People ex rel. Krulish v. Fornes

The relator and the respondent Chambers were candidates for the office of alderman from the twenty eighth district of the city of 27ew York at the general election held in November, 1901. On the face of the returns of the election inspectors Chambers appeared to have been elected by a plurality of sixteen. On an application made to the Supreme Court, Mr. Justice Leventritt, on an examination of the void and protested ballots contained in the envelopes, rejected twenty-three as void, and directed the board of county canvassers to reduce the apparent plurality to eight votes. Subsequently the relator tiled a protest with the board of aider-men chosen at said general election, claiming that he instead of Chambers was elected as a member of that body. The pro

It appears from the opinion rendered that the learned Appellate Division construed the provision of section 27 of the charter of the city of Hew York, “ The board of aider-men •* * * shall be the judge of the election returns and qualifications of its members, subject, however, to review by certiorari before any court of competent jurisdiction ” as limiting the board to an examination of the election returns and not authorizing an inquiry of who, in fact, was legally elected. This result is reached by treating the word “ election” adjectively as qualifying returns, a use claimed to be justified by the absence of any comma between the two words. We think this construction is wholly inadmissible. The provision that a legislative body shall be “ the judge of the election returns and qualifications of its members” is of such general enactment in constitutions and statutes in this country that its construction does not fairly admit of dispute. It is found in the Federal Constitution, in that of this state and in those of at least twelve other states, not only in the very same words but in the same sequence of words, “the election(s) returns and qualifications” of its members. In about one-half of these cases the word is in the singular, “ election,” and in about the same number there is no punctuation mark between the words “election” and “returns.” Under this authority each house of Congress and each branch of the state legislature has exercised the most plenary power to determine who has been elected members of the body. Indeed, it has been generally assumed by publicists and writers on constitutional law that the absolute right of determining the election of its members is a power ñecessary to the independence of the legis

We appreciate the argument of the learned court below that since full and adequate machinery is now provided for the speedy review of errors of inspectors of election in counting or rejecting ballots, it is not necessary or wise that the board of aldermen should go behind the election returns. The argument would seem, however, to prove that the whole authority to determine the election returns of its members, whether we construe that as meaning election and returns or election-returns is no longer necessary, a proposition we are

Though we differ from the learned Appellate Division in its construction of the charter we think that the record before us presents no question of law for our review. We did not hold in City of Niagara Falls v. N. Y. C. & H. R. R. R. Co. ( 168 N. Y. 610 ) and in People ex rel. Sands v. Feitner ( 173 N. Y. 647 ) that this court is prohibited by the Constitution and the statute from reviewing a unanimous affirmance by the Appellate Division of the findings of either ministerial tribunals or quasi legislative bodies. Nevertheless with controverted questions of fact we cannot deal. Presumptively the determination of who has received a plurality of votes and has been elected to an office presents an issue of fact or, at least, may present an issue of fact. It may be that in some election controversies there is no dispute as to the facts and that the case turns wholly upon questions of law. In such cases, and in those in which, though depending partly on issues of fact, errors of law are complained of, in order for this court to review the decision the question of law must be presented in such form that we may clearly see what disposition was made of it in the court below and how it affected the result reached. In People ex rel. Feeny v. Board of Canvassers ( 156 N. Y. 36 ) it was held that whether a ballot was so marked as to he void presented a question of law to be determined on the face of the ballot, and to that decision we adhere. But the difficulty in the present case is that the return does not show what the action of the board of aldermen or of the minority of its. committee, whose report it adopted, was on specific ballots. The relator seeks to supply this defect by statements in his petition for the writ that certain ballots were conceded by both parties to be valid and"

I agree with Judge Cullen that there is no question presented by the record in this case that is open for review in this court, and hence the order should be affirmed. The functions of this court end when that conclusion is reached, and I am not in favor of dealing with an important question of statutory construction in a case in which we all agree that no questions are presented for the decision of this court. Whatever construction is given to the statute it cannot affect the decision of this court, and hence anything we may say about it might very well be considered as obiter.

