105 N.Y.S. 702 | N.Y. App. Div. | 1907
Lead Opinion
It is provided in our state constitution that all laws creating boards or officers for counting votes at elections shall secure equal
.. But such -pro'vision does not apply to a judicial review or trial of an election contest. If, therefore, this, statute provides, for a judicial hearing and determination by the'Supreme. Court of an election contest, .it is valid. It is contended that it does not; that it-imposes only ministerial duties on the Supreme Court, and is void for that reason also. ' ■ . ,
'The canvassing and counting of votes by election officers is a ministerial and not a judicial, duty. That is unquestionable; but it does not follow that the canvassing and counting of votes may not become judicial. • Ho one would question that that is the case in a ■regular action by the-people of the state by the attorney general to oust an incumbent from an office (indeed,, that is all there is t-o be done as a rule in such an action: to ascertain the result); and of course it is the same in any other form -'of action or '.proceeding which thé Legislature prescribes fbr the hearing and decision of an election dispute.
It is true that a ministerial duty cannot be turned into a . judicial one merely by being transferred to the courts by the Legislature. The thing itself is what determines tlie branch of government to .which it belongs. In the constitution of government in this country, state, and national, government is divided into the three branches, the legislative, the executive,-and the judicial, and the powers of government are divided among these three branches according to their kind. The legislative branch may not exercise powers which. are. executive or judicial;■ the executive may not -exercise powers which .are legislative of judicial; the judicial may-not exercise powers .which are legislative or executive.-. The powers which, because of their kind, belong to any one of these branches may not be assigned to or exercised by either of the other two, or by both.of them.combined ; they can be perforated by the branch to which they belong, only. , , •
All of this -is in no wise violated in thé present case. If this
But its provisions are very different. It provides for a judicial hearing and determination by due process of law, i. e., on due notice, of a contest between" candidates for an office for the certificate of election and possession of the office thereunder. Such a dispute certainly belongs to the judicial branch of "government and is referable to it by the Legislature. That its trial requires the" court to canvass and count the votes makes such canvass and count a part of its judicial action. The foundation of the court’s jurisdiction is the dispute, and everything necessary to be done in the trial of such dispute is judicial.
If this statute provided that either one of the two contestants before us might bring an action in the Supreme Court by the regular form of summons and complaint for the trial of the dispute between them, and that in that action the court should canvass and count the vote in the same manner which such statute prescribes, none of us would say that it provided for a mere ministerial performance. That, instead, a proceeding begun by a petition of one of the contestants is provided for presents no different case.
The two decisions in the state of New Jersey in State ex rel. Ruh v. Frambach (47 N. J. L. 85) and Kearns v. Edwards (17 N. J. L. J. 51; 28 Atl. Rep. 723), have no application to the question. There it was thought that the Legislature could only confer ministerial duties'on the Judge in the case, because the contest was of the office of member of the Legislature, and each house of the Legislature was by the constitution made the sole judge of the election of its members. And even' sd, the act "was not declared void. .If the court had been asked to declare it void, and considered that question, it might have been able, to see that as a whole the duties imposed were judicial. And such duties were not put on the court, but on a judge.
Many of our states have statutes for the summary hearing and
By-its title this, act is “ an act to provide for a judicial recount and recanvass” of the votes cast for the office of mayor in 1905 “in all cities of the first class in which the ballots have been preserved.” In passing upon its constitutionality it lias-to be taken in its.large sense as "a whole, without tod technical a strictness in respect of fits terminology. In sum . and substance it "provides for a hearing and determination by the Supreme Court of an election contest. ■ Such hearing and determination is confined, however, to such ‘questions of law and fáct as- arise on an inspection of the ballots themselves, and they are to be decided, on fhe evidence furnished by the ballots’ alone. - --
On the petition of any. candidate it requires the Supreme Court to make a summary canvass of the vote in the. election district,.'.or districts specified in the petition. ■ The court has to appoint a commissioner or commissioners to. count the ballots on notice to all of the candidates and in their presence if they appear, the count in each election district, to be by only one commissioner. If counsel for any candidate differ from the commissioner in respect of counting a ballot, it shall be laid aside as a disputed ballot. Each commissioner submits to the court the disputed ballots together with a. written statement of his count in each election district. The court rules upon each disputed ballot..and determines its validity. The questions ■ that. may be raised are not limited, to. those that were raised on the canvass and count of the election .officials. The court makes a final order for each election district contested of the result therein. An appeal may be taken to -the Appellate Division from-
Such are the provisions of the statute. By the procedure which it prescribes there is a judicial hearing and determination of an election dispute. This cannot be gainsaid without disregarding the substance for the letter. That the statute does not provide for a trial of every question which might be tried in an action by the people of the state to oust the incumbent, but only of such questions as can arise on and be decided by an inspection of the ballots, does not support the contention that it does, not provide for a judicial hearing and determination. The Legislature is free to allow no judicial trial of election disputes at all, either at the suit of a candidate or of the state, from which it follows that it may allow one of a limited scope only.
