5 Abb. Pr. 182 | N.Y. Sup. Ct. | 1857
Proceedings having been instituted before me (under 1 Rev. Stats., 125, § 56), to compel Mr. Devlin to deliver to Mr. Conover the books and papers pertaining to the office of street commissioner of the city of New York, on the ground, that the applicant was the successor of the late incumbent to the office to which they appertain; and the parties having been heard from day to day until July 8, 1857, and my decision having been announced on that day, that the applicant was such successor, and as such was entitled to the relief asked, that is, to the warrants provided for in that section,—one that the respondent be committed to the jail of the county until he should deliver
That order was immediately served on the respondent, and delivery of the papers in compliance with it demanded, which was refused.
This refusal was followed by an immediate application for the warrants contemplated by the act, to which, by my decision, embodied in the order I had determined, he was entitled. Pending this application, and while a discussion respecting the effect of an injunction then in force, restraining the applicant from taking into his possession the books and papers, was in progress, a writ of certiorari from the Supreme Court was served on me commanding me to certify to that court my proceeding in the premises. The injunction has since been dissolved, and I am now asked to issue the warrants notwithstanding the certiora/ri.
The fact that this writ from its operation suspends the power of the officer to whom it is addressed is not denied by the applicant, but, on the contrary, it is admitted as a general proposition ; but that such is not the effect in this particular case is insisted on several grounds—some of which seem to arrange themselves under the following heads, and which I will proceed to consider:
1. It is said that this proceeding—being in its nature summary, and intended to confer present possession merely, not to determine the ultimate rights of the parties—is not subject to the operation of this writ. And there is much good sense in the suggestion that such a proceeding should not be liable to be suspended in this manner. It does not determine the ultimate rights of the parties, but leaves them to be determined in a more grave and formal proceeding. They depend on the right to the office, for ascertaining which, ample provision was made before. The ancient prerogative writ of quo warranto gave contesting claimants a mode of determining controversies respecting office, conclusive in its nature on all the parties interested. In that writ in its day, as since in the action of the same name, the sovereign was the nominal and real plaintiff, while the person asserting his rights to the office, if there were such a claimant, was made a party incidentally under the title of relator, and in
This proceeding, however, was not thought sufficiently speedy to answer all purposes, and accordingly to supply immediate and urgent necessities the statute under which I am acting is made applicable, by which, in a brief and summary manner, on a decision of the question of succession in fact merely, the incumbent may be put into possession of the books and papers for the time being. Thus until the title can be ultimately ascertained by the only conclusive adjudication, the person in the possession and use of the franchise, with color of title, may be placed in possession of the books and papers incident to its use.
In a case like the present, when the title to the office is in doubt, effect cannot otherwise be given to this statute without actually deciding the question of title, which, I am confident and all seem to agree, cannot have been the intent of the Legislature. To transfer to a person, not actually the incumbent of an office at the time, the books and papers incident to it, which are often indispensable to its use, would not only be to adjudge his title in the abstract, but, moreover, for practical purposes, to induct the claimant—to invest him with the office, and thus it would perform the functions of a quo warranto and more. It would be to decide the question of title incidentally to the question of the right to present possession of the books and papers.
From what I have said it appears, I think, that this remedy by certiorari is pretty well hedged about with safeguards. First, that it should appear probable that wrong has been done; second, that the error is of such a nature that it can be corrected on certiorari ; and third, that the writ will not operate oppressively. All these should be determined by the court before the writ should be allowed, and, indeed, it should be quashed after it is allowed, if it do not appear that all the requisites occur in the case (15 Wend., 198). This seems to me to answer the argument ab incomienienti that the writ should not apply to proceedings like this, because of the danger that it would defeat the end designed by the proceeding itself. If the judgment sought to be reviewed, after careful examination, seems to be wrong, and it also seems, after like careful examination, that the error can be corrected by certiorari, and that no harm can be done by allowing the writ to take its course,—questions with the decision of which I have nothing to do, but all of which the court granting it is bound to decide in favor of the applicant before it allows it,—the application
2. It is said that the order made by the court the day after the certiorari was issued and served, to the effect that said writ should not be deemed to operate as a stay of proceedings, or to interfere in any manner with the proceedings before me, prevents it having any such effect. But if the certiora/ri the day before suspended my powers and functions, it is not easy to see how an order of this kind could restore them—the writ being still in existence. The writ itself, of its own force (ex-propio vigore), when allowed and served, terminated my powers, if it had any application to disturb the proceeding at all,- and while it remains unrevoked and in force as a writ, I doubt very much if its legitimate effect could be thus modified by an order of the court. My powers are suspended, if at all, by a transfer of the proceedings from me to the Supreme Court, and a necessary consequence of this would seem to be that I am not in possession of the case, and can take no steps in it. The allowance of the
The case of Patchin a. The Mayor of Brooklyn (13 Wend., 664), in some of its obiter dicta and head-notes, seems to conflict somewhat with some of these views, I am aware, but I think that nothing decided in that case does conflict materially with them.
The fatal effects of .the writ to this proceeding, the fact that it terminates and, for all practical purposes, annihilates the whole matter, would be excellent ground for an argument to the Legislature to show the necessity of a modification of the law, perhaps, and could perhaps have been properly addressed to the court in opposition to the allowance of this writ in the first instance, and it may be of service on the motion to quash it, if such a motion should ever be made, but it can have but little weight with me in determining what are the legal consequences of the writ when allowed and in force.
