People ex rel. Corscadden v. Howe

By chapter 261 of the Laws of 1885 the management and care of the Albany penitentiary were vested in a:, board constituted by that act and known as the Albany penitentiary commission. By an amendment in 1895 (Chap. 761) it was enacted that said penitentiary commission (the constitution of which was changed by said amended act) should within fifteen days from June 10, 1895, and each five years thereafter, appoint for a period of five years a superintendent or principal keeper of said penitentiary at an annual salary of three thousand dollars. Hnder these statutory provisions John E. Corscadden, the relator in the mandamus proceeding, and plaintiff in the equity action, the subjects of these appeals, was, in November, 1900, appointed superintendent of the penitentiary for the term of five years. In 1902 a statute

It will be convenient to dispose of the mandamus proceeding first, as the issue presented by that proceeding is very narrow and sharply defined. The relator has continued in possession of the office and the salary has not been paid to any other claimant. The relator being thus an officer defacto the appellant, the county treasurer, would have been protected in paying the salary to him. At the same time the relator could not compel such payment unless he established that he held the office de jure as well as defacto. (Dolan v. Mayor, etc., of N. Y., 68 N. Y. 274 .) Therefore, the sole question presented by the appeal in this proceeding is the validity of the provision of the act of 1902, winch authorized the penitentiary commissioners to discharge the relator- and turn the

Having determined that the attempted removal of Mr. Corscadden from his office of superintendent of the penitentiary was illegal, the only question which remains to be decided in the injunction action is whether such an action can be maintained. We are of opinion that it cannot. As early as the case of Tappan v. Gray (9 Paige, 507) it was held by the chancellor that the Court of Chancery had no jurisdiction to enjoin at the suit'of the incumbent of an office the intrusion of a hostile' claimant illegally appointed to the office. This decision was unanimously affirmed by the Court of Errors ( 7 Hill, 259 ). In Matter of Sawyer ( 124 U. S. 200 ) the Supreme Court of the United States held that an injunction granted by the Circuit Court of the United States to restrain the mayor and common council of the city of Lincoln from removing a police judge was absolutely void, and discharged on habeas corpus the defendants who had been committed for violating the injunction. This decision proceeded as appears by an opinion of a majority of the court, not on the ground that a Federal court could not interfere with the appointment and removal of officers of a municipality created by .the state, but on the broader ground that a court of equity had no jurisdiction to restrain the removal of a public officer, and the first authority cited to sustain that position was the decision of the courts of this state in Tappan v. Gray. The same principle was again declared in White v. Berry ( 171 U. S. 366 ) where it was held that a court of equity has no jurisdiction over the appointment and removal of public officers, and that the

Indeed, the principle that a court of equity will not entertain jurisdiction over contests to public office has been so fully recognized in this state that there seems to be no direct authority in this court on the question, though several instructive cases may be found.' In People v. Albany & Susquehanna Railroad Company ( 57 N. Y. 161 ) it was said: “ Elections to office, whether public or corporate, were never in England nor in this State up to the date of the Code, matters of equitable consideration. They depended only on legal inquiries and legal principles, and no instance can be found in which title to office has been dealt with by the courts on any other basis.” A few cases in which this rule has been recognized rather than expressly decided may be referred to. In People ex rel. Wren v. Goetting, Police Justice ( 133 N. Y. 569 ) the relator sought a mandamus to compel the defend, ant to recognize him as clerk of the court, claiming that because he was a veteran his removal was illegal. A successor

The authorities on which the learned counsel for the respondent relies for the support of this action are not applicable. Rat hbone v. Wirth ( 150 N. Y. 459 ) was a taxpayer’s action brought under the statute. On a motion to continue a preliminary injunction the defendants challenged the right of the plaintiff to maintain ' the suit. The objection was overruled, but the learned judge who heard the application (now

A full review of the decisions in the other states on the right of a court of equity to intervene in the contest for public office is found in Matter of Sawyer (supra), from which it appears that at least originally there was universal concurrence in the doctrine of the courts of this state. Of late the Pennsylvania courts seem to have departed to some extent from the earlier decisions. This course appears to have been dictated by a consideration of the embarrassment which might occur from a contest over a public office between rival claimants, each asserting that he was in possession thereof. This consideration seems also to have largely influenced the court below in the decision of this case. Whatever force there may be in it, we do not think it justifies an extension of equity jurisdiction on the subject. If ever public convenience would have authorized the intervention of equity in a controversy beyond its cognizance, that controversyr was the one passed on by this court in People v. Albany & Susquehanna Railroad Company, where “ a war of in junctions ” had caused in a part of the state no small degree of public disorder. Yet, the court there held that no case of equitable cognizance was presented. We appreciate, the inconvenience and confusion that may arise from disputes over public office and we have

The judgment appealed from should be reversed and the complaint dismissed, without costs.

