26 N.Y.S. 345 | N.Y. Sup. Ct. | 1893
Lead Opinion
After the state election in 1891, a controversy -arose in the county of Dutchess over the canvass by the board of
“It is ordered that a writ of peremptory mandamus issue out of and under the seal of this court, commanding and requiring the said state board of canvassers that they issue a certificate of election to the office of senator in the fifteenth senatorial district of this state, disregarding the so-called return of the board of county canvassers of the county of Dutchess, which is signed by John Mylod, as secretary of said board pro tem., and is not signed by the county clerk of Dutchess county, or certified under the seal of said county clerk, but that instead thereof they consider only such return from the county of Dutchess as may hereafter be filed, containing the signature of the county clerk of. the county of Dutchess and the chairman of said board of county canvassers, and issued under the seal of said county clerk; and in their certificate of election the said state board of canvassers certify and declare that the person who appears upon the certified returns and statements made by the boards of canvassers of the counties of Columbia, Putnam, and; Dutchess, in pursuance of the statute and the order of the comet, to have received the greatest number of votes, was duly elected senator from the said fifteenth senatorial district.”
This order was affirmed by the general term, and was then taken to the court of appeals. See People ex rel. Daley v. Rice, 129 N. Y. 449, 29 N. E. 355.
It appears from the opinion of Judge Peckham that two grounds were urged in the court of appeals for sustaining the order in question,—one that the return of the county canvassers referred to in said order was not certified by the county clerk, and the other that the county canvassers illegally threw out votes that had been counted for Mr. Deane by the inspectors of election, and illegally transposed votes canvassed by said inspectors,—votes counted for Mr. Deane were given to Mr. Osborne; that the board of county canvassers illegally canvassed the returns from the inspectors of election in- the whole county, and made up their own canvass in-opposition to such returns. As to the first ground, the court held that it was not necessary that the returns of the board of county canvassers should be signed or certified by the county clerk, and jin disposing of that question the court said:
“We think that under all the facts the steps taken to certify and authenticate the statements were valid, and the proceedings by which they were sent to and received by the secretary of state and other state officers were-sufficient to entitle them to be filed and considered by the board of state canvassers as the properly certified result of the canvass of the board of county canvassers. The other ground for directing the state canvassers to-omit to canvass this return remains to be considered.”
“Upon, these facts, standing uncontradicted, we think the court below, in its proper branch, would have the power to command the state canvassers to canvass without regard to such a return. As it contained the result of an illegal and erroneous canvass by the board of county canvassers in excess of its jurisdiction, and which thereby would alter the result of an election, the court should not permit it to be canvassed. * * * If another return should be duly sent to the board, properly authenticated, and containing the result of the legal action of the board of county canvassers, the state board could canvass it. We think, as a result, that the order for the writ, and the writ itself, should be modified by striking out the provisions requiring a return to be certified by, and to come "from, the county clerk of Dutchess county, and issued under his seal, and, as so modified, the order is affirmed.”
The remittitur of the court of appeals upon such decision was as follows:
“It is ordered and adjudged that the order of the special term herein, dated December 7, 1891, and the order of the general term affirming the same, and the same writ itself, be modified by striking out the provision requiring a return to be certified by, and to come from, the county clerk of Dutchess county, and issued under his seal, and that the said order so appealed from, as so modified, be affirmed, without costs.”
Striking out the provisions in the order of the special term requiring a return to be certified by, and to come from, the county clerk of Dutchess county, and issued under his seal, the order issued by the special term would read as follows:
“It is ordered that a writ of peremptory mandamus issue out of and under the seal of this court, commanding and requiring the state board of canvassers that they issue a certificate of election to the office of senator in the fifteenth senatorial district of this state, disregarding the so-called return of the board of county canvassers of the county of Dutchess, which is signed by John Mylod, as secretary of said board pro tern., but that instead thereof they consider only such return from the county of Dutchess as may hereafter be filed; and that in their certificate of election the said state board of canvassers certify and declare that the person who appears upon the certified returns and statements made by the boards of canvassers of the counties of Columbia, Putnam, and Dutchess, in pursuance of the statute and the order of the court, to have received the greatest number of votes, was duly elected senator from the said fifteenth senatorial district.”