■ Much may be said on the opposite side of this question, and I have not only considered but written it in order to t.est my judgment. In the last analysis, especially when the mind is freed from all verbal nets and entanglements, it seems at the best very difficult to say that there is no doubt on the matter. And that is the test of the right of courts to declare acts of the Legislature void. To depart from it is to enter into the mere rage of upsetting what the Legislature has done.
The point that such a statute may not prescribe a summary hearing, but must provide for a jury trial, under that provision of Quístate constitution which is common in the state constitutions generally throughout the country, viz., that the trial by jury in all cases in which it has been heretofore used shall remain inviolate forever (art. 1, sec. 2), seems to be taken undena misconception. If trial by jury were used in actions of quo warranto at the time of the adoption eiolit constitution, that secures that form of trial in slicit
The application should be denied.
Hooker and Rich, JJ., concurred, the latter in separate opinion; Jerks and .Miller, JJ., dissented, each writing; ..
Concurrence Opinion
(concurring):
The sole question presented, is as to the. validity of chapter 538 of the Laws of 1907. The act' is entitled “ An act to provide for a judicial recount and recanVáss of the votes cast for the office of mayor at the election of the seventh of November, ninéteen hundred and five, in all cities of the first class in which the ballots have been preserved.” So far as it-is necessary to state its provisions for the intelligent disposition of the questions presented, it creates a proceeding to be commenced by the presentation of a 'petition, by any candidate for the office of mayor voted for at the election referred to, in any city of the first class in which the ballots have been preserved, to the Supreme Court in any judicial district within which' an election district to be affected is situate, upon receipt of which, and after the giving of sutih notice as shall be prescribed, the court “must proceed to a summary canvass”. of the vote cast in such election district. An order shall be made and served upon each candidate voted for at shclr election, directing the production of the requisite ballots in' the county court house and tlieir canvassing by an attorney appointed by ■ the court for that purpose, designated a “ commissioner,” in the presence of all candidates affected, or the counsel of such as have appeared in the proceeding. The commissioner is required to take from the ballot box —one by
It is further provided: “Nothing in this act contained shall impair or affect any right under the Constitution or laws of this State to question, by proceeding in the courts, the right or title of
Upon the threshold of the. consideration of the-questions presented we may eliminate that provision of the statute which abridges the jurisdiction of the-Supreme Court upon the trial of an action to determine -the title to the office of mayor, by limiting its consideration to those ballots not considered or acted, upon in. proceedings instituted under the provisions of the statute under consideration. This clause -'does not violate the' provisions of the Constitution, but even if it does it in rió manner affects the validity of the other provisions of the statute under -the well-settled rule that when nncon.stitutional statutory provisions can be stricken out and that which remains is complete in itself and capable of being executed in accordance with the apparent legislative intent, that portion of the statute which is valid must be sustained. (Matter of Village of Middletown, 82 N. Y. 196; Matter of Metropolitan Gas-Light Co., 85 id. 526; Skaneateles Water Works Co. v. Village of Skaneateles, 161 id. 154.)
