People ex rel. Van Wyck v. Police Commissioners

Presiding Justice Davis announced the decision of the court in an oral opinion from the bench, as follows :

*450The court has reached a conclusion in this case, which, under its peculiar exigencies, it feels hound to announce at this time, without occupying any time in writing an opinion.

The statute, under which the matter is presented to the court, in its thirteenth section, has a special relation to a system intended to protect the rights of minorities. It was adopted at a time when, as now, the people of the state, and in this city, were- divided into two prominent political parties. It was intended to take into consideration these two parties, without respect to the subordinate or inferior organizations or factions, either partially or wholly belonging to either, or independent in themselves. Regarding these two great parties it assumed, what would ordinarily be the case, that one or the other of these two parties would have a majority in this city, and consequently a control of the body authorized to appoint the inspectors of election, to wit, the board of commissioners of police. With that view, and, of course, without a special regard to the division of party that might, at any time, be involved, it provides for the protection of the minority party, by securing to it an absolute power of nominating of itself, one-half of each board of inspectors of election ; hence the act provides, and of course, its operation would be the same whether the democratic party retained or lost power, whether the republican party continued to be in the minority or became a majority. The act provides that the board of commissioners, however composed, shall, in selecting inspectors of election, select four persons; and it shows it recognizes the right of the minority party in the city, distinguished by its relation to state issues, to have one-half of each board, and, therefore, it declared that, of the four persons selected, two of them, on state issues, shall be oí different political faith and opinions from their associates, and those appointed to represent the party in political minority on state issues in said city and county shall be selected solely by such commissioners of police' of said board as are representatives of such political minority. It prescribes the qualities *451that all inspectors of election shall possess. And in a case where the commissioners may represent the political minority or agree upon two inspectors in each election district, the only discretion left to the board is to determine whether or not these two, of those selected, have the qualifications prescribed by the act — that is to say, whether they are citizens of the United States and state of Uew York; whether they are persons of good character, able to read and write and speak the English language understandingly, qualified voters in the city and county and not candidates for any office to be voted for by the electors. And when these several qualifications are ascertained to the satisfaction of the board, then the obligation to make the appointment of those named by the minority becomes imperative, and it is the duty of the board to make the appointment of these two thus selected as inspectors. Upon this question the counsel in this case have substantially agreed.

But the main and important question here arises upon the consideration of the act as it affects the minority party. The act assumes and acts upon the general idea that the majority party will take care of - itself and be able to do so by having possession of power. It therefore does not adopt the same question in respect to the selection of the two inspectors who represent the majority. But it assumes inferentially and proceeds upon the idea that these two who are to be selected, must be selected by the board, from the majority party.

Then the. question arises, What is meant by the majority party, from whom the selection is to be made ? Was it intended to have the majority party to be any local party, formed for the purpose of local elections? We think not; because the test adopted by the act, for the purpose of determining what shall be considered the minority party, has a far broader scope, and has, in fact, no reference tó mere local questions. It prescribes a party organized to act upon broad state issues; in other words, a state party having universal relations throughout the whole political organization known as the *452state of New York, and undoubtedly it intends, with reference to the minority party, to keep up the same basis or standard of the selection of the representatives of that party, to wit, an organization having affiliation and relations, political, throughout the state regarded as the great political division known by the name of the state of New York.

From that view it will follow that when these commissioners, members of the board of police, come to perform their duty under the act, they are to look at the democratic party, located in the city, as to the residence of its members, in its relations to the whole party as an organization throughout the state, and keep in view these relations, and to look upon the organization and membership of that party, not as a local body but as a party organization throughout the entire state. Now, in this case, does not it appear that the commissioners have fallen into an error in supposing that in selecting inspect, ors from the democratic party they may look solely at that portion of the party which, in the city of New York, supports the entire democratic ticket, supported by the state at large ? That is to say, they exclude, as not entitled to consideration, in selecting the board of inspectors, that great body of democrats, which, though only one of the local organizar tions, see fit to reject a single one of the nominees of the party in the state, while retaining their relations to state issues and supporting all the other nominees upon the same ticket.

