People Ex Rel. Sherwood v. State Board of Canvassers , 129 N.Y. 360 ( 1891 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] In 1891 the legislature passed the act, chapter 308, entitled "An act to authorize the selection, location and acquiring of certain grounds for a public park in and near the city of Hornellsville, and to provide for the maintenance and embellishment thereof." That act provides for the appointment of a board of park commissioners, to consist of six persons; and in the month of May the relator, Franklin D. Sherwood, was duly appointed one of such commissioners. He duly qualified by taking the official oath and giving the official bond therein required, and has ever since acted as such commissioner. At the last election he became a candidate for senator in the twenty-seventh senatorial district of the state and he claims to have received a majority of the votes cast for senator in that district, and that he was eligible to the office, notwithstanding the provision of section 8 of article 3 of the Constitution, which provides that "no person shall be eligible to the legislature who, at the time of his election is, or within one hundred days previous thereto, has been, a member of congress, a civil or military officer under the United States, or an officer under any city government. And if any person shall, after his election as a member of the legislature, be elected to congress or be appointed to any office, civil or military, under the government of the United States, or under any city government, his acceptance thereof shall vacate his seat." The appellants claim that he was ineligible under this constitutional provision, and whether he was or not is the important question now to be determined. The question has attracted much public attention: it is fairly involved in this case, and the interests of the public require that we should meet and determine it if it is within our judicial competency to do so. It is a pure legal question, depending upon undisputed facts, and it would be quite unfortunate to have this case go through all the courts and to leave the most important and vital matter in it undecided.

There can be no doubt, it seems to me, that the relator holds a public office. He was required to discharge duties, not for his own benefit, not for the benefit of private individuals, but for the public. He was required to take the constitutional oath of office and to give a bond for the faithful discharge of his duties, and he and his associates were clothed with the power of eminent domain. That under such circumstances he was a public officer has never been questioned any where, so far as I can find. (The case of Daniel Wood, 2 Cow. 29; People v.Comptroller, 20 Wend. 598; People ex rel. v. Nostrand,46 N.Y. 381; People ex rel. v. Common Council, 77 id. 503;Rowland v. Mayor, etc., 83 id. 376.)

Being a public officer, it is next to be determined whether he was an officer under the city government, within the meaning of the Constitution. The act provides in section 1, that there shall be "in and for the city of Hornellsville," a board of park commissioners, to consist of six competent persons, The board is thus constituted for the city; and the act further provides that the members thereof shall be appointed by the mayor of the city, by and with the consent of three-fourths of the members of the common council; and the mayor may suspend and may also remove any member of the board by and with the approval of the common council. It is further provided that no person who holds "any other city office," shall hold the office of park commissioner, and that upon the appointment of a park commissioner to "any other city office," his office of park commissioner shall be vacated. Every park commissioner is required to give a bond to the city for the faithful discharge of his duties, which is to be approved by the mayor, and the official oath and bond are to be filed with the city clerk. By section 2, the park commissioners are required to appoint a treasurer, who is to give a bond to the city to be approved by the common council. They are authorized to select and locate lands for a city park, and to take them by purchase, gift or condemnation; and all such lands are to be taken in the name of the city, and to be paid for out of the city funds, and to be part of the city territory. They are clothed with the exclusive power to govern, manage, direct, lay out and regulate the park; to appoint engineers, clerks, police, and other necessary officers, and prescribe their duties and fix their compensations, and generally, in regard to the park, they are clothed with all the power and authority possessed by the common council of the city. They are also clothed with power to pass such ordinances as they may deem necessary for the government of the park, not inconsistent with the ordinances of the city, which ordinances are required to be published in the official paper of the city; and all persons offending against such ordinances may be punished before any magistrate of the city by fine or imprisonment. It is provided further that a special election shall be held in the city for the purpose of determining whether it shall issue the bonds and acquire the park, as provided in the act.

