NoEld decide what to do, but they
did nothing CT Ike Kind. In fact, they ar
sued ard argued and tacn adjourned
tsi,hou; taisl,.g any definite action
Edward " ool.es called The meeting to
orde.,s and then the secretary read this
opinion from 1.essrs. Corbin & Corbin:-
We are asked 10 give sur opinion as to
the legal obligation resting rpon certain
elective officials of Jersey city to surren-
Ger their Offices on the first Monday of
HAY. notwithstanding the passage of the
Act Of the Legislature. which provides
that in FIRST class cis their term shall
evsead 20 the Ilrss sEsrdi y of January,
1858
We are Clearly of the opinion that it is
the right and duty Of these officials to
treat the law as valid, and to hold their
positions until the Court shall have de-
cided that it is their duty to surrender
them
The notion that tls.ytr title has already
been passed upon is delusion The de-
cision of a branch Of the Supreme Court
in the case of the litigation between Mr..
Hoes and the City Clerk has in no man
ner concluded the question The enly is
sue before that Court, and the only issue
which could be decided, was whether it
was the duty of the City Clerk to print
the ballots for an election to be held in
s April. There are two reasons why the de-
cision that the ballots should be printed
did not either in form or in substance,
bind the officers in question.
First-The act not only directs an cleo
tion to be held in November instead of
April, but also directs that the terms of
9z1ce, which would by the former law ex-
Dire on the first Monday of May, shall
be extended to the first day of January
fSllowing. 1t does not necessarily follow
0eeause the election must continue to be
held in April, that therefore the term of
Office may not be extended until Janu-
ary This question the Supreme Court
did not have before it and could not
pass upon.
Second-Eyen if the Court had directly
declared their opinion on this point in
the mandamus case, it would have no
binding effect upon the city officials. who
had no hearing upon the question, nor
1gfx -
that suit. That suit, we repeat, was
purely between Mr.. Hoos, the candidate
for Mayor. and Mr.. ODonnell, the City
Clerk. A judgment in mandamus of
such character as this has no effect
whatever in any further litigation and
cannot be used to affect the title of any
person to Office. The law was stated in
our Court of Errors and Appeals, Lay
ton VS.. the State, Dutch, 576, as fol-
1ows:-"The award of the mandamus
does not purport to adjudge or decide any
right. The award is no finality; it con-
cludes nothing" In O'Donnell VS.. Dus-
man, 10 vr. 6S1, the Supreme Court said:
IA proceeding in which one of the
claimants is not a party, can on no legal
principle conclude his rights to the
office"
The opinion of the Supreme Court in the
mandamus case against City Clerk
o'Donnell will have authority as a prece-
dent precisely as if it had been decided
with reference to like statute in some
other city, but has no further force.
The decision simply makes public the
opinion of two Justices Of the Supreme
Court as to the validity of the statute of
1897. but it leaves the city officers with
the same rights as before and the proper
course for them to pursue now is pre-
cisely the course they would pursue if
the opinion had never been published
They have no right to turn over the off,.
GERS and the property of the city in their
charge to those who claim them in direct
opposition to a plain statute until the
ight of the claimants has been estab-.
Hhed in some suit of a conclusive char
acter and capable of review.
In the case of Davis v. Davis (2S vr.
203), the Court fined defendants in quo
warranto for holding Offices in defiance of
a new statute vacating them. This has
been paraded as threat to officials hold
ing over according to the act of 1897 the
true lesson of the case is rather that of
obedience to the statute.
There is some shallow talk about indict-
ing officials for holding Office pursuant
to the statute; title to Office can no more
be tried BY Indictment than title to land.
OF course the question of the right of
the officers in question to hold office until
the first day of January next depends
on the validity Of the provisions of the
statute of 1897 to that effect.
In our opinion that act will be held:
ya1id z the Court Of Errors and Appeals