People ex rel. McMackin v. Board of Police — 11 N.Y. St. Rep. 403

Majority

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The People ex rel. John McMackin and Another, App’lts, v. Board of Police, Resp’ts.

(Supreme Court, General Term, First Department,

Filed October 10, 1887.)

Headnote

"1= Mandamus—Disputed fact—Peremptory mandamus, when not allowed—Section 2083, Code Civ. Pro., chap. 490, Laws 1887.

An application was made under chapter 490, Laws 1887, for the appointment of a fifth inspector of election for each district in New York city. This application was made on behalf of the united labor party on the ground that it, as a political party or organization, had cast for its candidate in the election of 1886 upwards of 50,000 votes. The alternative writ of mandamus was served upon the members of the police board. The statement therein was not directly or in language denied, but a state of facts was returned by the board disclosing the existence of conflicting claims upon which they proved to be unable to decide or conclude as to

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the allegations relating to the party’s existence. The alternative writ was directed, to the Broadway police, and also to the individual members of the board. Some of the members, as individuals, made separate returns. The act, chapter 490, Laws .1887, directs that the appointment of inspector's, if made, should be made in the months of August and September. Held, if the allegations had been established beyond a reasonable ground of controversy that the motion for a peremptory writ of mandamus would have been successful, for when a right of this description is maintained upon a substantially conceded state of facts, then the law permits a peremptory mandamus to be issued in the first instance. The affidavits on the return created an issue of fact which no court, without the consent of the parties, has been permitted to consider and decide otherwise than by a formal trial. Nor does it matter whether the court might be able to determine from the affidavits the probabilities. When the consent has not been given, section 2083, Code Civ. Pro. has directed that the issue of fact must be tried by a jury.

2. Same—Common law rule as to norm op denials—Rule changed BY STATUTE—CODE ClV. PRO., § 2077.

Held, that while the board did not directly deny the statement made in the writ, it inferentially did make that denial. At common law an inferential denial was. not permitted. The utmost particularity and precision were required to be observed. This has been changed by statute, and for many years it has been the practice to allow the relator to take issue upon the return, and to have a trial of the facts the same as might be had in any other litigation. And this rule still further liberalized has found its way into the Code of Civil Procedure, for by section 2077 the provisions of chapter 6, relating to the form and contents of an answer containing denials or allegations of new matter, apply to a return to an alternative writ of mandamus. The provisions of the Code concerning the answer in an ordinary litigation are such as to permit an inferential or argumentative pleading, which may be equally allowed in an- answer to an alternative writ of mandamus.

3. Same—Who may make return to same—Members op a board to make RETURNS AS INDIVIDUALS—WHEN ALLOWED.

Held, that the mandatory part of the writ wea intended to be directed to and include the board itself and its members as individuals. They being parties, the individual members of the board had the right to answer under thé provisions of the Code, applying the same rules as apply to defendants answering a complaint in the ordinary course of litigation. Such defendants have a clear right to answer jointly or severally. All the parties in the writ are not only at liberty, but it is their duty to answer it.

4, Elections—Inspectors op—Chapter 490, Laws 1887—Time during which appointments are to be made—Provision merely directory.

Held, the act nowhere prohibits the appointment of inspectors after the month of September in case it shall not be made during that or the preceding month. The authority to appoint is one conferred upon the board for the benefit of the public, and where the time may have passed in which it should be done, so long as the board was not prohibited from doing it afterwards, an appointment subsequent to the month of September would be legal and valid. The people are not to be deprived of the benefit provided for them by the statute by the mere circumstance that the time has passed in which the act is directed to be performed.

Motion for judgment on the return of the board of police to a writ of alternative mandamus; and appeal from order of the special term denying motion for a peremptory^ mandamus and directing the issuing of an alternative writ.

E. M. Shepard and Samuel H. Ordway, for relators and app’lts; E. E. Anderson and T. B. Wakeman, for resp’ts and another.

—The applications in each instance have been made under chapter 490 of the Laws of 1887 for the appointment of a fifth inspector of elections for such election district in the city of New York. The applications were made on behalf of the united labor party on the ground that it, as a political party or organization, had cast for its candidate in the election of 1886 upwards of 50,000 votes. If this allegation had been established beyond reasonable ground of controversy then the motion for a peremptory writ of mandamus directing the board of police commissioners to appoint the additional inspectors from that party would have been successful, for where a right of this description is maintained upon a substantially conceded state of facts, there the law permits a peremptory writ of mandamus to be issued in the first instance. But the facts were not so established. The affidavit of John McMackin and the papers and documents annexed to it, standing by themselves, did make out a right to the writ in this form. But that was met by an equally positive affidavit verified by W. P. Rogers denying that the united labor party was the party or organization giving upwards of 50,000 votes for its candidate in the fall of 1886. This affidavit or statement verified by him, alleged the fact to be that after the election of 1886 the party or organization casting its vote for Henry George for mayor was substantially disbanded and divided into separate and distinct organizations, and that the united labor party was a new and different organization from that which had deposited these votes at the last election. This necessarily created an issue of fact which no court without the consent of the parties has been permitted to consider and decide otherwise than by a formal trial.

