People v. McClellan

The people, by the Attorney General, commenced this action, alleging that an election was held in the city of New York on the 7th day of November 1905, at which the defendant was ■declared elected mayor of said city, and has since occupied that ■office, but that at such election the greatest number of legal votes was ■cast for one William Randolph Hearst and he was duly and legally elected mayor of the city of New York for the term of four years ■commencing on the 1st day of January, 1906, that the defendant has usurped and intruded into and now holds such office of mayor of the city of New York, and judgment is demanded that the said William Randolph Hearst be declared duly elected to the office of mayor, and

The learned judge at Special Term denied the motion upon the ground that the question could not be raised on motion; that, if the contention of the defendant was available, it was only as a bar to the maintenance of the action, and that the bar must be pleaded by way of answer. I should be inclined to think that this objection could not be taken by answer or by a plea in bar, but could only be raised by a motion to set aside the service of the summons and complaint. There could be no question but that upon the allegations of the complaint the plaintiff has a good cause of action. Whether or not the people of the state of New York would enforce that cause of action was a question that was,to be determined by the Attorney General under the provisions of the statute regulating the performance of his duties. If it was improper for the Attorney General to commence the action, or if there was any statutory or other bar to his using the name of the people of the state for that purpose, it would seem that the way that the question could be raised would be by a motion to set aside the service of process which was unauthorized by the people. The fact that the Attorney General had exceeded his authority in commencing the action in the name of the people of the state could not be available as a defense to the action, if the complaint set up a good cause of action. I think, therefore, that the question which we must determine is whether there was any determination of Attorney General Mayer which was a bar to his successor in acting under the authority vested in him by law in bringing this action.

“(1) Against a person wlio usurps, intrudes into, or unlawfully holds, or •exercises within the state, a franchise or public office, civil or military, or an •office in a domestic corporation.”

Section 1986 provides that:

“When an action is brought by the Attorney General, as prescribed in this title, on the relation or information of a person having an interest in the question, the complaint must allege, and the title of the action must show, that the action is brought upon the relation of that person.”

There is no provision of law which limits or restricts the Attorney General in the exercise of his discretion as to whether an action by the people of the state shall or shall not be brought. He can bring an action upon his own information, or on the complaint of another person; the only limitation on his action being that if it be brought bn the complaint of another person that fact must appear in the ■complaint, and the Attorney General is then to require the party at whose instigation the action was brought to secure the state against any liability for costs. It seems to me that, in determining whether or not an action shall be brought, the Attorney General acts under a discretion vested in him by law, which is not in any sense made to depend upon the result of a judicial investigation, but is solely an exercise of the discretion vested in him as the law officer of the state. He may bring, and it is his duty to bring, the action when he is satisfied that the law lias been violated and a person is exercising a public office or a public franchise without authority or legal title to the •office or franchise. The question is one submitted to his discretion, and he must exercise that discretion upon the facts as they appear to him from time to time when brought to his attention. From the very nature of the discretion vested in him, it seems to me impossible to say that he exercised at any time a judicial function, or that any determination becomes an adjudication which is binding upon him or upon anybody else. The question not being judicial in its nature, the fact that one Attorney General determined that he was not justified in ■commencing an action is no bar to the samé Attorney General, or to his successor, in subsequently determining that the facts as then presented to him require him to institute the action.

None of the cases cited by the learned counsel for the defendant have any application, as they all relate to proceedings of boards or public officers who are charged by law with the determination of questions to be submitted to them, and where their determination is judicial in character, and not an act resting purely in discretion, and upon

For these reasons, I think the order below was right, and should be affirmed, with $10 costs and disbursements. It is only proper that we should add that we think this is a question which should be determined by the Court of Appeals, and that, on application by the defendant, the question will be certified to that court. All concur.