3. It was urged, also, that the signing and delivery of these warrants were judicial acts, and that therefore they were not restrained by the certiorari. But my judgment has not only been announced orally, but reduced to writing in the form of an order, and signed by me and delivered to the applicant. I have there decided that the applicant was entitled to the relief asked —that he should have the warrants. Is it possible that the writing of these papers, and signing and delivering them, are judicial acts ? And even if they were, they are, so far, separate acts, distinct from the previous, proceedings at the trial, that the principle which authorizes the completion of a trial because it is begun, as in the case where the venire had been awarded (1 Bac. Abr. tit., Certiorari, 560; and 2 Hawk., P. C, ch. 27, § 30), would not apply here to justify me in proceeding. But it seems to me that it certainly is not a judicial but a ministerial act, and that, therefore, I am bound to refrain.
Finally, I see no mode of escape from the restraining influence of this writ while it remains in force. The only way of escape for the applicant seems to be through the court granting it, and to that court I must commend him. My hands are certainly
I am accordingly constrained to suspend my proceedings, and decline for the present to .issue the warrants.
After the decision of Mr. Justice Davies granting the motion to .supersede the certiorari (see the case of The People on rel. Devlin a. Peabody, Post, immediately following the case in our text), the order of Mr. Justice Peabody for the delivery of the books and papers to Conover, and the warrant of arrest and search-warrant were settled and signed by the judge.
The following are the orders as drawn up by Mr. David Dudley Meld, of counsel for the applicant, and amended upon argument by the judge :
THE ORDER UPON THE APPLICATION.
In the matter of the application of Daniel D. Conover against Charles Devlin, to compel him to deliver up the books, papers, fyc., in the office of Street Commissioner.
Whereas, on the 18th day of June, 1857, at the City Hall in the city of New York, complaint was made to Charles A. Peabody, one of the justices of the Supreme Court of the State of New York, by Daniel D. Conover, setting forth, among other things, that Joseph S. Taylor, who was, in November, 1855, elected to the office of street commissioner of the city of New York, to serve for three years from January, 1856, went into his said office in said January, and continued in office till the 9th of June, 1857, when he died.
That the said Conover was, on the 12th day of said June, duly appointed and commissioned to fill the vacancy in the said office, caused by the death of the said Taylor, and had duly qualified himself, and was the successor to the said office ; that the books, papers, maps and documents belonging and appertaining to the said office had come to the hands of Charles Devlin ; that the said Conover had demanded the said books, maps, papers and documents from the said Charles Devlin, and that the said Devlin had withheld the said books, maps, papers and documents, and refused to deliver the same to the said Conover, and asldng that the said Devlin might be ordered to show cause before the said justice why he should not be compelled to deliver the said books, maps, papers and documents to the said Conover ; and whereas, being satisfied by the oath of the said Conover, that the said books, maps, papers and documents were withheld, the said justice granted an order directing the said Devlin to show cause before him on the 23d day of June last, at the chambers of the justices of the said court, why he should not be so compelled ; and at the time and place so appointed, the said Conover and the said Devlin appeared before the said justice, and due proof having- been made of the service of the said order, the said justice proceeded to inquire into the circumstances, which inquiry was continued before him from day to day, until this day, the matter having been thus regularly adjourned, and the said Devlin not having made oath that he has truly delivered to the said Conover the said books, maps, papers and documents, and it appearing to the said justice that the said Conover is the successor to the said office of street commissioner of the city of New York, and that the said books, maps, papers and documents are still withheld, and that the said Devlin still omits and refuses to deliver up the same. It is hereby ordered that the said Charles Devlin forthwith deliver to the said Conover all the books, maps, papers and documents belonging or appertaining to the office of street commissioner of the city of New York which have come to the hands of the said Devlin, or in default thereof, that a war
THE WABBANT OF ABBEST.
The People of the State of New York to the Sheriff of the City and County of New York: Whereas, at the City Hall of the city of New York, on the 18th day of June, 1857, complaint was made to the undersigned, one of the justices of the Supreme Court of the State of New York, by Daniel D. Conover, setting forth, among other
In witness whereof, I have hereto set my hand and seal, at the City Hall of the city of New York, "this ninth day of July, in the year of our Lord one thousand eight hundred and fifty-seven.
THE SEARCH-WARRANT.
The People of the State of New York, to the Sheriff or any constable of the City and County of New York:
Whereas, on the 18th of June, 1857, at the City Hall of the city of New York, complaint was made to Charles A. Peabody, one of the justices of the Supreme Court of the State of New York by Daniel D. Conover, setting forth, among other things, that Joseph S. Taylor, who was, in November, 1855, elected to the office of street commissioner of the city of New York, to serve for three years from January, 1856, went into his said office in said January, and continued in office until the 9th day of June, 1857, when he died; that the said Conover was on the
And the said Conover having further required a search-warrant to be issued, you, the said sheriff of the city and county of Hew York, and any constable of said ¿ity and county, are hereby further commanded to search in the daytime the apartments and rooms occupied and set apart for the street commissioner of the city of Hew York, and wherein the said books, maps, papers and documents are kept in said city, for the said books, maps, papers and documents, and to seize the same and bring them before the undersigned forthwith, there to be disposed of according to law.
In witness whereof, I have hereto set my hand and seal at the City Hall of the city of Hew York, this ninth day of July, in the year of our Lord one thousand eight hundred and fifty-seven.