People ex rel. Platt v. Board of State Canvassers

After the State election in 1891 a controversy arose in the county of Dutchess over the canvass by the bqard of county can

Proceedings were thereupon instituted against the defendants, 'composing the State Board of Canvassers, po prevent their canvassing the statement or return signed by Mylod, and on December 7, 1891, at a Special Term of the Supreme Court, an order was granted containing the following provision : “ It is ordered that a writ of peremptory mandamus issue out of, and under the seal of, this court commanding and requiring the said State Board of Canvassers that they issue a certificate of election to the office of Senator in the fifteenth senatorial district of this State, disregarding the so-called return of the board of county canvassers of the county of Dutchess, which is signed by John Mylod, as secretary of said board pro tempore, and is not signed by the county clerk of Dutchess county or certified under the seal of said county clerk, but that instead thereof they consider only such return from the county of Dutchess as may hereafter be filed containing the signature of the county clerk of the county of Dutchess and the chairman of said board of county canvassers, and issue under the seal of said county clerk, and that in their certificate of election the said State Board of Canvassers certify and declare that the person who appears upon the certified returns and statements made by the boards of canvassers of the counties of Columbia, Putnam and Dutchess, in pursuance of the statute and the order of the court, to have received the greatest number of votes, was duly elected Senator from the said fifteenth senatorial district.”

This order was affirmed by the General Term and was then taken to the Court of Appeals. (See People ex rel. Daley v. Rice, 129 N. Y. 449 .)

It appears from the opinion of Judge Peckham that two grounds were urged in the Court of Appeals for sustaining the order in ques

The court then, after reciting the facts in regard to the second ground of objection to canvassing such return, proceeded as follows:

“ Bpon these facts standing uncontradicted, we think the court below in its proper branch would have the power to command the State Canvassers to canvass without regard to such a return. As it contained the result of an illegal and erroneous canvass by the board of county canvassers in excess of its jurisdiction, and which thereby would alter the result of an election, the court should not permit it to be canvassed. * * * If another return should be duly sent to the board, properly authenticated and containing the result of the legal action of the board of county canvassers, the State board could canvass it.

“ "We think, as a result, that the order for the writ and the writ itself should be modified by striking out the provisions requiring a return to be certified by, and to come from, the county clerk of Dutchess comity, and issued under his seal, and as so modified the order is affirmed.”

The remittitur of the Court of Appeals upon such decision was as follows: “ It is ordered and adjudged that the order of the Spe

Striking out the provisions in the order of the Special Term requiring a return to be certified by and. to come from the county clerk of Dutchess county and issued under his seal, the order issued by the Special Term would read as follows :

“ It is ordered that a writ of peremptory mandamus issue out of,, and under the seal of, this court commanding and requiring the State Board of Canvassers that they issue a certificate of election to-the office of Senator in the fifteenth senatorial district of this State, disregarding the return of the board of county canvassers of the county of Dutchess, which is signed by John IVIylod, as secretary of said board pro tem, but that instead thereof they consider only such return from the county of Dutchess as may hereafter be-filed ; and that in their certificate of election the said State Board of Canvassers certify and declare that the person who appears upon the certified returns and statements made by the boards of canvassers-of the counties of Columbia, Putnam and Dutchess, in pursuance of the statute and the order of the court, to have received the greatest number of votes, was duly elected Senator from the said fifteenth senatorial district.”

"Whatever other return the Board of State Canvassers might canvass, they were thus expressly forbidden by an order of the Special Term of this court, affirmed by the General Term and the Court, of Appeals, to canvass the so-called “ IVIylod return,” yet in the evening of the same day that the opinion of the Court of Appeals, was handed down, and after the same had been read by counsel for-the defendants, and as appears from the case, communicated to at; least some of the defendants, but, I infer, before the filing of the remittitur and the entry of an order making the judgment of the Court of Appeals that of the Supreme Court, the Board of State Canvassers met and canvassed the votes for Senator in the fifteenth district, and in doing so they failed to disregard the “ Mylod return.”' They used that return in making their canvass.