It seems to me too clear for dispute, in view of these provisions, that the park commissioners are officers under the city government. They hold their offices by appointment of the city government and, therefore, under the city government. All their duties relate to its interests and welfare, and they are actually set in motion by a vote of the taxpayers of the city. They are certainly not state officers, and if they are not city officers, what are they? I believe it was never doubted that the park commissioners of the city of New York and of the city of Brooklyn, are city officers of those cities; and so, we held as to the park commissioners of the former city in Ehrgott v.Mayor, etc. (96 N.Y. 274). Would anyone seriously contend that a New York or Brooklyn park commissioner would be eligible, under the Constitution, to the legislature? There could be no reason for holding one of them eligible, which would not be equally applicable to the commissioner or deputy commissioner of public works, or the chamberlain of the city of New York.

It is no answer to these views that the powers and duties of these commissioners are regulated by law, and thus that they do not act under the direction or control of the city government or any of its officers, and that, therefore, they are, in a certain sense, independent officers. This is generally true of all public officers, from the mayor of a city to the supervisor of a town and through all the grades to a town constable. Their powers and duties are regulated by law. The route in which they shall travel is prescribed by law, and unless they are specially subjected to the control of a superior officer, they act independently, subject to no control except the rules of law and the commands and judgments of the courts. And nevertheless the mayor of a city is a city officer and the supervisor and constable of a town are town officers. Because the duties of municipal officers are regulated by statute, the municipality of which they are officers is not responsible for their misfeasance or nonfeasance, except in cases where they act as the agents of the municipality in the discharge of duties imposed by law upon it. And so we held inMaxmilian v. Mayor, etc. (62 N.Y. 160), and Ham v. Mayor,etc. (70 N.Y. 459). Although the officers mentioned in those cases were undoubtedly officers under the city government, the city was held not to be responsible for the misfeasance of their subordinates, because the doctrine of respondeat superior did not apply to those cases. In them the court followed the case ofLorillard v. Town of Monroe (11 N.Y. 392), where it was held that the assessors and collector are not in a legal sense the agents of a town in its corporate capacity in the assessment and collection of taxes, and the town is not responsible for any mistake or misfeasance by them in the performance of their duties, and yet assessors and collectors are town officers and are so described in the Revised Statutes.

It certainly cannot be doubted that the legislature was competent to make these park commissioners city officers, and whether or not it intended so to do must be determined by the language and provisions of the act.

Here the legislative intention is manifested by the circumstance which must usually be controlling, that the commissioners are required to be appointed by the mayor and common council, and by the provision in the act that no person holding "any other city office" shall be eligible to the office of park commissioner, and that if a park commissioner be "elected or appointed to any other city office," his position as park commissioner shall thereby become vacant. It is of course possible that park commissioners could be so constituted by the legislature as not to become city officers, but such is plainly not the effect of this act.

So we reach the conclusion that the relator was not eligible under the Constitution to the senate. The term eligible relates to the capacity of holding, as well as to the capacity of being elected to the office. (Carson v. McPhetridge, 15 Ind. 327.) Therefore, he could not be elected to or hold the office of senator. He violated the constitutional provision in seeking the votes of the electors, and they violated it in voting for him. As matter of constitutional law, any certificate the appellants could issue to him would be an absolute nullity, and the only use he could make of it would be to violate the Constitution and do a wrong by intrusion into an office which he has no right for one moment to hold.

So we come to the important question underlying this case, ought the court to grant a mandamus to compel the issuing of a certificate of election to one who has no right under the Constitution to the office? Can the relator come into a court of law and ask its aid in his violation of the Constitution and his proposed intrusion into the office of senator? Suppose he came into court a confessed alien or non-resident of the state, would the court, looking merely at the duty of the state canvassers under the law, stretch out its strong arm to help him? Well-established principles of law and a strong current of authority require these questions to be answered in the negative.