Whatever other return the board of state canvassers might canvass, they were thus expressly forbidden, by an order of the special term of this court, affirmed by the general term and the court of appeals, to canvass the so-called “Mylod” return; yet, in the evening of the same day that the opinion of the court of appeals was handed down, and after the same had been read by counsel for the defendants, and, as appears from the case, communicated to at least some of the defendants, but, I infer, before the filing of the remittitur and the entry of an order making the judgment of the court of appeals that of the supreme court, the board of state canvassers met and canvassed the votes for senator in the fifteenth district, and in doing so they failed to disregard the Mylod return. They used that return in making their canvass. Without discussing the question whether or not there was a corrected return before the board which they could and should have canvassed, it is sufficient to say that
The only papers before the special term on this application, and before this court, are those of the moving parties. Their statements are uncontradicted. The defendants have submitted no opposing affidavits or records, and from the record, as it now is, before this court, the fact seems to be established that while the order of December 7, 1891, held by the court of appeals to have been properly granted, on the papers on which it was based, was in full force, providing for the issuance of a mandamus to defendants directing them to disregard the Mylod return, the defendants deliberately disobeyed such order, and canvassed the Mylod return. It is not desirable to discuss the merits of the case any further than is necessary to decide this appeal. A prejudgment of the merits of the principal case is to be avoided if possible, but on the case as it now appears before the court I cannot escape the conclusion that in canvassing the so-called “Mylod” return the defendants were guilty of contempt of court. Of course, these views may be changed when the defendants submit their version of the transaction, and it is sincerely hoped that they will be able to show such a state of facts as will absolve them. The suggestion that the court of appeals, in the case of People v. Board of Sup’rs of Dutchess Co., 135 N. Y. 522, 32 N. E. 242, held that the return from Dutchess county attempted to be substituted in place of the Mylod return was invalid, is of not the slightest consequence in this case. We are only dealing with the Mylod return. It was the Mylod return the defendants were forbidden to canvass. It was the Mylod return they canvassed; and the fact that there was another return, also illegal, which was attempted to be substituted in its place, makes no difference as to the duty of the defendants in reference to the Mylod re
My attention has been called to the declaration of the court of appeals in the case of People ex rel. Derby v. Rice, 129 N. Y. 461, 29 N. E. 358, wherein it said, in the case of an order like the one said to have been violated in this case:
“If we were free to consider and determine the right, or propriety, to order the writ of mandamus to issue in this matter, we should not hesitate to hold that it should not have been granted by the supreme court at a special term. Though the writ is, in form, one of peremptory mandamus, yeti it is, by force of its terms and commands, in effect an order which restrains the board of state officers engaged in the performance of or about to perform a duty imposed by the statute.”
The court based this declaration upon the provisions of section 605, Code Civil Proc. The opinion proceeds:
“However, because of the stipulation of the parties, which accompanies the record here, and because of the failure of the defendants to the proceeding to raise the objection, we have concluded to overlook the question of jurisdiction, and to determine the questions at issue upon their merits.”
The cases of People ex rel. Derby v. Rice, supra, and People ex rel. Daley v. Rice, supra, were companion cases. They appear to have been argued in the court of appeals upon the same day, and to have been decided upon the same day; the orders appealed from were made at and by the same special term, at the same time, and the stipulation referred to in the Derby Case embraces also the Daley Case, as well as others; and, like the Derby Case, no objections were taken in the court below to the power of the court to grant the order in question. Both orders were affirmed by the court of appeals, the one in the Daley Case having been modified as hereinbefore stated. Unless the order is void upon its face for lack of jurisdiction on the part of the court which granted it, the party violating it is properly adjudged guilty of contempt. People v. Sturtevant, 9 N. Y. 263.
