People ex rel. Livingston v. Taylor — 1 Abb. Pr. 200

Majority

p. 200

THE PEOPLE, on relation of LIVINGSTON, against TAYLOR.

Supreme Court, First District ;

General Term, November, 1865.

Headnote

Judicial Act.—-Mandamus.—Commissioner oe Jurors.

A mandamus will lie to the commissioner of jurors, to compel him to strike off from the list of jurors the name of a person who is entitled, under the statute, to have his name stricken off.

p. 201

The act of the commissioner of jurors, in.determining upon the sufficiency of the excuse relied on hy such an applicant, is not a judicial act within the rule relating to mandamus.. The statute clearly defining his duty, he has no discretion to exercise, when the truth of the facts relied on is clearly shown to him.

Mandamus is not to he denied merely because the relator may have a remedy hy action for damages.

Appeal from an order.

Robert J. Livingston, the relator, applied to the defendant Douglas Taylor, the commissioner of jurors for the city and county of Hew York, to have his name struck off from the list of jurors for 1864, upon the ground that he was a non-resident The defendant having refused to do so, the relator applied at special term for a mandamus commanding the defendant to strike the name of the relator from the list.

The writ was granted by default, but subsequently the default was opened, and the judge decided that he had no power to issue the writ in such a case. The relator now appealed.

Lewis L. Delafield, for the appellant.

I. Proceedings in mandamus cases are to be reviewed by appeal, and not by writ of error (The People, &c. v. Church, 20 N. Y. R., 529 ; People, &c. v. Albright, 14 Abb. Pr., 305 ; Laws 1854, p. 592.

II. The order is appealable. It was based solely upon the idea that the court has no right to direct the commissioner to strike off the relator’s name, as directed by the writ. It has been repeatedly held that when a court refuses to exercise a discretion vested in it by law, under the impression that it does not possess the power which it is called upon to exercise, and in consequence an erroneous decision is obtained, such decision will be reversed on appeal (Beach v. Chamberlain, 3 Wend., 366 ; McElwain v. Corning, 12 Abb. Pr., 16 ; McMahon v. Mutual, &c. Ins. Co., 12 Id., 28 ; Artisans’ Bank v. Treadwell, 34 Barb., 553 ).

III. The only question is, has the court the power to compel the commissioner to strike a name from his list which he has erroneously placed there 1' Has it any control over him; or is he, as the opinion of the judge below would indicate, the only officer known to our law, who is beyond the reach of the law %

The relator presses the following views upon the court with the greatest earnestness, because if any cither views should

p. 202

prevail, the commissioner would be clothed with arbitrary power, and could put any person of any age or sex upon his list, and there would be no adequate redress.

There can be no question as to the duty of the commissioner to strike off of his list the name of au exempt at any time. It is his duty to make and “ correct ” the list. The statute provides that “ the names, of all persons found to he exempt from serving as jurors shall be struck from the list, and the ground of exemption recorded” (3 Rev. Stat., § 698, § 20).

1Y. The commissioner of j urors is a ministerial officer, and in no sense a judicial officer.

The court still has- all the power that it ever had over jurors, but it is relieved from the routine business of attending the preparation of the jury list and summoning of jurors.

The commissioner in the city of Hew York is substituted for town officers in other parts of the State, and it cannot he claimed that they are judicial officers (3 Rev. Stat., 695, §§ 4, 5).

That he is a ministerial officer is apparent from the provisions of the statute.

(a) He is appointed by the judges, just as they appoint clerks and criers (3 Rev. Stat., 697, §§ 15 to 19).

.The commissioner appears in his true character in § 34, where he is called a “ clerk ” of the board for the selection of grand jurors (3 Rev. Stat., 701, § 34).

Heither judges nor supervisors could appoint a judicial officer without violating the Constitution. Judicial powers cannot "be delegated (Entick v. Carrington, 19 How. St. Tr., 1063).

(b.) The statute reads: “ The sand jurors shall be selected ” by the commissioner (3 Rev. Stat., 697, § 15). The word “ said ” is explained by § 14, as “ all persons residing in said city, who shall be qualified to serve as jurors.” ' These qualifications ■ are fixed by law (3 Rev. Stat., 695, § 5, and 697, § 14).

All the commissioner has to do is “ to select ” certain designated persons; he has no discretion in this (§§ 15-20).

After this selection he must give notice that the jury list is ready for correction, and must strike from it the names of exempts (3 Rev. Stat., 698, §§ 20).

He has no discretion to determine who are exempt: that is fixed by lato.

But if exempts do not apply to.be excused, they cannot be

p. 203

held for duty; and the court always discharges them when summoned.

It would be ground for challenge to the array, if an unqualified person, ex gr. a non-resident, were upon the jury (3 Blackst. Com., 351-359).

(c.) The commissioner cannot fine jurors for non-attendance: the court must do this (3 Rev. Stat., 698, § 21). And the court may, as it constantly does, excuse jurors from serving, without. consulting the commissioner. • And the court may remit the fine for any reason that it thinks fit, as it constantly does. The commissioner may also remit the fine ; but he can only do this upon “ legal excuse ” fixed by law (3 Rev. Stat., 698, § 22). That the courts have the right to excuse from duty and to remit fines, as is their practice, is apparent from § 25, which provides that defaulting jurors must be excused by the court, unless this power is specially delegated to the commissioner by order of the court; and from § 21, which provides that the court must ascertain whether the jurors have been duly summoned, before it can finé them.