■ We riiay likewise eliminate from oui- consideration that provision of the statute which assumes to take from the court its judicial diseretion by providing that upon the presentation of the petition'the
It is apparent that .the purpose and intent of the Legislature in the act under consideration was to bring before the court for review the identical ballots which were cast at the election in the identical condition in which'they were when cast, and that the action of the court was-to be upon the identical conditions as to. the ballots arid their count -that existed at the* close of the polls on election,, night. The requirements of the- statute are not met by a petition simply showing that the petitioner was a candidate for tlié office of mayor, at such election, in a city of the first class, in which the ballots have been preserved, but,he is bound to further show that the ballots cast, at .that' election are intact and in the same condition as when cast: that they have not been altered or in any manner tampered with since they were deposited by the-¿lectors in the ballot boxes, .and until primarily satisfied of these facts no mandatory obligation rests upon the court to proceed to the consideration of the ballots or discharge of the duties required by the statute. It is thus required to exercise a judicial function,, namely, tliat of determining whether the petition conforms to the .requirements of the statute, and the judicial discretion is in no manner and to no extent interfered with. When there is room for .two constructions. of á statute the court must adopt that which is in harmony with the, Constitution-. (Matter of New York & Long Island Bridge Co., 148 N. Y. 540.)
A statement - of a few of the propositions apparent from an inspection of the record will dispose of many of the questions presented by the learned counsel for the relators.
1. There can. be no legal right to the: possession of an office to which the occupant has not been -legally elected. The statute does not assume to divest the occupant of the possession of the office if the proceeding authorized by its provisions establishes such election. The only right involved in this proceeding is that of the possession of the office of mayor of -the city of New York, which is nota personal right, and consequently not within the provisions of section 1 of article 1 of the Constitution.
2. The relator, George B. McClellan, is not deprived of his con
3. He cannot be deprived, by any proceeding under the statute, of property as the subject-matter of such proceeding. The right to possession of the office of mayor is not property or a property right within the meaning of the Constitution. It is .well settled that an office is not the property of the officeholder but is a public trust or agency, not held by contract or grant, and to or in which the officer has no vested right. (Conner v. Mayor, etc., of New York, 5 N. Y. 285; Smith v. Mayor, etc., of New York, 37 id. 518; McVeany v. Mayor, 80 id. 185; Nichols v. MacLean, 101 id. 526; Koch v. Mayor, 152 id. 72.) The official rights of the holder of an office are not within the provisions of section 6 of article 1 of the Constitution prohibiting the taking of property without due process of law.
4. The contention that the statute takes from voters the right of having their votes duly cast, canvassed and counted, given due force and effect, I believe to be without merit. The question of whether the votes cast were duly canvassed and counted is in the end a question of law, to be judicially determined in cases provided for by this statute, by methods which give, and secure absolute effect to every ballot cast, which was duly canvassed and counted.
5. The contention that the statute creates or imposes a tax without stating its amount, and refers to other laws to fix such tax, in violation of section 24 of article 3 of the Constitution, is. without force, in view of the decision of the Court of Appeals in Jones v. Chamberlain (109 N. Y. 100), that the provisions of the section referred to apply only to a general tax upon all of the property of the State, and do not apply to á local tax upon a particular section.
