People ex rel. Kelly v. Common Council

On the 26th day of March, 1869, the relator upon affidavit applied to the Special Term of the Supreme Court for an order that the common council of the

At the foundation of his argument is the assertion that “ a representative in the Congress of the United States is not a public officer.” The statement of this proposition would seem to carry its own refutation, but it has been argued with zeal and apparent confidence and is to be considered. He urges in its support that the Constitution of the United States does not class it among the offices of the government of the United States — this may be conceded. He also says that the Constitution of our State does not so regard it, but excludes it from offices, meaning, as I understand the statement, offices of the United States. This also may be conceded, for neither proposition affects the question before us. Admitting that a representative in Congress is not regarded as an officer of the United States,, by the instruments referred to, it by no means establishes the assertion that the representative does not hold a public office Avithin the meanino- of the charter.

We are to construe its provisions according to the ordinary sense of the words used (Newell v. The People, 7 N. Y., 97 ), and giving to them their natural and obA'ious signification and import there can be no doubt as to the meaning of each clause in question here. The House of Bepresentatives stands in the place of the whole body of the American people. The scheme of representation being a substitute for a meeting of the citizens in persons—but each member of the house exercises legislative power, although as the defendant claims “ the people may be deemed present in making the laws.” Mr. O’Reilly has therefore a trust or charge conferred by authority, for a public purpose, and by his acceptance has undertaken to perform the duties which the law prescribes for such employment. He holds a public office although his dependence is upon the people. Best, Ch. J., in Henly v. The Mayor of Lyme (5 Bing., 91), answering

But the learned counsel for the appellant contends that the terms of the charter must be confined in their interpretation to those offices which are within the sphere of State cognizance— and. that the words “other public office’’therein used should be construed “to mean an office within the purview of State legislation.” There are certainly no words of exclusion. The language is general and comprehensive, and if not so, does, by necessary implication, bring within its operation the office in question, for such an office is within the mischief, to prevent which the statute was passed—and must be deemed to have been in contemplation of the law makers. We may, however, adopt his argument arid find the condition complied with in the very language of the statutes of the. State—where “the representative in Congress” isstyledan “officer,” and the position which he holds— an “ office.” 2 Revised Statutes, part 1, title 2, chapter 6, section 1 defines general elections to be “such as are held at the same time * * * for the election of certain 6 officers,' naming among others 1 representatives in Congress. ’ ” Section eight provides for filling at special elections “all vacancies in the office of representative in Congress,” etc., and declares that “when the term of service of any such officer will expire at the end of the year during which the

The defendants claimed, however, in their return, that “ the right to order a special election depends on the title of said O’Eeilly as alderman defacto to said office,” and that this question is now under consideration by them. They are

It was therefore the duty of the defendants to order a special election. As to this the charter is imperative (section 5 [supra]), and furnished the only rule for their official conduct ; they had no right to question it, or do otherwise than obey. It was their duty also to make the order at such time as would enable the electors of the ward “to fill his place ” within thirty days after the vacancy occurred.

Having as the return concedes failed in the performance

Nor is the objection tenable that the relator has no standing in court. His affidavit on which the application for the order to show cause was made states explicitly that he is a resident and elector of the “ twelfth ward." The return does not put this in issue by a positive denial but on information and belief only. This is not enough. (People v. Horton, 12 Abb. Pr. Rep. [N. S.], 47, 87.) The return should be certain and of such a character as would if false permit a remedy by action. (Rex v. Abington, 12 Mod. Rep., 401.)

Here it may be true that the respondent is informed and believes that Mr. Kelly is not a resident or elector in the twelfth ward, but it may also be true that in point of fact he is such resident and elector. There is no denial of the truth of that fact. Nor any traverse of the allegation in the affidavit. It is not denied that the relator if his affidavit is true has an interest in this matter nor but that the law has given him means to reach it. Nor would such denial avail. (The State ex rel. Hanna v. The Common Council of the City of Rahway, 33 N. J. [L. K.], 110; People ex rel. Fuller v. Board of Supervisors Seneca Co., 18 How. Pr. Rep., 461 ; People ex rel. Case v. Collins, 19 Wend., 56 -68; People ex rel. Stephens v. Halsey, 37 N. Y., 344 .) In the case before us the matters set up constituted no defense or answer to the application and the writ was properly awarded. The court was also justified in fixing the time for the election. The defendant by its return denied that there was a vacancy to be filled and although notified by the mayor of the necessity for an election instituted no proceedings in regard to it. An order to proceed would have been nugatory unless accompanied by a special direction

We think no error was committed by the court below and the order should therefore be affirmed, with costs.

All concur..

Order affirmed.