In Sixth Ave. R. R. Co. v. Gilbert El. R. R. Co. ( 71 N. Y. 430 ) it is held that an appeal from a judgment restraining action on the part of a defendant, and a stay of proceedings thereon, does not affect the validity or effect of the judgment pending the appeal. The •defendant is not absolved from the duty of obedience to it or permitted to do that which the judgment prohibits. The same may be •said in reference to the order providing that a mandamus issue •directing defendants to disregard the “ IVIylod ” return. If, when the ■defendants canvassed the “Mylod” return, the judgment of the Court of Appeals was not made that of the Supireme Court, then the order of the General Term was in force. If, on the contrary, its remittitur was filed and an order was entered thereon, the judgment of the Court of Appeals affirmed that of the General Term as to the Mylod return.

The only papers before the Special Term on this application, and before this court, are those of the moving parties; then’ statements ■are uncontradicted; the defendants have submitted no opposing affidavits or records, and from the record as it is now before this ■court ‘the fact seems to be established, that while the order of December 7, 1891, held by the Court of Appeals to have been properly granted, on the papers on which it was based, was in full force, providing for the issuance of a mandamus to defendants directing them to disregard the “ Mylod ” return, the defendants deliberately disobeyed such order and canvassed the “ Mylod ” return.

It is not desirable to discuss the merits of the case any further

My attention has been called to the declaration of the Court of Appeals in the case of The People ex rel. Derby v. Rice et al. ( 129 N. Y. 161 ), wherein it said in the case of an order like the one said to have been violated in this case: “ If we were free to consider and determine the right or propriety to order the writ of mandamus to issue in this matter, we should not hesitate to hold that it should not have been granted by the Supreme Court at a Special Term. Though the writ is in form one of peremptory mandamus, yet it is by force of its terms and commands in effect an order which restrains the board of State officers engaged in the performance of or about to perform a duty imposed by the statute.”

The court based this declaration upon the provisions of section 605 of the Code of Civil Procedure; the opinion proceeds: “ However, because of the stipulation of the parties, which accompanies the record here, and because of the failure of the defendants to the proceeding to raise the objection, we have concluded to overlook the question of jurisdiction and to determine the questions at issue upon their merits.”

Unless the order is void upon its face for lack of jurisdiction on tbe part of tbe court which granted it, tbe party violating it is properly adjudged guilty of contempt. (The People ex rel. Davis v. Sturtevant, 9 N. Y. 263 .)

“No matter bow erroneous the action of tbe court may have been in taking cognizance of tbe suit and awarding a mandatory process, unless there was an entire absence of judicial authority to act in tbe premises, it was tbe duty of tbe defendants to obey its commands, until they have been revoked by an order made in tbe action in which they bad been issued, either upon motion or appeal, or by some other method of direct review.” (People ex rel. Cauffman v. Van Buren, 136 N. Y. 252 .)

Tbe order in this case having been affirmed by tbe Court of Appeals, I do not feel at liberty to say that it was a void order; I cannot assume that that court would affirm an order that is void upon its face, but, on tbe contrary, must bold that the fact that the highest court in tbe State has affirmed tbe order is decisive of that question, and that however irregular it may have been, or improperly, or without authority granted, yet that it was not void upon its face; and as we have seen, it not being void upon its face, tbe party who violates it is properly adjudged guilty of contempt.

It may also be added that upon this motion tbe question of the authority of tbe Special Term to grant the order is not raised by tbe defendants ; indeed, it seems to me that tbe stipulation entered into by them upon tbe appeal would bar them from raising that question in a proceeding of this character.

Upon tbe state of facts here recited, an ex parte application was.

“ It was made a question whether the county cleric must certify the return, and the Court of Appeals subsequently held that a board of supervisors was empowered with the right to certify the return by another person than the county clerk if he refused to sign the certificate. The appeal from Judge Edwards’ order had only this point in it. Before the decision by the Court of Appeals the supervisors had, by the order of this court, recounted the votes so as to elect Mr. Deane, and the vote so recounted was certified by a new county clerk, the old one having been removed by the Governor, and this amended return got to the proper officers before the decision by the Court of Appeals, so that when that decision came, the State Canvassers had, or ought to have had, this corrected return. If the board violated its duty and counted the uncorrected return, it was not a contempt of an order of any court. The order of the court simply provided a legal return of the canvass of the votes, and when it was filed the duty of the court was accomplished.”

