People ex rel. Furman v. Clute , 63 Barb. 356 ( 1872 )

By the Court, Parker, J.

This action was brought to oust the defendant from the office of superintendent of the poor for the county of Schenectady, and to put the relator in his place.

The facts found by the court at special term, are as follows :

“At the general election in 1871, the office of superintendent of the poor .was to be filled by the electors of the county of Schenectady.

The relator, Furman, and the defendant, Clute, were both candidates for said office, and were voted for by the electors. The whole number of votes was 4676, of which Clute received 2448, and Furman 2228, (which gives Clute 220 majority.)

Of the votes given for Clute 295 were given in the fifth ward of the city of Schenectady, which then constituted one election district. Clute was declared elected, and having filed his official bond and taken the oath of office, he, on the 1st of January last° entered into said office and still continues therein.

At.a city election held in April, 1871, said Clute was duly elected supervisor of the fifth ward, accepted the office and dischai’ged its duties until the 12th day of December last, when he resigned.

Previous to January 1st, 1872, the said Furman took the oath of office and tendered and deposited with the county clerk a bond in due form and sufficiency as superintendent of said county, and claimed the said office.

There was no proof of actual notice of Clute’s ineligibility to any of the electors of said county, nor proof of any facts from which notice could be implied, other than his holding the office of supervisor of the 5th ward.”

From these facts the court concluded that the election of Clute was void, and conferred upon him no title to said office, and that, inasmuch as no notice to the whole body of electors of Clute’s ineligibility was shown, the election was a failure, and neither of the candidates acquired title to the office. Judgment was ordered and subsequently entered against the defendant Clute, ousting him from the office, and adjudging that Furman was not entitled thereto, and denying costs to either party. From this judgment both parties have appealed. The ground of the decision that Clute was not eligible to the office is, that being supervisor of the 5th ward of the city of Schenectady he was debarred from holding that of superintendent of the poor, by chapter 352 of the laws of 1829, chapter 80 of the laws of 1853, and chapter 385, title 4, § 8, of the laws of 1862.

The first of these statutes is as follows: “Bo supervisor of any town, or county treasurer shall be appointed to hold the office of superintendent of the poor of any county in this State.”

This provision was incorporated into an edition of the Revised Statutes, called the fourth edition, as section 22 of chapter 20, title 1 of the 1st part thereof, and it was amended by chapter 80 of the laws of 1853, as follows: “ Section 22 of chapter 20 of title 1 of the 1st part of the Revised Statutes, fourth edition, is hereby amended, so as to read as follows: ‘22. No supervisor of any town or county treasurer, shall be elected or appointed to hold the office of superintendent of the poor.’ ” There can be no doubt that this was an effectual amendment of the provision of law .thus incorporated into the Revised Statutes, because there can be doubt'of the identity of the provision-intended to be amended, and whether it was, in fact, a part of the Revised Statutes, is of no consequence.

By the charter of the city of Schenectady, (Laws of 1862, eh. 385,) it is enacted that the supervisors, provided to be elected or appointed under this act, shall be subject to all the provisions of law applicable to those officers, in the several towns of this State.

It follows that the defendant, supervisor of a ward in that city, was ineligible to the office of superintendent of the poor.

It is strenuously contended, however, by the learned counsel for the defendant, that the statutes of 1829 and of 1853, above quoted, are unconstitutional; that it is not competent to the legislature to restrict the eligibility to office.

In examining the question of the constitutionality of a statute, it is necessary to keep in mind the fundamental principle in regard to the power of a State legislature, that to it is committed by the people “the whole law making power of the State, which they have not expressly or impliedly withheld. Plenary power in the legislature, for all purposes of civil government, is the rule, a prohibition to exercise a particular power is an exception. In inquiring, therefore, whether a given statute is constitutional, it is for those who question its validity, to show that it is forbidden.” (People v. Draper, 15 N. Y. 543.) There is in the constitution of this State no general provision in regard to eligibility to office, and no express restriction upon the legislature touching that subject. The doctrine insisted upon that the legislature has no power to place any restriction upon eligibility to office is drawn from the guaranty in subdivision 1, article 2 of the constitution, of the right to every male citizen, possessing certain qualifications, “ to vote for all officers that now are or hereafter may -be elective by the people.” It is said that if the legislature may deny eligibility to one, it may to such others as it may choose, and so restrict the right of suffrage in respect to the officers elective by the people, that such right of suffrage will be unconstitutionally limited.

This, it will be seen, is no restriction upon the right guarantied, which is the right to vote, not to be voted for. True, if the legislature should take away eligibility from all persons for whom the electors could vote, that would be taking away his right to vote and would be unconstitutional. But it by no means follows that it is unconstitutional to declare a single class of persons for whom he could vote, ineligible.

The right which the constitution guaranties to him is not thereby interfered with. He may still vote “ for all officers elective by the people.”

No doubt the absence of any restriction upon the legislature, leaves that body in possession of great power for evil, in the way suggested by the counsel. Still, as the people have given to the legislature all legislative authority, without excepting the power to declare who shall be eligible to office, it is not a function of the courts to make the exception. In the language of Senator Verplanck, (20 Wend. 382,) adopted by Johnson, J., in Wynehamer v. The People (3 Kern. 413,) “It is only in express constitutional provisions, limiting legislative power and controlling the temporary will of the majority by a. permanent and paramount law, settled by the deliberate will of the nation, that I can find a safe and solid ground for the authority of courts of justice to declare void any legislative enactment.”

I am unable to see how the act of the legislature, providing that no supervisor shall be elected to hold the office of superintendent of the poor, is unconstitutional.

