Case v. Campbell

On April 23, 1883, the Hon. William L. Thornton, the county judge of Sullivan county, made an order that Andrew Campbell deliver over to. Benjamin Case, as the supervisor of the town of Forestburgh, Sullivan county, the books and papers belonging to the office of supervisor of such town. From that order an appeal was taken in behalf of Campbell to the general term of this court, and a stay of all proceedings before the county judge, pending such appeal, was granted by the judge writing this opinion on April 24, 1883. A motion is now made to vacate such stay.

Stays of the character sought to be vacated should not, as will be conceded, be granted, unless there is reasonable cause for the appeal. Without intending in the slightest degree to prejudice the proceedings taken in behalf of Mr. Case, or to criticise the decision of the county judge, it is proposed very briefly and succinctly to state the reasons, why such stay should be continued.

Mr. Andrew Campbell, it is admitted, was duly elected supervisor of the town of Forestburgh, in March, 1882. Both he and the applicant, Benjamin Case, were candidates for the office at the town meeting, held March 6, 1883. At the close of the poll on that day, each, according to the canvass then made, received 105 votes. Two ballots folded closely together were not then opened, or counted, and the board adjourned to March 10,1883, for further consultation. On the 10th the ballots were opened, and found to be for Case. The board did not decide whether the ballots should be counted or not, being equally divided in opinion.

The provisions of the statutes (1 R. S. pp. 816, 817,

From the foregoing facts, and the extracts from the statutes, it will be seen that the county judge did not have before him any certificate, or statute evidence showing that Case was elected. He proceeded, however, by an inquiry into the election, to ascertain and determine the result.^ In other words, he determined that the two ballots folded together should have been counted for Case, and that the board of inspection erred in not so counting them, and in failing to have the clerk record the result as the statute directs. This was, I think, beyond the power of the county judge upon this summary application.

If Case had held the legal evidence of election he would have been justified in making the order ; and if Campbell had been dissatisfied, his remedy would have been by an action in the name of the people to recover the office. But in the absence of the prima facie evidence of Case’s election, there was no power vested in the county judge to ascertain and declare the result of the election (People v. Stevens, 5 Hill, 616 .