A party can demand a mandamus only to secure or protect a clear legal right, never to accomplish a wrong. In High's Extraordinary Legal Remedies (§ 40) it is said: "The writ of mandamus is never granted for the purpose of compelling the performance of an unlawful act, or of aiding in carrying out an unlawful proceeding;" and in section 14, "it is a fundamental principle of the law of mandamus that the writ will never be granted in cases where, if issued, it would prove unavailing;" and in section 26, "it is important that a person seeking the aid of a mandamus for the enforcement of his rights, should come into court with clean hands." I do not attribute to the relator any actual wrong motive or intent in anything he has heretofore done. I simply mean to characterize his acts as they are measured by the Constitution and the laws.

In Peters v. Board of State Canvassers (17 Kansas, 365), it was held that a mandamus would not be issued against the board of state canvassers to compel it to canvass the votes, and to issue to the relator a certificate of election where he had been elected a judge at a time when no election could properly be held. (See also Rose v. County Commissioners, 50 Me. 243;Sherburne v. Horn, 45 Mich. 160, and State ex rel. v.Whittemore, 11 Neb. 175.)

In State ex rel. Ensworth v. Albin (44 Mo. 346), an election for judge was held which was not preceded by a registration of voters as required by law, and it was held that the election was invalid, and that the court would not by mandamus compel the County Court to issue a commission to a judge who claimed to be elected, although the functions of the County Court were purely ministerial. The court said: "This court will not issue a peremptory writ of mandamus unless the relator shows that he has a good title or a perfect right to the remedy he demands. He can derive no right from an illegal or invalid election."

In State v. Mitchell (23 Kansas, 324), it appeared that at an election held in the county of Harper for county officers and for the location of the county seat, the returns made to the canvassing board showed a vote of 2,947, while there were in fact only about 800 legal voters in the county. An application was made for a mandamus to compel the board to canvass these returns and declare the result, and it was held that, notwithstanding the fact that the duties of the board were mainly ministerial, and that it was not charged with the duty of inquiring into the reception of illegal or the rejection of legal votes, or fraudulent practices at the election, the court would, in the exercise of a sound discretion, not even apparently sanction so gross an outrage on the purity of the ballot-box by issuing a mandamus to compel, in the name of a technical compliance with duty, the canvass of the returns under such circumstances.

In State ex rel. Snyder v. Newman (91 Mo. 445), the relator was a candidate for mayor of Pierce City at the April election of 1886, and the respondents were the aldermen of that city. An ordinance of the city made it the duty of the aldermen, on a designated day after each election to canvass the returns, to determine who had been elected to the various offices, and to direct the clerk to issue certificates of election to the persons declared elected. In that case the aldermen determined that the relator had received the highest number of votes, but declined to direct the clerk to issue a certificate of election to him, and he sought by the writ of mandamus to compel them to do so. The law declared that no person should be mayor of a city of the fourth class unless he was an inhabitant of the city for one year next before the election. On the pleadings it was admitted that the relator did not possess that qualification, and the court said: "A peremptory writ of mandamus will not be issued unless the relator shows a clear right to the remedy which he asks. The election of a person to an office, who does not possess the requisite qualifications, gives him no right to hold the office. As, by reason of his disqualifications, the relator was not entitled to hold the office, surely he has no right, at the hand of the court, to be armed with a certificate of election — evidence of title to that to which he has no right." And the writ of mandamus was denied.