The mere effect that such a view would be, if perfectly carried out, that if every democrat in the city of New York were to retain affiliation with Tammany Hall, and to declare, that for personal reasons, they would not vote for the nominee of the democratic convention for governor, that there would be no body of democrats in the city representing a majority from whom any inspectors could he selected. If all the democrats of the city should join the Tammany Hall organization in its determination not to vote for Eobinson, so that not one man could be found who intended to vote for him, there *453would be no party from which could be selected any inspector. It would follow, if that view be correct, that if out of 80,000 democratic voters of the city of Hew York but one man, or two men, in each election district, could be found who intended to vote for the nominee of the Syracuse convention and that all the rest intended to vote against him for their personal reasons, I say, in that case, these two would alone constitute a majority party from which a selection could be made, and they, because they intended to vote for ¡Robinson for governor, could appoint themselves. That, in our judgment, is not the policy of the law. The duty of the commissioners in making this selection is to select from the democratic party of this city as an entirety; they have no right, as we think, to say “We will reject Tammany Hall and its followers from any consideration, because they do not support the nomination of Robinson, and they would have no right to reject Irving Hall from all consideration because it would not support the regular democratic nominees for local officers.

On the contrary, the policy of the law requires the board of police to look at the democratic party with a view to its relations to state issues as a general organization and as a whole, and select from it, without respect to local divisions, temporary or otherwise, and select from the body, proper men to perform the duty of inspectors.

So that this board was in error when it undertook that Tammany Hall, its followers and supporters should have no consideration in selecting suitable men for the office of inspector. It should take the whole body of the democratic party, viewed as a state, and not as a county party, in passing upon the merits of such fit men as they would find in connection with that whole body, whether Tammany Hall or Irving' Hall, or what not; and, without choosing proper men in that way, they would not, in our judgment, perform the duty imposed upon them by law. It seems to us quite clearly a mistake on the part of the board of police to assume that a selection made from one local organization, excluding another, *454is a compliance with the law. The mere fact that for personal reasons a large body of democrats decline to vote for Eobinson for governor, or anybody else, does not, in our judgment, determine the question whether or not they are any longer to be considered democrats and entitled to consideration in the appointment of inspectors, as the law requires the police commissioners to give consideration in such appointments to the whole body of the democratic party in this city.

But while presenting these general considerations, which we hope will have some possible effect on the action of the board, we are obliged to determine this application on other grounds. In the first place, it is proper for the court to say that it is quite a mistake to suppose that the failure of the board of commissioners to appoint these inspectors before the first of October, will operate to disfranchise the city of New York. In the course of the argument, the presiding justice made a remark to the effect that the city would not be disfranchised. This board is an administrative body of officers to discharge certain functions under the law. It is their duty to perform these functions. The law has fixed the time, within which that duty should be executed. It is a universal principle of law that, where a right of the people is concerned, the failure of administrative officers to perform their duties within the prescribed time shall never defeat that right. ' That is to say, it will be impossible for this board of commissioners to defeat the right to the franchise in this city by their neglect or failure to do a duty within the time the law prescribes. It would simply subject them to a process to compel them to immediately make the selection the law requires; and it would have the same effect if made after October first as though made before, because the law will not tolerate the idea of failure of duty on the part of an executive officer so as to defeat a popular right.

. Therefore, it may be understood, as well by the public as by the commissioners — the board of police — that if the appointments are not made before the first of October, the *455court will not hesitate to entertain at that time an application for a mcmdamus, returnable instantly, to compel the performance of that duty, so that there shall be no failure of any regular election appointed to be held this fall.