"No matter how- erroneous the action of the court may have been in taking cognizance of the suit and awarding a mandatory process, unless there was an entire absence of judicial authority to act in the premises it was the duty of the defendant to obey its commands until they have been revoked-by an order made in the action in which they had been issued, either upon motion or appeal, or by some other method of direct review.” People ex rel. Cauffman v. Van Buren, 136 N. Y. 252, 32 N. E. 775.
The order in this case having been affirmed by the court of appeals, I do not feel at liberty to say that it was a void order. I cannot assume that that court would affirm an order that is void upon its face, but, on the contrary, must hold that the fact that the highest court in the state has affirmed the order is decisive of that question, and that however irregular it may have been, or improperly, or without authority, granted, yet that it was not void upon its face; and, as we have seen, it not being void upon its face the parly who violates it is properly adjudged guilty of contempt. It may also be added that upon this motion the question of the
Upon the state of facts here recited, an ex parte application was made to Mr. Justice BARNARD for an order directing the defendants to show cause why they should not be punished for contempt. Such application was • denied, with leave, however, to renew the same before some other judge. In denying the application, the learned justice, in the course of his opinion, made the following statement:
“It was made a question whether the county clerk must certify the return, and the court of appeals subsequently held that a board of supervisors was empowered with the right to certify the return by another person than the county clerk if he refused to sign the certificate. The appeal from Judge Edwards’ order had only this point in it: Before the decision by the court of appeals, the supervisors had by the order of this court recounted the votes so as to elect Mr. Deane, and the vote so recounted was certified by a new county clerk, the old one having been removed by the governor; and this amended return got to the proper officers before the decision by the court of appeals, so that, when that decision came, the state canvassers had, or ought to have had, this corrected return. If the board violated its duty, and counted the uncorrected return, it was not a contempt of an order of any court. The order of the court simply provided a legal return of the canvass of the votes, and, when it was filed, the duty of the court was accomplished."
The learned justice is in error in supposing that the only point to the appeal from Justice EDWARDS’ order was whether the county clerk must certify the return. As we have seen in the extracts we have made from the decision of the court of appeals, that was only one of the questions, and, while the Mylod return was held legal in that respect, it was held illegal on the other grounds. Again, with great respect, it seems to me that the learned justice erred in his statement that “the order of the court simply provided a legal return of the canvass of the votes.” It provided more; it provided that the Mylod return should not be canvassed. Application upon notice was subsequently made to Justice EDWARDS for an order to show cause. Both sides were heard, and, without expressing any opinion of his own upon the merits, Justice EDWARDS announced that he would follow the decision of Justice BARNARD, and denied the application. The appeal here is from both orders. The objection is made that no appeal lies from the order of Justice BARNARD. It seems to me to be of no consequence whether it is appealable or not. In that order, permission was given to renew the motion, and hence the subsequent motion at the special term, over which Justice EDWARDS presided, was regular. It is therefore unnecessary to consider whether or not an appeal lies from the prior order made at chambers by Justice BARNARD.