Inspectors of election are mere ministerial officers, and if an applicant to be registered makes the proper statement, and the required oath or affirmation, his name must be added to the list of voters, and the inspectors have no discretion or right to refuse to add it. The law makes it their duty to do so, and yet, if a person who has been refused should apply to the court for a mandamus against the inspectors, and it should there appear that he had no right to be registered, and was not in fact a qualified voter, would the court compel the inspectors to register him, and thus place him in a position where he might cast an illegal vote? Would it listen to his claim that he ought to be registered and thus clothed with the apparent right to vote so that he could present his vote on the day of election, and thus test his right to vote? So, when a voter at an election offers his vote to the inspectors, and if challenged, takes the preliminary oath, and after answering fully the questions touching his right to vote, offers to take the general oath, it is the absolute duty of the inspectors to receive his vote. (People v. Pease, 27 N.Y. 45;Goetcheus v. Matthewson, 61 id. 420; People ex rel.Stapleton v. Bell, 119 id. 175.) If in such a case, the inspectors refuse to take his vote, and he is a legal voter, he can compel them to take it by mandamus. But suppose, upon his application for a mandamus, it should appear, upon facts not disputed, that he was not a qualified voter, would the court still compel the inspectors to take his vote, and thus permit the voter to commit a crime, for the sole reason that the law made it their duty to take the vote?

But it is claimed that we have no jurisdiction to determine that the relator was ineligible to the office of senator, because the Constitution, in section 10 of article 3, provides that each house of the legislature "shall be the judge of the elections, returns, and qualifications of its own members." The courts cannot interfere with this jurisdiction of the senate. Whatever may be determined here or elsewhere as to the election or qualification of the relator, or the result of the election in the 27th senatorial district, when the senate convenes, and not until then, it will have absolute jurisdiction of the whole subject, and may determine which of the two persons claiming seats therein was duly elected and qualified to sit therein; and it may determine that one was ineligible, and that the other was not elected, and that thus there is a vacancy in that district calling for a new election. It is undoubtedly true that the courts cannot by quo warranto try the title to a legislative office. But this is not such a case. Here the relator comes into court and asks its aid to clothe him with apparent title to an office, and by its affirmative action, to remove obstacles which stand in his pathway in his proposed intrusion into the office; and upon the undisputed facts, the court is able to see that he is ineligible, and it simply determines that it will not aid him; and in making such determination, it in no way infringes upon the jurisdiction confided to the senate. It simply exercises a jurisdiction which he has invoked.

We would have substantially the same question before us if some elector in the 27th senatorial district had been the relator in this case instead of Sherwood. The same line of reasoning which I have used would answer his application for a mandamus.

This cannot be treated as in any sense a proceeding on behalf of the people. Nor can it by amendment be turned into such a proceeding. A writ of mandamus on behalf of the people in their sovereign capacity can be awarded only upon the application of the attorney-general, or some district attorney, and the indorsement upon the writ must show that it was issued upon such application. (Code, § 1993.) And in such a case the name of no person need appear as relator in the proceeding. Here the writ was awarded upon the application of Sherwood, a private person, and he appears as relator. (Code, § 1994.) In such a case the proceeding is purely one to enforce a civil remedy and the people are present merely as a formal party and their presence is due to the survival of a form which has long since ceased to have any significance or utility. The real party in interest is the relator in such a case, and if he should die the proceeding would abate. (High's Extraordinary Legal Remedies, §§ 430 et seq.) We need not, therefore, now determine what this court would do if the mandamus in this proceeding had been awarded upon the application of the people through some officer authorized to represent them.

We agree that the board of state canvassers act ministerially, and that they have no power or jurisdiction to go outside of the returns of the county canvassers or to institute an inquiry as to the eligibility of the candidates who were voted for by the electors. The question of eligibility is to be answered by reference to the law as well as the facts, and very wisely, as I think, they are not clothed with authority to determine that question. Much less have they authority to determine whether the minority candidate was elected. In the solution of that question is involved not only the eligibility of the majority candidate, but the further question whether the voters voted for him knowing of his ineligibility within the rules laid down in People exrel. v. Clute (50 N.Y. 451).

