People ex rel. Demarest v. Fairchild , 15 N.Y. Sup. Ct. 334 ( 1876 )


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  • LeabNed, P. J.:

    The views expressed by Judge Harris, in People v. Attorney-General (22 Barb., 114), are sound. When a person intrudes into an office, it is the right of the State, as sovereign, to remove him. Individuals have no such right. This is still the law, although officers are elected and not appointed. Hence the State has the right to decide whether it will or will not remove the intruder. The right to make that decision must be vested in some one. It is vested in the Attorney-General.

    As is pointed out by Judge HARRIS, the Court of King’s Bench sometimes restricted the exercise of this power, but it never compelled its exercise. So, by the present law, in certain actions, it is only by leave of the court that the attorney-general may sue. But there is nothing to show that the court can ever compel him to bring an action in any of these or similar cases.

    If this mandamus could be granted, then one of two results must follow: either the court must decide, in each case, whether under all the circumstances a quo warranto ought to be brought; or the. court must, as matter of right, in all cases direct the attorney-general to bring the action.

    The first alternative throws on the judiciary a duty which belongs to the administrative part of the government. The second assumes ' that it is the right of individuals, and not the exclusive right of the State, to remove intruders from offices usurped by them.

    It is suggested that the attorney-general may neglect his duty. That must always be possible when a matter is left to the discretion of an officer, as it often is. Far greater evils would arise if the court were to assume the exercise of a discretion not intrusted *336to them, or if they were to allow any individual whatever to compel the commencement and prosecution of actions of quo warranto against officers of the State.

    A quo warra/nio should continue to be, as it always has been, an action by the State to oust an alleged intruder. It should not degenerate into a personal contest between two claimants of an office. And therefore the State, in its administrative capacity, should have the right to bring a quo warranto against intruders into public offices, in its own discretion.

    The order appealed from should be affirmed.

    Present — LeARNBd, P. J., Bocees and Boardhan, JJ.

    Order affirmed.

Document Info

Citation Numbers: 15 N.Y. Sup. Ct. 334

Judges: Boardhan, Bocees, Leabned, Learnbd

Filed Date: 9/15/1876

Precedential Status: Precedential

Modified Date: 2/4/2022