People ex rel. Sherwood v. State Board of Canvassers

In 1891 the legislature passed the act, chapter 308, entitled “An act to authorize the selection, location and acquiring of certain grounds for a public park in and near the city of Hornellsville, and to provide for the maintenance and embellishment thereof.” That act provides for the appointment of a board of park commissioners, to consist of six persons; and in the month of May the relator, Franklin D. Sherwood, was duly appointed one of such commissioners. He duly qualified by taking the official oath and giving the official bond therein required, and has ever since acted as such commissioner. At the last election he became a candidate for senator in the twenty-seventh senatorial district of the state and he claims to have received a majority of the votes cast for senator in that district, and that he was eligible to the office, notwithstanding the provision of section 8 of article 3 of the Constitution, which provides that “ no person shall be eligible to the legislature who, at the time of his election is, or within one hundred days previous thereto, has been, a member of congress, a civil or military officer under the Hnited States, or an officer under any city government. And if any person shall, after his election as a member of the legislature, be elected to congress or be appointed to any office, civil or military, under the government of the Hnited States, or under any city government, his. acceptance thereof shall vacate his. seat.” The appellants claim that he was ineligible under this constitutional provision, and whether he was or not is the important question now to be-

There can be no doubt, it seems to me, that the relator holds •a public office. He was required to discharge duties, not for his own benefit, not for the benefit of private individuals, but for the public. He was required to take the constitutional oath of office and to give a bond for the faithful discharge of his duties, and he and his associates were clothed with the power of eminent domain. That under such circumstances he was a public officer has never been questioned any where, so faf as I can find. (The case of Daniel Wood, 2 Cow. 29 ; People v. Comptroller, 20 Wend. 598 ; People ex rel. v. Nostrand, 46 N. Y. 381 ; People ex rel. v. Common Council, 17 id. 503 ; Rowland v. Mayor, etc., 83 id. 376.)

Being a public officer, it is next to be determined whether he was an officer under the city government, within the meaning of the Constitution. The act provides in section 1, that there shall be “ in and for the city of Hornellsville,” a board ■of park commissioners, to consist of six competent persons. The board is thus constituted for the city; and the act further provides that the members thereof shall be appointed by the mayor of the city, by and with the consent of three-fourths of the members of the common council; and the mayor may suspend and may also remove any member of the board by and with the approval of the common council. It is further provided that no person who holds “ any other city office,” shall hold the office of park commissioner, and that upon the 'appointment of a park commissioner to “ any other city office,” his office of park commissioner shall be vacated. Every park ■commissioner is required to give a bond to the city for the faithful discharge of his duties, which is to be approved by the mayor, and the official oath and bond are to be filed with

It seems to me too clear for dispute, in view of these provisions, that the park commissioners are officers under the city government. They hold their offices by appointment of the city government and, therefore, under the city government. All their duties relate to its interests and welfare, and they are actually set in motion by a vote of the taxpayers of the city. They are certainly not state officers, and if they are not city officers, what are they ? I believe it was never doubted that the park commissioners of the city of New York and of the city of Brooklyn, are city officers of those cities; and so, we held as to the park commissioners of the former city in Ehrgott v. Mayor, etc. ( 96 N. Y. 274 ). Would anyone seriously contend that a New York or Brooklyn park commissioner would be eligible, under the Constitution, to the legislature 2 There could be no reason for holding one of them eligible,

It is no answer to these views that the powers and duties of these commissioners are regulated by law, and thus that they do not act under the direction or control of the city government or any of its officers, and that, therefore, they are, in a certain sense, independent officers. This is generally true of all public officers, from the mayor of a city to the supervisor of a town and through all the grades to a town constable. Their powers and duties are regulated by law. The route in which they shall travel is prescribed by law, and unless they are specially subjected to the control of a superior officer, they act independently, subject to no control except the rules of law and the commands and judgments of the courts. And nevertheless the mayor of a city is a city officer and the supervisor and; constable of a town are town officers. Because the duties of municipal officers are regulated by statute, the municipality of which they are officers is not responsible for their misfeasance or nonfeasance, except in cases where they act as the agents of - the municipality in the discharge of duties imposed by law upon it. And so we held in Maxmilian v. Mayor, etc. ( 62 N. Y. 160 ), and Ham v. Mayor, etc. ( 70 N. Y. 459 ). Although the officers mentioned in 'those cases were undoubtedly officers under the city government, the city was held not to be responsible for the misfeasance of their subordinates, because the doctrine of respondeat superior did not apply to those cases. In them the court followed the case of Lorillard v. Town of Monroe ( 11 N. Y. 392 ), where it was held that the assessors and collector are not in a legal sense the agents-of a town in its corporate capacity in the assessment and. collection of taxes, and the town is not responsible for any mistake or misfeasance. by them in the performance of their duties, and yet assessors and collectors are town officers and are so described in the ¡Revised Statutes.