It is not important that the judge presiding in the court might be able to determine from the affidavits the probabilities in favor of one or the other of the contestants, for the law has not permitted the controversy to be tried and disposed of in that manner without the consent of the contestants themselves. Where such consent - has not been given, as it was not on the hearing of the applications, there section 2083 of the Code of Civil Procedure has directed that the issue of fact must be tried by a jury. That condition of the case consequently deprived either of the applicants of the immediate right to a writ of peremptory mandamus, and the order from which the appeal has been taken denying the motion for that writ is accordingly to be affirmed.

The alternative writ of mandamus, which in this state of the facts was issued by the special term, was served upon the members of the police board. This writ recited, among

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other facts, the statement that the party known, as the united labor party cast for the office of mayor of the city of Mew York as many as 50,000 votes and upwards, and no direct denial was in the first instance made by the return of the board of this statement.

The counsel appearing for the united labor party accordingly demurred to the return, affirming in this respect its insufficiency, but while this statement was not directly or in language denied, a state of facts was returned by the board disclosing the existence of conflicting claims concerning it upon which they proved to be unable to decide or conclude that the united labor party was the political party or organization that cast upwards of 50,000 votes for its candidate for mayor in the election of 1886. Two of the commissioners, Messrs. French and McOlave, adopted the assertion as true that such votes were cast by the united labor party, while the other two members of the board differed with them in this conclusion, and were unwilling, therefore, to consent to the appointment of the inspectors selected from the united labor party, and these proceedings were returned as the answer of the board to the alternative writ of mandamus.

While, therefore, the board did not directly deny the statement made in the writ, it inferentially did make that denial, for it appeared from the proceedings which were returned that they were unable as a board to decide the fact in favor of the united labor party upon which their right to the inspector depended, that, it was the party or organization which had cast for its candidate as many as 50,000 votes or upwards, and without that fact being established to the satisfaction to the board, they could not make the appointment of the additional inspectors from that party or organization.

As the practice was followed in the early administration of the common law, an inferential denial of this description would not have been permitted. There the utmost particularity and precision were required to be observed, and the reason upon which the rule was founded was that the return, when it was made, became conclusive and could not be questioned in that proceeding, but the remedy of the relator, if it was not true, was to bring an action against the respondent for damages for making a false return, and it was of the utmost consequence to him in maintaining such an action that the return should be precise, positive and unequivocal. But this has been changed by the statute, and for many years it has been the practice to allow the relator to take issue upon the return and to have a trial of the facts the same as might be had in any other litigation. The same strictness in the return has accordingly ceased to be

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necessary, and it has now been made analogous to pleadings in other actions. This was considered in Springfield v. Commissioners of Hampden ( 10 Pick., 59 ), where it was held as the result of the more recent authorities that a return is sufficient if it contains a full and certain answer to the allegations expressly made, and discloses a fair legal reason why the mandamus should not be obeyed. Id., 68 . And this rule, still further liberalized, has found its way into the Code of Civil Procedure, for section 2077, the provisions of chapter 6, relating to the form and contents of an answer denials or allegations of new matter, except those relating to the verification and to a counterclaim, apply to a return to an alternative writ of mandamus showing cause against obeying the command of tho writ, and the provisions of the Code concerning tho answer in an ordinary litigation, are such as to permit an inferential or argumentative pleading, and as that is permitted in other litigations it may be equally allowed in an answer to an alternative writ of mandamus.

Before the Code argumentative pleadings could only be corrected by a special application aimed at the defect, and the rule seems to be equally so under its provisions. By this rule the answer of the board cannot be construed into an admission of the allegation contained in the writ that upwards of 50,000 votes were deposited by the united labor party for its candidate in 1886, and that effect was accorded to a similar disagreement presenting a direct return in Rex v. Mayor, etc. (12 Modern, 79, 81).

