57 Barb. 593 | N.Y. Sup. Ct. | 1870
The proceeding which we are reviewing is entirely a statute proceeding. It confers somewhat unusual powers .upon a judicial officer; and, like all other statute authority which may seem to be interfering with existing rights, must be strictly construed. The proceeding is instituted, and the order of the county judge made, under section 5 of chap. 384 of the laws of 1859, (p. 907,) which provides as follows: “ In case any commissioner, under the act passed March 31, 1856, as amended' April 14, 1857, shall refuse or willfully neglect to perform any part of the duties specified therein, or required by this act, his office shall thereupon become vacant, and upon proof of the fact, to the satisfaction of the county judge, * * he shall appoint some other person to fill his place, in the manner now provided by law.”
General and well settled rules in the construction of statutes will, I think, be sufficient, if applied to this, to determine its meaning. One of which rules is, that the intention of the lawgiver is to be deduced from the whole and every part of a statute, to be taken and compared together; and the real intention, when ascertained, will always prevail over the literal. (People v. Draper, 15 N. Y. Rep. 532. 1 Kent's Com. 162.) The courts are, in ,the first place, to contemplate the law as it previously existed; next-the necessity and probable object of the change, and then give such construction to the language used by the
Guided by these rules, what was the intent of the statute in the grant of power to the county judge, in the section above cited ? This statute was in pari materia with the statutes of 1856 (chap. 64,) and of 1857 (chap. 401,)' which authorized the appointment of commissioners, and prescribed their duties; and they must all be read together, as constituting one system, or one act.
In the act of 1856, sections 1 and 10, power was given to the county judge, in case a vacancy should happen, by reason of death, removal from, the town, resignation, refusal to serve, or otherwise, to fill the vacancy, upon the written application of twelve resident freeholders, &e. These provisions are not changed by the act of 1859. They remain in force, so far as relates to vacancies from those causes; and the act of 1859 was intended to add to the causes which produce a vacancy, viz : If any commissioner shall refuse, or willfully neglect to perform, any part of the duties specified therein, or required by this act, his office shall thereupon become vacant, and upon the proof of the fact to the satisfaction of the county judge, he shall appoint
1. I assume, then, that the county judge of Otsego county, by virtue of the acts referred to, had jurisdiction of the question so placed before him; that this was the tribunal appointed .by statute to determine whether the relators had refused to perform the duties of the office to which 'they had been appointed, and whether they had willfully neglected to perform such duties; and that he did determine such question.
He held and adjudged, in effect, as appears from his return to the writ, that it was the duty of the relators, as commissioners of said town, if they sold the stock, to sell it for cash at par. He found as a fact, in effect, that they made a contract to sell the said stock on certain conditions; one of which was, that the purchasers should first have the use of the stock to be voted upon at a future election of directors of the company, for certain persons in the contract named; that they refused to sell the stock for cash át par; and that they sold the said stock on credit.
If these findings are legitimate, and can be sustained, the adjudication is right; if they are not, the order should be reversed.
Upon the authority of the case of The People v. The Board of Police, (39 N. Y. Rep. 506,) and The People v. Board of Assessors of Albany, (40 N. Y. Rep. 154,) and the authorities cited therein, it will now become our duty to examine the ease upon the merits, as well as upon the question of jurisdiction, which we have examined. The statute obviously intended to intrust the power of deciding the question, whether these officers had refused to perform any part of the duties of their offices, and whether they had willfully neglected to perform any part of such duties, to the county judges; and while their action, like the action of all other inferior officers, can be made the subject of review by this court, on certiorari, I apprehend
I have been most embarrassed by the point raised, that the first hearing of this case, and the dismissal of the proceeding, is a bar to the last one.
I think the eases of White v. Coatesworth, (6 N. Y. Rep. 137,) and Demarest v. Darg, (32 id. 281,) are conclusive to sustain this objection, unless the decision is brought within the case of the State of Michigan v. Phoenix Bank, (33 N. Y. Rep. 9, and cases cited,) where it was held that any fraudulent conduct of parties, in obtaining a decision or judgment, the court will take cognizance of, and then determine the case as the ends of justice may require. The return of the county judge in this case, I think, clearly indicates that in his view the relators had put their affidavits in such form as to mislead and deceive him as to their action; and he seems to place his conclusion, upon that ground. If this was the basis of action of the county judge, his decision 'can be sustained; otherwise not.' The language of the return is susceptible of this construction, and it seems to me that the facts would authorize such a view. The affidavits 'of the relators omit the particulars of the terms of the contract they claimed to have made. This it was easy to state. On the trial, the counsel for the applicants called for the production of the contract which the relators had made, on their agreement to sell the stock, and which, by the judge’s order, they were required to produce on the hearing, and which they did not produce. ■ In the affidavit of the relators, of the date of 7th June, the only material fact stated in it was, that they had sold the stock at par. This omis
Order affirmed.
Miller, P. J., and Potter and Parker, Justices.]