The learned counsel for respondents also insist that the latter order of the special term, denying relators’ motion for an order to show cause, is not appealable; that the order in question, being a mere denial of a motion for an order to show cause, did not affect
It is urged by appellants that although this court should not conclude to reverse the order in question, yet that, on the same affidavits and papers on which that order was founded, it could and should grant an original order, directing the defendants to show cause, as asked for by the relators. I think the position is not well taken. Assuming that a general term could properly, on an original application, grant such an order, yet such general term, in that view, possesses no more or other power than the special term to commit for contempt in such a case; and as relators elected, on notice, to make their application at the special term, no permission having been given to renew the motion, it would not be proper for this court, on the same papers, to grant the order asked for. As we have no other or greater power (if we have any) than the special term, we are governed by the well-established rule of practice that a motion, being denied, cannot be renewed on the same papers without leave. It follows that the order in question is practically a final order, and amounts to a denial of relators’ motion to commit defendants for the alleged contempt. The order asked for was not a short notice of, or a substitute for a notice of, motion. It was a preliminary order necessary to be granted, in pursuance of the above referred to provision of the Civil Code, in the proceedings to punish defendants for the alleged contempt. Hence it is appeal-able. People v. Healy, 33 How. Pr. 172; Livingston v. Swift, 23 How. Pr. 1. If it stands unreversed, it certainly ends any attempt of relators to proceed against defendants for their alleged disobedience of the order of this court of December 7, 1891.
It is urged that the order appealed from was properly denied because of the delay in asking for it. It seems to me this position can be more properly considered on the final hearing of the case. But I am unable to understand how the delay in relators’ taking proceedings on account of the alleged disobedience of defendants
I have not considered what effect, if any, under the peculiar circumstances of the case, the fact (if it is a fact) that no mandamus under the order of December 7, 1891, was served, may have. That question was not discussed on the argument, and may be considered hereafter.
The case is a very embarrassing and delicate one, involving, as it does, a proceeding against so considerable a portion of a co-ordinate branch of the state government, and I would gladly have been relieved from its consideration; but, being here, it must be treated the same as a proceeding against any other body of men, and, so treating it, I can from the record before us, and for the reasons herein stated, reach no other conclusion than that the defendants have disobeyed the order of this court, and are in contempt. I conclude, therefore, that the order of Justice EDWARDS should be reversed, with $10 costs and printing and other disbursements, and that the motion for an order to show cause should be granted. Let an order be entered accordingly.
PUTNAM, J., concurs.
Dissenting Opinion
(dissenting.) This is an appeal from two orders, —one made ex parte January 1, 1893, by Justice BARNARD, of the second judicial district; and one made on motion at special term, June 3, 1893, in the third judicial district, by and before Justice' EDWARDS. Various objections are raised by the respondents to the consideration of these appeals by this court, some of which, at least, are worthy of careful consideration. The first objection of this class is that no appeal will lie from the order of Justice BARNARD, made ex parte on the 31st of January, 1893. It seems quite clear upon authority that an ex parte order cannot be appealed from as such. The only way in which'such review can be had is-by application to the special term, or the judge making the order, to vacate the same, which, if refused, the order denying such motion is appealable. This was expressly held in a. special proceeding in
It is insisted by the learned counsel for the respondents that the order made by Justice EDWARDS at special term is not appeal-able, as it was a denial of an order to show cause, and therefore did not affect a substantial right. The language of the order is as follows:
“It is ordered that the motion for an order requiring the defendants to show cause why they should not be punished for a contempt of court be, and the same is hereby, denied.”
Did such an order affect a substantial right, so as to bring it within the provisions of section 1356, Code Civil Proc.? That section is as follows:
“An appeal may be taken, to the general term of the supreme court, or of a superior city court, from an order, affecting a substantial right, made in a special proceeding, at a special term or a trial term of the same court, or, in the supreme court, at a term of a circuit court; or made by a judge of the same court, in a special proceeding instituted before him, pursuant to a special statutory provision; or instituted before another judge, and transferred to, or coniinued before him.”
