People ex rel. Derby v. Bd. of State Canvassers

• Decision Date: 29 December 1891
• Citation: 29 N.E. 358,129 N.Y. 461
• Parties: PEOPLE ex rel. DERBY v. BOARD OF STATE CANVASSERS.
• Court: New York Court of Appeals Court of Appeals

129 N.Y. 461

29 N.E. 358

PEOPLE ex rel. DERBY

v.BOARD OF STATE CANVASSERS.

Court of Appeals of New York.

Dec. 29, 1891.

Appeal from supreme court, general term, third department.

Application on the relation of John H. Derby against Frank Rice, secretary of state, and others, composing the board of state canvassers, for a writ of mandamus to compel the issuance of a certificate of election to the office of state senator. The supreme court at special term granted the writ, and the order was affirmed by the general term. Defendants appeal. Affirmed.

I. H. Maynard and Delos McCurdy, for appellants.

Wm. A. Sutherland, Matthew Hale, and Joseph H. Choate, for respondent.

GRAY, J.

In this matter, on certain affidavits, an order was made by the supreme court, at special term, directing the issuance of a writ of peremptory mandamus, commanding the state board of canvassers to issue a certificate of election, in accordance with the certified statements as to the result of an election for senator in the sixteenth senatorial district of the state, held on November 3, 1891, filed with the said board, and to make a determination of the result of said election thereupon solely; disregarding and not considering any other papers of any other nature whatever relating to said election, or the result thereof, and without taking any proofs or considering any papers with reference to the determination of said election, except the said certified statements made pursuant to statute by the boards of county canvassers of the counties composing the said senatorial district. The moving papers upon which the order I have just referred to, and largely quoted from, was granted, set forth a resolution passed by the board of canvassers of Rensselaer county, to the effect that, in transmitting the statements of the votes cast at the recent election to the state officers, there should accompany them a certain protest and certain objections, and that the attention of the board of state canvassers be called to the same, and they be requested, before issuing a certificate of election to the office of senator, to consider such protest and proofs, and such further proofs as may be presented. They alleged the receipt, filing, and proposed submission by the state officers of the statement of the county board, with the accompanying protest and papers. The moving papers further showed that the protest, objections, or statements referred to were based upon alleged violations of the election laws of the state, in that there were irregularities in and illegal acts committed at the election in question. These violations of the laws are alleged to have been committed in the solicitation of votes within 10 feet of the polling place, in the intimidation and bribery of voters, in the repeating of votes, and in the failure of the returns to state the correct vote cast. These matters are set forth in an affidavit by the opponent of the candidate Derby, the relator here, and he makes the offer to prove his allegations. The affidavit of the secretary of state, a member and the chairman of the state board of canvassers, alleges that the board had not proceeded to act upon the statements from Rensselaer county because of the legal proceedings, and that it has not refused, neglected, nor threatened to refuse or neglect, ‘to consider the statement in the manner required and allowed by law;’ that there has been no refusal ‘to issue a certificate to the office of senator of the sixteenth senatorial district to any person; nor has said board, nor any member thereof, stated what said board intended to do,’ etc.; ‘and, in deponent's opinion, it is the intention of said board to proceed in good faith to the discharge of the duties imposed upon them by law,’ etc.; ‘that no demand has been made upon the state board by the relator herein that a certificate of election should be issued to him.’

If we were free to consider and to determine the right or propriety to order the writ of mandamus to issue in this matter, we should not hesitate to hold that it should not have been granted by the supreme court at a special term. Though the writ is in form one of peremptory mandamus, yet it is, by force of its terms and commands, in effect an order which restrains a board of state officers engaged in the performance of, or about to perform, a duty imposed by the statute. Upon the proofs it did not appear that the board of state officers against whom the application was made, had refused or neglected to perform any duty imposed by law, or that they intended to commit any illegal act; not even that they had refused the relator any legal right. Hence there was no occasion for nor propriety in a peremptory writ of mandamus, which issues in order to compel ministerial officers to exercise their functions; or where a specific duty has been imposed by law, and they refuse to perform it; or they do not conform to the law; or when some legal right has been refused. But, passing over the necessity for the writ upon the grounds exhibited by the moving papers, if it is proposed to use it as a restraining order or injunction, which certainly was its province in this case, then its issuance ought to be subject to the same statutory provision which imposes a restriction upon injunctions to restrain state officers. That is found in section 605 of the Code of Civil Procedure, which reads that ‘where a duty is imposed by statute upon a state officer, or board of state officers, an injunction order to restrain him or them * * * from the performance of that duty * * * shall not be granted, except by the supreme court at a general term thereof, sitting in the department in which the officer or board is located, or the duty required to be performed.’ There is not enough in the case to overcome the legal presumption that the state officers would perform their statutory duties, and until that should appear a peremptory mandamus would not lie. We think that this provision of...