But we are compelled, in our view of the law, to deny the present application for this reason: The law has appointed these officers to discharge certain official duties; it has prescribed the time within which these duties are to be performed. Within that period their power of performance is as perfect on one day as on another. The question now arising is, in law, no different than if the same motion had'been made on the second or any other day in September. The board of commissioners, in short, have until the first day of October to perform their duty. The papers before us show that they have, at various meetings, been attempting to perform, in the way in which they chose to act, that duty, but have failed. Now, if the papers showed that the board refused to act at all, or refused to convene for the purpose of acting, then, clearly, it would be our duty to grant a mandamus to aid in a motion to compel them to assemble and meet and act under the law. The board has taken no such ground. It has simply failed because of the inability of the commissioners among themselves to agree and decide upon what men or class of men shall b.e appointed. They have, in short, reached a point, it is true, where, if they adhere obstinately to their former line of action, there will be a failure to appoint; but the court cannot assume that a board of officers, charged with - certain duties, will adhere to a particular line of action during the whole time within which they are required to perform those duties. We must assume that that board will, within the period prescribed, do its duty. It is the legal presumption, and we have no reason to suppose that this board will not proceed and make the appointments, selecting their appointees under the construction that the court thinks ought to be given to the law, that is, take them from the body of the democratic party, good men and true, without regard to local organiza*456tions or divisions, or both. Between this and to-morrow night that board may wholly change its views, and make the selection in accordance with these suggestions. They have a perfect right to that period, and, therefore, the writ of mandamus would be improperly issued prior to the expiration of that time.

Beady and Babbett, JJ., concur.

October 3, 1879, the application for ma/ndamus was renewed on the part of the above relators. In the interim the board of police commissioners had appointed two inspectors of election for each district to represent the minority or republican party, and one to represent the majority or democratic party. The latter were selected from the anti-Tammany organization. The board had failed to agree upon the fourth inspector. The affidavits represented the entire democratic party of the city to contain in round numbers 90,000 voters, of whom 60,000 were Tammany and 30,000 anti-Tammany.

Upon this renewed application, October 3, 1879, the court announced its decision as follows :

The court, in this case, have reached a unanimous conclusion as to their construction of the law, and as to the duty of the board of police in executing it. We had occasion, the other day, to express our opinion of the construction of the law, to the effect that in the appointment of the representatives of the majority party in the board of inspectors of election it was the duty of that board to consider the democratic party as an entirety, with a view only to its relations to the democracy of the state, without respect to its relation to local organizations. We still have no doubt that that is the true construction of the law, and that it was the duty of the board, in selecting the inspectors who represent the majority party, to have secured to the democracy, as a whole, just and fair representation. The policy of the law was to secure such representation as would ensure fairness in *457the election and honesty in the counting and in the returns; and for that purpose it was intended that the representation of the majority party should not be limited to factions in that party, but to the whole; hence the construction given by the opinion pronounced by the court on that occasion before it had proceeded to take further action. They have appointed, in conformity to their duty, the representatives of the minority party; all questions touching that representation are, therefore, eliminated from the case. They have not proceeded, in respect to representatives of the majority party, in conformity to the opinion pronounced by the court. On the contrary, they have appointed , as it now appears, from a section or faction of that party — without considering the other section or faction — one inspector for each election district. In making that appointment only one-third, or, in round numbers, 30,000 democrats of the city—referring to the division between these organizations at the last election — only about one-third of the entire party, have been allowed any representation or consideration whatever. Two-thirds are without representation in these boards of election inspectors, except the few members that have since been appointed; but—I am speaking of the one inspector for each district of the anti-Tammany democracy—two-thirds of the democratic party have been left without representation. It was the duty of the board in making the selection to give representation to both, that is to say, to have selected from the combined local organizations proper and fit men, without regard to their sectional or local associations. But these appointments have been made, and it is not in the power of the court by its process to interfere with them. There are left a large number of districts in which the fourth inspector remains yet to be appointed. What, in fairness, in common justice, ought to be done in respect to those inspectors ? Certainly, if the fourth inspector be selected, as indicated by the list, from the organization that already has one, then the two-thirds of the democratic party will be wholly without representation or consideration in selecting these *458officers. The court thinks, unanimously, that it was the duty of the board, after having taken such action as was taken, to secure to the minority of the majority party inspectors of election representing them tó the extent of one in each district. The court, I say, thinks, unanimously, that it was and is the duty under the fair construction of the law for the purpose of securing representation to the whole body of the majority party, to have proceeded and selected the remaining inspectors from the organization known as the Tammany democracy. While we are of opinion, without any dissent or doubt, that that is the true construction of the law, and ought to be carried out, we have nevertheless been unable to agree among ourselves with unanimity as to the form of the order that should be issued. We all concur that a mandamus should issue in the case. As to its form some doubts are entertained by members of the court, and that question will be reserved for the further • consideration of the court until it again convene at the adjourned hour to-morrow.

