People ex rel. Platt v. Rice , 81 N.Y. Sup. Ct. 179 ( 1893 )

HERRICK, J.

After the state election in 1891, a controversy -arose in the county of Dutchess over the canvass by the board of county canvassers of the vote for state senator. The county clerk, as secretary of the board of canvassers, refused to sign the statements of canvass as made by the board of canvassers, and said board thereupon by resolution appointed John J. Mylod, one of its members, secretary pro tern., and directed him as such to sign and! attest said statements, which he did, and such statements, so signed by him, were transmitted to the governor, secretary of state, and comptroller, to be canvassed by the defendants herein as the state-board of canvassers. Proceedings were thereupon instituted against the defendants, composing the state board of canvassers, to 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 tem., 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 issued under the seal of said county clerk; and 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 comet, 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, 29 N. E. 355.

It appears from the opinion of Judge Peckham that two grounds were urged in the court of appeals for sustaining the order in question,—one that the return of the county canvassers referred to in said order was not certified by the county clerk, and the other that the county canvassers illegally threw out votes that had been counted for Mr. Deane by the inspectors of election, and illegally transposed votes canvassed by said inspectors,—votes counted for Mr. Deane were given to Mr. Osborne; that the board of county canvassers illegally canvassed the returns from the inspectors of election in- the whole county, and made up their own canvass in-opposition to such returns. As to the first ground, the court held that it was not necessary that the returns of the board of county canvassers should be signed or certified by the county clerk, and jin disposing of that question the court said:

“We think that under all the facts the steps taken to certify and authenticate the statements were valid, and the proceedings by which they were sent to and received by the secretary of state and other state officers were-sufficient to entitle them to be filed and considered by the board of state canvassers as the properly certified result of the canvass of the board of county canvassers. The other ground for directing the state canvassers to-omit to canvass this return remains to be considered.”

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

“Upon, 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 county, 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 special term herein, dated December 7, 1891, and the order of the general term affirming the same, and the same writ itself, be modified by striking out the provision requiring a return to be certified by, and to come from, the county clerk of Dutchess county, and issued under his seal, and that the said order so appealed from, as so modified, be affirmed, without costs.”

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 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., 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 “Mylod” 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. Without discussing the question whether or not there was a corrected return before the board which they could and should have canvassed, it is sufficient to say that there was an order of the special term, affirmed by the general term and the court of appeals, in force, directing a mandamus to issue to the defendants, forbidding the use of the Mylod return in.making their canvass. This order had been served upon the defendants, and they had appealed from it, and knew the result of such appeal. Whether or not the remittitur of the court of appeals had been filed or judgment entered thereon when the defendants acted in making the said canvass, it seems to me, is not important. The order, as affirmed by the general term, was in full force until the judgment of the court of appeals was made that of the supreme court. In Sixth Ave. R. Co. v. Gilbert El. 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 defendants are 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 Mylod return. If, when the defendants canvassed the Mylod return, the judgment of the court of appeals, was not made that of the supreme court, then the order of the general term was in force. If, on the contrary, its remittitur was filed, and order 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. Their statements are uncontradicted. The defendants have submitted no opposing affidavits or records, and from the record, as it now is, 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 than is necessary to decide this appeal. A prejudgment of the merits of the principal case is to be avoided if possible, but on the case as it now appears before the court I cannot escape the conclusion that in canvassing the so-called “Mylod” return the defendants were guilty of contempt of court. Of course, these views may be changed when the defendants submit their version of the transaction, and it is sincerely hoped that they will be able to show such a state of facts as will absolve them. The suggestion that the court of appeals, in the case of People v. Board of Sup’rs of Dutchess Co., 135 N. Y. 522, 32 N. E. 242, held that the return from Dutchess county attempted to be substituted in place of the Mylod return was invalid, is of not the slightest consequence in this case. We are only dealing with the Mylod return. It was the Mylod return the defendants were forbidden to canvass. It was the Mylod return they canvassed; and the fact that there was another return, also illegal, which was attempted to be substituted in its place, makes no difference as to the duty of the defendants in reference to the Mylod return. The case of People v. Board of Sup’rs of Dutchess Co. did not deal with the Mylod return, and in no sense overruled People ex rel. Daley v. Rice, supra.

