164 N.Y. 393 | NY | 1900
The few hours intervening between argument and rendering of decision prevent more than a brief discussion of the question presented by this appeal.
Two certificates of nomination for state senator for the twenty-first senatorial district were filed with the police board, both regular in form, one certifying that the appellant Hennessy was duly nominated as the Democratic candidate and the other certifying that the respondent Mitchell was regularly nominated for the office by that party. Each of the candidates filed objections to the certificate of his opponent. A hearing was had by the parties before the police board, which on the 22d day of October, 1900, rendered its decision in favor of the respondent Mitchell. On the same day Hennessy petitioned the Supreme Court to review the decision of the board pursuant to the provisions of section 56 of the Election Law and the matter was brought to a hearing on the afternoon of that day at Special Term where argument was had and the whole matter in the proceeding submitted by counsel for the respective parties, the court taking the papers and reserving decision until the 25th day of October, at which time an order was made reversing that of the police board and adjudging Hennessy to be the regularly nominated candidate of the Democratic party for the office of senator. The order so made by the Special Term was entered the next day, and from that order an appeal was taken to the Appellate Division, which court reversed the order of the Special Term and *395 affirmed that of the police board. From that order an appeal was taken to this court.
It appears from the order that the Appellate Division reversed upon the law, not upon the facts. Indeed, it is apparent from the opinion that the court agreed with the Special Term as to the merits of the controversy, for it said at the close of its argument: "It is with regret that we are forced to reach this conclusion in this particular case, because it seems to us that great injustice has been done to the respondent Hennessy, which the court is powerless to redress."
The Appellate Division appears to have reached the conclusion that the Supreme Court had no power to render its decision or to make its order reversing the determination of the police board after the 22d day of October. We have carefully read the opinion of that court and are much impressed with the ability with which the question has been discussed, and yet we doubt the correctness of the conclusion reached.
The provisions of section 56 of the Election Law, so far as they are now material to be considered, are as follows: "The Supreme Court, or any justice thereof, within the judicial district, or any county judge within his county, shall have summary jurisdiction upon complaint of any citizen, to review the determination and acts of such officer, and to make such order in the premises as justice may require, but the final order must be made on or before the last day fixed for filing certificates of nominations to fill vacancies with such officer as provided in subdivision one of section sixty-six of this article. Such a complaint shall be heard upon such notice to such officer as the said court or justice or judge thereof shall direct." The first subdivision of section 66 provides that the certificate of nomination therein referred to "shall be filed in the office in which the original certificate was filed * * * at least fifteen days before the election if filed with the county clerk or the police board of the city of New York, or the city clerk of any other city." The election this year takes place on the 6th day of November, and under the construction of the statute, as given by the Appellate Division, the 22d *396 day of October was the last day upon which an order of the court or a judge could be made and entered reviewing the action of the board of police. The view taken by that court appears to be that the legislature regarded time as the essential feature of the statute limiting the power of the court and that the provision must be regarded as mandatory. We have examined the various amendments of the statute which, it is claimed, indicate such an intent, but fail to find reasons which satisfy us that such was the legislative intent. An examination of the Election Law discloses various provisions which call upon the Supreme Court, or any justice thereof in the judicial district, or a county judge of the county, to revise, correct and reverse the action of officers who are charged with the duty of carrying its provisions into effect. It may revise the registration of electors. It may strike names from the registry or require names to be entered thereon which have been rejected. It may determine the names of candidates who are properly nominated, and in case of error or omission in the publication of the names or description of candidates for office in the sample or official ballot it may require the clerk or other officer or board charged with the duty of preparing the ballots to correct the errors. It is thus apparent that the legislature contemplated a review of the action of the election officers and a correction of the errors which they may have committed in the discharge of their duties under the statute and that this was regarded as one of the prominent and essential features of the law. If the construction of the statute given by the Appellate Division is to be adopted, then the statute utterly fails to be effective in one of its most important features. The statute requires the officer with whom the certificates of nomination are required to be filed to first decide between the conflicting claims of candidates before the Supreme Court is given the power to review. If the provisions of the statute with reference to time are to be regarded as mandatory, such officer has but to reserve his decision until such time as will leave less than fifteen days before the election in order to deprive the court *397 of any jurisdiction to review his determination. Such, it appears to us, was not the intent of the legislature.
In construing statutes all the provisions thereof should be considered and so far as possible each provision harmonized with the other so as to give effect to the legislative intent and the purpose sought to be accomplished. In reaching this result courts will treat some provisions as mandatory and others as directory in order to give force and effect to them all.
As we have seen, these proceedings were instituted, argued and submitted by the respective parties to the Special Term on the 22d day of October. That day was concededly within the time in which the court had the power to entertain the proceeding. The court acquired jurisdiction of the parties and of the subject-matter. The only effect, therefore, that the limitation of the statute could have upon this proceeding was to require the court to make, file and enter its decision that day. A judge of a court is a public officer. Cooley, in his Constitutional Limitations, at page 75, states the rule, as settled by authority, that "Statutes directing the mode of proceeding by public officers are directory and are not regarded as essential to the validity of the proceedings themselves unless it be so declared in the statute." (Juliand v. Rathbone,
Matter of Emmet (
It is the duty of courts and judges entertaining proceedings under this statute to speedily decide the questions presented to them so that the various steps required by officers may be taken in time to permit the carrying into execution its provisions.
The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs.
PARKER, Ch. J., GRAY, O'BRIEN, LANDON, CULLEN and WERNER, JJ., concur.
Order reversed, etc. *399