In re Brearton

-This is a proceeding under section 2471a of the Code of Civil Procedure. It is not a proceeding to try title to office. Matter of Foley, 8 Misc. Rep. 196 , 28 N. Y. Supp. 611 ; Matter of Sells, 15 App. Div. 571 , 44 N. Y. Supp. 570 ; Matter of Dudley, 33 App. Div. 465 , 53 N. Y. Supp. 742 ; Matter of Bradley, 141 N. Y. 527 , 36 N. E. 598 ; Matter of Brenner, 67 App. Div. 375 , 73 N. Y. Supp. 689 ;

Ordinarily, appointments or election to office are evidenced by certificates of appointment or certificates of election issued by the official making the appointment or by the officials charged with verifying or conducting the election; so that where it appears in a proceeding of this kind that a person claiming office has received a certificate of election or appointment from the proper person or persons, it is held that he has a prima facie title to the office, and is entitled to an order for the possession of the books and papers pertaining to that office. Matter of Foley, 8 Misc. Rep. 196 , 28 N. Y. Supp. 611 ; Matter of Brenner, 67 App. Div. 375 , 73 N. Y. Supp. 689 ; Id., 170 N. Y. 185 , 63 N. E. 133 . And it has been held that where such a certificate is produced the former incumbent of the office cannot go into questions underlying the election, and which he ~iay allege as invalidating it. Matter of Bradley, 141 N. Y. 527 , 530, 36 N. E. 598 . It has been said that it is “well settled that the statute cannot be successfully invoked unless the title of the applicant is clear and free from reasonable doubt.” Matter of Brenner, 67 App. Div. 375 , 377, 73 N. Y. Supp. 689 , 690. Public policy requires that controversies of this character be speedily determined, and for that reason the summary remedy provided by the Code was devised. The fact that the petitioner’s title to office turns upon questions of law, and those difficult of solution, will not defeat his right to the order. When the only question is one of law, it can just as well be decided in these proceedings as in any other, and the court will not compel the party to resort to an action, which may not be ended until his term of office has expired, to determine merely a question.of law.

The Matter of Brenner was one that depended entirely upon the solution of a legal question, and not a question of fact. That that question was not entirely clear and not easy of solution is evidenced by the fact that there was a sharp division*in the Court of Appeals, two judges thereof dissenting from the decision. It is only when, upon the facts, his prima facie title is not “clear and free from reasonable doubt,” that the petitioner will be denied the remedy provided for by section 2471a, and put to his action to settle the question of fact. Here it seems to me that the facts show the prima facie title of the petitioner to be “clear and free from reasonable doubt.” The petitioner produces the certificate of the president of the common council that he was duly chosen clerk thereof. The sufficiency of that certificate is challenged. It is said that the office of president of the common council is a purely statutory office, with limited powers and duties, and those specifically defined, and that nowhere is he given power to authenticate or certify to the acts or proceedings of the common council. The city clerk is the official charged with keeping the record of the proceedings of the common council. Section 15, c. 182, p. 372, Laws 1898. And- ordinarily the person charged with keeping a record of proceedings is the one to certify to them. In this case the person so charged is the

It would be a travesty upon justice to hold that the petitioner’s right to maintain this proceeding can be defeated because his adversary has refused to issue to him a certificate of the proceedings of the common council at which it is claimed he was elected. If it was his duty to furnish it, then he cannot assert his failure to perform his duty to defeat the plaintiff’s proceeding against him. But I have not been referred to any provision of law, nor have I been able upon my own investigation to find one, that requires the issuing of any certificate of the election of a clerk of the common council. The statute is silent as to how his election shall be authenticated. No commission, or certificate of election, or appointment is provided for, and where none is provided for none is required. While the.courts have held, as above stated, that where an applicant comes with a certificate of appointment or election from the proper officer, and has taken his oath of office, and filed an undertaking where one is required, he has established a prima facie title to the office, and is entitled to an order for the possession of the books and papers pertaining to such office, it has never been held that that is the only evidence of title to office which will entitle him to maintain the proceedings. Where the undisputed facts in the case make out a prima facie title to office, then, even although no certificate of appointment or election is produced, the order will issue. Where no certificate of election is provided for by law, it is evident that such election or appointment may, and, indeed, must, be authenticated to the court in some other manner. In this case there are some undisputed facts, to wit: That the number of the common council of the city of Troy is 17. That at a regular meeting held on the 19th day of May, 1904, the president and 17 aldermen were present. That a number of the members left the meeting. That thereafter a vote was taken upon the election of clerk, and 6 aldermen voted for Mr. Brearton, and 3 other aldermen voted for other candidates; 9 voting in all upon the question of the election of clerk. That at a regular meeting held on the 2d of June the president and 17 aldermen were present. That during the meeting a number of the aldermen left the common council chamber. That thereafter 7 aldermen voted for Mr. Brearton for the office of clerk, 1 alderman voting against electing him clerk, and 1 other alderman, being present, did not vote; 9 aider-men, therefore, being present at the time Mr. Brearton received 7 votes for the office of clerk, and being thereupon declared elected to such office by the president of the common council. What is the legal conclusion from these undisputed facts?