It certainly .cannot be doubted that the legislature was competent to make these park commissioners city officers, and

Here the legislative intention is manifested by the circumstance which must usually be controlling, that the commis-. sioners are required to be appointed by the mayor and common council, and by the provision in the act that no person holding “ any other city office ” shall be eligible to the office of park commissioner, and that if a park commissioner be “ elected or appointed to any other city office,” his position as park commissioner shall thereby become vacant. It is of course possible that park commissioners could be so constituted by the legislature as' not to become city officers, but such is plainly not the effect of this act.

So we reach the conclusion that the relator was not eligible under the Constitution to the senate. The term eligible relates to the capacity of holding, as well as to the capacity of being elected to the office. (Carson v. McPhetridge, 15 Ind. 327 .) Therefore, he could not be elected to or hold the office of senator. He violated the constitutional provision in seeking the votes of the electors, and they violated it in voting for him. As matter of constitutional law, any certificate the appellants could issue to him would be an absolute nullity, and the only use he could make of it would be to violate the Constitution and do a wrong by intrusion into an office which he has no right for one moment to hold.

So we come to the important question underlying this case, ought the court to grant a mandamus to compel the issuing of a certificate of election to one who has no right under the Constitution to the office? Can the relator come into a court of law and ask its aid in his violation of the Constitution and his proposed intrusion into the office of senator ? Suppose he came into court a confessed alien or non-resident of the state, would the court, looking merely at the duty of the state canvassers under the law, stretch out its strong arm to help him ? Well-established principles of law and a strong current of authority require these questions to be answered in the negative.

In Peters v. Board of State Canvassers (17 Kansas, 365), it was held that a mandamus would not he issued against the board of state canvassers to compel it to canvass the votes, and to issue to the relator a certificate of election where he had been elected a judge at a time when no election could properly be held. (See also Rose v. County Commissioners, 50 Me. 243 ; Sherburne v. Horn, 45 Mich. 160 , and State ex rel. v. Whittemore, 11 Neb. 175 .)

In State ex rel. Ensworth v. Albin ( 44 Mo. 346 ), an election for judge was held which, was not preceded by a registration of voters as required by law, and it was held that the election was invalid, and that the court would not by mandamus compel the County Court to issue a commission to a judge who claimed to be elected, although the functions of the County Court were purely ministerial. The court said: “ This court will not issue a peremptory writ of mandamus unless the relator shows that he has a good title or a perfect right to the remedy he demands. He can derive no right from an illegal or invalid election.”

In State v. Mitchell (23 Kansas, 324), it appeared that at an election held in the county of Harper for county officers and for the location of the county seat, the returns made to the canvassing board showed a vote of 2,947, while there were in

In State ex rel. Snyder v. Newman ( 91 Mo. 445 ), the relator was a candidate for mayor of Pierce City at the April election of 1886, and the respondents were the aldermen of that city. An ordinance of the city made it the duty of the aldermen, on a designated day after each election to canvass the returns, to determine who had been elected to the various offices, and to direct the clerk to issue certificates of election to the persons declared elected. In that case the aldermen determined that the relator had received the highest number of votes, but declined to direct the clerk to issue a certificate of election to him, and he sought by the writ of mandamus to compel them to do so. The law declared that no person should be mayor of a city of the fourth class unless he was an inhabitant of the city for one year next before the election. On the pleadings it was admitted that the relator did not possess that qualification, and the court said: “A peremptory writ of mandamus will not be issued unless the relator shows a clear right to the remedy which he asks. The election of a person to an office, who does not possess the requisite qualifications, gives him no right to hold the office. As, by reason of his disqualifications, the relator was not entitled to hold the office, surely he has no right, at the hand of the court, to be armed with a certificate of election — evidence of title to that to which he has no right.” And the writ of mandamus was denied.

