32 How. Pr. 48 | N.Y. Sup. Ct. | 1866
By the Court,
The defendant was a supervisor of one of the wards in the city of Buffalo, and a member of the board of supervisors of Erie county, and was indicted, tried and convicted of corruption in such office.
The substance of the first two counts in the indictment may be briefly stated thus : that the defendant procured from one Taylor articles (specifying them) for his own use, and that Taylor presented the account .for such articles, and
It is objected,by the defendant’s counsel, that the defendant was a judicial officer, and that the matter's charged against him were judicial acts done in the performance of his judicial duty; and that as such they do not form the subject of indictment.
Supervisors are required to meet annually for the dispatch of business' as a board ; they may hold special meetings ; and they have power to adjourn from time to time.- The board of supervisors have power :
1. To make orders concerning the corporate property of the county, as they shall deem expedient.
2. To examine, settle and allow, all accounts chargeable to such county, and to direct the raising of such sums as may be necessary to defray the same.. (1 B. 8. 366, §§ 1, 4.)
The authorities are uniform and consistent in showing the law to be, that no civil action can be maintained against the judges of the superior courts of general jurisdiction, for any act done by them in a judicial capacity. (Yates v. Lansing, 5 John. 282.) This rule embraces also all judges, justices and magistrates of .inferior courts, acting judicially in a matter within the scope of their jurisdiction. (Broom on Parties to Actions, 268, and cases hereinafter cited.)
It is also well settled that no prosecution by information or indictment, can be. sustained against any judge of a superior court of record, for any act done by him as such judge. This rule does not apply to magistrates and justices of inferior courts, not of record, or other officers, authorized or required to perform special duties involving discretion, judgment and decision. Some of the authorities and cases consulted, will be here referred to, many of them cited by the learned counsel for the defendant in this case. I have already referred to Yates v. Lansing. It was a civil action against the chancellor to recover the penalty given by the habeas corpus act. Kent, Oh. J. delivered the decision of the court in an .elaborate and instructive opinion, referring largely to the English authorities. Greenvelt v. Burnwell, reported in 12 Mod. 386; 1 Salk. 396; 1 Lord Raym. 457, is regarded as a leading case, in which Holt, Oh. J. went largely into the law of judicial responsibility. The case is more fully reported in Raymond than in Salkeld.' It was a. civil action to recover damages for false imprisonment.. .The defendants-were censors of the college of physicians in London, and were empowered, by act of parliament, to inspect, govern and censure practitioners of physic, so as to punish by fine and imprisonment. They convicted, fined and imprisoned the plaintiff. The chief justice held, and he seems through his opinion to have regarded it as essential, that the censors were “justices of record.” He maintained that the record could not be traversed.. The question of liability arose, as we have seen, in a civil action, and the court coming to the conclusion that the defendants
In Miller v. Seare, (2 Black. 1145,) DeQ-rey, Chief Justice, lays down the rule in civil cases very clearly. He says : “ In all cases where protection is given to the judge,
giving an erroneous judgment, he must be acting os judge. The protection in regard to the superior courts, is absolute and universal; with respect to the inferior, it is only while they act within their jurisdiction.” This is the true distinction, at this day, in this state, as to the liability of judges and magistrates in civil cases.
Lord Tenterden, in Garnett v. Ferrand, (6 Barn. & Cres. 611,) speaking of inferior justices acting within their jurisdiction, being called in question for errors of judgment, states the reason of the rule. “ In the imperfection of human nature, it is better, even, that an individual should occasionally suffer wrong, than that the general course of justice should be impeded and fettered by constant and perpetual restraints and apprehensions on the part of those who are to administer it.” He adds, “ corruption is quite another
Russell, in his Treatise on Criminal Law, (vol. 1,135,- et seg.) educes from the cases the general rule : that the oppression and tyranical partiality of judges, justices and other magistrates, in the administration, and under color of their offices, may be punished by impeachment in parliament, or by information or indictment, according to the rank of the offenders, and the circumstances bf the offense. Thus, if a justice of the peace abuses the authority reposed in him by law, in order to gratify his malice, or to promote his private interest or ambition, he may be punished by indictment or ' information. If the justice has acted honestly and candidly, without oppression, malice, revenge or any bad view or ill intention whatever, though the act was illegal, the court will not punish him by the extraordinary course of an information, but will leave the party complaining to the ordinary method of prosecution by action or an indictment. The authorities cited fully sustain the text. (See also The King v. Borron, 3 Barn. & Ald. 432.)