The learned justice was in error in supposing that the only point in the appeal from Justice Edwards’ order was, whether the county clerk must certify the return. As we have seen in the extracts we have made from the decision of the Court of Ap>peals, that was only one of the questions, and while the “ Mylod ” return was held legal in that respect, it was held illegal on the other grounds. Again, with great respect, it seems to me that the learned justice erred in his statement that “ the order of the court simply provided a legal return of the canvass of the votes.” It provided more; it provided that the “ Mylod ” return should not be canvassed.

Application upon notice was subsequently made to Justice Edwards for an order to show cause; both sides were heard, and, without expressing any opinion of his own upon the merits, Justice Edwards announced that he would follow the decision of Justice Barnard and denied the application. The appeal here is from both orders.

In that order permission was given to renew the motion, and, hence, the subsequent motion at the Special Term, over which Justice Edwards presided, was regular. It is, therefore, unnecessary to consider whether or not an appeal lies from the prior order made .at Chambers by Justice Barnard.

The learned counsel for the respondents also insists that the latter order of the Special Term, denying relator’s motion for an order to .show cause, is not appealable. That the order in question, being a mere denial of a motion for an order to show cause, did not affect a .substantial right. That the order asked for by relator, if granted, could only have operated as a short notice of motion, and the denial •of the motion in no way prejudiced his rights.

I am of opinion, however, that the order in question did prejudice the rights of the relator. It was an order made on a contested motion. The motion was made in pursuance of the provisions of ¡subdivision 1, section 2269, Civil Code. The relator, on making-proof by affidavit that defendants had disobeyed an order of the court, .served a notice for an order requiring the defendants to show cause why they should not be punished for contempt in pursuance of the provisions of section 2269 {supra). Defendants had notice of the motion, appeared and opposed the granting of it, and the motion was denied. If this order stands unreversed it prevents any further application or proceeding by the relator to punish defendants for the alleged contempt. It is, in effect, a final order. By the well-.settled rules and practice of this court such an order — no leave being given to move again on the same papers — prevents another motion of the same character. (Seaman v. McReynolds, 52 N. Y. .Super. Ct. 543 ; Klumpp v. Gardner, 44 Hun, 515 ; Higgs et al. v. Pursell et al., 74 N. Y. 370 .)

It is urged by appellant that although this court should not con•clude to reverse the order in question, yet that on the same affidavits and papers on which that order was founded 'it could and should grant an original order, directing the defendants to show cause as -asked for by the relator. I think the position is not well taken. Assuming that a General Term could properly, on an original appli

If it stands unreversed it certainly ends any attempt of relator to proceed against defendants for their alleged disobedience of the-order of this court of December Y, 1891.

It is urged that the order appealed from was properly denied because of the delay in asking for it. It seems to me this position can be more properly considered on the final hearing of the case. But I am unable to understand how the delay in relator’s taking proceedings on account of the alleged disobedience of defendants of the order of this court should defeat the motion, unless it is shown that such delay injured the defendants or prevented them from interposing some answer to the motion that could have been asserted if the application had been sooner made. The authorities to which my attention has been called are not parallel. In Jourden v. Hawkins ( 17 Johns. 35 ) a motion was made for an attachment against the sheriff on account of acts of his deputy, after eighteen months5 delay. During the eighteen months the deputy and his sureties had become insolvent. Hence, it apjneared that the sheriff was injured by the delay in moving for the attachment. In the case of The King v. The Sheriff of Surry (9 East, 467) the facts were the same as in the case last cited. Rex v. Perring et al., late Sheriff (3 Bos. & Pull. 151), was also a similar case and decided on the author

I have not considered what effect, if any, under the peculiar circumstances of the case, the fact (if it is a fact) that no mandamus under the order of December J, 1891, was served, may have. That question was not discussed on the argument, and may be considered hereafter.