But if it should be held otherwise, the further return of John R. Voorhis and Mtz John Porter, two of the commissioners, has been made upon the basis of a direct and positive denial of those statements in the writ of mandamus. That return, however, the counsel for the relators has moved to quash or set aside, or made the subject of a demurrer, and reliance has been placed upon what was said in section 460 of the second edition of High on Extraordinary Remedies to support these applications. The rule is there very clearly laid down that the return to the alternative writ of mandamus is to be made by the board alone, to which the writ may be directed. That was, also, very fnTly considered in People v. Supervisors, etc. ( 27 Cal., 655 ), where individual members of the board had made returns to the writ. Those returns were set aside or quashed, but the reason for that action was that the mandamus was directed to the board itself; while in this case it has not only been directed to the board, but to each and every one of the commissioners composing the same. That it was intended to include each of the commissioners as members of the board as well as the board itself, appears still further

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by subsequent portions of the alternative writ, for by the last of the recitals contained in it, the allegation is made, “that you, the said board of police, and you each of the commissioners, composing the same, have to the injury of the said united labor party, and to the injury of the said John McMackin, chairman, and John N. Bogert, secretary of the county committee of the united labor party in said city of New York, refused to make such appointment.” Then follows the mandatory part of the writ which was plainly intended to be directed to and include the board itself and its members as individuals, for it is to them that the command was directed that they should forthwith convene and appoint as the additional inspectors of election, those persons who had been selected by John McGHave, or in case of failure to make such appointment then it was directed, “ That you show cause to the contrary before our supreme court in general term,” etc. Both these directions were given not only to the board of police as such, but to its individual members and acccordingly made the members as well as the board parties to this proceeding, and being parties they had the right to answer under the provisions of the Code which have already been mentioned applying the same rules as apply to defendants answering a complaint in the ordinary course of litigation.. Such defendants have the clear right to answer jointly or severally, and that was likewise the rule at common law.

In King v. Baily (1. Kebles, 33), the writ issued to the aldermen, bailiffs and commonalty of a municipal corporation, but the return was made by the bailiffs and capital Burgesses, which was adjudged to be a bad or insufficient return, and it was then held by the court that one part of the corporation might make one return and the other part might make another, return. Id., 34. This decision proceeded upon the ground that these different-portions or attributes of the corporation were made parties to the writ. But they were no more so in that instance than were the individual members of the board by the language contained in the-writ issued in this case. The general rule followed by the authorities has expressly been that all the parties in the writ are not at liberty, but it is-their duty to answer it; and such was the command of this writ, that if the board and its members failed to appoint, the persons selected by Commissioner McOlave, that then you (that is the board and each of the commissioners composing the same as they were previously mentioned in the writ) show cause to the contrary before our supreme court. In this respect the case very clearly differed from the authorities relied upon by the counsel for the relators and not only authorized but required the members of the board

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to return to the court a statement of their reasons for not complying with the mandatory part of the writ. That was a complete authority for the return of these two commissioners, and, even if it should be admitted that the other two commissioners had failed to deny the statement that it was the united labor party that had given the 50,000 votes in the preceding election, this answer created an issue as to that fact which requires to be tried and disposed of before any appointment can be made or the right of the relator to a peremptory writ of mandamus can be determined; for- the admission of two of the commissioners, even as the representatives of the board itself, cannot be conclusive against its other members under this particular form given to the writ.

The two commissioners, uniting in the last return, also doubted the power of the board to appoint the additional inspectors after the expiration of the month of September. This doubt was placed upon the direction given in the act that the appointment should be made in the months of August and September in each succeeding year for each election district in the city and county. But the act nowhere prohibits the appointment of inspectors after the month of September in case it shall not be made during that or the preceding month. The authority to appoint is one conferred upon the board for the benefit of the public, and where the time may have passed in which it should be done so long as the board was not prohibited from doing it afterwards, an appointment subsequent to the month of September would be legal and valid. For the people are not to be deprived of the benefit provided for them by the statute by the mere circumstance that the time has passed in which the act is directed to be performed.

In the Matter of Broadway Widening ( 63 Barb., 573 ), the report then considered was directed to be made within six months after the malting of the order appointing the commissioners. But that was not done, and the court in overruling the objection that it could not be afterwards done, added: “There being no negative words in the statute prohibiting the mating of the report after the time limited, and no injury appearing to have occurred to the objector in consequence of the omission to do so, this provision must be deemed directory merely, and the performance of a public duty after the lapse of the period within which the statute directed it to be done is in such a case good. Id., 579 . And a similar decision was made in Witherill v. Mosher ( 9 Hun, 412 , 415), and in People v. Wheeler ( 18 Hun, 540 ) this rule was expressly held to be applicable to the appointment of election inspectors.