October 4th, upon reassembling, the court announced the form of its order as follows:

The difficulty, and the only difficulty, which was in the mind of the court, was as to the power by mandamus to remedy the evil which was complained of, and which was brought before us. We were mindful of the fact that the rule of law was well settled, that while it was in the power of the court to direct a subordinate body to act, it was not within the power of the court to direct the manner in which they should act. We were very clear that we had no right, no power, to interfere with the proper exercise of the discretion of the board. We were also very clear that we had power to construe the law under which the board should act, and that it was the duty of the board, in good faith, to exercise the discretion vested in it in the light of that judicial construction. Sow, then, co enforce our construction, and *459yet to leave the board perfectly free in the exercise of its legitimate discretion, was the question. I find from an examination of the cases which the learned counsel for the corporation refers us to, that the courts have settled the rule that we could direct a subordinate body so far as a judicial construction of the law demanded. For instance, in the case in the forty-third Hew York, of the assessors, to which reference has been made, the court held that it was not competent to compel the assessors to make an affidavit. It had, in the language of Mr. justice G-rover, power to compel the assessors to ascertain the facts upon which the affidavit would proceed, and when the . facts were ascertained, to make such affidavit as in their judgment the facts demanded; not to make a particular affidavit, but to make the affidavit after they had proceeded to inquire and determine what was the truth. So, in the case of The People agt. Opdyke (39 Barbour) there was a diversity of opinion between the mayor and comptroller as to what the law meant. The mayor claimed that it meant four daily papers having the largest circulation anywhere, not merely in the city of Hew York. The comptroller claimed that it meant four daily papers having the largest circulation in the city. The court below ordered the comptroller to join with the mayor in designating four papers, naming them, and adjudicating that they were the four'papers having the largest circulation anywhere. The court above held that it was competent to tell the mayor and comptroller that the law meant four daily papers having the largest circulation anywhere, and. not merely in the city of Hew York; and that when that was ascertained it was -the duty of the two to meet and decide which were these four daily papers; and the order was modified so far as to require them to convene and to select the four daily papers having the largest daily circulation anywhere. They were limited to do it, and were bound to do it in good faith. The law was construed for them, but the fact was for them to determine. So, in the case of The People agt. The Common Council of *460Troy, lately decided in the court of appeals, which proceeded on the authority of the case in this department to which I have referred, the court held that it was the true rule that the court could construe the law, and determine what class of papers were published and how published, and when that was done it was for the board to convene and take evidence on the subject and determine it in good faith. So, therefore, it seems to me, as a clear result of the authorities, that it is our duty to determine the law under which this board shall act; and it is their duty, in good faith (not seeking to evade our construction, but to follo.w it), to exercise their discretion within the limits of that judicial construction, and in the light of it to do their duty. That being so, what remains ? "We construed the law on a prior occasion. We held that the law meant that they should select from the majority two inspectors of election representing the. majority, out of the entire body of democratic voters of the county of New York. We held that that was the intention of the legislature "and the meaning of the act. That is the law under which they were bound to proceed. We did not tell them they were to select any particular men. We left that to their discretion absolutely. To have attempted to tell them what men they should have selected would have been a usurpation, in my judgment; to tell them out of which class, or defining the class out of which they should take the 778 men, was leaving them the fullest exercise of discretion, and not instructing them in the method in which they should proceed. How do they obey ? Not by selecting two inspectors from—we will say, in round numbers — 90,000 democratic voters in the county of New York, but selecting one exclusively from the section of the democratic party which represents, in round numbers, 30,000 voters. They therefore exclude from any consideration the remaining 60,000 in that selection. Now, what is our duty under these circumstances? To enforce our original judgment. And how can that be done practically ? If they had appointed no inspectors from the majority party, then, I *461apprehend our duty would have been limited to directing them to select two from the entire democratic party in this city. But as they have precluded the possibility of that by the selection and appointment of one from this section, there is no practicable method left, except to require them to select the other from what remains. ' One part has been represented, as evidenced by the action of the board; the other .part is absolutely unrepresented. The papers before us show conclusively that the two sections constitute the democratic party and the majority of the democratic voters in this city. If that were not so, it should appear by affidavit otherwise. The facts are before us that these two sections represent the entire class out of' which it was the duty of the board to select. It therefore follows, to render the decision originally made effectual, that the remaining inspectors must be selected from what remains unrepresented. If the board is left a discretion of singling inspectors from the entire body, then they may choose to exclude again the 60,000 which remain unrepresented; and that, we apprehend, they cannot do under a fair construction of the law. We, therefore, think that as we had the right to direct them to select two inspectors from the great class who are now in the posture which they themselves have put it, it is our duty to compel the selecting of the remaining inspector from the other class, which remains unrepresented. That will, therefore, be the order. We do not interfere with their discretion. We do not say they shall appoint 778 men named by any one. Their judgment is open, free and unbiased, but they must exercise it in good faith and they must do it in the spirit of obedience, and not in the spirit of evasion. And we simply tell them that out of this large class which remains, of the 60,000 in that section, out of that entire body in good faith, must exercise their judgment in their selection; then all will be represented, and the law, as we construe it, will be enforced; and their judgment will not be in the slightest degree fettered.