The case is a very embarrassing and delicate one, involving as it .does a proceeding against so considerable a portion of a. co-ordinate branch of the State government, and I would gladly have been ■relieved from its consideration, but being here, it must be treated in the same way as a proceeding against any other body of men, .and so treating it, I can, from the record before us and for the reasons herein stated, reach no other conclusion than that the defendants have disobeyed the order of this court and are in contempt.

I conclude, therefore, that the order of Justice Edwards should be reversed, with ten dollars costs and printing and other disbursements, and that the motion for an order to show cause should be granted.

Let an order be entered accordingly.

Putnam, J., concurred.

(dissenting):

This is an appeal from two orders, one made expa/rte January 31, 1893, by Justice Barnard of the second judicial district, and one made on motion at Special Term, June 3,1893, in the third judicial •district, by Justice Edwards.

Various objections are raised by the respondents to the consideration of these appeals by this court, some of which, at least, are worthy of careful consideration. The first objection of this class is •that no appeal will lie from the order of Justice Barnard, made ex pa/rte on the 31st of January, 1893.

It seems quite clear upon authority that an ex pa/rte order cannot be appealed from as such. The only way in which such review can be had is by application to the Special Term, or the judge making

Upon this subject the cases are numerous and uniform. (Savage v. Relyea, 3 How. 277 ; Lindsay v. Sherman, 5 id. 308 ; Bank of Genesee v. Spencer, 15 id. 14; Aldinger v. Pugh, 57 Hun, 181 .)

Nor is appeal allowable under the provisions of section 1356. (In re Dunn, 14 N. Y. Supp. 14 ; In re Johnson, 27 Hun, 538 People ex rel. Schlehr v. Common Council of Buffalo, 30 id. 636 .)

It would seem to follow, therefore, that the order made by Judge Barnard expeorte on the 31st of January, 1893, is not appealable, and this appeal, so far as it seeks to review that order, must be dismissed.

It is insisted by the learned counsel for the respondents that the •order made by Justice Edwards at Special Term is not appealable, as it was a denial of an order to show cause, and, therefore, did not affect a substantial right. The language of the order is as follows: It is ordered that the motion for an order requiring the defendants to show cause why they should not be punished for contempt of court be and the same is hereby denied.” Did such an order ■affect a substantial right so as to bring it within the provisions of ¡section 1356 of the Code of Civil Procedure ? That section is as follows: “■ An appeal may be taken to the General Term of the Supreme Court * * * from an order affecting a substantial right, made in a special proceeding, at a Special Term or a trial term of the same court, or in the Supreme Court at a term of a ■Circuit Court, or made by a judge of the same court, in a special qiroceeding instituted before him, pursuant to a special statutory provision, or instituted before another judge and transferred to or ■continued before him.”

No substantial right was affected by the refusal of the court or judge to grant an order to show cause. The order if granted could, only operate as a short notice of motion, and its refusal in no way-impaired or prejudiced the rights of the relator, and for that reason the order of the Special Term was not appealable under the provisions of the section of the Code above quoted. Rule 37 of the-Supreme Court provides that all motions shall be brought on, on notice of eight days, unless a shorter term shall be prescribed. This, is but an amplification of the provisions of section 780 of the Code of Civil Procedure. In Gross v. Clark ( 1 N. Y. Civ. Proc. Rep. 25 ) Daniels, J., in discussing the nature and effect of such an order, uses this language: “ It was simply a substitute for the ordinary notice of motion and it was within the usual power exercised by tliecourt or a judge thereof to make it.” Nor do we think the order-in this matter one made by a judge “ in a special proceeding instituted, before him pursucmt to d special statutory provision.,” as provided in the latter part of section 135G of the Code of Civil Procedure,. and made appealable under that section. It is not the decision of a single judge sitting at Special Term in a matter affecting a sul>stcmtial right which can be reviewed on appeal (Matter of Brady, 69 N. Y. 215 -220); but, as we have seen, this order, being only a notice of motion in effect and in no -way involving the merits of the-controversy, or affecting a substantial right, does not, therefore,, come within the rule laid down in the authorities referred to by the-learned counsel for the relator. The question of the right of a citizen to invoke the aid of the court to compel the performance by a public officer of a public duty is not involved in these applications for an order to show cause, or in the refusal to grant the order asked for on such application.