It can hardly be maintained that the desired order to show cause affected a substantial right. The refusal left the party still at liberty to move for the same relief in an ordinary motion on eight days’ notice. No substantial right was affected by the refusal of the court or judge to grant an order to show cause. The order, if granted, could only operate as a short notice of motion; and its refusal in no way impaired or prejudiced the rights of the relators, and for that reason the order of the special term was not appealable under the provisions of the section of the Code above quoted. Rule 37 of the supreme court provides that all motions shall be brought on on notice of eight days, unless a shorter term shall be prescribed. This is but an amplification of the provisions of section 780 of the Code of Civil Procedure. In Gross v. Clark, 1 Civil
• It is not impossible that a case might arise where haste was important, and the granting or refusing an order to show cause as a short notice of motion, for reasons given in the moving papers, might affect a substantial right; but no such reason is given in the papers on this motion, and it is quite apparent from the relators’ delay in moving that no such reason .exists. This is not, therefore, such a case. As the granting or refusing of this order was, as we have seen, in the discretion of the judge or court, this court, on appeal, will not interfere with the exercise of such discretion, unless there has been a clear abuse of the exercise of such discretion. Morrison v. Agate, 20 Hun, 24, 25; Bryon v. Durrie, 6 Abb: N. C. 140. Certainly, if what has been shown as to the nature of the order denying the relators’ application is correct, no abuse of the exercise of the discretion of the judge at chambers or special term has been shown. The application for these orders was made to and refused by the same judge whose orders the relators insist were disobeyed. It is fair to presume that they knew, better than this court can. the nature of the orders made by themselves, and whether they had been contumaciously violated; and, acting upon the knowledge, they declined for that or other reasons to grant these orders.
- It is also urged with a great deal of force that the relators have delayed for more than a year in making this motion, and have by loches waived any alleged violation of the orders which might have occurred. It has frequently been held that loches in moving to punish an alleged contempt is good ground for denying the motion. No sufficient reason is given for this delay. The authorities seem to be uniform in this country and England that an attachment for
If the views expressed herein are correct, it is probably unnecessary to go further, as they would result in the affirmance of the orders and dimissal of the appeals. But as the order made by the special term sought to restrain a board of state officers from performing an act about to be performed in the discharge of a duty imposed by statute, that court had no jurisdiction to grant such an order, as the same could only be granted at a general term. Code Civil Proc. § 605; People ex rel. Derby v. Rice, 129 N. Y. 461, 29 N. E. 358. The order being void, the special term could not punish its violation as a contempt, even if it has been disobeyed. But it is urged by the learned counsel for the relators, that if neither of these orders are appealable, it is the duty of this court, if satisfied that an offense was committed, to grant the same, and that with that view they have inserted in the notice of appeal an application to this court for such an order; and in support of this suggestion we are referred to sections 2269 and 2271 of Code as authority upon this point.
Section 2269 reads as follows:
“The court or judge, authorized to punish for the offense may In its or his •discretion, where the case is one of those specified in either of the last two sections, and, in every other case, must, upon being satisfied, by affidavit, of the commission of the offense, either (1) make an order, requiring the accused to show cause before it, or him, at a time and place therein specified, why the accused should not be punished for the alleged offense; or, (2) issue a warrant of attachment, directed to the sheriff of a particular county, or, generally, to the sheriff of any county where the accused may be found, commanding him to arrest the accused, and bring him before the court or judge, either forthwith, or at a time and place therein specified, to answer for the alleged offense.”
Section 2271, also referred to by the relators as conferring this original authority upon this court, reads as follows:
“Where the order to show cause, or the warrant, is returnable before the court, it may be made, or issued, as prescribed in the last section but one, by any judge authorized to grant an order without notice, in an action pending in the court; and it must be made returnable at a term of the court, at which a contested motion may be heard.”
These sections do not confer any original jurisdiction on the general term of this court to perform the duty either of a special term or single judge, and, in the absence of express statutory authority, it may well be doubted whether it has any original jurisdiction of matters of contempt, except perhaps the inherent power of punishing for contempts of its own orders. Nor do we think either section 8 or 14 of the Code of Civil Procedure, to which we are referred by the relators’ counsel, confers any. such original jurisdiction
“It is ordered and adjudged that the order of the special term herein, dated December 7, 1891, and the order of the general term affirming the same, and the same writ itself, be modified by striking-out the provisions requiring a return to be certified by and to come from the county clerk of Dutchess county, and issued under his seal, and the said order so appealed from as so modified be affirmed, without costs.”
