Schieffelin v. Komfort

• Decision Date: 23 October 1914
• Citation: 106 N.E. 675,212 N.Y. 520
• Parties: SCHIEFFELIN v. KOMFORT et al.
• Court: New York Court of Appeals Court of Appeals

212 N.Y. 520

106 N.E. 675

SCHIEFFELIN

v.KOMFORT et al.

Court of Appeals of New York.

Oct. 23, 1914.

Appeal from Supreme Court, Appellate Division, First Department.

Application by William J. Schieffelin for an injunction to restrain V. Komfort and others, and Mitchell May, Secretary of State, from taking steps preliminary to the nomination and election of delegates to a constitutional convention. From an order of the Appellate Division (149 N. Y. Supp. 65) affirming an order denying an injunction pendente lite, petitioner by permission appeals on certified questions. Question No. 4 answered in the negative, and other questions not answered.

See, also, 149 N. Y. Supp. 254.

The following questions were certified to this court:

First. Is chapter 819 of the Laws of 1913, entitled ‘An act to provide for submitting to the people the question, ‘Shall there be a convention to revise the Constitution and amend the same?’ and to provide for such convention, if a majority of the electors shall decide that such convention be held,' constitutional?

Second. Was the special election held under chapter 819 of the Laws of 1913, on the first Tuesday of April, 1914, a valid election?

Third. In calculating the total number of electors voting upon the question of holding a constitutional convention, submitted pursuant to section 2 of article 14 of the Constitutional and chapter 819 of the Laws 1913, and in determining whether a majority of the electors voting thereon have decided in favor of a convention, should the electors voting blank and void ballots, or either, be included?

Fourth. Has the Supreme Court of the state of New York jurisdiction in equity to grant to the plaintiff an injunction against the defendants as prayed for in the amended complaint herein?

Fifth. Does section 605 of the Code of Civil Procedure preclude the Supreme Court, sitting in the first judicial district, from issuing an injunction against the secretary of state for the relief prayed for in the amended complaint herein?

Sixth. Is section 605 of the Code of Civil Procedure constitutional in so far as it may be construed to preclude the Supreme Court sitting in a department other than that in which the secretary of state is located or is required to perform duties imposed upon him by the Election Law from enjoining him as prayed for in the amended complaint herein?

Seventh. Does the court have jurisdiction of the subject of the action?

Eighth. Does the court have jurisdiction of the persons of the defendants?

Ninth. Does the complaint state facts sufficient to constitute a cause of action?

The facts, so far as material, are stated in the opinion.

Louis Marshall, of New York City, for appellant.

James A. Parsons, Atty. Gen., (Joseph A. Kellogg, of Glens Falls, of counsel), for respondents.

John Godfrey Saxe and J. Hampden Dougherty, both of New York City, amici curiae.

CHASE, J. (after stating the facts as above.)

This action is brought by an individual against the persons constituting the board of elections and custodians of primary records in each of the 62 counties of the state, and against Mitchell May, as secretary of state, for an injunction to restrain the boards of elections and the election officials of the state from taking steps preliminary to the nomination and election of delegates to a constitutional convention. In his complaint he alleges that he is a citizen, resident elector, and taxpayer of the city and county of New York.

An application was made in the action for an injunction pendente lite. That application was denied at Special Term, and the order denying such motion has been affirmed by the Appellate Division of the Supreme Court.

The Constitution provides (article 14, § 2):

‘At the general election to be held in the year 1916, and every twentieth year thereafter, and also at such times as the Legislature may by law provide, the question, ‘shall there be a convention to revise the Constitution and amend the same?’ shall be decided by the electors of the state; and in case a majority of the electors voting thereon shall decide in favor of a convention for such purpose, the electors of every Senate district of the state, as then organized, shall elect three delegates at the next ensuing general election at which members of the assembly shall be chosen, and the electors of the state voting at the same election shall elect fifteen delegates at large. * * * Any proposed Constitution or constitutional amendment which shall have been adopted by such convention, shall be submitted to a vote of the electors of the state at the time and in the manner provided by such convention, at an election which shall be held not less than six weeks after the adjournment of such convention. Upon the approval of such Constitution or constitutional amendments, in the manner provided in the last preceding section, such constitution or constitutional amendment, shall go into effect on the first day of January next after such approval.'