None of the officers clothed with the duty to canvass votes derive any power in a case like this to pass upon the eligibility of candidates and to disregard votes cast for an ineligible candidate from the following provision of section 21 of the Ballot Law of 1890: "Whenever a candidate for any office, whose name is printed on the official ballot, shall have died, shall be or become ineligible, or shall have withdrawn before election day, voters may use unofficial ballots in voting to fill the office for which such deceased, ineligible or withdrawn candidate was nominated, and the name of the deceased, ineligible or withdrawn candidate shall be considered as having been erased from the official ballot; but such unofficial ballot shall contain only the name of the person voted for, in lieu of the deceased, ineligible or withdrawn candidate, and under the designation of the office for which such person is a candidate." That provision was intended merely to enable voters, in the cases mentioned, to vote unofficial ballots, and it is only in case some candidate is voted for by an unofficial ballot that the name of the candidate on the official ballot is to be considered as having been erased. Here there were no unofficial ballots, and no candidates were voted for except those whose names were upon the official ballots.

Nor does the board of state canvassers obtain power to make inquiry as to the eligibility of the relator by virtue of the following provision in section 843 of the Code: "Where an officer, person, board or committee to whom or to which application is made to do an act in an official capacity, requires information or proof to enable him or it to decide upon the propriety of doing the act, he or it may receive an affidavit for that purpose." As the state canvassers have no jurisdiction to inquire as to the eligibility of the relator, they can have no official act to perform in reference thereto, and they can require no information or proof to enable them to enter upon that inquiry. If they are confined, as we hold they are, to canvassing the returns and in the discharge of that duty to what lawfully appears in or upon the returns, then they can have no need of proof which will enable them to go back of or outside of the returns. I can imagine cases in which this provision would have application to the state board of canvassers, one of which is, where it is claimed that the returns are spurious, or forged, or have been altered, and in that case they might take proof by affidavit to inform themselves as to the facts.

While, therefore, the state canvassers were bound to canvass the returns from the 27th senatorial district and to declare the result in compliance with the law, yet for reasons which we have given, the court will not aid the relator. The action or non-action of the canvassers may be an obstacle in his way, but the court will not by mandamus in a case like this, where the facts showing his ineligibility are undisputed, assist him in removing the obstacle. He and his competitor may both present their cases to the senate without either of them having a certificate of election, and that body will have jurisdiction to determine all the questions of fact and law involved in the matter. If it shall agree with this court that the relator was ineligible and also find that his competitor was not elected, the result will be that a new election will have to be ordered in that district, and the electors there can then choose a person qualified to hold the office, and then they can be properly represented in the senate. It is far better that they should be called upon to vote again than that the Constitution should be violated. The safety of our government and the success of our republican institutions depend upon obedience to the Constitution and observance of the laws. Liberty, regulated by law, is the foundation upon which the people of this country must build, and it would be quite unfortunate for this court by any decision it may make, to encourage lawlessness anywhere.

It is quite true that a majority of the electors in the 27th senatorial district have, through the ballot-box, expressed their will that the relator should represent them in the senate, and it is unfortunate that that will should for the present be defeated. But under our system of government, founded upon the majority rule, majorities must express their preferences in the form prescribed by the Constitution and the laws. It is better that an election of a senator should fail than that the Constitution or laws should be nullified or violated. In Gulick v. New (14 Ind. 93), it was well said: "We are reminded that in our form of government, the majority should rule, and that if the course indicated is not followed, a majority of the voters may be disfranchised, their voice disregarded and their rights trampled under foot, and the voice of a minority listened to. True, by the Constitution and laws of this state, the voice of a majority controls our elections. But that voice must be constitutionally and legally expressed. Even a majority should not nullify a provision of the Constition, or be permitted, at will, to disregard the law. In this is the strength and beauty of our institutions." In the same case it was held that where one of the candidates was ineligible, and that was known to the electors, or the facts were such that they were bound to know it, votes cast for him would be ineffectual, and would have to be disregarded, and the candidate receiving a majority of the legal votes declared elected.

Our conclusion, therefore, is that the orders of the General and Special Terms should be reversed, and the application for a mandamus denied.