(d.) The conclusion of the matter is, that the commissioner, like other officers of the court, is under the direction and control .of the court, and holds office- to relieve it of burdensome ministerial duty, arid has no general discretion, and can only exercise certain powers clearly defined and fixed by statute ; and that other powers of a much higher grade connected with the- jury system, were never intrusted to the commissioner, and may be exercised by the court at its discretion. -

(e.) The duty of a clerk in “ approving ” an official bond is ministerial, and may be enforced by a mandamus (Gulick v. New, 14 Ind., 93 ). The register may be compelled by mandamus to satisfy a mortgage (The People, &c. v. Miner, 37 Barb., 466 ). And both of these acts require an exercise of judgment and discretion, not necessary in selecting jurors pointed out by law.

Y. But granting (for the argument only) that the commissioner is a judicial officer, it clearly appears from the statute (see last point)- that he has no general discretion ; but that his conduct is governed by fixed principles and rules, from which he cannot depart. The qualifications of jurors are fixed by law. All the commissioner has to do, is to select the designated persons. It is well established that the discretion with which courts will not interfere is such as is general, and not regulated

p. 204

by fixed principles, and that whenever the discretion is fixed by law, the courts will control that discretion by mandamus (The People v. Superior Court, 5 Wend., 114 ; and Ibid., 10 Wend., 285 ; Hull v. Supervisors of Oneida Co., 19 Johns., 259 ). The law is thoroughly discussed in Manor v. McCall (5 Geo., 522).

YI. The statutes relating to the commissioner nowhere provide in terms that he shall not be subject to the control of the Supreme Court. And without such express enactment he is subject to it. “ The authorities cited show that the right to review cannot be taken away without an unequivocal declaration to that effect by the legislature. They show that the superior courts in England and in this State have disregarded the strongest intimations of the legislative will, unless they came up to this standard; and the law may be considered as settled, that language as emphatic as that contained in this statute will not deprive a party of the right of review. In justification of this strictness, it Eas been alleged that administrative and judicial, or quasi-judicial, powers are frequently delegated to men without legal experience, who may err through ignorance, or abuse their trust from interested' motives. It has, therefore, been deemed indispensable to the security of the citizen that a superintending power should exist somewhere, over inferior courts and officers, to restrain irregularities, and to correct errors of law, and, above all, errors of jurisdiction ” (Per Gardiner, J., delivering the opinion of the Court of Appeals in Matter of Canal, &c. Street, 12 N. Y., 411 , 412; see, also, point V. of N. Hill, Id., 407).

YH. The order setting aside the mandamus should be vacated, and the defendant declared to be in contempt for not obeying the same.

We are not furnished with the evidence on which the relator applied to the commissioner of jurors to have his name stricken from the list of jurors, and therefore we cannot decide whether he was entitled thereto, and the only question before us on this appeal is whether a mandamus will lie to the commissioner, of jurors for such a purpose, if it be conceded that the relator is entitled to the relief he asks.

The office of this writ is twofold: one when addressed to

p. 205

courts of inferior jurisdiction, and to judicial officers, and to officers exercising judicial powers, to compel them to act and to decide on matters before them; the other when addressed to ministerial officers, to do the- act which they are charged with unlawfully refusing to do. The commissioner of jurors is not a judicial, but a ministerial officer. It is true he has to decide on the sufficiency of the excuse offered by a juror to have his name stricken from the list of jurors, but still the nature of that excuse, and the duty of the officer, is clearly defined by the statute, and when the truth of the facts relied on is shown to him, he has no discretion to exercise, and has no right to keep the name of the juror on the list. If the statute vested any discretion in the officer, the rule is different. In the language of Ejiott, J., in The People v. The Contracting Board ( 27 N. Y., 378 ), there must be a clear legal right not merely to a decision, but to the thing itself.

There is, also, another principle applicable to this writ—that it issues where the party has no other remedy. There could be no other remedy to the relator but to bring a certiorari and review the proceedings of the commissioner in that form of proceeding. That his acts are subject to review in one or the other mode, there can be no doubt. It never was' the intent of the law to leave this officer at liberty to exercise an arbitrary control over those who are to form the list of jurors. The law has particularly enumerated those who are to be placed upon it, and he is bound to comply with those provisions. The objection to a review by certiorari is, that it would bring up the whole record, which he is required to keep, and where such a course would lead'to great inconvenience, the courts have held that the writ of mandamus might be resorted to. This rule is stated by Mitchell, J., in Adriance v. The Supervisors ( 12 How. Pr., 226 ), where he says, “ The general principle may be stated, that where a specific duty is imposed on public officers by statute, and they do not conform to the statute, and the omission to perform affects a particular party only, and not the whole list, a mandamus will issue.”

Mor is this remedy to be withheld because the relator might have an action for damages, Judge Mitchell, in the last cited case, says, “ It is better for the public that the specific remedy 'be applied to removing the wrong directly, that to have actions for damages, in which the officer may be punished, although he

p. 206

erred only in judgment.” So, in The People v. The Mayor, &c. ( 10 Wend., 393 ), it is said that where a specific duty was imposed hy statute on a public officer he may be compelled to execute it by mandamus, although an action for damages might also lie. In the case of The People v. Miner ( 37 Barb., 466 ), the writ issued to the register to compel the satisfaction, of a mortgage, although in that case he had to decide upon the sufficiency of the satisfaction piece, and Selden, J., in The People v. The Contracting Board (supra), says: “ There are many questions requiring the decision of ministerial officers which involve, to some extent, the exercise of legal discrimination in their solution, but which are not regarded as judicial questions, and consequently the decision of them is not conclusive in collateral proceedings.”

My conclusion is that the writ may issue'to,this officer.

The list in which the relator’s name is inserted has ceased to he of any importance, as the period of time for which it was to be in force has expired. There is no propriety therefore now in issuing the mandamus, and nothing can be done except to reverse the order of the special term as to the power of issuing this writ in this case.

Order reversed.

Footnotes

* Present, Ingraham, P. J., and Leonard and Barnard, JJ.