Evening journal., 1910-07-12
CITY In ODD
SITUATION
Walter H. Hayes Quotes Some
Decisions Touching on
de FaCtO Officials
NO REQUEST FOR
SPECIAL SESSION

NtoNtlilVi IchhcNiu was NhiiNu VNti thN
telephone carly this afternoon and asked
II any request had been received by him
TO call a special session Of the Legisla-
ture to remedy the muddle over Wilming-
toms city government He said:
IL have had no request for a spec al
session, and have not considered the mat
ter. OF course II such request comes to
me ] shall give IL the fullest considera-
ton"
The Governor said it was unlikely that
he would take up the matter unless re-
quested to by Wiimlngtonians.
One OF the acts of the present Coun-
ell since the decision of the court
and therefore during the period in
which Council has had no legal stand
ing-was the election OF George w
Denney as meat inspector to succeed
Evan w. Morrison. The latter has
made no claim TO continue the office.
Prior TO his term ending he said he
did not propose to contest.
The appointment OF members OF the
Board OF Health by Mayor Spruance
was before the Courts decision, and
therefore they are held to be valid.
The same is said TO apply 10 City
solicitor Brady and City Auditor
Kurtz, although a point might be rails
cd as TO whether those officials could
hold on after the mayor who ap-
pointed them lost his legal standing
as mayor
The appropriations for various city
I departments were voted before the
court made its decision, and are held
/ to be good.
Walter II. Hayes today looked up
I some OF the law bearing on the point
that the city officials ceased even to
/ be de facto officers after the Superior
Court. announced, its decision. Mr..
Hayes found the following among the
many decisions bearing on the i'm
portant points raised.
A person cannot be a de facto Off
Ger after judgment Of custer has been
rendered against him.
Petition of Portsmouth, 10 n. II.
lis.
Huggs VS.. WINS, SO n. J. L. 139
Or there has been any other judicial
decision against his right to hold the
Office:
Williams VS.. Boynton, 147 y. y. 426.
In this last case, which was a suit
brought by a tax payer OF the County
/
certain proceedings of the Board OF
Supervisors OF the county for the re-
moval of the county seat, declared
illegal and void, and restraining the
defendant from any official act for
submission OF that question to the
electors as Illegal official acts and a
waste of public funds.
The Board Of Supervisors for the
~ ofn 1,nQ
bers in December. 1892, by vote ol
ten TO eight, passed a resolution
changing the cite OF the county build
ing.
The chairman OF the board, upol
I the ground that two OF its members
one named Sullivan and the othe
Monaghan, had not been electei
. supervisors, decided that the resolu
ton was lost; the decision OF IN
chair was overruled by the same vote
. and subsequently by the same per
sons another resolution was passed
directing the former resolution, ant
notice that the question Of such re
moval would be submitted TO the elec
tors, to be published
After the town election in the towI
of Minerva in March, 1892, the tow
oanvassing board gave a certificate
Of election TO said Sullivan, although
, his opponent Bradley had a majority
Z Of the votes cast. A mandamus wal
issued requiring such board OF can
; vass 10 issue a certificate of election
TO the candidate having the creates
number OF ballots cast for him. TIT
order directing the issue of such man
damus was, upon appeal, affirmed b,
the Court Of Appeals in June, 1892.
Thereafter the town board Of can
vass issued certificate of election e
Bradley. who duly qualified, and b.
an order of the court Sullivan wat
directed to deliver the books and pa
pers connected with the office o
supervisor to Bradley.
Thereafter, Notwithstanding these facts
committee on contested seats OF N
board OF supervisors. TO which the mat
ter had been referred. reported in favo
OF the seating OF Sullivan. which repor
was adopted, and he sat with the Boar
and voted for the resolution In question.
Thereafter an Act Of the Legislature
being Chapter 1lS Of Laws OF 1898 wa
passed. assuming to legalize the action o
the Board Of Supervisors IN the premises
The Court Of Appeals In New York q
passing upon the above case speakin
through Finch Judge say; "rhe Resolu
tion OF the Board Of Supervisors orderin
removal Of the county seat, subject {
vote OF the electors, depended for Il
validity upon the vote Of Sullivan a
supervisor Of the town OF Minerva, an
so as a lawful member Of the board. Ths
he was not such supervisor had bee
adjudged before he took his seat Th
court had ordered a re-canvasa OF tn
votes cast without rejecting certain pas
ter ballots. and. as a result Bradley wa
found 90 have been elected, and III
proper certificate was given 10 him. New
ertheiess. the board denied Bradley
right and fested Sullivan. assigning 2
Z authority Tor the decision Of the stat
( board OF can -assers In the contest q
Osborn against Dean in Duchess county
which was a contempt of court and pun
ished as such. Thereafter tho seating O
! Sullivan was brought before the suprem
7 Court by n writ Of certiorari. and IN
] action Of the board in that respect re
versed and annulled. here is no douh
that Bradley was the duly elected super
, visor and Sullivan an intruder and usurr
Z er. and that the action Of the board in at
, suming to seat him was utterly indefensl
! bic. He had no right to vote and the resc
: luton was never passed by the require
majority. SO much Is not seriously ques
! toned but the appellant insists the Will
Q Sullivan was not supervisor de jure h
; was such de facto and so his vote Is to b
= sanctioned and the resolution upheld. 1 d
r not think that the doctrine invoked ha