We are, therefore, clearly of the opinion that the granting or refusal of the order was discretionary, and as it did not affect a substantial right is not appealable.

It is not impossible that a case might arise where haste was-important, and the granting or refusing an order to show cause, as a.

This is not, therefore, such a case. As the granting or refusing of this order was, as we have seen, in the discretion of the judge or court, this court on appeal will not interfere with the exercise of such discretion unless there has been a clear abuse of the exercise of such discretion. (Morrison v. Agate, 20 Hun, 24 , 25; Bryon v. Durrie, 6 Abb. N. C. 140 .) Certainly, if what has been shown in regard to the nature of the order denying the relator’s application is correct, no abuse of the exercise of the discretion of the judge at Chambers or Special Term has been shown.

The application for these orders was made to, and refused by, the same judges whose orders the relator insists were disobeyed. It is fair to presume that they knew better than this court can the nature of the orders made by themselves, and whether they had been contumaciously violated, and acting upon that knowledge they decline for that or other reasons to grant these orders.

It is also urged with a great deal of force that the relator has delayed for more than a year in making this motion, and has by laches waived any alleged violation of the orders which might have occurred. It has frequently been held that laches in moving to punish an alleged contempt is good ground for denying the motion. No sufficient reason is given for this delay. The authorities seem to be uniform in this country and England that an attachment for contempt should be moved for, by the party claiming to be aggrieved, in a reasonable time. (Rapalje on Contempts, § 92; Mongin v. Cheney, 1 Hill [So. Car.], 145.) In King v. Surry (7 Term, 452) it was held that a delay of ten months barred an attachment. (Rex v. Perring, 3 Bos. & Pull. 151.) In Jourden v. Hawkins ( 17 Johns. 35 ) eighteen months’ delay was held fatal. On these grounds alone the orders asked for might have been properly denied. If the views expressed herein are correct, it is probably unnecessary to go farther, as they would result in the affirmance of the orders ■ and dismissal of the appeals.

Again, as the order made by the Special Term sought to restrain

The order being’ void the Special Term could not punish its violation as a contempt, even if it has been disobeyed.

But it is urged by the learned counsel for the relator that, if neither of these orders are appealable, it is the duty of this court, if satisfied that an offense was committed, to grant the motion, and that with that view they have inserted in the notice of appeal an application to this court for such air order; and in support of this suggestion we are referred to sections 2269 and 2271 of the Code of Civil Procedure as authority upon this point. Section 2269 reads as follows: “ The court, or judge authorized to punish for the offense, may, in its or his discretion, where the case is one of those specified in either of the last two sections, and in every other case must, upon being satisfied by affidavit of the commission of the offense, either

“ 1st. Make an order requiring the accused to show cause before it, or him, at a time and place therein specified, why the accused should not be punished for the alleged offense; or,

“ 2nd. Issue a warrant of attachment directed to the sheriff of a particular county, or generally to the sheriff of any county where the accused may be found, commanding him to arrest the accused and bring him before the court or judge, either forthwith, or at a time and place therein specified, to answer for the alleged offense.”

Section 2271, also referred to by the relator as conferring this original authority upon this court, reads as follows:

“Where the order to show cause or the warrant is returnable before the court, it may be made or issued as prescribed in the last section but one, by any judge authorized to grant an order without notice in an action pending in the court * * at which a contested motion may be heard.”

These sections do not confer any original jurisdiction on the General Term of this court to perform the duty either of a Special-Term or single judge, and in the absence, of express statutory authority it may well be doubted whether it has any original juris

Nor do we think either that sections 8 or 14 of the Code of Civil Procedure, to which we are referred by the relator’s counsel, confer any such original jurisdiction on this court, even if the facts authorized or justified any such belief that the acts of the defendants were contempts of the orders of a Special Term.

.But the question having been raised, it may not be improper to inquire what order, if any, of the Supremo Court has been violated by the defendants.

