20 Barb. 302 | N.Y. Sup. Ct. | 1855
This case is before me, upon an alternative mandamus, with several affidavits annexed to the writ, an answer, and a demurrer. The demurrer of course admits the facts and the direct denials contained in the answer, but not such assertions or denials as are merely inferential. The facts as they are represented in the pleadings are as follows:
The relator was in 1841, duly elected brigadier general of the 15th brigade, consisting of the militia of the county of Westchester. He shortly after his election received a commission from the governor, and thereupon entered upon the performance of the duties of the office, which he continued to discharge until the new organization of the militia, pursuant to the act of May 13th, 1846. Under that organization, the division, comprehending Westchester county, was divided into two brigades, one of which consisted of the militia of the county, with the exception of one town, and of the counties on Long
The alternative mandamus requires the defendant to permit the relator to exercise the office of brigadier general of the 7th brigade without any interruption or intrusion from or by the defendant, or to signify the cause why he will not do so. The defendant claims a right to the office under the
The counsel for the defendant contended, on the argument, that the solicited remedy by mandamus would be inappropriate under the circumstances stated by the relator, as, if his claim was well founded, he might and should have resorted to the action substituted by the code for the writ of quo warranto, (§ 432, subd. 1.) It is undoubtedly true, as was decided in the case of The People v. The Corporation of the City of New York, (3 John. Cas. 79,) that where an office is already filled by a person who has been admitted and sworn, and is in by color of right, a mandamus is never issued to admit another person. The proper remedy for the applicant was formerly by a quo warranto and would be now by the substituted action. But an important question in the case under consideration is, which of the two competitors actually fills the disputed office. The relator had been for several years before, and was at the time when the commission to the defendant was issued, the actual occupant, and claimed then, and still claims, under color of right, to hold the office. He has never at any time relinquished it. If his claim is valid, neither the commission to the defendant, nor the accompanying order of the commander-in-chief, nor the subsequent interference by the defendant, would constitute an actual expulsion from the office. The possession would follow the right, as it uniformly does where acts of ownership are simultaneously exercised by contestants, and especially where the actual title is in the prior occupant. This, then, if the plaintiff’s claim is well founded, is not a case of expulsion, but of interference by the defendant with the functions of an office actually held by another. In such a case, the incumbent should not be required to elect to consider himself out of possession of the office, and then to resort to a tedious action to procure his restoration. Besides, he could not institute the action without the assent and co-operation of the attorney
The main question in this controversy is, which of these gentlemen has the better title to the actual command of the existing 7th brigade of our state militia.
The relator was duly elected a brigadier general by the field officers of his brigade in 1841. He held the office, and was in the discharge of its duties, when the act of May 13th, 1846, was passed. Under that act a brigade was formed, consisting of the militia of his previous command, with a slight exception, with the addition of the militia of the three counties on Long Island. The relator was assigned to the command of the brigade thus constituted, pursuant to the provision contained in the 8th section of that act, which is in the following words : “ The brigadier general in commission and highest in rank residing in such brigade district shall be the commanding officer of such brigade.” He held such command when our present state constitution went into effect. By that instrument the provision for electing brigadier generals by the field officers of the brig
The power to issue the commission to the defendant is claimed for the governor under the act of April 17th, 1854. By the 5th section of title 2 of that act, it is provided that brigadier generals shall be chosen by the field officers of their respective brigades. That does not alter the mode prescribed by the existing constitution. Neither does it, nor does any other part of the act purpose to remove those who held the office at the time; on the contrary, the 9th section of the same title directs that whenever the office of a brigadier general is vacant, the commander-in-chief shall issue an order for an election to fill the vacancy. The 43d section of the same title, which is supposed to confer the power upon the governor to commission the defendant without an election, and thus to supersede the relator, is as follows: “ The commander-in-chief is hereby authorized and empowered to appoint and commission the brigade, regimental and company officers, necessary to facilitate the organization of all military districts not now sufficiently organized to authorize a.n election. All officers superseded by such appointment shall become supernumerary officers.” It is not material to inquire whether this section, if it referred to permanent officers, would not be in conflict with the provision in the constitution relative to their election; and, as it does not appear to have been passed by a vote of two-thirds of the members present in both houses of the legislature, void for that reason, as it contains a qualification which I think makes it inapplicable to this case. The power can be exercised, if at all, only in cases where the district is not sufficiently organized to authorize the election of its officers. The statute does not call for a general re-organization of the militia. ■ If it did, the provision last quoted would for the time annul the method of choosing military officers provided by the constitution. If, as the defendant contends, the relator’s brig
The existing seventh brigade had been, as I have already shown, fully organized under the act of 1847, and placed under the relator’s command. The act of 1851 (ch. 180, § 1) simply authorized, or purported to authorize, the commander-in-chief to appoint and commission the officers necessary to complete the organization of all military districts not then organized. This could have no effect upon the relator’s brigade, as that had been and was then under a complete and efficient organization. The act of 1854, (tit. 4, art. 1, § 3) expressly provides that the division, brigade, regimental and company districts should continue to be and remain as the military districts of the state. They were to be subject to such alterations or consolidations as the commander-in-chief should see fit to make. It is unnecessary to inquire whether any and if any what changes would so far effect its organization as to render necessary or sanction an election or appointment of new officers, as no change of this brigade district has ever been made. The provisions in the act of 1854, as to the election or appointment of officers, were not, I think, intended to remove the then existing officers. The statute does not expressly require that, and an intention to create so great, unnecessary, and impolitic a change, ought not to be lightly inferred.
Upon the whole, it seems to me that the governor was not authorized by the act of 1854, or any other statute, to displace
A peremptory mandamus is awarded, but without costs.
S. B, Strong, Justice.]