People ex rel. Demarest v. Fairchild — 15 N.Y. Sup. Ct. 334

Majority

p. 334

THE PEOPLE ex rel. WILLIAM E. DEMAREST and others, Appellants, v. CHARLES S. FAIRCHILD, Attorney-General of the State of New York, Respondent.

Headnote

Quo wctA'ranto — Oode, § 432 — Aitin'ney-General can/not be compelled to bring action of.

The right to remove one who has unlawfully intruded into a public office is vested in the State alone, and its decision, as to whether or not an action shall be brought to remove such intruder therefrom, is final and cannot be reviewed by the courts.

People v. Attorney-General ( 22 Barb., 114 ) followed.

Appeal from an order made at the Special Term, denying a motion for a writ of peremptory mandamus.

This is a motion for a peremptory writ of mandamus, to compel the respondent, as attorney-general, to institute and prosecute to final judgment an action in the nature of a quo warranto, in the name of The People, on behalf of the relators, to determine the title of Samuel A. Lewis and others to the office of alderman for the city of New York, and to determine their right, as a board of aldermen, to exercise the powers and discharge the duties of the common council, and to oust them therefrom, and to establish in the office of alderman and assistant alderman these relators, and to invest them collectively with the right to exercise the powers and discharge the duties of such common council.

The relators allege that they were duly elected aldermen and assistant aldermen of the city of New York, pursuant to the charter of said city, and that as such were duly sworn, and on the first Monday of January last the boards of aldermen and assistant aldermen duly organized and notified the mayor, who refused to recognize them as such.

That the act of 18J3, chapter 335, section 2, and the amendments thereto, abolishing the board of assistant aldermen, and merging the duties thereof into the board of aldermen, and establishing what is called the minority system of electing- the members of such board of aldermen, is unconstitutional.

That Samuel A. Lewis and others, claiming to be elected aldermen, under said unconstitutional acts, on the first Monday of January,

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1876, organized as such, and have ever since pretended to discharge the duties of the common council, and said mayor has so recognized them.

The attorney-general having refused to bring an action of quo warranto, this application was made to compel him to do so.

Wilson F. Wolf, for the appellants.

Charles 8. Fairchild, respondent, in person.

The views expressed by Judge Harris, in People v. Attorney-General ( 22 Barb., 114 ), are sound. When a person intrudes into an office, it is the right of the State, as sovereign, to remove him. Individuals have no such right. This is still the law, although officers are elected and not appointed. Hence the State has the right to decide whether it will or will not remove the intruder. The right to make that decision must be vested in some one. It is vested in the Attorney-General.

As is pointed out by Judge HARRIS, the Court of King’s Bench sometimes restricted the exercise of this power, but it never compelled its exercise. So, by the present law, in certain actions, it is only by leave of the court that the attorney-general may sue. But there is nothing to show that the court can ever compel him to bring an action in any of these or similar cases.

If this mandamus could be granted, then one of two results must follow: either the court must decide, in each case, whether under all the circumstances a quo warranto ought to be brought; or the. court must, as matter of right, in all cases direct the attorney-general to bring the action.

The first alternative throws on the judiciary a duty which belongs to the administrative part of the government. The second assumes ' that it is the right of individuals, and not the exclusive right of the State, to remove intruders from offices usurped by them.

It is suggested that the attorney-general may neglect his duty. That must always be possible when a matter is left to the discretion of an officer, as it often is. Far greater evils would arise if the court were to assume the exercise of a discretion not intrusted

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to them, or if they were to allow any individual whatever to compel the commencement and prosecution of actions of quo warranto against officers of the State.

A quo warra/nio should continue to be, as it always has been, an action by the State to oust an alleged intruder. It should not degenerate into a personal contest between two claimants of an office. And therefore the State, in its administrative capacity, should have the right to bring a quo warranto against intruders into public offices, in its own discretion.

The order appealed from should be affirmed.

Present — LeARNBd, P. J., Bocees and Boardhan, JJ.

Order affirmed.