.The controversy involved only the question whether the relator or the defendant was elected to the office of alderman. That general question was one of fact and it was passed upon by the election officers at the polls, whose duty it was to count the votes, by the board of county canvassers whose duty it was to canvass the returns, by the board of aldermen whose

If, under such circumstances, it is thought to be necessary or proper to deal with the section of the charter referred to (§ 27), then I can only say that I do not concur in the construction given to it in the opinion, since I think the learned court below was clearly right in holding that no judicial power was conferred upon the board of aldermen by that section. Fly reasons for this conclusion can be very briefly stated. It is admitted that when the section was made a part of the charter the punctuation was changed by dropping out the comma after the word election. Punctuation, or those marks which for ages have been in common use to divide writings into sentences and sentences into clauses, is what gives virility, point and meaning to all written composition. It is a part of every statute and so this court has held. (Tyrrell v. Mayor, etc., of N. Y., 159 N. Y. 239 .) A change in punctuation is frequently as material and significant as a change-in words. It is related of an eminent member of the British House of Commons that once in the heat of debate he called one of his-fellow members a scoundrel. This was held unparliamentary language and the speaker, or perhaps the house, ruled that the offending member must apologize and the latter submitted to the decision and tendered the apology in these words, without punctuation : “ I called the honorable gentleman a scoundrel it is true and 1 am sorry for it.” It is plain that this sentence might convey either one of two meanings, one utterly the reverse of the other, depending entirely upon

The words of section twenty-seven are found in constitutions and statutes, but they do not always mean the same thing, since the meaning which is given to them in the Constitution would be wholly unsuitable and inapplicable in a municipal charter. (People ex rel. Hatzel v. Hall, 80 N. Y. 117 .) The city charter was framed by a commission of experts ■composed of eminent lawyers and citizens. The members of that commission knew the meaning of words and the value of punctuation and they deliberately dropped out or removed the comma in order, as I assume, to change the meaning. 'The work of the commission was adopted by the legislature •and the section was enacted without the comma, as the commission had framed it. It is, therefore, a very reasonable con■clusion to hold that the commission and the legislature intended by such an important and material change in the composition to express the idea that the board of aldermen was not to be the judge of the election but of the election returns of its own members. Under the Constitution the legislature possesses •all the powers in regard to the election of its members that a •court jiossesses in an action in the nature of a quo warranto. It possesses judicial powers in the broadest sense, but it was not intended that such powers should be exercised by the board of ■aldermen, and, hence, the punctuation was changed in order to accomplish that intention. If the same judicial powers were intended to be conferred by this section upon the board of aldermen as the courts and the legislature possessed, then it would follow that the board of aldermen, divided into hostile ■camps upon a question involving the right of a person to sit in that body, could institute a judicial inquiry by calling wit

It is very much more reasonable to assume that what was intended by this section, as changed in the punctuation, was to confer upon the board of aldermen the power to determine which of the contesting parties had been elected according to the statements appearing upon the face of the returns. That is the power that is exercised by boards of supervisors when acting as a board of canvassers. It is not quite correct to say that the aldermen would have no question to decide upon an inspection of the returns. It might have, as boards of supervisors frequently have, questions of importance to decide. In the first place, the regularity of the returns. In the second place, it frequently happens and might have happened in this case that the returns would show a certain number of votes cast for “ Patrick Chambers,” some votes for “ Chambers ” merely and still other votes for “ Pat Chambers ” or “ P. Chambers,” and so on, the same condition of things existing in regard to the opposinguan didate. In such a case the board of aldermen had the power to decide, subject to review by the courts, whether such imperfect votes should be counted for the proper candidate, although the ministerial bodies that had acte'd before might have rejected such votes and refused to count them. Other errors or omissions could be sus-irested which the aldermen would have power to deal with upon the face of the returns, but that it was intended that they should possess all the powers of a court on a trial of a quo warranto or the powers of the legislature -when acting under the Constitution, seems to me to be utterly inadmissible. This view

Parker, Ch. J., Bartlett, Haight and Werner, JJ., concur with Cullen, J. Vann, J., concurs with O’Brien, J.

Order affirmed, with costs.