Summary
In Carpenter v. The People (64 N.Y. 483) it appeared that the person who acted as commissioner of jurors had been appointed, and that under color of the appointment he assumed to, and did, exercise the functions of the office.
Summary of this case from People v. LytleOpinion
Submitted March 20, 1876
Decided April 4, 1876
Wm. F. Howe for the plaintiff in error.
Benj. K. Phelps, district attorney, for the defendants in error.
The challenge to the array of grand jurors was properly disallowed. Under the provisions of 2 Revised Statutes (p. 724, §§ 27, 28) no such challenge can be allowed.
The challenge to the array of petit jurors is founded wholly upon the allegation that the jurors were not selected by Douglas Taylor, the commissioner of jurors of the county of New York, and that he did not, nor did any person on his behalf, attend the drawing of such jurors. But it is also stated in the challenge, that the jurors were selected by Thomas Dunlap, who had been appointed by the mayor of the city such commissioner of jurors. That the mayor exercised a pretended right to appoint Dunlap, but that the act of the legislature under which the mayor appointed him was unconstitutional.
It thus appears, on the face of the challenge, that the person who acted as commissioner of jurors had been appointed to that office by the mayor of the city of New York, in pursuance of an act of the legislature, and that under color of that appointment he assumed to and did exercise the functions of the office. He was therefore a de facto officer, whose acts were valid as to the public, so long as he continued to occupy and exercise the functions of the office; and the validity of his appointment could not be drawn in question in this collateral manner. The demurrer to the challenge was, therefore, properly sustained.
The judgment must be affirmed.
All concur.
Judgment affirmed.