The case does not show that any remittitur was ever filed making the decision of the court of appeals the judgment of the supreme court, although the affidavits of one of the relators’ attorneys shows that one was prepared, differing somewhat from the decision, and handed to one of the counsel who had up to that time acted with the party opposing the validity of the Mylod returns. It is insisted by the learned counsel for the defendants that, as the case has never been remitted to this court by the filing of a remittitur, the matter is not properly here for consideration, and upon that .point we are referred to the case of People v. Village of Nelliston, 79 N. Y. 638; and, also, Bliss v. Hoggson, 84 N. Y. 667. But we do not deem it necessary to pass upon that question in this case. I am inclined to the opinion that within the express decision of the court of appeals, so far as to the defendants as state canvassers, the Mylod returns were the valid returns, and the only ones which they were authorized to canvass, after the decision of the court of appeals modifying that of the special term. The court of appeals, in passing upon the sufficiency of that return in this case, reported under the name of People v. Rice, 129 N. Y. 449, 29 N. E. 355, by, Peckham, J., says:
*357 “We think that, under all the facts, the steps taken to certify and authenticate the statements were valid, and the proceedings by which they were sent to and received by the secretary of state and the other state officers were sufficient to entitle them to be filed and considered by the board of state canvassers as the properly certified result of the canvass of the county canvassers.”
With this positive declaration by the court of appeals squarely overruling the decision of the special term, the order of which is made the basis of these proceedings for contempt, we see no escape from the conclusion that the defendants violated no order of any court; and this conclusion is emphasized by the decision of the court of appeals in Hasbrouck v. Board, 135 N. Y. 522, 32 N. E. 242, where it was expressly held that the returns sought by the relators to be substituted for the Mylod returns were invalid. We therefore fully concur with Justices BARNARD and EDWARDS, whose opinions we append and indorse,
The following are the opinions of Justices BARNARD and EDWARDS, referred to:
BARNARD, J. No presumptive case is made out of contempt against the defendants for any violation of an order of the supreme court. The board of supervisors of Dutchess county canvassed the votes as to state senator by throwing out certain so-called “marked ballots.” The election law was imperative that such votes should be counted in the first instance. The clerk refused to sign the return, and the board made Mr. Mylod its clerk, to certify its count. These returns, so certified, were forwarded to Albany. It was made a question whether the county clerk must certify the return, and the court of appeals subsequently held that a board of supervisors was empowered with the right to certify the return by another person than the county clerk if he refused to sign the certificate. The appeal from Judge EDWARDS’ order had only this point in it. Before the decision by the court of appeals the supervisors had by order of this court recounted the vote so as to elect Mr. Deane, and the vote so recounted was certified by a new county clerk, the old one having been removed by the governor; and this amended return got to the proper officers before the decision by the court of appeals, so that when that decision came the state canvassers had, or ought to have had, this corrected return. If the board violated its duty, and counted the uncorrected return, it was not a contempt of an order of any court. The order of the court simply provided a legal return of the canvass of the votes, and when it was filed-the duty of the court was accomplished. Motion for order to show cause denied.
EDWARDS, J. This is an application to a special term of this court, under section 2269 of the Code of Civil Procedure, for an order requiring the board of state canvassers to show cause why they should not be punished for an alleged violation of an order of this court. The same application, upon the same affidavits, was heretofore made to Justice BARNARD at chambers, who, under that section of the Code, had the same jurisdiction to issue an order to show cause that the court has at special term. The learned justice who heard the application considered it deliberately, and came to the conclusion that the order ought not to be granted. In his written opinion he says that no presumptive case is made out for a contempt against the defendants for any violation of an order of the supreme court. He further says that if the board violated its duty, and counted the uncorrected return, it was not a contempt of any order of any court This court is now asked upon this application upon the
