state has held that, in the absence of evidence to the contrary, a statute must ordinarily be deemed to have been operative for the entire day on which it became a law. (Croveno v. Atlantic Ave. R. R. Co., 150 N. Y., 225.) The case cited is a carefully considered one, and contains a review of the authorities upon the subject in other jurisdictions. The action was for a personal injury. The question arose upon a motion to dismiss an appeal taken to the court of appeals from a judgment of affirmance rendered by the appellate division which was entered at one o'clock and fifty minutes p. m. on May 12, 1896. On the same day the governor duly approved of chapter 559, laws of 1896, which, among other things, provided that no appeal should be taken to the court of appeals from a judgment of affirmance "hereafter rendered" in such an action where the decision of the appellate division is unanimous, except upon leave granted by the latter court. There was no evidence tending to show at what hour of the day the bill was signed by the governor. By its terms the act took effect immediately.

As the court in its opinion states, the real question before it was whether this statute was in force when the judgment appealed from was entered, Judge Martin, by whom the opinion was delivered, says (p. 229): "There being no proof as to the time of day when the act became a law, the question in this case must depend upon the presumption as to the time when it took effect. It seems to be settled by the weight of authority that, in the absence of evidence as to the precise time when approved, an act operates during the entire day of its approval ”. The motion to dismiss the appeal was accordingly granted.

That there may be limitations to the application of the rule is, I think, at least impliedly suggested by the opinion. The court has wisely left the definition of such limit to future decision upon facts which call for such determination. I see no reason, however, upon the facts here presented, for excluding the case under consideration from the application of the rule. The act of 1898 is not a penal one, but is highly remedial in its nature, and, therefore, calls for a liberal construction. It is a public act, passed,

as its title shows, in furtherance of a better administration of public affairs, and, in so far as private or personal rights may be involved in its enforcement, they are incident to and not the main object of its protection. In this view of the statute, I can see no reason for not giving full effect to the presumption in question. It is a rebuttable one, and the respondent will be free, upon a trial of the issues, to show, if it be possible to do so, that the approval of the executive was not appended to the act until after the relator had been discharged.

But it is contended by the learned counsel for the respondent that there is another presumption, namely, that the respondent, being a public officer, has performed his duty, which would be disregarded if the court should indulge in a presumption with respect to the operation of the statute which necessarily compels the conclusion that the respondent has been guilty of a breach of duty.

That there is a general presumption, rebuttable of course, in favor of the regularity of official acts, is undoubtedly true, and it inures to the benefit of any one as against whom such acts are challenged. But this is much the same as stating that the burden rests upon the party making a charge of substantiating it. (2 Whart. Ev., § 1319.) As the learned author cited says: "What the law says, and all that it in this respect says, is that a public officer is so far assumed prima facie to do his duty that the burden is upon the party seeking to charge him with misconduct. And this is in full harmony with the general rule above given, that on the actor lies the burden. The same reasoning applies in cases where the conduct of the officer comes collaterally in question. The burden is on those assailing such conduct; and so far, but only so far, the conduct of such officer is presumed to be right".

In the case of Wood v. Terry, 4 Lans., 80, 84, the doctrine is succinctly stated in the following language: "The law presumes the due performance of official duty; and this presumption must. be overcome before the court can declare the proceedings void. When an officer or party is in the attitude of asserting rights,

founded on official acts, and when due performance is essential to the right, due performance must be proved, and cannot be presumed (citing cases). But, when a party asserts a right, based on illegality or irregularity of the proceedings of a court or public officer the onus is on him to prove the defects; otherwise the presumption prevails".

But this presumption cannot be carried so far as to override another which inures to the benefit of the relator, and which is equally well settled. There are two questions involved and two matters with respect to which the relator holds the affirmative: 1) The law upon which he rests his right; 2) The acts or omissions of the respondent showing an infraction of the law. The presumption of official regularity, which the respondent is entitled to invoke, is that his act was in conformity with the law which regulated his action, and that whatever such law may have required to be done to give validity to the act of dismissal had been duly performed. But this is as far as it goes. It does not extend to questions which relate only to what the legal duties of the officer were. These must be assumed to be settled and established before any question can arise whether the acts of such officer were or were not performed in conformity with the law prescribing such duties and, therefore, before any occasion exists for invoking the presumption of due performance of public duty. The claim of the respondent really amounts to this: That it is to be presumed not only that he performed his duty, but also, that his act was the measure and expression of what his duty was. The fallacy of this is at once apparent.