The question is not one of jurisdiction, nor is it confined to ministerial acts, but if the officer acts from dishonest, oppressive or corrupt motives, he may be indicted and punished. Wharton in his American Criminal Law, under the title of Misconduct in Office, (§ 2514,) states the law : “If a public officer, intrusted with definite powers to be exercised for the benefit of community, wickedly abuses or fraudulently exceeds them, he is punishable by indictment, though no injurious effects result to any individual from his misconduct.” ■ The crime consists in the public example, in perverting those powers to the purpose of fraud and wrong, which
The act of the board of supervisors in examining, settling and allowing accounts chargeable to the county, is, I have no doubt, a judicial act, and the supervisors in exercising the powers conferred upon them by the statute in this regard, are not liable in any civil action, however erroneous or wrongful their determination may be; and their decision is binding upon all parties concerned. (Weaver v. Devendorf, supra. Chase v. The County of Saratoga, 33 Barb. 603. The People v. The Supervisors of Livingston, 12 How. 204. S. C. 26 Barb. 118.) It is not necessary to multiply authorities.
In the present case the board of supervisors acted judicially in examining, settling and allowing Taylor’s account. The supervisors acting as a board, were charged and intrusted with definite duties and powers, to be performed and exercised for the benefit of the community, and if they wickedly abused, or fraudulently exceeded these powers, they are punishable by indictment. If, in the language of this indictment, such supervisor acting as a member of the board, knowingly, corruptly, unlawfully and partially, votes that an account presented against the county as a county charge, be allowed and made a charge against the county, he is guilty of a misdemeanor, and may and should be indicted, tried, convicted and punished. He has perverted the power con
, If there is no other objection to this conviction, it should stand, and the'judgment upon it should follow.
It appears from the evidence that the annual meeting of! the board of supervisors, commenced October 3, 1865 ; that it. adjourned sine die, December 16 ; that on the 14th or 15th of. December, Martin Taylor presented several bills and accounts against the “ Brie county board of supervisors." They were very general, as thus : “.To stationery'furnished to. October 1, .§1277.40 ; to fifty gold pens and gold holders, $900.” They were examined and allowed, to the amount of $5130.81, the defendant voting for their allowance. ■ The board was again convened, and was in session December :28. The accounts were again brought before the board by Taylor, it.having been alleged that there were some irregularities in the presentation and allowance of the accounts on the 15th December. The objection was now taken by some of the supervisors that their power as a board was exhausted by.th'e previous action. The defendant maintained the contrary, and the board s.o decided, and proceeded to examine and "settle, and allow the account. The sum now allowed was $3921.81. The' defendant voted for the allowance. Upon these facts appearing- on the trial, the position was taken by the defendant’s counsel that the defendant could not be convicted for his; act of the 28th of December, for the reason that, the board had. no jurisdiction in the premises, having exhausted. a.11 its power by the action on the 16th. The district attorney insists, .among other positions, as an answer -to this posi- ' tion, that the action of the board on the 16th December, Was without jurisdiction, and, therefore, void. , ,
.... I have examined the statute referred to, and am satisfied
It is undoubtedly a general rule, that a special power conferred upon officers or other persons, affecting the interests or rights of others, can only be exercised once. When the officers or body upon whom the power is conferred, have executed the power, the authority ceases, and the power becomes functus officio. It is this rule which the counsel for the defendant invokes. I think it is not applicable to this case. The only case cited, which may perhaps be fairly claimed as in point, is The People v. The Supervisors of Schenectady County, (35 Barb. 408.) In this case Justice Potter delivered an able and elaborate opinion. He has not entirely satisfied me that he properly applied the rule functus officio to the case. The board of supervisors on the 10th day of December, by a resolution, apportioned to the several towns and wards in the county, the amount of county charges that had been audited, according to the value of the real and personal estate in the towns, etc. as apportioned and equalized by them. The next day the board, by a resolution, reconsidered the resolution of the previous day, and by another resolution again apportioned and equalized the assessments of value in the towns and wards, upon a new and 'different basis. Each proceeding was strongly opposed, and each party moved for a mandamus to compel the board to perform the ministerial duty of attaching the warrants for the collection of the taxes. The court held, that the proceedings on the 10th December were valid,1 and that the board on that day exhausted its authority under the statute,
Some of the cases referred to, relate to the action of courts or judicial officers, acting under special or limited powers ; some of them to the action of boards of supervisors under a special authority, as in the case of The People v. Ames, (19 How. 551.) The board had authority, by statute, to limit the number of superintendents of the poor to one. The board exercised the authority, and reduced the number to one, and in a subsequent year voted to raise the number to three. It was held that the board had' no power thus to restore the number to three.
