People ex rel. Behrmann v. Voorhis

Van Brunt, P. J. (dissenting) :

It is clear, and it seems to be conceded by the opinion of the majority of the court, that the relator’s case is not mentioned in the statute. But as this was probably an inadvertent omission upon the part of the framer of the statute and also of the Legislature, and would have probably been corrected had their attention been called to the omission, and as it would be a great hardship to deprive the relator of the benefits of the statute, the majority of this court propose to supply the omission of the Legislature and amend the statute to conform to what it thinks was the intention of that body, under the very transparent guise of construction, legislating into the statute provisions which it does not contain. I think that this should not be done. The power of legislation is not vested in the courts nor is it one of their functions to supply omissions which the Legislature has made in the conduct of its work. This is usurping a power not vested by the Constitution in the courts.

Order reversed and peremptory writ of mandamus directed to issue.