The first order set out in the record was made on the 1th day of December, 1891, at a Special Term held at Albany by Mr. Justice Edwards, directed that a writ of peremptory mandamus issue out of, and under the seal of, the court commanding the State Board of Canvassers to issue a certificate of election to the office of Senator in the fifteenth senatorial district of this State, disregarding the so-called return of the board of county canvassers of the county of Dutchess, which is signed by John Mylod as secretary of said board pro tern., and is not signed by the county clerk of Dutchess county, or certified under the seal of said county clerk. On the making of this order, a stipulation was entered into by the parties interested, signed by their respective attorneys, staying all proceedings by the State Board of Canvassers, these defendants, until the decision of the Court of Appeals upon the above order, and providing for an appeal to that court, the principal question being as to the authority of the returns made to such defendants, signed by John Mylod as secretary pro ton. as aforesaid.

The case shows that the appeal from said order was affirmed pro forma by the General Term, and heard and decided in the Court of Appeals on the 29th of December, 1891. On that day the Court of Appeals handed down the following decision :

“ It is ordered and adjudged that the order of the Special Term herein dated December 1, 1891, and the order of the General Term affirming the same, and the same writ itself, be modified by striking out the provisions requiring a return to be certified by and to come from the county clerk of Dutchess county and issued under his seal, and the said order so appealed from as so modified be affirmed, without costs.”

With this positive declaration by the Court of Appeals squarely overruling the decision of the Special Term, the order of which is made the basis of these proceedings for contempt, we see no escape from the conclusion that the defendants violated no order of any court. And this conclusion is emphasized- by the decision of the Court of Apipeals in Hasbrouck v. Supervisors ( 135 N. Y. 522 ), where it was expressly held that the returns sought by the relator to be substituted for the Mylod returns were invalid. We, therefore, fully concur with Justices .Barnard and Edwards, whose opinions we append and indorse, that the Board of State Canvassers did no act which was a contempt of any order of this court.

Order of Justice Edwards reversed, witli printing and other disbursements, motion for order to show cause granted.

People ex rel. Platt and Another v. Rice et al.

Ho presumptive case is made out of contempt against the defendants for any violation of an order of the Supreme Court. The "board of supervisors of Dutchess county canvassed the votes as to State Senator by throwing out certain so-called marked ballots. The election law was imperative that such votes should be counted in the first instance. The clerk refused to sign the return and the board made Mr. Mylod, its clerk, to certify its count. These returns, so certified, were forwarded to Albany. It was made a question whether the county clerk must certify the return, and the Court of Appeals subsequently held that a board of supervisors was empowered with the right to certify the return by another person than the county clerk if he refused to sign the certificate. The appeal from Judge Edwards’ order had only this point in it. Before the decision by the Court of Appeals the supervisors had by order of this court recounted the vote so as to elect Mr. Deane, and the vote so recounted was certified by a new county clerk, the old one having been removed by the Governor, and this amended return got to the proper officers before the decision of the Court of Appeals, so that when that decision came the State Canvassers had or ought to have had this corrected return. If the board violated its duty and counted the uncorrected return it was not a contempt of an order of any court. The order of the court simply provided a legal return of the canvass of the votes, and when it was filed the duty of the court was accomplished.

Motion for order to show cause denied.

The People ex rel. Platt and Another v. Rice et al.

This is an application to a Special Term of this court under section 2269 of the Code of Civil Procedure for an order requiring the Board of State Canvassers to show canse why they should not be punished for an alleged violation of an order of this court. The same application upon the same affidavits was heretofore made to Justice Barnard at Chambers, who, under that section of the Code, had the same jurisdiction to issue an order to show cause that the court has at Special Term. The learned justice who heard the application considered it deliberately and came to the conclusion that the order ought not to he granted. In his written opinion he says that no presumptive case is made out for a contempt against the defendants for any violation of an order of the Supreme Court. He further says that if the hoard violated its duty and counted the uncorrected return it was not a contempt of any order of any court. This court is now asked upon this application upon the same motion papers that were before Justice Barnard, substantially to review the decision of the learned justice, and to reach a different

The duty of the court upon this application is very clear. I shall follow the decision of Mr. Justice Barnard, and' if such decision be error the relators have a perfect remedy.

The apjilication is denied.