The cases where the rule we are considering has been
In all the cases, some right has been acquired by the decision, and ■ the party beneficially interested has resisted any subsequent action of the court, officer or body authorized to decide, by which the party’s interest should be changed or modified ; and the question has invariably arisen in considering such claim, and whether it has been affected by any subsequent action of the court, or officer or body authorized by the statute to decide, and in the absence of any authority to reconsider or revise the decision, I certainly doubt, as to the proper application of the principle in the The People v. The Supervisors of Schenectady County. It may be that when the board had once exercised the power of apportioning the tax as seemed to them equitable and just, under the power conferred by the act of 1838, (ch. 314, § 1,) the power was at an end. The power was in its nature judicial, and the act of apportionment' was a decision in which each town and ward was interested. It is, nevertheless, a stringent application of the rule functus officio to say that the board, during the same sitting, cannot reconsider its action. The meeting of the supervisors is “ for the dispatch of business as a board.” It is agreed that some of their powers are legislative, some ministerial, and some judicial or quasi judicial. I agree that the power to examine, settle and allow accounts is in its nature judicial, and that parties interested are bound by the decision in all cases calling for the exercise of judgment and discretion ; but,, in my opinion, the same board of supervisors may re-examine an account once passed upon, and, in fact, reject it, or reduce the amount first allowed. The claimant acquires no fixed right until the final action of the board upon his claim ; and until he has received the order for the payment of his claim, the board has jurisdiction over it.
Such, I understand, has been the constant practice of boards of supervisors. Suppose an account has been allowed
If we should come to the conclusion that the action of the board on the 16th December, upon Taylor’s account was final, arid that, the board had no jurisdiction to re-examine it, we should still be of the opinion that the defendant could be properly convicted for his corrupt act on the 28th December.
It is not essential that any injurious effects should result to individuals from the misconduct of the officer. (Wharton’s Am,. Cr. L. 2514.)
If the board of supervisors act without jurisdiction, their decision will not be binding upon the parties intended to be affected by the act. (Chemung Canal Bank v. The Board of Supervisors of Chemung, 5 Denio, 517. The People v. Lawrence, 6 Hill, 244.) But the fact that the board exceeded its powers will constitute no defense for the supervisor, whose act as supervisor proceeded from corrupt and wicked motives. We think the defendant was properly convicted under the two first counts in the indictment, assuming that
Again, there was a third count, charging the like corruption in voting on the 16th December, in favor of an account presented by John McNamara, for spirituous liquors furnished to the supervisors. The verdict is guilty of the offense charged in the indictment. This is a general verdict' of guilty. The rule is, that when one count in the indictment is good, and the verdict is guilty, the conviction is to stand. (See Guenther v. The People, 24 N. Y. Rep. 100.)
There was no error committed upon the trial, and the conviction must stand.
Grover, Daniels, Marvin and Davis, Justices.]