People ex rel. Hartt v. White

11 Abb. Pr. 168 | N.Y. Sup. Ct. | 1860

Ingraham, J.

The plaintiffs move to quash the last return for insufficiency. That return sets up,—

1. That before the writ was issued, the relators commenced an action against these defendants and others, touching the same subject-matter in the mandamus set forth, and demanded the same relief sought to be obtained thereby, to which the defendants pleaded the same was at issue.

2. That the relators were not by the greatest number of legal votes duly elected trustees, &c.

3. That there were more ballots counted than there were persons who had voted, and that the inspectors had a ballot which was by oversight omitted, and that such ballot was for defendants, which was discovered after the ballots had been counted and the result announced. And, further, that the inspectors afterwards discovered that eight of the persons who voted for the relators were not legal voters, and therefore they gave the certificate to the defendants.

4. That they had given a certificate to the defendants, who have undertaken the duties of the office, and are now acting as such.

By the previous proceedings, it is evident that the defendants have not answered as required by the court.

They were required to answer whether, of the votes that were received by the inspectors at the election, the relators did not receive the greatest number, and whether they, the inspectors, did not declare the relators duly elected, &c.

They were also required to say whether any votes were challenged at the election. On these points, the respondents have not answered, but have evaded such an answer by setting up that the relators were not elected by legal votes, and that they do not know, owing to the confusion, whether any voters were challenged or not.

'Without referring to the residue of the return, it appears to me that the conduct of the respondents in thus attempting to evade an answer to matters set up in the papers, has exposed them to the consequences of this motion.

It is of no moment whether they have set up other matters in their return, which may constitute a defence. The relators had a right to a return on the matters directed by the court; and where, in a second return, the respondents seek to evade making it consistent with the order of the court, they ask the court with a very ill grace to look at their other defences, to excuse them from not obeying the order of the court.

It was their duty to have answered explicitly on these matters, and having done so, they might then have set up any further defences which they supposed existed to this proceeding.

For these reasons, it would be enough for me here to grant this motion without examining the other defences set up by the respondents.

I think it, however, proper to add here, that the action set up by the respondent's as a bar, cannot be a bar to this proceeding; because in that action neither the certificate of election nor possession of the office can be obtained by the judgment. Whatever may be the prayer of the complaint, the facts set up warrant no recovery, unless it may be damages for withholding from the relators the certificate of election; and, under the present practice, the prayer of the complaint becomes immaterial. As to the residue of the return, I concur with Mr. Justice Mullen in the views heretofore expressed by him in this case.

After the ballots were received by the inspectors without challenge or objection, their right to inquire into the character of the voters ceased. The only duty that remained for them to perform was to count such ballots and return the number of votes received, and the names of those having the greatest number.

It would be idle to attempt to conduct any election by ballot, if, after the election was closed, the inspectors could, when they ascertained who had the greatest number of votes, institute an inquiry whether any of those who voted for the successful party were legal voters, and in this way change the result of the election.

If such a course could be declared legal, there would be few elections at the present day which might not be affected by such a proceeding. The mere statement of the proposition carries the answer on the face of it.

I think this motion must be granted. The conduct of the respondents in evading a proper return, renders it proper that a peremptory mandamus should issue. Nor is there any doubt about the propriety of such an order from what may be inferred from the return itself, viz., that they did count the votes received by them, and that the relators had the largest number. The subsequent proceedings to reduce that number were illegal, and if there were more votes in the box than had been received, it was too late for the inspectors to remedy the matter after the ballots were counted. The remedy was in a different proceeding.

Motion granted, with $10 costs.