These views, I tliinlc, dispose of all questions presented requiring consideration, with the exception of those dependent upon the contentions, first, that the act is a private and local act; second, that it is unconstitutional because of its provisions for a counting of the votes by a commissioner instead of by a bi-partisan board, and, third, that it imposes upon the court non-judicial functions or duties. I am unable to concur with the contention that the statute under consideration is a private or local bill within the meaning of section 18 of article 3 of the Constitution. It applies to all cities of
This conclusion, I believe disposes of the questions resting upon the assumption that, the act is a private of local act, namely: That the act embraces more than one subject and that the subjects contained therein are not set forth in the title; that the act provides
■ The act in question was clearly designed as a judicial review of the declared result of an election and a judicial determination of the legality of such of the ballots cast as were' disputed or challenged, and of their proper count by the election officers, thus determining who was entitled prima facie to the possession of the office, reserving to the candidate ascertained to have received the lesser number of votes his right to trial by jury in an action of quo warranto of the title to the office in the same manner and to the same extent that he was entitled to prior to the' enactment of the statute.. In this proceeding the functions devolved upon the court are the determination of whether the petition presented conforms to the requirements of the statute and states facts sufficient to justify the procedure authorized; the approval of the form and sufficiency of the bond; the appointment of one or more commissioners to ascertain and report the facts upon the questions to be presented and determined at a hearing in the presence of such candidates and their counsel; the judicial determination of the legality of each ballot cast which is disputed or challenged and in issue, by ruling upon each separately; the making of orders embodying the results and conclusions reached, and those necessary to carry the determination, into effect. Hone of these duties are clerical; all require the exercise of - judgment, and in their performance both the Supreme Court and the Appellate Division exercise judicial functions and act judicially, for they must decide the questions of law arising upon the facts' presented, and ultimately determine — and such determination has the effect of an adjudication — the rights of the candidates to the posséssion of the office. This conclusion is clearly justified, I think, by Matter of Davies (supra). Neither of the decisions, Case of Supervisors of Election (114 Mass. 247) or Matter of Attorney-General (21 Misc. Rep. 101),
• Words might have been selected more clearly expressing the intent and purposes of this statute* relieving it from the- strained and technical construction sought to be given it; but in view of the "well-established rule permitting courts; in . the Construction óf a statute to consider the facts leading to its enactment and the evils it was designed to remedy, so plainly apparent'from the history of the municipal election in the city of New York in 1905; the long delay incident to the trial of an action of quo warranto; the insistent demand of the people' of the State that sonic legal and summary method of procedure should be employed to accomplish that result,. so "forcibly stated by Governor Hughes in the, following language,:. “ It is well known to all. who are conversant with sentiment in the city of New York, that there is' widespread doubt as to the accuracy of the official canvass. The failure to resolve- that doubt-and to determine in a prompt and decisive manner, satisfactory to all fail
See Laws of 1896, chap. 909, § 114.— [Rep.
Dissenting Opinion
(dissenting) :
I have considered the statute mindful that every presumption of validity makes for it, desirous to sustain it to end agitation which many think is just,, and anxious to respect an act of the legislative branch of government. The thorough opinion of my brother Milleb, in which I concur, confínes me to brief discussion and indeed makes even that almost superfluous.
The State Constitution provides that all boards or officers for receiving, recording or counting votes at elections shall be made up equally from the largest two political parties. This statute offends, in that it provides a count arid canvass at an election made by a board or officers not composed in accord with this provision of the Constitution. The title of the act provides for a “recount” and a “recanvass.” But these words are accurate only in that there has been a count and a canvass. For this “recount' and recanvass,” if made, has no relation to any former count or canvass by way of verification, check or correction thereof. It is made db initio and is in itself complete, from taking up the ballots to the issue of a certificate of election based solely on its result. And this count and canvass is declared to “supersede” “in all respects” the returns of the election officers. Whatever was done by the election officials is as if it never, had been done. It is as if á statute passed prior to
It seems clear that the count and canvass of this statute is within the .constitutional words “at .elections,” for' the reason that the words do not mean necessarily a -count “ eo instanti” but, refer to the count related to an election and made to determine its result. The result of this election is reached from this count and canvass alone, whenever made. Hone is more capable of meeting the question of .this offending against the Constitution than the learned Counsel for the -respondent, but he does not, either by his argument that it .provides for a “ recount after .an election” for the reasons I have stated, or by his showing that votes are recounted and not fry bi-partisan agents in quo warranto and in mandamus, which showing is not in point for the reason that such recounts are not at elections but are incidental to recognized legal proceedings in courts of law to determine the title to office wherein evidence is .or may be taken and of -which the result is judicial judgment or decree.