Inspectors of election are mere ministerial officers, and if an

But it is claimed that we have no jurisdiction to determine that the relator was ineligible to the office of senator, because the Constitution, in section 10 of article 3, jn’ovides that each house of the legislature “ shall be the judge of the elections, returns, and qualifications of its own members.” The courts cannot interfere with this jurisdiction of the senate. Whatever may be determined here or elsewhere as to the election or qualification of the relator, or the result of the election in the 27th senatorial district, when the senate convenes, and not until then, it will have absolute jurisdiction of the whole subject, and may determine which of the two persons claiming

We would have substantially the same question before us if some elector in the 27th senatorial district had been the relator in this case instead of Sherwood. The same line of reasoning which I have used would answer his application for a mandamus.

This cannot be treated as in any sense a proceeding on behalf of the people. Hor can it by amendment be turned into such a proceeding. A writ of mandamus on behalf of the people in their sot'ereign capacity can be awarded only upon the application of the attorney-general, or some district attorney, and the indorsement upon the Avrit must show that it was issued upon such application. (Code, § 1993.) And in such a case the name of no person need appear as relator in the proceeding. Here the writ was awarded upon the application of Sherwood, a private person, and he appears as relator. (Code, § 1994.) In such a case the proceeding is purely one to enforce a civil remedy and the people are present merely as a formal party and their presence is due to the survival of a form which has long since ceased to have any significance or utility. The real party in interest is the relator in such a case, and if he should die the proceeding would abate. (High’s Extraordinary Legal Bemedies, §§ 430 et seq.) We need not, therefore, now determine what this

.We agree that the board of state canvassers act ministerially, and that they have no power or jurisdiction to go outside of the returns of the county canvassers or to institute an inquiry as to the eligibility of the candidates who were voted for by the electors. The question of eligibility is to be answered by reference to the law as well as the facts, and very wisely, as I think, they are not clothed with authority to determine that question. Much less have they authority to determine whether the minority candidate was elected. In the solution of that question is involved not only the eligibility of the majority candidate, but the further question whether the voters voted for him knowing of his ineligibility within the rules laid down in People ex rel. v. Clute ( 50 N. Y. 451 ).

Hone of the' officers clothed with the duty -to canvass votes derive any power in a case like this to pass upon the eligibility of candidates and to disregard votes cast for an ineligible candidate from the following provision of section 21 of the Ballot Law of 1890 : “ Whenever a candidate for any office, whose name is printed on the official ballot, shall have died, shall be or become ineligible, or shall have withdrawn before election day, voters may use unofficial .ballots in voting to fill the office] for which such deceased, ineligible or withdrawn candidate was nominated, and the name of the deceased, ineligible or withdrawn candidate shall be considered as having been erased from the official ballot; but such unofficial ballot shall contain only the name of the person voted for, in lieu of the deceased, ineligible or withdrawn candidate, and under the designation of the office for which such person is a candidate.” That provision was intended merely to enable voters, in the cases mentioned, to vote unofficial ballots, and it is only in case some candidate is voted for by an unofficial ballot that the name of the candidate on the official ballot is to be considered as having been erased. Here there

Nor does the board of state canvassers obtain power to make inquiry as to the elegibilit.y of the relator by virtue of the following provision in section 843 of the Code: “ Where an officer, person, board or committee to whom or to which application is made to do an act in an official capacity, requires information or proof to enable him or it to decide upon the propriety of doing the act, he or it may receive an affidavit for that purpose.” As the state canvassers have no jurisdiction to inquire as to the eligibility of the relator, they can have no official act to perform in reference thereto, and they can require no information or proof to enable them to enter upon that inquiry. If they are confined, as we hold they are, to canvassing the returns and in the discharge of that duty to what lawfully appears in or upon the returns, then .they can have no need of proof which will enable them to go back of or outside of the returns. I can imagine cases in which this provision would have application to the state board of canvassers, one of which is, where it is claimed that the returns are spurious, or forged, or have been altered, and in that case they might take proof by affidavit to inform themselves as to the facts.