Davts, P. J., and Bbady, J., concurred.

*462The following order was entered:

An application for a mandamus being now made to this court, upon the affidavit of Eobert A. Van Wyck and others, and the said affidavits and the papers annexed thereto having been read for the relators, and the affidavits of Charles F. Hachean, James E. Morrison, De Witt C. Wheeler and Stephen B. French having been read for the respondents, and Mr. David Dudley Field and Mr. Edwin W. Stoughton having been heard for the application, and Mr. Elihu Eoot having been heard for the respondents, Wheeler and French, and Mr. Francis 1ST. Bangs in opposition thereto, it is now ordered and adjudged that a peremptory writ of mamdamus issue forthwith to De Witt C. Wheeler, Stephen B. French, Charles F. MacLean and James E. Morrison, and each of them, they being the commissioners of police, and to the boar d of police of the city of Mew York, commanding them and each of them forthwith to appoint as inspectors' of election in the city of Mew York, for the year 1879, in addition to the persons already appointed by them as such inspectors, one person in each election district in the said city where four inspectors have not already been selected, who shall be such persons as they are required by law to appoint, and also such persons as poll clerks in the city of Mew York for the year 1879 as they are required by law to appoint and as they may not have hereto appointed; and it appearing to the court that the said, commissioners of police have already appointed for each election district two persons representing the political minority in the said city on state issues, and one person from the political majority on state issues, being of different political faith and opinion from the said minority; and that such third person was taken from a section of the said majority which has a separate organization and is inferior in numbers to another section of the same political faith and opinions on state issues, which also has a separate organization commonly known as the Tammany Hall democracy, and that the said commissioners of police have refused to appoint from the said last mentioned *463section, and it further appearing on the papers before the court that the sections referred to constitute the entire majority party in said city and county of New York; it is ordered, that the'Said writ shall further command the said persons and board to appoint the said fourth inspector for each election district from the said last mentioned section, commonly known as the Tammany Hall democracy.