Year: 1879




acted under any legal compulsion in grant
ing the Tammany application which looks
to the issue of a mandamus directing the
Police Board to appoint Tammany in
spectors of election. A mandamus is not
writ of right. 1t is not to be issued
merely because it is asked for, but only
when there are reasonable grounds for
regarding it as fit and appro-
pirate remedy. The following quotation
from a high legal source is supported by
an abundant citation of authorities
ssMandamus is not writ of right, it is not
consequently granted of course, but only
at the discretion of the Court to whom the
application is made: and this discretion is
not exercised in favor of the applicant. un-
less some just and useful purpose may be
answered by the writ" AS nobody can
dispute the soundness of what is laid
down in this quotation it is evident
that Judge Westbrook was perfectly free
TO refuse the Tammany application and
that it was his duty to refuse it unless the
appointment of Tammany inspectors is re-
quired by some law. When attempts are
made to degrade the judiciary into an in
strument of faction it is the clear duty Of
| judges not to lend themselves to such at
| tempts. If there were any statute or any
provision Of law giving "ammany Hall the
right to name inspectors of election
| it might have been excusable for
| Judge Westbrook to pave the way
| for mandamus to compel their ap-
| pointment. It is claimed by the apollo
gists of Judge Westbrook that he is
the only judicial officer to whom such an
application could have been made during
the present month. This may be conceded
without alleviating the weight of just blame
which attaches to his action. Nobody
holds Judge Westbrook responsible for the
character of the applications which are
made to him, but only for his action on
those applications. II he has shown spirit
of political favoritism, if he has recognized
in behalf of Tammany claims which are
utterly unfounded in law, and which are ab-
surd on their face, the honest public,
which is the guardian OF judicial morals,
will not allow his political tavoritism to
pass without censure. We think 1t was
Judge Westbrook's duty to deny the Tam
many application for an order to show
cause A mandamus requiring the Police
Board to appoint inspectors of election
would be entirely proper if the Police
Board neglects to perform that duty
within the period prescribed by law (;
bnt mandamus requiring them
to select particular local stripe Of demo-
crats when the law ignores all local stripes,
is fragrant and glaring deviation from the
straight line OF judicial duty Judge West
brook has exhibited himself as zealot Tor
the illegal pretensions Of Tammany Hall.
We have no doubt that the extraordinary
| General Term, to which his order is return
able, will tomorrow set the seal of their
condemnation on his recognition Of the
Tammany claim.


Fortunately very recent decision of the
Court of Appeals declares and establishes
the law as to the limitations of a writ of
mandamus 1t is fortunate tha, this recent
decision Of the Court of Appeals comes just
in time to guide the Judgment and control
the action of the extraordinary General
Term. It is q decision which is not yet
printed in the books, decision which is
scarcely week DID, decision which over
rules and sets aside former mandamus
issued by this same Judge Westbrook. The
case was different from the one now in ques-
ton, but the principles involved are precisely
the same. The extraordinary General Term
cannot fail to take notice OF and to be bound
by the principles of law set forth in this
recent controlling decision of the Court of
Appeals. A transcript Of this opinion can
easily be procured for the use of the Gen.
already possess one. This decision of the
Court OF Appeals, overrulng Judge West
brooks views as to the legal scope of q writ
of mandamus, must necessarily be accepted
as law by all the subordinate tribunals of
the State.


The case which has recently been de-
cided by the court of last resort originated
in Troy and came up by appeal first from
a mandamus issued by Judge Westbrook at
Special Term, and then by appeal from a
General Term which affirmed his action.
A statute of the State-that is to saw the
charter OF the city of Troy-required the
Common Council OF that city to select the
four local newspapers having the largest
circulation for the publication of
the city ordinances. The Common
Council selected four, leaving out the
Troy Times, whose circulation undoubtedly
exceeded that OF any other journal pub
lished in the city. The publishers of that
Journal applied to Judge Westbrook for a
man damus compelling the Common Coun-
Gil to include the Troy Times in the list.
There was strong presumption of law in
favor of the claim of that journal, and
Judge Westbrook, with great appearance
of reason and justice, issued his man
damus An appeal was taken TO the Gen.
orn Tarm md the Ganernl Term con.