The fact that the statute casts a duty on a court does not exclude the statute ,from the purview of this Constitutional provision. If a ministerial.act is devolved upon an agency which already has judicial powers, that act does not thereby become.judicial. For the nature of the duty is determined by what is to be done and not by the doer. . As wc think that powers cast upon a judge should be judicial and powers devolved upon a Legislature should be legislative, we are naturally inclined to regard and to strive to define any new power as logically lodged — if it be in a judge, judicial; if in a Legislature, legislative. But devolution is not definition. And there should be no confusion of thought, due to an abnormal assignment, of powers, that if a court is designated to act it is, therefore, a court which acts. The policy of this statute is to call in another to do exactly what has been'done. . What has been done, was done by laymen—- constitutional officers-^- and. now the court is but -to count and to. canvass as did these‘.officials, and in this doing the court is neither authorized nor required to employ broader powers
I think that the statute does-not provide a judicial hearing and determination of an election contest. It is true that it provides for a determination of an election which was contested, but the "determination is by the same method as is prescribed by the Election Law, namely; a count and a canvass. It is the means, not the method, that is changed. What feature in the statute justifies the conclusion that it prescribes judicial action ? Mot the devolution of this duty upon a court, for the. reasons already given. Mot the character of the main duty, a count and canvass, for that is ministerial. Mot the preliminary duty of determination that the ballots are in existence, for that is fulfilled by their mere physical preservation, and the .ascertainment whether a state of facts exists which requires the doing of an act prescribed is not judicial (State v. Hathaway, 115 Mo. 36, 49), and if it be otherwise in this case, it. is incidental and preliminary. Mot any prescribed exercise of judicial functions for the court is limited to ministerial acts or such as are equally vested in the board of canvassers; Mot the taking, of evidence, because the court cannot. Mot the right to consider the application on the merits,' for the court has. no alternative; it must proceed to the. count. Mot the provision for notice, for there is none of the application while the notice of the count is but natural to the publicity thereof, and would doubtless be provided in the Election Law but that its cotint is at a stated time. Mot a judicial mandate, judgment or decree, for the proceeding ends in an “ order” .which is nothing- more than a return like unto that of the election O officials, and which exactly like the existing return in the districts
After all, the predominant consideration is that whatever the nature of' the act of count and canvass, whether judicial or quasi-judicial oi* ministerial, the Constitution commands that the' count and canvass at ah élection shall be made- by bi-partisan agents. The policy or the purpose of this legislation is not our concern any more than the policy of any candidate who^ seeks • or who opposes this proceeding. Legal objection calls for legal adjudication, and with that made we reach our limitation.
Dissenting Opinion
(dissenting):
The following is a brief summary of -the material provisions of the act before us, viz. : Upon petition and .upon such notice as the
As we view it, the fundamental question to be determined in this case is whether the act invests'the court with judicial functions. •It may be that.the court acts judicially in making the ex parte order for the production of the ballots, for although the language of the.statute is mandatory, it maybe inferred that before making the order the court should be judicially satisfied that the petitioner was a candidate for the office of mayor voted for at the election specified and that the ballots have been preserved (see Matter of Davies, 168 N. Y. 89), but that order is preliminary and incidental to the real purpose to be accomplished, i. e.,. the canvass of the vote, and the character of the latter act must determine the question before us. The court is to count, to canvass, the' ballots, to rule upon' eách in turn, and then to make an order containing- a complete return; the fact that this is to be done in part by a commissioner, then by the court, and finally, in respect of ballots as to which exception was taken, by the Appellate Division, does not change the ease, because at no stage can anything be done except to canvass ballots and make a statement thereof. Testimony cannot be received, for the Appellate Division can have before it only ■the order of the court below, and the ballots as to which exception was taken. This is precisely what inspectors of election do. They rule upon each ballot in turn, determine whether it shall be counted, and if so, hów; they cannot look beyond the face of' the ballot, no more can the court in making• the canvass provided .by this act.; they make a return of their canvass to a canvassing board, precisely what this act requires the court to do. Moreover, the court does
Inspectors of election, returning boards, judges of election, as they are termed in some jurisdictions, have never, sq far as V)C have.
