Year: 1870

EXTRAORDINARY OPINION OF JUDGE INGRAIIAM.


Judge Ingraham has rendered the following
remarkable opinion in the matter OF the application OF
John Foley in the Board Of Supervisors upon
the argument made several weeks 1t will be seen
that he conesses the justice OF Foeys claims but thinks
it inexpedient" to grant him justice:
IyGRAHAM, p 1.-THE relator candidate for
Supervisor at the election. Walter Roche received
the highest number Of votes and was elected Henry
Smith received the next highest number Of votes John
Foley the reator received the next highest number Of
votes BY the statute the Mayor is directed to appoint
as Supervisor the person who received the highest mum
ber OF votes next the received by the Supervisor
having the OF the Board OF supervisors as having
been elected at the election last held In pursuance
thereof the Mayor appointed Henry Smith such Super
visor on the 99th day OF November, 1862


At the time OF the election and at the date OF TINS app
cation Smith Of the Police Commissioners for
Metropolitan Police District for the State OF New
The relator claims that all votes given for Henry
Smith for any other Office while he was such Commits
oner within 80 days after he shall have resigned
The reator claimed to be entitled to the appointment
from the Mayor and applied to him Oh the 2th N0Yen
| ber last 10 be so appointed.


The Mayor refused to make such appointment and
fused TO swear him in Supervisor alleging
for such refusal that he had then appointed Mr. Smith
The relator applies for mdndamus directed to
the Mayor commanding him to appoint the relator to
The ground upon which this claim rests is founded
This statute sixth section provides II any of the
said Commissioners shall, after qualifying in office,
Ssp any ny ha a q M asS Of pee
nominated for any office elective by the people, and shall
not within days succeeding the same, publicly de-
cline the said nomination, he shall be in either case
have his Office and all votes cast at election
for any person holding the Office Of Police Commissioner
within 80 days after he shall have resigned such office,
shall he void" -


There evidence before me to show whether Smith
publicly nominated "a supervisor, nor whether
he accepted or declined such nomination.


II intended to raise the question whether the
af Supervisor had become vacant by onitting TO de
cline the nomination. those facts should have been placed
| in evidence. - ,,,- - A., .
am, therefore simply to decide whether the votes
SSneT Sm and mstsd his apponment by the Mayor or
whether they not void IN pursuance Of the provision
| OF the statutes before referred 10.


There be doubt upon this question: so far as tho
! provisions OF the statute apply to this
| The evidence shows Smith not only to have been
Supervisor previous 10 the election but that he continued
in that office and acted rs such, dschargng the duties


The votes given for him under such circumstances
| by the act declared to be void


Such votes are therefore Of no validity and should
| have been rejected by the canyassers


Vod votes the same II they not voted, and
are not TO be counted or regarded comforting any
| rights on the party To whom they given.


II the votes for Smith void then Foley, the reator
having the highest number Of legal votes after Walter
/ Roche was entitled to the appointment


The objection made by the respondent to this appca-
on Ia that the statute, far 10 declares the
given for u person holding the office Of Police Commits


The question is not free from difficulty. If the OF
Barker agt The People. decided in the Court Of Errors





~ office who is not made ineligible by the Coist.
tal who Is a criminal. In that the Chancellor
said: therefore conceive II To be entirely clear that
the Legislature cannot establish arbitrary exclusions
from Office or any general regulation requiring qua-
cations which the Constitution has not required"


should have some hesitation IN declaring an act
constitutional, In proceeding OF tins character, unless
there IL urgent reason for doing.


the present cgisature have passed act abolish
ing the Board Of Supervisors since the argument Of this
case, which act takes effect In short time after the
tiOn In this month, l am OF the opinion that IL
would not be proper exercise Of the discretion which
pertains the issuing OF this writ Of mdnddus 10 di.
rect appointment by tho Mayor at the present time


Its effects would only he ~ continue "a litigation which
could be productive OF good results, and which
would not in any manner advance tho proceeding by
which the relaOr obtain the which
he be entitled the act under which he claims
the Office IL held to he valid.


Even N the Mayor should make the appointment
the possession OF the office could not be obtained while
held by another app0intee within the time that will
eapse bOOre the total abolition Of the Board Of Super
yisOrs.


Although am Of the opinion that the rolator
DroDory entitled b th" eertntato from tha canvas