While, therefore, the state canvassers were bound to canvass the returns from the 27th senatorial district and to declare the result in compliance with the law, yet for reasons which we have given, the court will not aid the relator. The action or non-action of the canvassers may be an obstacle in his way, but the court will not by mandamus in' a case like this, where the facts showing his ineligibility are undisputed, assist him in removing the obstacle. He and his competitor may both present their cases to the senate without either of them having a certificate of election, and that body will have jurisdiction to determine all the questions of fact and law involved in the matter. If it shall agree with this court that the relator was ineligible and also find that his competitor was not elected, the result will be that a new election will have to be ordered in that district, and the electors there can then choose a person

It is quite true that a majority of the electors in the 27th senatorial district have, through the ballot-box, expressed their will that the relator should represent them in the senate, and it is unfortunate that that will should for the present be defeated. But under our system of government, founded upon the majority rule, majorities must express their preferences in the form prescribed by the Constitution and the laws. It is better that an election of a senator should fail than that the Constitution or laws should be nullified or violated. In Gulick v. New ( 14 Ind. 93 ), it was well said: “We are reminded that in our form of government, the majority should rule, and that if the course indicated is not followed, a 3najoi'ity of the voters may be disfranchised, their voice disregarded and their rights trampled under foot, and the voice of a minority listened to. True, by the Constitution and laws of this state, the voice of a 3iiajority controls our elections. But that voice must be constitutionally and legally expressed. Even a majority should not 3iullify a provision of the Constition, or be permitted, at will, to disregard the law. In this is the strength and beauty of our institutions.” In the same case it was held that where one of the candidates was ineligible, and that was known to the electors, or the facts were such that they were bound to know it, votes cast for him would be ineffectual, and would have to be disregarded, and the candidate receiving a majoiity of the legal votes declared elected.

Our conclusion, therefore, is that the orders of the General and Special Terms should be revei’sed, and "the application for a mandamus denied. . ,

(dissenting). I agree entirely that the board of state canvassers have only ministerial and not judicial powers; that their sole duty is to make certain computations from the figures of the county canvassers, returned to them for that purpose according to law, and having made them to declare the result by the proper certificates; that in the performance of this duty they are not at liberty to consider or act upon any extraneous papers or information beyond that contained in the canvasses themselves, considered and treated wholly as such; and that no question beyond the result of the figures can lawfully receive their attention or solution. To this extent, as I understand it, we are all agreed, and there exists among us no difference of opinion. And so we may regard the proposition stated as fully and definitely settled, in accordance with the unvarying current of authority, and the usage which has been uniform and without a break. It secures for us, at least, so much of solid ground upon which we can all stand in harmony and concord and without any distressing diversities of opinion.

As we apply that doctrine in the case of Sherwood, the inevitable result is that the state board are required to count the votes in his district, to ascertain who has received the plurality of such votes, and to give to that individual a due certificate of the fact ascertained. That is all which Sherwood has at any time asked. Our decision entitles him to his relief even though his mandamus be quashed; for it is not to be assumed that the state canvassers will violate the settled law of the state as expounded to them by its court of last resort. Indeed they themselves, in and by the terms of the stipulation upon which all these cases have been heard, have promised and agreed to act in accordance with the conclusions of the court. We have interpreted the law for them; we have declared that whether Sherwood was or was not eligible is a subject with which they have no concern, a question which they cannot consider, and which, however decided, can have no influence or effect upon the one distinct and definite duty which they have to perform. They are men of character and reputation, and it is not to be imagined that the strong and

The question, therefore, whether the present writ should be sustained or quashed is, in and of itself, not very important. If the immediate result to the relator was alone to be considered the discussion might end here. • I think it should have ended here: but the technical question of the continuance and operation of the writ has been used to put upon us the abstract question of Sherwood’s eligibility, and serve as a justification for a judicial expression of opinion on that subject. What just or useful purpose may be thus subserved I have been unable to discover. Whatever we may think or say about it cannot alter or affect the purely ministerial duty which the state canvassers must perform. Hor can our opinion have any legitimate effect upon the ultimate determination of the question by the senate. As to them it may possibly be regarded as an interference with their duty and an attempt to hamper their independent action. That body may very easily construe our judgment as an invasion of their jurisdiction, an unwarrantable trespass upon a co-ordinate branch of the government, and it would not be strange if they should repel it with indignation, and while not rudely bidding us to keep to our jurisdiction, should find some polite paraphrase to convey that idea. I am afraid we should deserve the rebuke for three reasons, which I shall seek to develop and explain: and these are that the question of Sherwood’s eligibility is immaterial to the relief asked; that it furnishes no answer to or defense against the writ; and that we have no jurisdiction to determine the question in any event.