But even assuming that the returning board. in canvassing the ballots and making the return acts quasi-judicially, it does not follow that they discharge any judicial function. Judicial power is defined by Bouvier (2 Bouv. Law Dict. [Rawle’s Rev.] 42) as “ the authority exercised by that department of government which is charged with the declaration of what the law is, and its construction so far as it is written law. The power to construe and expound the law as distinguished from the legislative and executive functions/’ “ It is the power of a court to decide and pronounce a judgment and carry it into effect between persons and parties who bring a case before it for decision.” (Miller U. S. Const. 314.) Mr. Justice Nelson, in charging a grand jury respecting the. “Fugitive Slave Law,” distinguished between the judicial power “ mentioned in the Constitution and vested in the courts ”. and quasi-judicial power “ invested, from time to time, by legislative authority in individuals, separately or collectively, for a particular purpose and limited time.” (See 1 Blatchf. 644.) “ Judicial power” is “The power of interpreting law—• of declaring what the law is or has been.” (Anderson L. Dict. 579.) It was held in Massachusetts that a statute directing the justices of the Supreme Court to appoint supervisors of election was unconstitutional, for the reason that, the duties of such supervisors related to no judicial suit dr proceeding,.but solely to the exercise by the citizens of political rights and privileges. (Case of
We come now-to the express provision of our Constitution which we think is violated by this act, but before considering it, we wish to say that we do not desire to be understood as minimizing, by not discussing, the importance of the fundamental proposition that under our form of government it is not competent for the Legislature to invest the courts with non-judicial functions except as an incident to the discharge of such as are judicial. - It is now finally settled in the jurisprudence of this State that the express enumeration in the Constitution of the powers of the three great branches of government necessarily excludes each from exercising the functions of the other, and there must be no abatement now-of the efforts of the courts'to preserve our free institutions by 'preventing, whenever properly called upon to do so, the éncroachment of one branch of government upon the functions of a co-ordinate branch,
Article -2, section 6, of the Constitution provides as follows: “ laws creating, regulating or affecting boards or officers charged with the duty of. registering voters, or of distributing ballots at the polls to voters, or of receiving, recording or counting votes at elections, shall secure equal representation of the two political parties which, at the general election next preceding that for which such boards or officers are to serve, cast the highest and the.next highest number of votes.”
It does not seem necessary to add to what has been said respecting the character of the duties imposed upon the court by this act to demonstrate that every possible avenue for reaching a construction in harmony with said constitutional provision has beén carefully closed by -express provisions of; the act. The only answer to this proposition addressed to us either on Oral argument Or.by printed brief ■ is (a) that this, canvass is required . to be- .made not “ at election,” but twenty months “ after an election,” and (b) that if there were anything in this point it would require a bi-partisan jury in a quo warranto action and a bi-partisan court in mandamus under the Election Law,- . As We have shown, the. court is required by this, act' to .canvass the ballots and make a return thereof precisely the same as the returning boards are' required to do in the first instance, and to do this not for the purpose of correct-' ing. errors, but of entirely superseding their work as though it had never been done. By its writ of mandamus, as we have shown,, the court simply compels said boards to obey' the law, and in quo warranto actions it determines the title to the office ■ -not to whom the certificate shall issue. Elections are held to register the will of the electors, and the-supreme purpose of the constitutional' provision under consideration was that that will should be .ascertained by-bi-partisan boards. In obedience to that provision the Legislature has provided for such boards, and has carefully guarded the canvass
Since, writing the foregoing I have read the opinion of my brother G-ayi$ur, -and -find that every proposition upon which- I based my conclusion is regarded -by him as indisputable, i. e., (a) .that a substitutionary recanvass and recount by a. board not composed as article 2, section 6j of the Constitution réquirés, violates that provision; (b) that the canvassing and counting of votes by election officers is a ministerial duty; (c) that a ministerial duty does-not become judi
If there can be any doubt that this.'tact is ^unconstitutional,. it should be upheld. , Ordinarily my .respect for the opinion's of my brothers, with whom• I differ,'would create such doubt. But the. idea that anything can be spelled out of, or read into, this act, having the ..faintest semblance to a judicial proceeding, seems to me fam . ciful, and Ij therefore, dissent from the decision about to be rendered. ■I. add-that I fully.concur in the opinion of my brother Jenks. ■
• Application for writ of prohibition, denied, with, costs.' •
See art. 2, § 2, subd. - [Rep.]