The court, at special term, correctly held that the defendant was ineligible^ and the judgment ousting him from the office was right.

The next question is, was Furman legally elected and entitled to the office ?

This was decided in the negative by the court below, on the ground that there was no proof that the electors who voted for Clute had notice of his ineligibility.

There is no doubt that a vote given for an ineligible candidate is to be counted, and not deemed thrown away, if the voter is not chargeable with notice pi the ineligibility.

Doubtless the voters of the 5th ward, of which the defendant was supervisor, were chargeable with such notice. This is not denied, but it was held that, in order to give effect to the vote for Furman, as being the majority, and sustain his election, it was necessary that all who voted for Clute should be chargeable with the notice that none of the votes given for Clute could be thrown out unless all were, and that Furman, therefore, did not receive a majority of the votes to be counted, and the result was, that as Clute, who did receive the majority, was ineligible, no one was elected.

In this, I am inclined to think, the court erred.

I see no difficulty in separating the-votes given for Clute in the 5th ward from those given for him in the rest of the county. These 295 voters in the 5th ward had notice of his ineligibility, the others had not. There is no difficulty, in practice or in principle, in throwing out these 295 votes, while the others are retained and counted. The voters in the 5th ward who voted for Clute, knowing his incapacity to take and hold the office, did no more than if they had voted in blank, voted for no one; tha,t is, had not voted at all; and this is the case with each voter individually who. thus voted. That others voted for Clute, supposing him eligible, can have no effect on the vote of one knowing him ineligible, and vice versa. In The King v. Hawkins, (10 East, 211,) Hawkins and Spicer were candidates and were voted for, for the office of aider-man of the borough of Saltash. After two votes had been given for each, it was found, and publicly proclaimed, that Hawkins was ineligible to the office. After notice thus given twenty votes were given for Hawkins, by voters, all but two or three of whom had notice of his ineligibility, and sixteen for . Spicer; and it was held that all the votes given for Hawkins after such notice to the voters who gave them, were thrown away, and Spicer was held duly elected. Lord Ellenborough said: “The general proposition that votes given for a candidate, after notice of his being ineligible, are considered the same as if the persons had not voted at all, is supported by the cases of The Queen v. Boscawen, Easter, 13 Anne; The King v. Withers, Easter, 8 G. 2; Taylor v. Mayor of Bath, M. 15, G. 2; all which are cited in Cowper, 537, in The King v. Monday.

“ Is there any solid distinction between the cases I have alluded to, .as establishing the general proposition, and the present case, on account of the notice of the disqualification of Hawkins having been given after two persons had voted ? We think there is not; there still remained thirty-six persons to .vote, of whom only sixteen voted for Spicer and twenty voted for Hawkins. Although we are not prepared to say that if the notice had been given in a more advanced stage of the poll, it would have made any difference, provided the number of votes given for'Hawkins, without notice of his incapacity, had not been equal to those given for Spicer. Spicer having been, therefore, in our opinion, duly elected into the office of. alderman, and having been sworn in before two aldermen who have, by the charter, authority to administer the oath, the office was legally filled up and enjoyed by him.” And the judgment in this case was afterwards affirmed in the .house of lords. (2 Dow, 124.)

Other cases are cited by the plaintiff’s counsel, holding the same doctrine in regard to the propriety of throwing out such part of the votes as are affected by the notice, and retaining such as are not, but we are pointed to no case which denies such propriety.

The defendant’s counsel, however, argues that, inasmuch as the statute, under which the defendant is ineligible, does not declare votes cast for him void, they are voidable, and therefore a judgment declaring him ineligible was necessary before the fact could be deemed established, and that hence the voters were not bound by the ndtice of such fact.

The authorities do, in effect, make all votes cast for an ineligible person, with notice of the fact, void, when they declare them, as in The King v. Hawkins, (supra,) wholly inoperative as votes, the same as no votes, and hold that to produce such effect, notice only, and not adjudication of the fact is necessary.

If the 295 votes which should have been thrown out are not counted, a majority of seventy-five is left for Fur-man, and he was elected, and should have had judgment in his favor to that effect.

The plaintiff claims that the judgment is also erroneous in not giving costs to the plaintiff.

By section 304 of the Code, it is provided that costs shall be allowed, of course, to the plaintiff, upon a recovery, “In the actions of which a court of a justice of the peace has no jurisdiction,” and in several other cases therein mentioned, not bearing upon the question here.

By section 306 it is provided that “ in other actions costs may be allowed or not, in the discretion of the court.”

The latter provision has been confined to equity cases, of which the case at bar is not one. (Staiger v. Schultz, 3 Keyes, 614.)

In this case the relief sought was a judgment of ouster against the defendant, and a further judgment that the relator, Furman, was entitled to the office.

The judgment recovered was one of ouster of the defendant merely, "and as to the further relief demanded, it was denied. Still the plaintiff recovered a judgment, and as the action was not one cognizable before a justice of the peace, he was, by virtue of section 304 of the Code, entitled to costs.

The judgment, therefore, in so far as it adjudges that said defendant, Harrison Clute, be ousted from the office of superintendent of the poor of the county of Schenectady, mentioned in the complaint, in this action, must be affirmed.

And, in so far as it adjudges, that the said plaintiff, Henry A. Furman, is not entitled, by virtue of the election mentioned in the complaint, to the said office of superintendent of the poor, it must be reversed, and judgment must be entered, adjudging that the said plaintiff, Furman, is entitled, by virtue of the said election, to the said office, and that the plaintiff recover, against the defendant, the costs of the action and costs of the appeal.

[Third Department, General Term, at Binghamton, September 3, 1872.

P. Potter, Parker and Daniels, Justices.]