The ground upon which the majority proceed is said to be that the relator, on an application for a mandamus, must show a clear legal right to the relief which he seeks; that this relator to establish such right must show that he was duly elected to the office of senator; that he did not and could not do that because he was ineligible; and so the writ ought not to have been issued. How, is it a sound method of judi

I think it possible to uncover what I deem the fallacy of the prevailing opinion in another way. Let us suppose that there has been a very close election, so close that it turns on a question how two or three ballots are to be treated, and the state <canvassers refuse to count. One of the candidates applies, as Sherwood did, for a mandamus to compel their performance of that duty. This court says to him — no: we will not order ¡a count until you satisfy us that you have been duly elected to ±he office which we see you are trying to obtain. Could anything be more unreasonable or absurd ? Does not the illustration demonstrate that the candidate who seeks to compel a (Count need not show that he was elected at all in order to ■entitle him to the precise measure of relief which Sherwood has asked in this case ? It is of no consequence whether the latter has or has not been duly elected, so far as the present ¡application is concerned ; and the issue thrust upon the court is wholly immaterial, and only made to seem material by substituting for one step in a process its complete and ultimate result. If it be objected to my illustration that I put a case in which it was possible that the relator might have been duly ■elected, while here there was no such possibility, I answer that' the objection begs the question. It is possible that Sherwood was duly elected. Neither this court nor any other can forestall the judgment of the senate. We do ourselves honor overmuch when we assume to act as prophets for the constitutional tribunal, and to handicap the rights of the relator before that body.

It was jirecisely such a state of affairs as that which I have ■-described which this court had in view in People ex rel. Freer v. Canal Appraisers ( 73 N. Y. 446 ), where it was said: " When the act, the doing of which is sought to be compelled' by mandamus, is the final thing and if done gives to the relator all that he seeks proximately or ultimately, then the question whether he is entitled to have that done may be inquired into

It follows within the rule established that the relator was not bound to prove what he was not required to assert to entitle himself to the relief which he demanded, and that the issue of his qualification was immaterial.

But that issue is not merely immaterial. Beyond that, it is utterly inadequate and ineffectual as a defense to the mandamus. I decline to express any opinion upon the question whether Sherwood was or was not eligible, for a reason which will later appear, and yet, for the purpose of the argument, I may concede him to be ineligible, and still it may be demonstrated that there is no defense to the writ, and that its command should be affirmed. The whole theory on which this issue is presented is that it destroys the relator’s right to relief. Suppose that it does. But has it also destroyed the right of the people ? They are the real plaintiffs; the relator is only their informant. He is not the plaintiff, except in his character as citizen, as one of the people, the source of all power and authority. They are the plaintiffs; it is the sovereign who> comes to our bar, to this court which it created and can destroy,,

The complication began with the action of the board of ■county canvassers of the county of Steuben. To that body was presented by Charles E. Walker, who was the candidate opposed to Sherwood, and defeated at the polls by a majority of about fifteen hundred, a protest against the issue of any certificate to the latter, accompanied by affidavits showing that, at the date of the election, Sherwood was in fact a park commissioner of the Hornellsville park in said ■county. The county canvassers, on the tenth of November, after making a correct and truthful statement of the votes actually cast, passed a series of resolutions to the effect that they believed Sherwood to be ineligible to the office of senator; that they themselves had no lawful authority to act upon the fact; but that they accompanied their returns with a statement of the proofs presented and of their belief, and that they transmitted copies of the protest and proofs to the state board “for their consideration and for such action thereon as they may deem lawful and proper.” The moving papers show that Charles F. Tabor, attorney-general, and one of the state board, had given an opinion, in 1ns official capacity, before the election that Sherwood was ineligible, and had also declared, so publicly that the

