New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1898-06-14
oxE JUDGE AGAINST SIX.
,vc,s1oN AGAINST LAW AND NOR
ACCORDING TO THE SEVENTH.

REsPEcTAprE AUTHORITY.
,,srs o'Brien. of the Court OF Appeals. seems
AVE laid aside temporarily that professional
.,-t.sy with which members of that tribunal
GU ,sen in the habit OF treating their associ-
IN a dissenting opinion. which was handed
s' few days ago. in a proceeding begun
o.,,.t Governor Morton and other members OF
po.rd OF Public Buildings. and continued
".,,.t Governor Black. to compel the reinstate-
~, o. q veteran who had been dismissed.
s,- ~ the Judges concurred in an opinion re-
-,e the order OF the Appellate Division.
.,.. r~ouired the veterans reinstatement. and
-. o.Br.en declares that the reasoning
..s nv which this conclusion 10 reached does
,r,o,ess me as sound In law correct in
morals"
:, % not unusual for q Judge or a minority OF
40 particular court to dissent from the decision
:, The majority legal grounds. and sometimes
=. state their legal objections in emphatic
,.rms But II would be extremely difficult to
s,d A dissenting opinion which so strongly crt!-
.,s.s the majority of the Court this one Of
Y,dee O'Brien's does
Michael Broderick ran an elevator In the Cap
.ol Building at Albany. and was removed by
novsrnor Morton. Broderick. through his at
.o-nev. Michael D. Nolan. brought mandamus
rroceedngs to secure his reinstatement on the
s-ound that he a veteran The Court OF
appeals. by majority Of six TO one. decided that
those proceedings could not be maintained
against the Chief Executive Of the State. and
q 1, upon this point that Judge O'Brien takes
IN the cudgeI and sorely berates the majority
=, his associates He not only declares that the
asoision 10 unsound in law and in morals. and
that II practically abrogates the statute which
tn, 10 tx-il xyiCA
nom removal without legal cause. but he fur
,bsr asserts that in his view 'the reasons stated
,or A reversal in this court of the order Of the
,ourt below are utterly untenable." and the
proposition that the proceedings will not lie
against the Governor is somewhat startling"
POOR OPINION OF THEIR DECISION.
Judge OBrien's opinion would occupy several
columns In The Tribune. and 1t is filled with
s,stements which show that he has q very poor
opn,on indeed Of the decision Of the majority
which overruled him. Il take It," he says TO
he an indisputable legal proposition that when
the Governor of this State accepts legislative
appointment as a member Of Board OF Trus-
tees with duties prescribed by statute. as the
duties OF this Board clearly are he is amenaole
N legal process at the suit OF a private citizen
whose rights are affected by the action OF the
BOARD In the same way and to the same extent
&c any other member of the Board. The prin-
chile has been so often asserted by the courts
Of the highest authority. that II must disturb
our confidence in the stability OF law to hno
doubt expressed about IT." And again: 1T may.
I think be safely asserted that no reasonable
authority can be found to sustain the proposition
that the courts without power to enforce
by mandsmus the performance by the Governor
O, an official act. ministerial In character. and
not resting In discretion"
The majority OF the court. In discussing the
nature OF a writ Of mandamus. shows that It
was originally a writ which issued IN the name
OF the sovereign. This arouses the ire Of Judge
O'Brien. apparently. for he declares Il am not
willing to indorse the principle that the maxim
which tells US that the king can do no wrong
has any application TO the elected servants or
the people OF this State. 1t originated when
kings were supposed 20 rule by divine right. but
any one who believes for a moment that It i'm
piled the immunity of persons IN high seats Of
power from obedience TO the laws has failed to
read correctly the history OF the people from
whom the maxim has been borrowed On the
contrary the courts OF this country have for
ages announced and enforced the principle
that no one was high as TO be above
the power Of the law. or so low as TO
be beneath It's protection This principle has
been transmitted 10 us. and in the administra-
uon OF Justice IL has superseded the ancient
maxim that the king can do no wrong.
THE PRINCIPLE TOO TRIVIAL
Nor Is this the extent to which Justice O'Brien
departs from the usual language In which one
member OF q court has been in the habit OF
speaking OF the error OF his learned associate"
He declares that the principle upon which the
Judgment Of the majority OF the court is found
ed is too trivial for serious confederation;
that "a legal principle. resting on the assump-
ton that the Executive will refuse TO obey the
courts must, necessarily, be unsound' and, fur
Their, the proposition that there may be one
man in the State so far above his fellow-citizens
that the courts cannot reach him, IN case ike
this where there is no discretion. sounds very
much like voice from the Middle Ages" What
reason" he asks can this court give for re-
versing the judgment as 10 them! Apsoiuteiy
hone that. in my opinion, has the slightest force
81 weight in law and TINS can De mace 9 I,aor
which the judgment OF the court below IS 10 De
reversed"
1t will then be seen" he continues. how fee
Die the argument is on which the relator Is de-
feated in the assertion OF his just rights under
the law. The principle announced by the ma
orty," he declares, would seem 10 be rather
100 fine for the practical purposes In the al
minstraton Of Justice: and. "of course. II this
proposition be sound. the judicial power 70 com
pc Boards or ministerial bodies 10 obey the law
may De always pdTdlyZeu DIS u All Dcu.No
In the State by making the Governor member
ex offcio or otherwise. This is rather an alarm
ing principle and am quite sure that 1t has no
sanction In reason or law, and equally ciear thaI
no respectable authority can be found to sustain
IT,
Justice O'Brien then closes his opinion by as
serting: 1T is to be regretted that this court
should feel bound TO reverse a judgment so OBJ
Nousy correct upon mere points OF practice or
Procedure, having no proper relation TO the real
controversy and with which this court. IN my
nothing whatever
The courts frequently have an opportunity OK
witnessing a very heated discussion between OPP
posing counsel in the cases which come before
mem. end 10 hear one lawyer tell the Court
What he thinks Of his opponent and his clients
Jaw and morals The eleven obstinate Jurors are
also frequently in evidence. But II rarely hap