People ex rel. Van Voast v. Van Slyck

4 Cow. 297 | N.Y. Sup. Ct. | 1825

.: Curia, per

Woodworth, J.

This is an information in nature of a quo warranto, filed against the defendant, who, as is alleged, intruded into, and unlawfully holds the office of sheriff of the county of Schenectady.

The remedy by information is adapted to this case. The statute is comprehensive in its terms. It extends to all persons who shall usurp, intrude into, or unlawfully hold and execute any office or franchise within this state. The jurisdiction of the Court cannot well be doubted, when the question relates to a public office. The decision of officers acting ministerially is sought to be reviewed. In The People v. The Mayor of New York, (3 John. Cas. 79,) and The same v. Sweeting, (2 John. Rep. 184,) the Court entertained jurisdiction; in one case wheretherelator claimed to have been elected to the office of alderman; in the other, to that of supervisor; and considered an information as the proper remedy to try the rights of the parties.

It was contended on the argument, that the decision of the board of canvassers was conclusive, until reversed; and could only be reviewed by certiorari. This objection cannot prevail. The duties of the canvassers are ministerial. They are required by the act to attend at the cleric’s office, and calculate and ascertain the whole number of votes given at any election; and certify the same to be a true canvass. This is not a judicial act, but merely ministerial. They have no power to controvert the votes of the electors. If they deviate from the directions of the statute, and certify in favor of a sheriff not duly elected, he is liable to be ousted by information. The trial is had upon the right of .the party holding the office. The certificate is not conclusive. The Court will decide upon an examination of all the facts.

The question then is, have the canvassers complied with the duties enjoined on them by law 1 -I am clearly of opin•ion they have not.

A certificate of the election in Niskayuna was signed by all the inspectors, and one of their number appointed to deliver it to the clerk of the county. This was done within the time limited by law. When the board met to calculate the votes, the inspector from Niskayuna was excluded, on the ground that he did not produce written evidence of his appointment. The statute declares that one of the inspectors of election, who shall actually preside at such election, to be appointed by a major part of the inspectors who shall so preside, shall, in person, deliver to the clerk a copy of the statement of votes. It is then made the duty of the inspectors, who attend at the clerk’s office, to ascertain the whole number of votes given for the respective candidates at the election.

The 10th section of the act does not require that one of the inspectors be appointed to preside at the election. All the inspectors attending equally preside, and have equal powers. The meaning of the act is, that some one of the inspectors, who have attended the election, shall bo appointed to deliver the certificate, and attend at thé clerk’s office of the county. It is not necessary to make this appointment until the votes of the town are canvassed.

Although an appointment by writing is to be preferred, it is not indispensible. The statute is silent as to a written appointment. If an objection is taken when an inspector presents himself at the board of canvassers, the evidence of his appointment may be either by writing or parol. If the statement of the votes of the town are delivered to the clerk by an inspector, and the fact of his being an inspector is not questioned by the canvassers, he ought not to be excluded ; for the delivery of the statement, and attendance to perform the duty of a canvasser, is prima facie evidence of an appointment for that purpose. The canvassers, therefore, erred in excluding the inspector from Niskayuna on his first application.

But if this were not sufficient, the certificate produced, before the hour of 4 o’clock on the 12th of November, was evidence that the person producing it had been regularly appointed. The act gives the power of appointment to the major part of the inspectors who shall preside. The person appointed is not excluded from participation ; and consequently he may constitute one of the majority who confef on him the appointment. A second certificate signed by all the inspectors was produced the next day, before the canvass was finished. The inspectors from Niskayuna attended personally ; and offered to make oath. The board then decided not to receive any evidence ; because not offered previous to 4 o’clock P. M. of the day preceding. The votes of Niskayuna were not calculated. Ex-eluding that town, the defendant had a majority of votes, and was declared duly elected. If the votes of Niskayuna had been canvassed, the relator would have been found to be elected.

The several decisions of the board of canvassers arc manifestly erroneous ; and call for the interposition of this Court. The defendant was not duly elected sheriff; but unlawfully holds that office. It is the opinion of the Court that judgment of ouster be entered ; and that the relator recover his costs of prosecution.

Judgment of ouster.