The statute governing the city of Troy, provides as follows:

“The common council shall determine the rules of its own proceedings, and be the judge of the elections, returns and qualifications of its members. Its meetings shall be public and its records open to public inspection, and, except as herein provided, the majority of all its members shall be a quorum for the transaction of business. The passage of an ordinance, unless other

wise herein provided, shall require the affirmative vote of at least a majority of ail its members.” Laws 1898, p. 373, c. 182, § 17.

Section 2 of the rules of order adopted by the common council reads as follows:

“Upon the appearance of ten members, the common council shall be called to order by the president, or if he be absent, by the president pro tempore appointed by the board.”

The construction heretofore placed upon this provision of the stat- ' ute, coupled with the rule, by the comm'on council, and apparently by the city officials, is that it requires ten members of the common council to transact business. It was in accordance with that construction that, it was announced that no quorum was present when the vote was taken for city clerk upon May 19th, when nine members were present. And .that construction is now contended for by the defendant in these proceedings. Of course, the common council can make no valid rules that are in conflict with the statute. It is contended, however, that che words, “except as herein provided,” mean not only as provided in the statute, but also as may be provided for in the rules of procedure adopted by the common council by virtue of the preceding clause of the section. That does not seem to me the proper construction to be given to those words. It hardly seems probable that the Legislature, after providing in the act for one thing, should in the same act provide that the common council might, by its rules, nullify that-provision. The words in question refer, I think, to the whole act. As we have seen in the statement of facts herein, there are other provisions of the statute requiring more than a majority vote for their adoption by the common council, and the exception mentioned in section 17 obviously refers to the last clause of the section itself, and to the other express provisions of the statute requiring more than a majority vote for the doing of the things specified in such provisions. Furthermore, the reading of the statute is that “the common council shall determine the rules of its own proceedings.” That is the method and manner of doing business —how it shall proceed; not who shall do business; not who shall proceed; not who shall constitute the common council. The individual aldermen do not constitute the common council. It is only when they are regularly convened in sufficient numbers that they constitute the common council, and the Legislature has said what that number shall be to constitute the common council. A quorum is the common council. What shall constitute the common council is a part of the fundamental law of the city—a part of its constitution. It is determined by the creator, not by the creature. To the creature is left the making of its rules of procedure after it has come into being, under the statute. I conclude, therefore, that the exception mentioned in the statute does not mean any exception that should be provided for by the rules of procedure adopted by the common council.

In addition it may be said that the rules do not in express terms provide what number shall constitute a quorum, or have power to transact business. The rule in question reads, “Upon the appearance of ten members the common council shall be called to order,” etc., and therefore is not in terms in conflict with the statute, although it is

The defendant in these proceedings further contends that the election was illegal, because, as he claims, section 33, p. 377, of chapter 182 of the Laws of 1898, requiring the election to be by viva voce vote, was not complied with. His contention, as I understand it, is that each man should orally name his choice for clerk. It will be observed that that was done at the meeting of May 19th. While that is a compliance with the requirement, it is not the only way in which it can be satisfied. The term “viva voce,” when applied to elections, is used in opposition or contradistinction to the ballot, and simply means that the voter shall declare himself by voice, instead of by ballot. In this country, as a general rule, the people vote by ballot, so that their action may be secret, free, and untrammeled; their representation viva voce, so that their action may be public and known to their constituents. So that when a nomination is made either by written resolution or oral motion, and each person announces his vote for or against it by his voice, the vote is viva voce. The manner of choosing a clerk in this case was left to the discretion of the common council so long as the vote was viva voce. It could have been done by calling the roll, and each member naming his choice, or by placing candidates in nomination, and then calling the roll of members, as was done at the meeting of May 19th, or by naming

Complaint is made of the alleged arbitrary action of the president of the common council in refusing to put motions, made by different aldermen, to the common council to be acted upon; particularly a motion to adjourn. As we have seen in Matter of Bradley, 141 N. Y. 530 , 36 N. E. 598 , wheré the petitioner shows a prima facie title the former incumbent will not, in these proceedings, be permitted to go into questions underlying the election, and which he may allege invalidate it. So here, it appearing that a majority of those entitled to choose a clerk have voted for the petitioner, the court will not, in this proceeding, inquire into what preceded the vote upon that question. There is no complaint of any arbitrary or improper action at the meeting of May 19th, and it does not appear that any votes were forced in favor of the petitioner by the action of the president at the. meeting held June 2d. It may not be out of place to say that the way to check or defeat the arbitrary action of a presiding officer is not to run away from the meeting, unless in sufficient numbers to leave the meeting without a quorum. The orderly way—the only safe way, as this proceeding demonstrates—is hot to abandon the meeting, but to contest the alleged arbitrary action by' legal and parliamentary methods. The majority can always rule. ‘ If temporarily overridden by arbitrary action,, the courts will rectify the wrong and enforce its fight.

. It. appearing, then, from the undisputed facts in the case, that at the meetings of May 19th and June 2d, when there were a sufficient number of aldermen present to constitute a quorum, and therefore to constitute a common council, a majority of those present upon each occasion voted viva voce for the election of James F. Brearton as city clerk and clerk of the common council, it must be held that a prima facie title to that office is established in his favor, and that the order prayed for should be granted, with costs of these proceedings. Let an order be entered accordingly.

Ordered accordingly.