Sherwood v. Bd. of State Canvassers

• Decision Date: 29 December 1891
• Citation: 129 N.Y. 360,29 N.E. 345
• Parties: PEOPLE ex rel. SHERWOOD v. BOARD OF STATE CANVASSERS.
• Court: New York Court of Appeals Court of Appeals

129 N.Y. 360

29 N.E. 345

PEOPLE ex rel. SHERWOOD

v.BOARD OF STATE CANVASSERS.

Court of Appeals of New York.

Dec. 29, 1891.

Appeal from supreme court, general term, fifth department.

Application on the relation of Franklin D. Sherwood for a writ of mandamus to compel the board of state canvassers to issue him a certificate of election as state senator. The supreme court at special term granted the writ, and the order was affirmed by the general term. Defendants appeal. Reversed.

Delos McCurdy and I. H. Maynard, Dep. Atty. Gen., for appellants.

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

EARL, J.

In 1891 the legislature passed the act (chapter 308) entitled ‘An act to authorize the selection, location, and acquiring of certain grounds for a public park in and near the city of Hornellsville, and to provide for the maintenance and embellishment thereof.’ That act provides for the appointment of a board of park commissioners, to consist of six persons; and in the month of May the relator, Franklin D. Sherwood, was duly appointed one of such commissioners. Ue duly qualified by taking the official oath and giving the official bond therein required, and has ever since acted as such commissioner. At the last election he became a candidate for senator in the twenty-seventh senatorial district of the state, and he claims to have received a majority of the votes cast for senator in that district, and that he was eligible to the office, not withstanding the provision of section 8 of article 3 of the constitution, which provides that ‘no person shall be eligible to the legislature who at the time of his election is, or within one hundred days previous thereto has been, a member of congress, a civil or military officer under the United States, or an officer under any city government. And if any person shall, after his election as a member of the legislature, be elected to congress, or be appointed to any office, civil or military, under the government of the United States or under any city government, his acceptance thereof shall vacate his seat.’ The appellants claim that he was ineligible under this constitutional provision, and whether he was or not is the important question now to be determined. The question has attracted much public attention. It is fairly involved in this case, and the interests of the public require that we should meet and determine it, if it is within our judicial competency to do so. It is a pure legal question, depending upon undisputed facts, and it would be quite unfortunate to have this case go through all the courts, and to leave the most important and vital matter in it undecided.

There can be no doubt, it seems to me, that the relator holds a public office. He was required to discharge duties, not for his own benefit, not for the benefit of private individuals, but for the public. He was required to take the constitutional oath of office, and to give a bond for the faithful discharge of his duties, and he and his associates were clothed with the power of eminent domain. That, under such circumstances, he was a public officer, has never been questioned any where, so far as I can find. Case of Wood, 2 Cow. 29; People v. Comptroller, 20 Wend. 598;People v. Nostrand, 46 N. Y. 381;People v. Common Council, 77 N. Y. 503;Rowland v. Mayor, etc., 83 N. Y. 376. Being a public officer, it is next to be determined whether he was an officer under the city government, within the meaning of the constitution. The act provides in section 1 that there shall be ‘in and for the city of Hornellsville’ a board of park commissioners, to consist of six competent persons. The board is thus constituted for the city; and the act further provides that the members thereof shall be appointed by the mayor of the city, by and with the consent of three-fourths of the members of the common council; and the mayor may suspend and may also remove any member of the board, by and with the approval of the common council. It is further provided that no person who holds ‘any other city office’ shall hold the office of park commissioner, and that upon the appointment of a park commissioner to ‘any other city office’ his office of park commissioner shall be vacated. Every park commissioner is required to give a bond to the city for the faithful discharge of his duties, which is to be approved by the mayor, and the official oath and bond are to be filed with the city clerk. By section 2 the park commissioners are required to appoint a treasurer, who is to give a bond to the city, to be approved by the common council. They are authorized to select and locate lands for a city park, and to take them by purchase, gift, or condemnation; and all such lands are to be taken in the name of the city, and to be paid for out of the city funds, and to be part of the city territory. They are clothed with the exclusive power to govern, manage, direct, lay out, and regulate the park, to appoint engineers, clerks, police, and other necessary officers, and prescribe their duties and fix their compensations, and generally in regard to the park they are clothed with all the power and authority possessed by the common council of the city. They are also clothed with power to pass such ordinances as they may deem necessary for the government of the park, not inconsistent with the ordinances of the city, which ordinances are required to be published in the official paper of the city; and all persons offending against such ordinances may be punished before any magistrate of the city by fine or imprisonment. It is provided further that a special election shall be held in the city for the purpose of determining whether it shall issue the bonds and acquire the park as provided in the act.

