McMackin v. Bd. of Police of City of New York

• Decision Date: 25 October 1887
• Citation: 107 N.Y. 235,13 N.E. 920
• Parties: PEOPLE ex rel. McMACKIN and others v. BOARD OF POLICE OF CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

107 N.Y. 235

13 N.E. 920

PEOPLE ex rel. McMACKIN and others

v.BOARD OF POLICE OF CITY OF NEW YORK.

Court of Appeals of New York.

October 25, 1887.

Appeal by the relators from an order of the general term of supreme court in the First department.

The relator, representing the United Labor party, obtained an order to show cause why a writ of mandamus should not issue against the defendants, and each one of them, requiring them to meet and appoint, as inspectors of election, the persons selected by one of the commissioners, McClave, under the provisions of Laws N. Y. 1887, c. 490. The relator claimed to represent the United Labor party, and alleged that this organization cast 68,000 votes for George for mayor at the election in 1886. He also alleged that it had designated McClave to represent the party in the appointment of inspectors, under the act, and that he had proposed a list, but defendants, as a body, had refused to appoint them. On the hearing it was shown that the Irving Hall organization had designated Commissioner Voorhees to select and appoint inspectors for them, and that the Progressive Labor party had designated Commissioner Porter to act for them. Each of these parties claimed to have cast the 50,000 votes and upwards cast for George for mayor. The court refused a peremptory writ, but granted one in the alternative. On the hearing on this writ, the defendants filed a return, showing that on respective motions by the commissioners for the appointment of commissioners a tie vote had been cast, and each motion lost. The Progressive Labor party denied, under oath, the allegations made by the relator. Commissioners Voorhees and Porter filed returns in their own behalf, denying the allegations in the alternative writ, and raising the question of fact whether the party designated by Commissioner McClave was the political party which cast 50,000 votes for George. The relator moved to disregard the individual returns of Voorhees and Porter. The motion was denied. He then demurred to the return, and the demurrer was overruled. No traverse of either return having been made, the court rendered judgment in favor of the respondents. The general term affirmed the order denying the writ. Relator appealed from the judgment and from the order affirming the order of the court.

Edward M. Shepard, for appellants.

E. Ellery Anderson, for respondents.

PECKHAM, J.

The remedy by mandamus is of an exceptional character, and the writ issues only in that class of cases where a clear legal right is made to appear, and there is no other adequate and legal means to obtain it. The granting or refusing the writ, especially where it is asked against public officers to compel the performance of an alleged public duty, is somewhat a matter of discretion. These principles are elementary, and require the citation of no authorities for their support. In the proceeding at bar, the writ is not asked for to establish or maintain any private right or interest; but the relators ask that it shall issue against a board of public officers to compel the performance by it of what the relators allege to be a public duty. They claim to be the representatives of a constituency of over 50,000 voters in New York city, and they allege that the legislature by the act, (chapter 490, Laws 1887,) provided for the appointment of inspectors of election by the defendants to represent this large body of voters at the ballot-boxes. It is seen from this statement that the relators have no private interest in this question, but the interest and the right rest with that body which they claim to represent, and which from their papers amounted to nearly 70,000 voters at the last municipal election. If these relators are in reality the proper representatives of such a constituency, the defendants, under the act, should appoint an inspector for each district as applied for. But the question is whether these relators are such representatives. On the papers produced and read by them on the application for the writ, they made out a case for such appointment, and if their papers were uncontradicted, the application for the writ should be granted. But are their papers uncontradicted? To answer this question in such a case, where public interests and the right of this large body of voters to be represented at the ballot-boxes under the act of last winter are concerned, the court ought to and will look carefully into the record, for the purpose of seeing where the right of the case is, and in the exercise of a legal and proper discretion in regard to issuing the peremptory writ, will refuse it if satisfied from the record that there is an honest dispute on some substantial basis, regarding material facts, which ought to be properly settled before the writ issues, even though in the strictest and most technical construction of the papers or pleadings it should appear that these issues are inartificially or loosely made up. The legislature intended that, where so large a part of the voting population as 50,000 should vote outside of the two great parties, that such part should have an inspector of election at each ballot-box to see that the election was fairly...