It is thus plain that there is no lack of harmony or inconsistency in giving full effect to both presumptions within the sphere of action allotted to each. The presumption with respect to when the act of 1898 became operative is in aid of a determination of what the law upon the subject was when the act complained of was done; the other presumption compels the assumption by the relator of the burden which, as the terms of the writ show, he has recognized, of proving that the acts of the respondent have not been in harmony with the law defining his duties in the matter.

The learned counsel for the respondent further challenge the writ on the ground that the office of commissioner of jurors is a county and not a city office, and that the act of 1898 does not, therefore, apply to the relator. The answer to this seems to be that, prior to the adoption of the new charter, it was held otherwise in the case of People ex rel. Taylor v. Dunlap, 66 N. Y., 162; see, also, Taylor v. Mayor, 67 id. 87. There is nothing which I have discovered in the existing charter that, in my opinion, calls for any change of view upon the subject. The question has been fully discussed by Mr. Justice Scott in the case of People ex rel. Denholm v. Welde, 27 Misc. Rep., 697, in which he has held that the office in question is a city office, and, as I concur in his opinion, further discussion of the subject seems to be unnecessary. It follows from what has been said that the objections which have been raised to the writ by the respondent are untenable.

It now becomes necessary to consider the merits of the demurrer which the relator has interposed to the return. The 10th paragraph of the return, by way of a separate defense to the writ, alleges that more than four months had elapsed since the said David C. Taylor was removed before he made application to the court for a mandamus to compel his reinstatement, and that he is guilty of such laches in the premises as disentitles him to the relief prayed for ". This is demurred to.

Rejecting so much of it as may be open to the objection of stat ing a mere conclusion of law, facts are stated sufficient to bring the case within the decisions that a delay of over four months in moving for a mandamus in such a case as this, if unexplained, constitutes laches which forbids the issuance of the writ. (People ex rel. Miller v. Justices, etc., 78 Hun, 334; People ex rel. Young v. Collis, 6 App. Div., 467.) It has also been held that where satisfactory reasons are given for the delay the time limit above mentioned does not apply. (Matter of McDonald, 34 App. Div., 512.) The burden of showing such facts rests upon the relator, and, as there is nothing in the defense in question pointing to their existence, it is good upon its face. The counsel for the re

lator calls attention to the facts alleged by him in paragraph 14 of the writ in exculpation of the imputation of laches, but, as this paragraph is explicitly denied in the return, the court is precluded from considering it on this demurrer. The demurrer to this defense is, therefore, overruled.

With respect to the other defenses to the writ which have also been demurred to, I am of the opinion that they are insufficient, and that as to them the demurrer should be sustained, with costs, but with the usual leave to the respondent to amend on payment. of costs. Ordered accordingly. Notice decision and interlocutory judgment for settlement accordingly.

Ordered accordingly.

THE PEOPLE ex rel. SIMON WARSCHAUER, Relator, v. WILLIAM DALTON, Commissioner, etc., Respondent.

THE PEOPLE ex rel. ALBERT C. THOMPSON, Relator, v. SAME, Respondent.

THE PEOPLE ex rel. LOUIS GOLDSMITH, Relator, v. SAME, Respondent.

(Supreme Court, New York Special Term, October, 1899. 29 Misc. Rep., 154)

CIVIL SERVICE FORMER ADJUDICATION-LACHES.-Where persons wrongfully removed in May, June and July, 1898, in a summary manner, from competitive positions in the city of New York, are defeated by the appellate division in a test case because they were held not to be " regular clerks " nor protected as such by the charter of 1897, and, upon being subsequently apprised by a decision of the court of appeals in another case that questions of civil service in the city of New York were not controlled by its charter but by the general act of 1898, appeal to the court of appeals and are there defeated, among other things, upon the ground that the petition does not contain allegations sufficient to bring the test case within the statute of 1898, there is no estoppel by former adjudication nor any laches which preclude the litigants from subsequent applications for peremptory writs of mandamus for reinstatement.

Applications for peremptory writs of mandamus.

Julius M. Mayer, Samuel H. Ordway and Samuel S. Slater, for relators.

Theodore Connoly, for respondent.

Bischoff, J.: The relators holding positions in the civil service classified as subject to competitive examination, were re