It seems to me too clear for dispute, in view of these provisions, that the park commissioners are officers under the city government. They hold their offices by appointment of the city government, and therefore under the city government. All their duties relate to its interest and welfare, and they are actually set in motion by a vote of the tax-payers of the city. They are certainly not state officers, and, if they are not city officers, what are they? I believe it was never doubted that the park commissioners of the city of New York and of the city of Brooklyn are city officers of those cities, and so we held as to the park commissioners of the former city in Ehrgott v. Mayor, etc., 96 N. Y. 274. Would any one seriously contend that a New York or Brooklyn park commissioner would be eligible under the constitution to the legislature? There could be no reason for holding one of them eligible which would not be equally applicable to the commissioner or deputy commissioner of public works or the chamberlain of the city of New York. It is no answer to these views that the powers and duties of these commissioners are regulated by law, and thus that they do not act under the direction or control of the city government or of any of its officers, and that, therefore, they are, in a certain sense, independent officers. This is generally true of all public officers, from the mayor of a city ot the supervisor of a town, through all the grades to a town constable. Their powers and duties are regulated by law. The route in which they shall travel is prescribed by law, and, unless they are specially subjected to the control of a superior officer, they act independently, subject to no control except the rules of law and the commands and judgments of the courts. And nevertheless the mayor of a city is a city officer, and the supervisor and constable of a town are town officers. Because the duties of municipal officers are regulated by statute, the municipality of which they are officers is not responsible for their misfeasance or nonfeasance, except in cases where they act as the agents of the municipality in the discharge of duties imposed by law upon it. And so we held in Maxmilian v. Mayor, etc., 62 N. Y. 160, and Ham v. Mayor, etc., 70 N. Y. 459. Although the officers mentioned in those cases were undoubtedly officers under the city government, the city was held not to be responsible for the misfeasance of their subordinates, because the doctrine of respondeatsuperior did not apply to those cases. In them the court followed the case of Lorillard v. Town of Monroe, 11 N. Y. 392, where it was held that the assessors and collectors are not in a legal sense the agents of a town in its corporate capacity in the assessment and collection of taxes, and the town is not responsible for any mistake or misfeasance by them in the performance of their duties. And the assessors and collectors are town officers, and are so described in the Revised Statutes. It certainly cannot be doubted that the legislature was competent to make these park commissioners city officers, and whether or not it intended so to do must be determined by the language and provisions of the act. Here the legislative intention is manifested by the circumstance-which must usually be controlling-that the commissioners are required to be appointed by the mayor and common council, and the provision in the act that no person holding ‘any other city office’ shall be eligible to the office of park commissioner, and that, if a park commissioner be ‘elected or appointed’ ‘to any other city office,’ his position as park commissioner shall thereby become vacant. It is, of course, possible that park commissioners could be so constituted by the legislature as not to become city officers, but such is plainly not the effect of this act. So we reach the conclusion that the relator was not eligible, under the constitution, to the senate. The term ‘eligible’ relates to the capacity of holding as well as to the capacity of being elected to the office. Carson v. McPhetridge, 15 Ind. 327. Therefore he could not be elected to hold the office of senator. He violated the constitutional provision in seeking...