People ex rel. Platt v. Rice

• Decision Date: 21 December 1894
• Parties: PEOPLE ex rel. PLATT et al. v. RICE et al.
• Court: New York Court of Appeals Court of Appeals

144 N.Y. 249

39 N.E. 88

PEOPLE ex rel. PLATT et al.

v.RICE et al.

Court of Appeals of New York.

Dec. 21, 1894.

Appeal from supreme court, general term, Third department.

Proceeding by John I. Platt and another to punish Frank Rice and others for contempt of court, for disobeying a mandamus. From a judgment of the general term (30 N. Y. Supp. 457) affirming a judgment finding defendants guilty, they appeal. Affirmed.

The defendants constituted the state board of canvassers, whose duty it was to canvass the returns from the various counties of the state of the votes cast therein at the election held in 1891. A dispute arose in Dutchess county over the election of senator for the Fifteenth senatorial district. The county board of canvassers returned a certain statement of the result of the votes, which the county clerk, as secretary of the board, refused to attest as required of him by the statute. The board thereupon appointed one of their number, John J. Mylod, secretary pro tem., and he signed and attested the statement of the board, which was duly forwarded to the state board of canvassers. According to this statement, Edward B. Osborne appeared to have the greatest number of votes for senator. The opposing candidate, Gilbert A. Deane, having died, the relators, who were voters in two of the counties in the senatorial district, instituted proceedings against the members of the state board, claiming that the paper filed with them by the county board was defective, erroneous, and invalid, upon the grounds that it had not been signed or certified to by the county clerk, nor by him transmitted to the state board, and that it contained the result of an illegal and erroneous canvass of the returns of the inspectors of election in the whole county, whereby a greater number of votes was counted for Mr. Osborne than he was entitled to, and which gave him an apparent plurality of 14 votes in the senatorial district. Upon the application of the relators, and after hearing the parties, the supreme court, at special term, on December 7, 1891, ordered that a writ of peremptory mandamus issue, commanding ‘the state board of canvassers that they issue a certificate of election to the office of senator in the Fifteenth senatorial district of this state, disregarding the return of the board of county canvassers of the county of Dutchess, which is signed by John Mylod as secretary of said board pro tem., but that instead thereof they consider only such return from the county of Dutchess as may hereafter be filed, and that in their certificate of election the said state board of canvassers certify and declare that the person who appears upon the certified returns and statements made by the boards of canvassers of the counties of Columbia, Putnam, and Dutchess, in pursuance of the statute and the order of the court, to have received the greatest number of votes, was duly elected senator from the said Fifteenth senatorial district.’ On the same day that this order was made, the parties entered into a written stipulation which provided for the taking of an immediate appeal therefrom to the general term, for securing an immediate hearing before that court, and for the further and immediate appeal by the defeated party thereat to the court of appeals. It further provided for the suspension by the defendants of their proceedings for the canvass of votes until the decision of the court of appeals, and that such canvass should be completed, and the certificate of its result made in accordance with that decision. The general term affirmed the order upon the appeal there, and upon the appeal to this court this order was made, viz.: ‘It is ordered and adjudged that the order of the special term herein, dated December 7, 1891, and the order of the general term affirming the same, and the same writ itself, be modified by striking out the provision requiring a return to be certified by and to come from the county clerk of Dutchess county, and issued under his seal, and that the said order so appealed from, as so modified, be affirmed, without costs.’

In the opinion of this court (29 N. E. 355), in which all the members of the court concurred, the illegality of the county board, as alleged in the record, was adverted to and discussed. It was pointed out that the allegations relating to the making up of the canvass by the county board in opposition to the actual returns were not denied, and that there was no explanation, nor contradiction, as to their manner of arriving at the result; the defendants practically resting their case upon the return, as being a legal one, which could not be questioned. It was said in the opinion of this court that the state board could not itself inquire into the allegations as to the making of the return, but that ‘if another return should be duly sent to the board, properly authenticated, and containing the result of the legal action of the board of county canvassers, the state board could canvass it.’ It appears that another and corrected return was mailed to the defendants, but failed to get into their hands, and eventually reached them, by private hand, on December 23, 1891. The decision and order of this court were handed down early in the afternoon of December 29, 1891. In the evening of that day, and before our remittitur had been filed, the defendants met in board meeting, and at once proceeded to canvass the votes for the office of senator in the Fifteenth senatorial district from the return which had been signed and certified to by Mylod. It appears that previous to said meeting our opinion and order were read, or otherwise made known to the defendants. The present proceeding in the matter has been instituted to have the defendants adjudged guilty of the offense of contempt of court. An order to show cause issued, which recited the order of December 7, 1891, and the various facts hereinbefore mentioned or alluded to; that the defendants were guilty of deceit, in that they entered into the stipulation for the purpose of obtaining a stay of the issuance of the writ of mandamus, without any intention of abiding by it; that in their proceedings they were guilty of an abuse of proceedings in the court; and that in holding their meeting before the order of this court could be made the order of the supreme court, and before a writ of peremptory mandamus could be issued in pursuance thereof, and in disregarding the provisions and requirements of the order of December 7, 1891, as modified and affirmed by this court, they showed a gross want of the regard and respect due to the said order,-and the several defendants were required to show cause why they should not be punished etc. At first the application for the order to show cause was denied, but upon appeal the general term (26 N. Y. Supp. 345) reversed the order denying the application, and granted the same, and that court ordered the defendants to show cause, etc., at the special term, at a time and place designated. Accompanying the service of the papers was a notice by the attorneys for the relators to the effect that, upon failure of the defendants to show cause as required, an order would be moved for, adjudging them in contempt of court, and imposing a sentence of 30 days' imprisonment in the county jail and a fine of $250, or such other sentence or fine as the court might deem proper. The answer of the defendants was in justification of their action, substantially setting forth that they were advised that the order of December 7, 1891, was void for want of jurisdiction; that the modification by this court of that order deprived it of its restraining force, and, as they construed it, made it meaningless or ambiguous; that the allegations of a conspiracy, or of fraud and deceit, or of willful disobedience to the lawful mandate of the supreme court, were false and untrue; that they had acted in the utmost good faith, in the discharge of a public duty, and without any disrespect to the court, or any intention to disobey its order; that the question involved was substantially a question of construction, as to the meaning of the decision of this court; and that their view was one also taken by various members of the legal profession, and concurred in by some of the justices of the supreme court. After hearing the parties the court made an order which recited the facts connected with the order of December 7, 1891, and its affirmance by this court; that it appeared from the papers that pending the appeal to this court from the order of December 7, 1891, another return of the board of county canvassers was filed with and delivered to the proper state officials, and was in the possession of the defendants on December 29, 1891; that it appeared upon the return signed by Mylod that Osborne had received the greatest number of votes; that it appeared that on December 29, 1891, after the decision of this court, and before its judgment could be made the judgment of the supreme court, and the writ of mandamus issued, the defendants met as a board, and regarding the so-called Mylod return, and not regarding the subsequent statement delivered to them, or in their possession, issued their certificate of election, declaring that Mr. Osborne had received the greatest number of votes for the position of senator. The order then recited that ‘it appearing...