The Legislature of the state in December, 1913, passed an act which became chapter 819 of the Laws of 1913, which provided:

‘Section 1. A special election shall be held throughout the state on the first Tuesday in April, in the year nineteen hundred and fourteen, at which there shall be submitted to the electors of the state to be decided by them the question ‘Shall there be a convention to revise the constitution and amend the same?’ Every person qualified at that time to vote for members of the Legislature may vote upon such question at the special election hereby appointed to be held. Such question shall be submitted in the manner provided by law for the submission of constitutional amendments. Such election shall be conducted by the same officers and in the same manner, and ballots, booths and election supplies furnished therefor, as a special election called by the Governor, except as otherwise provided herein. * * * Inspectors of election of the various election districts shall meet in their respective districts at the place designated therefor, on the second Saturday preceding such election, from eight o'clock in the forenoon to ten o'clock in the evening, for the purpose of revising and correcting the register of voters in the manner provided by the election law for ascertaining electors qualified to vote at a special election. If a majority of the electors voting on such question are shown to have voted in the affirmative upon such question, as shall appear from the returns of county boards of canvassers to the state board of canvassers and by its canvass of such returns, such convention shall be held and shall be deemed duly called thereby, and delegates therefor shall be elected as provided in section two of article fourteen of the Constitution.'

Pursuant to said act a special election was held April 7, 1914, and as appears from the returns of the county boards of canvassers to the state board of canvassers and by its canvass of such returns, a majority of the electors voting on the question, ‘Shall there be a convention to revise the Constitution and amend the same?’ voted in the affirmative.

The plaintiff alleges that the act of 1913 is unconstitutional and void: (1) Because it permits of a special election to answer said question without providing for the registration of voters to vote thereat as required by the Constitution; (2) that a majority of the electors voting on such question did not vote in the affirmative.

[1] It plainly appears from the record that this action was brought upon the theory that the Legislature had expressly provided therefor by the well-known taxpayers' acts. Section 1925 of the Code of Civil Procedure provides as follows:

‘An action to obtain a judgment, preventing waste of, or injury to, the estate, funds, or other property of a county, town, city or incorporated village of the state, may be maintained against any officer thereof, or any agent, commissioner, or other person, acting in its behalf, either by a citizen, resident therein, or by a corporation who is assessed for and is liable to pay, or, within one year before the commencement of the action, has paid, a tax therein. This section does not affect any right of action in favor of a county, city, town, or incorporated village, or any public officer.’

The General Municipal Law (Consol. Laws, c. 24, § 51) provides as follows:

‘All officers, agents, commissioners and other persons acting, or who have acted, for and on behalf of any county, town, village or municipal corporation in this state, and each and every one of them, may be prosecuted, and an action may be maintained against them to prevent any illegal official act on the part of any such officers, agents, commissioners or other persons, or to prevent waste or injury to, or to restore and make good, any property, funds or estate of such county, town, village or municipal corporation by any person or corporation whose assessment, or by any number of persons or corporations, jointly, the sum of whose assessments shall amount to one thousand dollars, and who shall be liable to pay taxes on such assessment in the county, town, village or municipal corporation to prevent the waste or injury of whose property the action is brought, or who have been assessed or paid taxes therein upon any assessment of the above named amount within one year previous to the commencement of any such action. * * *’

Under the statutes quoted a plaintiff to maintain an action is not bound to show that he has suffered or is in danger of suffering an injury that is personal and peculiar to himself. The right of action is given to one who has paid a tax within one year or is assessed and liable to pay a tax and he maintains it for the purposes provided by the statutes. The right rests upon the statute and not upon the interest of the plaintiff in the subject-matter in common with all other taxpayers.

That the action cannot be maintained against the defendants in this action under...