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The sole point, therefore, upon which the right to the appointment of the additional inspector depends is, whether the united labor party is the political party or organization which cast for its candidate in the preceding election as many as 50,000 votes or upwards. This was denied on behalf of the organization called the progressive labor party, and also, according to the papers contained in the return, by the Irving hall democracy, each of these organizations claiming to be the party which cast for its candidate in the election of 1886 this requisite number of votes.

The act has subordinated the right of the party or organization to the additional inspector to the fact that it is the political party or organization which cast for its candidate for any office as many as 50,000 votes or upwards in the election of 1886.

Its language, excluding that portion of the section having no direct connection with this controversy, is that “if at the next preceding municipal election, any political party 1 or organization shall have cast for its candidate for any office as many as 50,000 votes or upwards, * * * then it shall be the duty of said board of police to appoint for each election district in said city and county one further and additional inspector of election of the political faith or opinion of said political party, and an enrolled member of the organization thereof, and the inspectors of election appointed to represent said political party or organization shall be appointed solely by such commissioner or such of the commissioners of police in said board as the chairman and secretary of the organization of said political party in said city shall designate.”

■ That more than 50,000 votes were given for the candidate of a third party at the election of 1886, is by neither of the contestants denied. But it is conceded on the part of each of them. What is denied is that either of these contestants is the political party or organization which gave these votes, and it is only to the party giving such votes that the right to the additional inspector has been in this manner secured.

In order, therefore, to determine to which party or organization the additional inspector in each district can be given, it must first be ascertained and determined which of the contesting parties is the party, if either of them is, by which these votes were given. And until, that fact is established to the satisfaction of a majority of the board of police or to the satisfaction of the court upon this application, no authority to make any appointment of these inspectors exists either in the board of police of any member thereof. If the united labor party is the party which casts those votes, then it is entitled to the appointment of these

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inspectors, while if it is the progressive labor party, or the Irving Hall demoracy which gave these votes, then it is to that organization that the inspectors must be given; if it is neither of the three contestants then it seems to follow that no additional inspectors can bo appointed, for the additional inspectors have been exclusively given to the political party or organization which shall have cast for its candidate for any office at the preceding election as many as 50,000 votes or upwards, and as long as that fact remains in dispute and undetermined no additional inspectors can be appointed. The board is authorized to act only upon the establishment or appearance of that fact, and it is disputed by the contestants in the proceedings. Before a mandatory mandamus can be issued directing the board to appoint the additional inspectors or any appointment can be made this fact must be tried and determined. There is no authority under the act to proceed without it, and when it may be determined the course will be entirely clear and free from difficulty. But that cannot be tried or determined upon affidavits without the consent of.the parties. It must be tried in the ordinary course of legal proceedings on legal evidence produced before the court. Ordinarily it would present an issue which should be directed to be tried by a jury. But the parties to the contest have been permitted by the law to waive a trial by jury and to consent either to a reference or to a trial before the court.

These parties in open court have consented to a trial before one of the justices of the court without a jury, and upon that consent this court has now the right to act, and in acting upon it, it can provide for a summary over this controlling fact, before a justice holding a circuit court. The trial is one which should take place at the earliest practicable day and should not be delayed for the ordinary period of notice, or even the filing of a note of issue, but it should be brought on summarily, as it may be, on one or two days’ notice before one of the justices of this court holding a circuit court who will be designated for the purpose of hearing it.

The exigencies of the case require that it should be disposed of at the earliest practicable moment, so that if either of the parties is entitled to the appointment of this additional inspector, that appointment may be made, and the appointees maybe ready to act with the other inspectors in caring for and protecting the interests of their constituents, and upon the determination of the court at the trial, this court upon being informed of the result will then be in a situation to decide the rights of the parties and to make provision by its mandatory writ for the immediate appointment of the inspectors which the successful party will be

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entitled to select, and an issue will he framed limiting the inquiry at circuit to the determination of this controverted question, whether the united labor party is the party casting these votes, or whether they were cast by the progressive labor party or by the Irving Hall democracy, or whether neither of those contestants cast such votes. That will be the full breadth and extent of the issues required to be tried, and their hearing and decision will accordingly demand no very large consumption of time.

An order to this effect will be entered as the result of the decision.

Order denying peremptory mandamus affirmed. Issues to be framed as directed in opinion.

Order to be settled by Mr. Justice Daniels. Opinion per curiam.