But even as against him there is no defense to the writ. Grant that his right as a candidate for the office of senator is answered, and yet there remains his right as a citizen and elector which is fully set out in and shown by the moving papers, a right which we have just recognized in the Dutchess Co. case, and the right of the people to compel by mandamus the performance of a public duty. In People ex rel. v. Collins ( 19 Wend. 56 ), it was decided that in a matter of public right any citizen of the state may be a relator in an application for a mandamus, and the doctrine was repeated in People ex rel. v. Sup. of Sull. Co. ( 56 N. Y. 253 ); and even more explicit, and 1 think quite decisive, is the case of People ex rel. v. Halsey ( 37 N. Y. 344 ). In that case the relator failed utterly to show any private or personal right to the relief demanded, and the writ was not sued out by the attorney-general, and yet the order of the writ Avas affirmed because it required the performance of a public duty. The court said in ansAver to the objection taken; “ Inasmuch as the people themselves are the plaintiffs in a proceeding by mandamus, it is not of Arital importance avIio the relator should be, so long as he does not officiously intermeddle in a matter with which he has no concern. The office which a relator performs is merely the instituting a proceeding in the name of the people and for the general benefit. The rule, therefore, as it is sometimes stated, that a relator in a writ of

And that brings me to my third proposition that we have no jurisdiction to consider or determine Sherwood’s qualification for office, because that jurisdiction has been explicitly taken away from us, and this court has so deliberately decided. The Constitution provides (art. 3, sec. 10), “ each house shall determine the l^ules of its own proceedings and be the judge of the elections, returns and qualifications of its own members.” The meaning and the force of this provision has been carefully decided by this court. (People ex rel. Hatzel v. Hall, 80 N. Y. 121 .) We there said that “it is conceded by the text writers that each of these houses has the sole power to judge thereof exclusive of every other tribunal,” and we cited 1 Kent, 235; 1 Story on Const. § 833; Cooley Cons. Lim. 133. In further elucidation of the doctrine, we asserted and showed that it rested not merely upon the constitutional language, but upon the exigencies of free institutions, and respect for the independence of legislative bodies, whose authority emanates directly from the people. Kent says “ there is no' other body known to the Constitution to which such a power might be safely trusted.” Coming down to the precise question involved, we said: “ Though the Constitution confers upon specified

The blew Hampshire case was quite peculiar. A law of that state permits an application to the court for an opinion and advice upon legal questions submitted. The legislature made such application. They invoked the existing jurisdiction. The court had authority to receive and act upon the request and to give an answer. But the question put was whether certain senators had been lawfully summoned by the governor and council and properly admitted to their seats. If ever there was an “invocation,” in the exercise of an admitted jurisdiction, to go beyond it, and usurp the rights of another tribunal on the road to an answer, it was this. But the court resisted the temptation and refused to answer, on the ground that they were not at liberty so to do, and added: “If a precedent of interference by one department with the discharge of its duties by another should be established by the form of a judicial decision a dangerous blow would in our judgment be struck at one of the most vital principles of our system of government.”

Undoubtedly there is enough astuteness among us to suggest that these were cases where the legislature had acted. But what of that? If, on the road to a lawful decision, jurisdiction may be transcended at all, it may as well be done by an unlawful review as by an unlawful opinion in advance. I have found no cases to the contrary of those cited. The industry of the deputy attorney-general, ranging over every state in the Union, has found none except those which beg the entire question ; since in every one cited by him, I think there was some existing law authorizing the court to adjudge upon the official title, or the election itself was a nullity, and there was not, as here, a constitutional prohibition against an exercise of the jurisdiction.

And so I deny the asserted doctrine of “ invocation; ” of a “ right to do evil that good may come; ” of excusable judicial usurpation ; and if the doctrine has anywhere got its dangerous and destructive hold upon our law, which I do not believe, it

But here this discussion must end. If what I have said does not convince the majority of the court, nothing that I can say will do so. I have tried faithfully and, I hope, with proper respect, for certainly I have not meant to be wanting in that, to point out the mistake which, it seems to me, they are about to make. Theirs, however, must be both the responsibility and its consequences.

I think the order and judgment should be affirmed.

All concur with Eabl, J., except Finch, J., who reads for affirmance, and Andrews, J., concurring.

Orders reversed.