My attention has been called to the declaration of the court of appeals in the case of People ex rel. Derby v. Rice, 129 N. Y. 461, 29 N. E. 358, 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, yeti 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, Code Civil Proc. 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.”

The cases of People ex rel. Derby v. Rice, supra, and People ex rel. Daley v. Rice, supra, were companion cases. They appear to have been argued in the court of appeals upon the same day, and to have been decided upon the same day; the orders appealed from were made at and by the same special term, at the same time, and the stipulation referred to in the Derby Case embraces also the Daley Case, as well as others; and, like the Derby Case, no objections were taken in the court below to the power of the court to grant the order in question. Both orders were affirmed by the court of appeals, the one in the Daley Case having been modified as hereinbefore stated. Unless the order is void upon its face for lack of jurisdiction on the part of the court which granted it, the party violating it is properly adjudged guilty of contempt. People v. Sturtevant, 9 N. Y. 263.

"No matter how- erroneous the action of the court may have been in taking cognizance of the suit and awarding a mandatory process, unless there was an entire absence of judicial authority to act in the premises it was the duty of the defendant to obey its commands until they have been revoked-by an order made in the action in which they had 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, 32 N. E. 775.

The order in this case having been affirmed by the 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 the contrary, must hold that the fact that the highest court in the state has affirmed the 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 the parly who violates it is properly adjudged guilty of contempt. It may also be added that upon this motion the question of the authority of the special term to grant the order is not raised by the defendants. Indeed, it seems to me that the stipulation entered into by them upon the appeal would bar them from raising that question in a proceeding of this character.

Upon the state of facts here recited, an ex parte application was made to Mr. Justice BARNARD for an order directing the defendants to show cause why they should not be punished for contempt. Such application was • denied, with leave, however, to renew the same before some other judge. In denying the application, the learned justice, in the course of his opinion, made the following statement:

“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 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 is in error in supposing that the only point to 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 appeals, 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. The objection is made that no appeal lies from the order of Justice BARNARD. It seems to me to be of no consequence whether it is appealable or not. 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 respondents also insist that the latter order of the special term, denying relators’ 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 relators, if granted, could only have operated as a short notice of motion, and the denial of the motion in no way prejudiced their rights. I am of opinion, however, that the order in question did prejudice the rights of relators. It was an order made on a contested motion. The motion was made in pursuance of the provisions of Code Civil Proc. subd. 1, § 2269. The relators, 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 relators 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; Riggs v. Pursell, 74 N. Y. 370.

It is urged by appellants that although this court should not conclude 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 relators. I think the position is not well taken. Assuming that a general term could properly, on an original application, grant such an order, yet such general term, in that view, possesses no more or other power than the special term to commit for contempt in such a case; and as relators elected, on notice, to make their application at the special term, no permission having been given to renew the motion, it would not be proper for this court, on the same papers, to grant the order asked for. As we have no other or greater power (if we have any) than the special term, we are governed by the well-established rule of practice that a motion, being denied, cannot be renewed on the same papers without leave. It follows that the order in question is practically a final order, and amounts to a denial of relators’ motion to commit defendants for the alleged contempt. The order asked for was not a short notice of, or a substitute for a notice of, motion. It was a preliminary order necessary to be granted, in pursuance of the above referred to provision of the Civil Code, in the proceedings to punish defendants for the alleged contempt. Hence it is appeal-able. People v. Healy, 33 How. Pr. 172; Livingston v. Swift, 23 How. Pr. 1. If it stands unreversed, it certainly ends any attempt of relators to proceed against defendants for their alleged disobedience of the order of this court of December 7, 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 relators’ 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 18 months delay. During the 18 months the deputy and his sureties had become insolvent. Hence it appeared that the sheriff was injured by the delay in moving for the attachment. In the case of The King v. Sheriff of Surry, 9 East, 467, the facts were the same as in the case last cited. Rex v. Perring, 3 Bos. & P. 151, was also a similar case, and decided on the authority of The King v. Sheriff of Surry, supra. It is possible that, on the return of the order to show cause, respondents may show that they have been injured by the delay, but no such injury appears in the papers submitted to us.

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 7, 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 the same 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 $10 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., concurs.