20 N.Y.S. 1 | N.Y. Sup. Ct. | 1892
The questions presented to the special term by the application for the writ of mandamus in this case were (1) whether the provisions of the revised charter of the city of Buffalo, (chapter 105, Laws 1891,) relating to the inspectors of election in that city, had the force of law; and (2) whether they were capable of enforcement by the means adopted in this proceeding. We think both of these questions were correctly answered in the affirmative, and that the order was properly made from which this appeal was taken. The facts involved were not in dispute. The questions presented related mainly to the effect to be given to several statutory enactments. Section 366 of the statute above cited provided for five inspectors of election in
In the absence of other facts, those embraced in the foregoing statement would, no doubt, entitle the relator to the relief demanded. Mandamus will lie to compel the performance of an official duty, clearly prescribed by law on the part of a public officer or board. The case of People v. Schiellein, 95 N. Y. 125, is abundant authority for the application of this rule to the case of a board of canvassers, and the case of People v. Board of Sup'rs of Chenango Co., 8 N. Y. 330, for the proposition that while the duty continues it may be enforced against the successors in office of those who originally neglected its performance. In the former of those cases it was said by the court: “It would be a reproach to the law to hold that an election to office by the people could be defeated by the neglect or refusal of the canvassers to perform the official duty of canvassing votes cast at an election;” and, further: “It is one of the peculiar functions of the writ of mandamus to meet and remedy the evils which would result from such a neglect of official duty.” In this case the board of aldermen created by the revised charter of 1891 is made in all respects the successor, as a board of canvassers, of the common council, a board composed of aldermen, existing under the former charter; and the mere change in the name of the collective body can have no effect to relieve the one from the duty enjoined upon the other. By the revised charter the duty of canvassing the returns of votes cast for 3 inspectors of election in each of the districts into which the 25 wards created thereby were to be divided, and the appointment of 2 additional inspectors in each, was laid upon the board of aldermen eo nomine. That this was a duty first to be performed in respect to the election of 1891 admits of no doubt under the provision, before mentioned, that all such parts of the statute as related to elections to
Attention is called in the argument of counsel for the appellant to a provision of section 508, supra, to the effect that the division of the city into 25 wards, instead of 13, as formerly, should not take effect until the 1st day of January, 1892, except so far as was necessary to render the election of ward officers in 1891 regular and legal. But this must clearly be taken subject to the previous general exception of all provisions of the act relating to elections to office, and so it was evidently construed. Section 32 of the act provides that “the common council shall, on or before the 1st day of September in each year, divide the wards into,convenient election districts of not more than 300 electors, and, on or before the 1st Monday of October of each year, designate the place of holding the polls in each district, and fill vacancies in the office of inspectors of election. ” The case shows that this was done in the year 1891, and that the election for all offices in November of that year was held, accordingly, in the several election districts into which the 25 wards had been thus divided. The meaning of the limitation referred to was evidently to preserve the existing ward lines, for all the purposes of administration, until the revised charter should take effect as a whole.
So much of our inquiry has been directed merely to the question secondly above propounded, viz., whether, if the provision for five inspectors of election in each of the election districts of the city was in force at the time of the election and canvass of votes in 1891, and also at the-time of the application for the writ of mandamus in July, 1892, it was capable of enforcement by means of that writ. It remains to consider the grounds upon which it is argued that that provision was not so in force. The facts which seem to be relied upon as the basis of that contention are briefly as follows: For many years before the ballot reform act of 1890, (chapter 262 of the Laws of that year,) the general election laws of the state provided for three inspectors of election in each election district, whether of cities or towns, two to be elected by ballot of the electors, no one of whom should vote for more than two, and the third to be appointed by the presiding officers of each election from the two next highest candidates. By an act for the revision of the charter of Buffalo, passed in 1870, (chapter 519 of the Laws of that year,) practically the same provision was enacted for that city. The ballot reform act of 1890, supra, provided for five inspectors in each district, three to be elected by ballot of the electors, no one of whom should vote for more than three, and two to be appointed by the presiding officers of the election, and to be selected from the three next highest candidates. By chapter 7 of the Laws of 1891, passed February 7th of that year, a return was had by general law to the system of three inspectors as it existed previous to the act of 1890. This was followed in the same year by the special act for the city of Buffalo, the provisions of which have been heretofore quoted, and which became a law March 27, 1891. By section 375 of that act it is provided that elections held thereunder “shall be governed by the general election laws of the state, when they are not inconsistent with the provisions of this act. ” Finally, by chapter 680 of the Laws of the present year, the legislature has made general provision for the appointment of all inspectors of election in cities by the common council of each city, but this particular provision is, by section 11 of the act, made subject to the saving clause, “ unless otherwise provided by law, ” and the repealing section makes no mention of any provision of the special act for the city of Buffalo.
We find in this statement of the course and present status of legislation on the subject in question nothing which militates against the legal force and
Counsel for the appellant urge upon our attention an apparent incompatibility between the provision in question in the charter of Buffalo and the provision of the act of 1892 in respect to the appointment of the poll and ballot clerks, who constitute an important part of the machinery of elections under the latter statute. The provision referred to is found in section 12 of the last-mentioned statute, which, after prescribing the number and qualifications of clerks to be appointed, provides that, “at the first meeting of inspectors of election in every district in which the law provides for the election of inspectors, the inspectors elected shall appoint one of the poll clerks and one of the ballot clerks, and the inspector appointed shall appoint the other poll clerk and ballot clerk, ” whereas, the provision of the charter of Buffalo is for the election of three and the appointment of two inspectors; so that, as it is said, the language of the general law, “and the inspector appointed shall appoint, ” etc., is inappropriate to the case of the city of Buffalo. It is clear that, as a mere argument, ab inconvenienti, this suggestion, even if the incompatibility were absolute, would not be conclusive upon any question arising on this appeal; but we do not think the case in this respect presents any practical difficulty. Undoubtedly, in order to give effect to this provision of the general law in its application to the exceptional case of the city of Buffalo, the word “inspector,” as used therein, may be read “inspectors.” The actual use of the word in the singular, without adding the words “or inspectors,” only indicates the probability that the existence of the special provision for inspectors in the charter of Buffalo was overlooked in the framing and enactment of the provision for clerks in the act of 1892; but no such mere omission of the plural form of the word employed can have the effect of defeating the evident intention of the legislature to provide for the appointment of poll and ballot clerks in all the election districts of the state. Upon the whole, we find nothing in legislation subsequent to the enactment of the revised charter of the city of Buffalo which has the effect to repeal, annul, or impair the legal force and validity of the special provisions of that statute in respect to the number and mode of selection of inspectors of election in each of the election districts of that city; and, that provision being in force, the relator was duly elected to the office in question, and was entitled to a canvass of his voté and a certificate of his election. The order for a peremptory mandamus should be affirmed.
Order appealed from affirmed, with costs. All concur.