Metz v. Maddox

• Citation: 82 N.E. 507,189 N.Y. 460
• Parties: METZ, Comptroller, et al. v. MADDOX, Justice of Supreme Court, et al. SAME v. DAYTON, Justice of Supreme Court, et al.
• Decision Date: 19 November 1907
• Court: New York Court of Appeals

189 N.Y. 460

82 N.E. 507

METZ, Comptroller, et al.

v.MADDOX, Justice of Supreme Court, et al.

SAME

v.DAYTON, Justice of Supreme Court, et al.

Court of Appeals of New York.

Nov. 19, 1907.

Appeal from Supreme Court, Appellate Division, Second Department.

Separate applications of Herman A. Metz, as comptroller of the city of New York, individually and as a taxpayer thereof and others, to prohibit Samuel T. Maddox, justice of the Supreme Court, and others, and to Charles W. Dayton, justice of the Supreme Court, and others, from proceeding to recanvass and recount ballots of an election. From orders of the Appellate Division of the First and Second Departments denying the writ (105 N. Y. Supp. 702), petitioners appeal. Reversed, and writ of prohibition ordered in each case.Francis K. Pendleton and Eugene Lamb Richards (William B. Crowell and Francis Martin, of counsel), for appellants.

Clarence J. Shearn, for respondents.

CULLEN, C. J.

At the general election held in November, 1905, the office of mayor of the city of New York was to be filled. The two leading candidates for that office were George B. McClellan and William R. Hearst. After the canvass of the votes, a certificate of election was duly issued by the board of elections of the city of New York to George B. McClellan, and on the 1st of January following he entered into possession of the office under said certificate and has held it ever since. The contest for the office was comparatively close, there having been nearly 600,000 votes cast, and the majority returned for McClellan being about 3,400. Question was raised as to the fairness of the election and the accuracy of the result certified. In 1906 an application was made by Mr. Hearst to the then Attorney General for the commencement of an action in the nature of quo warranto to test the title of McClellan to his office. This application was denied. In 1907, a new Attorney General having been elected, the application was renewed and a suit brought against McClellan, which is now pending. On the 18th day of June, 1907, there was enacted by the Legislature and approved by the Governor a statute (Laws 1907, p. 1123, c. 538), the validity of which is the subject of this controversy. It is entitled ‘An act to provide for a judicial recount and recanvass of the votes cast for the office of mayor at the election of the seventh of November, nineteen hundred and five, in all cities of the first class in which the ballots have been preserved,’ and will be given in detail hereafter. It is sufficient at this point to say that the act provided for a recanvass of the votes on the petition of any candidate for said office. In June Mr. Hearst presented his petition to a Special Term of the Supreme Court in the Second judicial department for a recanvass of the votes under the terms of the statute, and a few days thereafter a similar petition to the Supreme Court in the First judicial department. The justices to whom such applications were made proceeded to conduct a recanvass of the votes, whereupon the present appellants, the comptroller, and other officers of the city of New York, and McClellan individually, applied to the Appellate Divisions of the two departments for writs of prohibition restraining the Special Term of the Supreme Court from proceeding on said petition on the ground that the statute was unconstitutional and void. On the return of the alternative writs, the controversy was submitted to the courts. The Appellate Division of the Second Department first reached a decision, and upheld the vallidity of the statute by a divided court. The learned justices of the Appellate Division of the First Department were unanimously of opinion that the statute was unconstitutional, but deemed it proper to follow the decision of the Second Department, earlier made, without regard to their own judgment. Orders were entered in each department denying the writ. From these orders appeals have been taken to this court. No objection is made before us as to the procedure adopted by the appellants, and the sole question before us to be determined is whether said statute of 1907 is in contravention of the provisions of the Constitution.