(dissenting). There is one proposition, the basic one in this controversy, about which we are agreed — every member of this court, every member of the Appellate Division, and the judge at Special Term — and that is, that the statute under which the Albany penitentiary commission have undertaken to remove plaintiff is absolutely void. All agree that it offends against the Constitution of this state, and some assert in more than one respect. Hence the legislature had not any power to pass it, and — although they d'id in form enact it — as the Constitution prohibits it, the result is precisely as if the act was not passed. It accomplishes

The majority opinion — which sustains the decisions below, in a mandamus proceeding, in compelling the county treasurer to pay plaintiff his salary as superintendent of the Albany penitentiary — concedes that the action of the commission in notifying plaintiff that on March 1, 1903, they would remove him from office, and put the sheriff of the county in possession, as the statute was intended to authorize, does not affect plaintiff’s right to the salary so long as he was actually in office after that date. Why ? Because the statute purporting to authorize the action of the commission is void, and, therefore, without support, and the situation is precisely the same as if nothing had been done.

¡Notwithstanding the invalidity of the statute, the Albany penitentiary commission proposed to oust plaintiff. This is demonstrated first, by their attempt to remove plaintiff, and put the sheriff in possession; second, by the fact that after an adjudication by both Special Term and Appellate Division that the statute is wholly void, and confers no authority whatever upon the commission, they have appealed to this court urging that — no matter if they were proceeding under a void statute — equity could not check them; third, by their demurrer to the complaint, by which they necessarily admit the allegations of the complaint that it is their purpose without authority of law, and in violation of law, to deprive Oorscadden of the honor of his position, the salary of his office, and a home and support for himself and his family for a fixed term of years.

The question about which we differ is whether a court of equity is powerless to prevent this wrong. ¡No one but the Albany penitentiary commission and their counsel pretends that it ought not be prevented. Certainly no judge who has heard the case has been willing to make any such assertion. But some of them do say that — although this Albany penitentiary commission has not any authority whatever to put

No situation precisely like this has ever before been presented to the courts of this state, and hence it is the first time that equity has had a chance to assert her power. A situation analogous in most respects to the one presented by this record was before the court in Rathbone v. Wirth ( 150 N. Y. 459 ). An unconstitutional statute purported to authorize the appointment of officials and a suit in equity was brought to restrain action by municipal officers under that statute. The suit in that case, however, was brought by a taxpayer, instead of by a person directly interested. Otherwise, it will be observed, that the situations are, in all material respects, analogous. It was objected in that case at Special Term that a taxpayer could not maintain such an action, and while the court conceded that a taxpayer could not have maintained such an action prior to the taxpayer’s statute of 1872 as amended in 1881, it was held that since the latter amendment a taxpayer could maintain it. And the judgment declared the statute void, and restrained the municipal authorities from acting under it, and the judgment was finally sustained in this court.

That case is authority for the proposition that if some Albanian, as taxpayer, had brought this action, he could have maintained it. This plaintiff’s interest is even greater than that of a taxpayer, and equity should afford relief to him as it would to a taxpayer. And it should be diligent in discovering the way to do it, inasmuch as the ends of justice would be attained by such a result. Indeed, justice to this plaintiff can only be attained by affirming the judgment in this action. We are commanded to assume from the pleadings that plaintiff has no adequate remedy at law, and such is the fact. In such case equity seeks to lend its aid, and will only be deterred from it when the result either violates some established principle of equity or will create a bad precedent.

We now come to the point of division in this court, as to

Those cases, however, and the principle established by them, have no application to this case. It is not pretended that any one of them presents a situation like the case before us. , They relate to contests between rival claimants for the same office. This case, however, does not involve the title to office in any such sense. Plaintiff is in office and entitled to draw his salary, as the majority opinion asserts, not only because he is in possession of the office, but also because he has the right to it. There is no claimant contesting the office with him, no man possessed of even a shadow of a claim of right to that office. And so we held in affirming the mandamus proceeding requiring the county treasurer to pay plaintiff’s salary. And that being so, how can it be said that the title to office is involved % If there was a claimant to this office, having some semblance of authority for his claim, then these authorities would apply; but, as we have seen, there is no such claimant. Instead, there are certain commissioners of the Albany penitentiary who — as we must assume from the demurrer to this complaint — attempted to oust plaintiff from his office without authority of law. That which they have undertaken to do, and, as we must assume, will do — notwithstanding the unanimous agreement of all the judges in all the courts in which this case has been, that they have no authority for it — is to oust plaintiff from his residence, deprive his family of support promised him under lawful authority, and take away from him his salary. The situation is precisely as it would be if the board of supervisors should by resolution declare the office vacant, appoint a successor, and then proceed in a body to the penitentiary to eject the

Assuming, however, for the purpose of the argument only, that equity will treat this void statute with such respect as to refuse to affirm a judgment of a court of equity founded on the invalidity of the statute until a court of law has declared it void -— then we should affirm, because, as a court of law, and in the mandamus proceeding, we have declared this statute to be void. We have decided in a common-law proceeding that this statute is null and void, and hence that under it there can never be developed even the shadow of a claim of title to the office held by this plaintiff. Can we justify a decision handed down on the same day, but on the equity side of the court, holding that plaintiff’s title to office is involved by reason of such void statute ?

The. judgments of the courts below, in the rendition of which they have been unanimous, should be affirmed.

In first case, Bartlett, Martin and Vann, JJ., and Parker, Ch. J., O’Brien and Werner, JJ., in result, concur with Cullen, J., for affirmance of order, with costs.

In second case, Bartlett, Martin and Vann, JJ., concur with Cullen, J., for reversal of judgment and dismissal of complaint; dissenting opinion by Parker, Ch. J., with which O’Brien and Werner, JJ., concur. •

Ordered accordingly.