People, ex rel. Eastman v. Seaman, 5 Denio 409

People, ex rel. Eastman v. Seaman

5 Denio 409 | N.Y. Sup. Ct. | 1848

By the Court, Whittlesey, J.

The special verdict finds • that the ballot given for J. R. Eastman was intended for the relator. This fact brings this case within the doctrine established in The People v. Ferguson, (8 Cowen’s Rep. 102,) and several subsequent cases, and indicates clearly that the relator was legally entitled to the office of supervisor. It is held in all the cases that in a proceeding of this kind instituted to try the right of office directly, it is competent to go behind the certificates, which would otherwise be conclusive, to ascertain the real facts of the case. Such certificates were held not to be conclusive in The People v. Van Slyck, (4 Cowen, 297,) The People v. Ferguson, (supra,) and The People v. Vail, (2 Wendell, 12,) in which proceedings were instituted directly to try the right. In the last case Bronson J. says: “ Such proceeding reaches beyond those evidences of title which are conclusive for every other purpose, and inquires into and ascertains the abstract question of right.” The circuit judge was therefore right in holding that the certificates were not conclusive in favor of the defendant, and in admitting evidence as to the ballot with the name J. R. Eastman upon it.

The defendant contends that the ballot, J. R. Eastman, being an imperfect one, should have been preserved and re turned ; and because it was not properly returned that no notice can be taken of it. The statute in relation to the election of town officers provides that “ the like proceedings shall be had as to ballots folded together and as to differences in num*412ber, as are prescribed in the fourth title of the sixth chapter.” (1 R. S. 344, § 8.) The .title thus referred to provides for ballot? folded together, and for differences in number between thé bal lots and the poll list; ánd the fifty-second section (1 R. S. 139, makes it the duty of inspectors of election to preserve a true copy of all ballots rejected as defective, with the originals attached, and to deliver the same to the town clerk to be filed in his office. The chapter in relation to elections of town officers hardly embraces and embodies this fifty-second section in the chapter relative to elections other than for militia and town officers; but if it does, it only show's that the presiding officers have neglected their duty in not returning the defective ballot, and the relator should hot be injured by such neglect. The ruling of the circuit judge was right in relation to this matter. He also properly rejected the proof which was offered in regard to the ballot which had upon it the names of both the relator and the defendant. .The inténtion of the elector cannot be thus inquired into wdien it is opposed dr hostile tó the paper ballot which he has deposited in the ballot box-. We might w'ith the same propriety permit it to be proved that he intended to vote foi one man when his ballot was cast for another; a species of proof not to be tolerated.

It is further urged on behalf of the defendant that the act of thé justices in appointing the defendant supervisor was a judicial one, and cannot be inquired into or impeached in any collateral way, and can only be reviewed by certiorari.

It Was held in Wood v. Peake, (8 John. Rep. 69,) sanctioned by Wildy v. Washburn, (16 id. 49,) that such appointments by justices were judicial acts, which w'ere not to be questioned in any collateral action between individuals. This is sound doctrine, and is equally applicable to the decision of a board of canvassers declaring the results of an election to office. The decision of the canvassérs cari not be called in question collaterally, but only in a proceeding instituted directly to try the right to the office. In Wood v. Pealce it is indeed said that the appointment remains valid until it be set aside or quashed Upon certiorari. But this only determines that thé *413appointment may be questioned by certiorari, and not that it may not be questioned in other forms of proceeding instituted directly for the purpose of questioning it. While proceedings may be had by certiorari it does not follow that no proceedings: can be had in any other mode. Proceedings by certiorari are, not such as could do complete justice in a case like this, while an information in the nature of a quo warranto is specially adapted to suit such cases, and is peculiarly appropriate to try the right to. office, and to give the full measure of redress, in case of success. The justices h.ad no jurisdiction to appoint a supervisor unless the town neglected to choose one. at the annual town meeting. (1 R. S. 347, § 31.) If there was a tie between the candidates and the meeting broke up without a further vote, there was undoubtedly a neglect to choose. To ascertain how the vote stood the presiding officers were to canvass the votes, make a statement of the result, to be entered at length in the minutes and to be publicly read to the meeting. (Id. 344, § 9.) The result was canvassed and stated, but was not entered in the minutes as required. The entry was silent as to the vote upon supervisor. And upon this silence the justices are presumed to have acted. If in point of fact this, entry was false, and there had been a supervisor elected, the justices would have had no jurisdiction to appoint one. The certificate or entry of the presiding officers is the basis of the judicial action of the justices, as the certificate of a board of canvassers is the evidence of title to office. Such certificate may be questioned in the proper proceeding in the latter case, and I do not see why it may not in the former, when the inquiry is whether the justices had authority to make, an appointment.

. This proceeding is instituted to try the right of office. It is an appropriate proceeding for that purpose. And in it we can look beyond evidences of title to office which are conclusive for every other purpose, and determine whose is really the abstract right. We can look behind the certificate to see whether the canvass of the presiding officers was correct—whether they allowed the proper votes.—whether they determined correctly *414or otherwise that two of the candidates had an equal number of votes—whether there was a neglect to choose at the town meeting, so as to give the justices jurisdiction to appoint. Going thus behind the certificates, the special verdict informs us that there was no neglect to choose; consequently that there was no jurisdiction in the justices to appoint; and that the relator was lawfully elected supervisor.

The year for which this election was made has passed, and there can be no judgment of ouster, and the relator cannot be put into office, but he is still entitled to judgment and to his costs. (The People v . Loomis, 8 Wend. 396.)

Judgment for the plaintiff.