The statute reads as follows:

‘Section 1. Upon the petition, within twenty days after the passage of this act, of any candidate for the office of mayor voted for at the election of the seventh of November, nineteen hundred and five, in any city of the first class in which the ballots have been preserved and upon such notice as the court shall prescribe, the Supreme Court, in any judicial district, within which any of the election districts affected are situated, must proceed to a summary canvass of the vote in any election district specified in the petition. The court shall, in such a proceeding, make an order, a copy of which shall be served upon each candidate voted for at such election, that all the requisite ballots shall be produced in the county courthouse and canvassed in the presence of all candidates affected, or the counsel of such candidates as shall have appeared in the proceeding, and of an attorney who shall be appointed by the court and designated in the order as commissioner. The commissioner shall canvass the ballots one by one, permitting the counsel for the candidates affected to examine them. If counsel differ from the commissioner as to the counting of any ballot, it shall be at once placed on one side as a disputed ballot. At the conclusion of the canvass of the vote in each election district, the commissioner shall prepare a written statement of the count upon the undisputed ballots, and that statement, together with all the disputed ballots, shall be submitted to the court. The court shall thereupon proceed to canvass the disputed ballots and shall rule upon each ballot in turn. If exception is taken to any ruling, the court must endorse its ruling and the exception upon the back of the ballot in ink. At the conclusion of the canvass the court shall make, in triplicate, a final order for each election district specified in the petition, which shall contain a complete return of the vote under review. One of these orders shall be filed in each office where the returns of the election officers have been filed, which returns it shall in all respects supersede. A summary appeal may be taken to the Appellate Division from any such final order within ten days after it is made. Upon such an appeal, beside the order of the court below, only the ballots as to which exception was taken in the court below shall be produced, and the Appellate Division shall proceed to canvass them in a summary way. The Appellate Division shall make, in triplicate, a final order for each election district which shall contain a complete return of the vote then under review. One of these orders shall be filed in each office where the returns of the election officers have been filed, which returns and the order of the court below it shall in all respects supersede. No appeal shall be taken from any such order of the Appellate Division.

‘Sec. 2. Within ten days after filing the order or orders containing a return of the vote under review, or, if an appeal therefrom has been taken, then, within ten days after filing the final order or orders of the Appellate Division, the board or officer authorized to issue certificates of election must prepare from said orders and from the returns not then superseded a tabulated statement showing the total number of votes cast for each candidate for the office of mayor at the election aforesaid, which tabulated statement, certified by the board or officer aforesaid, shall be filed in the office of the said board or officer. Thereupon and within three days the said board or officer shall issue and deliver a certificate of his election to the candidate shown to have received the greatest number of votes for the office of mayor, which certificate shall, in all respects, if it shall change the previously declared result of the election, supersede the certificate theretofore issued by the said board or officer. Upon receipt of such new certificate, the candidate certified therein to have been elected shall forthwith take office, be invested with the powers and perform the duties appertaining to such office. Any justice of the Supreme Court may make such summary order or entertain such proceedings as may be necessary to carry said recount into effect and secure to the candidate shown by said recount to have been elected, full possession of the office of mayor and the exclusive right to exercise the functions of said office.

‘Sec. 3. Nothing in this act contained shall impair or affect any right under the Constitution or laws of this state to question, by proceeding in the courts, the right or title of the candidate who shall, as a result of said recount, be declared elected; but there shall be no judicial review of any ballots which shall have been canvassed in the proceedings herein authorized.’

The remainder of the statute provides for the validity of the acts of the incumbent of the office until the issue of the new certificate, if that changes the result, and for defraying the expenses and costs of the proceeding, provisions that are not material to our discussion of the case.

The constitutionality of the statute before us has been attacked on many grounds. Some of the objections presented to it are frivolous, and need no consideration. There are some others which raise questions fairly debatable and which might be difficult to answer. All of these, however, we do not intend to review, as we think the statute so clearly contravenes the Constitution in one of two respects as to render it unquestionably invalid. The proceeding authorized by the statute either is, as its title indicates, a recanvass of the votes cast for the office of mayor, or is a judicial hearing and determination of the title of the respective candidates at that election to the...