Year: 1879

!


We trust that the extinguisher which was
yesterday put upon Judge Westbrook's
illegal order by the extraordinary General
Term will serve both as warning to that
particular Judge and as a discouragement
to any further attempts to revive the bad
practice, which was in vogue under the
old Tammany Ring, of making tho
judiciary an instrument of party. We
have no compassion Tor the modification
which Judge Westbrook must feel in find
ing his action annulled by the unanimous
| judgment of higher court Unluckily for
Judge Westbrook his judicial humiliations
do not come singly. 1t is but few days
since mandamus issued by him to the
Common Council of Troy was adjudged
illegal by the Court of Appeals. His
certiorari against Mayor Cooper is now
declared illegal by the unanimous de-
cision of the General Term, which
issues a writ of prohibition against any
further proceedings under 1t. His in
cipient mandamus directed to the Police
Board was also, even in the modified form
into which he changed it, declared illegal
"
accumulation of judicial rebuffs will proba-
bly, teach Judge Westbrook to be more eau
tious and circumspect in his future judi
cial action.


There we're two cases decided by the ex-
traordinary General Term yesterday; one.
relating to the restoration of Mr.. Nichols
as Police Commissioner, the other relating
| 70 IL, 1,fx, = <ha Doli iv,o
ing inspectors Of election. We will attempt
to explain these decisions in the order in
which they were rendered.


In the first of these cases the Court kept
clear of the question whether Mr. Nichols
was legally or illegally removed. The Court
did not touch that question at all, leaving
Mr.. Nichols perfectly free to pursue his
rights or supposed rights by any
proper form of legal remedy. The
Court makes no question that ccr-
tiorari is the proper form of proceed
ing in his case, but it declares that
it must be issued by court having julis-
diction, must be made returnable after the
interval prescribed by rules having the
force of statute, and must reach final





cided by the General Term that Judge
Westbrook, sitting at Special Term in
Chambers, had no authority to issue
certiorari in case of this kind; that even
if he had possessed authority the certiorari
would have been void by disregard of
the rule prescribing the time of re-
turn; that all the proceedings under
it were illegal, and that it was the duty of
the reviewing tribunal to quash them by
writ of prohibition. This decision does not
prejudice any rights of Mr.. Nichols; it
merely puts him back to the point from
which he started, and leaves him free TO
pursue his remedy in proper court in con-
formity with the settled rules OF proceed
ing. ''This Court, by its judgment on this
application, does not in any way interfere
with him in the enjoyment of that right. 1t
interposes only to prevent the exercise
of power which is unauthorized and
in violation of law" In simple and fa-
miliar language, the Court thinks the mat
ter in controversy too important to be dis
posed of by ''snap judgment" at the
instigation of political faction.


The practical effect of this decision is to
defeat the Tammany plan for putting Mr..
Nichols back into the Police Board for u
! period long enough to control the choice Of
| inspectors of election Mr.. Nichols and the
two republican members would have formed
majority, and were expected to appoint all
the Tammany inspectors. This design
having been frustrated it remains to be
seen whether any further steps will be
taken for reinstating Mr.. Nichols. None
that may hereafter be taken can have any
effect on the approaching election.


Tho other question decided yesterday by
the General Term was the validity Of
Judge Westbrook's order requiring tho
Police Commissioners to show cause
why they should not be compelled
by mandamus to appoint inspectors and
poll clerks. The Court decides that
it would be improper to issue writ
of mandamus pursuant to the intention of
Judge Westbrook's ordea. In plain words,
the decision of the Court is TINT Judge
Westbrook intermeddled prematurcly and
unnecessarily. The General Term decides
that, although the Statute directs the ap-
pointment of inspectors of election in the
month of August or September of each
year, q failure to perform the duty in these
months does not preclude their appoint
ment afterward. While it is true
that there can be no legal election
without inspectors, tho election would not
break down simply because they are not
appointed within the time. Statues of
this kind are always so construed as to pro-
tect the rights of the public. The Court
holds that if it is found, after the expiration
of the prescribed time, that the duty Of ap-
pointing inspectors has not been performed,
the judiciary may then properly interpose
with o mandamus, and that inspectors
appointed after the 1st of October