People Ex Rel. Broderick v. . Morton

For a number of years the relator had been employed in the Capitol of the state as a laborer, engaged in the running of the senate elevator. On the 2d day of October, 1895, he claims he was discharged. After the expiration of about five months, he procured an alternative writ of mandamus to issue to the then trustees and superintendent of public buildings, requiring his reinstatement as laborer in the Capitol, upon the ground that he was an honorably discharged Union sailor of the war of the rebellion. To the alternative writ an answer was filed on behalf of the defendants, raising an issue, which, upon the stipulation of the parties, was referred to a referee to hear, try and determine. After taking the evidence submitted by the respective parties, the referee made his report, finding that the relator had been dropped from the pay rolls by reason of the shutting down of the senate elevators for repairs, and that he had not been removed. Thereupon the peremptory writ was refused by the Special Term. An appeal was then taken to the Appellate Division, where the order of the Special Term was reversed and a peremptory writ issued. At the time the relator procured the alternative writ of mandamus Levi P. Morton was the governor of the state, Charles T. Saxton, the lieutenant-governor, and Hamilton Fish, the speaker of the assembly. The Public Buildings Law of 1893, chapter 227, as amended, *Page 140 provides that "the governor, lieutenant-governor and speaker of the assembly shall be trustees of public buildings." As such they are authorized to appoint a superintendent who, "subject to the approval of the trustees, may appoint all persons necessary in the maintenance department of the public buildings and grounds under his charge and suspend and remove any of them and prepare rules and regulations for their government." It will be observed that, under the provisions of the statute, the governor, lieutenant-governor and speaker become trustees by virtue of their offices, and that whatever duties devolve upon them as such, pertain to their respective offices. Chapter 312 of the Laws of 1884, as amended by chapter 716 of the Laws of 1894, provides that, "In every public department and upon all public works of the state of New York, and of the cities, towns and villages thereof, and also in non-competitive examinations under the civil service rules, laws, or regulations of the same, wherever they apply, honorably discharged Union soldiers and sailors shall be preferred for appointment and employment; age, loss of limb or other physical impairment which does not, in fact, incapacitate, shall not be deemed to disqualify them, provided they possess the business capacity necessary to discharge the duties of the position involved. And, in all cases, the person having the power of employment or appointment, unless the statute provides for a definite term, shall have the power of removal only for incompetency and conduct inconsistent with the position held by the employee or appointee; and, in case of such removal, or such refusal to allow the preference provided for in this act of and for any such honorably discharged Union soldier, or sailor, or marine, for partisan, political, personal or other cause, except incompetency, and conduct inconsistent with the position so held, such soldier, sailor or marine, so wrongfully removed, or refused such preference shall have a right of action in any court of competent jurisdiction for damages as for an act wrongfully done, in addition to the existing right of mandamus; the burden of proving such *Page 141 incompetency and inconsistent conduct, as a question of fact, shall be upon the defendant." A failure on the part of the officials to comply with the terms of this act in letter and spirit, is made a misdemeanor. It is now contended that the Appellate Division had no jurisdiction to award a mandamus in this case. Much has already been written upon the subject. The courts of most of the states in the Union have had it under consideration, and, while they uniformly agree that the courts have no right nor power to interfere with the governor upon questions involving his judgment and discretion, yet they differ widely as to the power to interfere with his ministerial action. We shall not attempt any extended digest of these cases. Among those tending to sustain the power of the court to compel the executive to perform a ministerial act are Martin v. Ingham (38 Kan. 641);Harpending v. Haight (39 Cal. 189); Middleton v. Low (30 Cal. 596); Tennessee C.R.R. Co. v. Moore (36 Ala. 380);Chumasero v. Potts (2 Mont. 242); Cotten v. Ellis (7 Jones [N.C.], 545); State v. Chase (5 Ohio St. 528); State v. Moffitt (5 Ohio, 362); Magruder v. Swann (25 Md. 212);Chamberlain v. Sibley (4 Minn. 312). Of the cases which support the contention that the courts are without jurisdiction to control executive action are the following: Sutherland v. The Governor (29 Mich. 320); State v. Drew (17 Fla. 67); State v. Towns (8 Ga. 360); Peopleex rel. v. Cullom (100 Ill. 472); People ex rel. v.Bissell (19 Ill. 229); State v. Kirkwood (14 Iowa 162);State v. Warmoth (22 La. Ann. 1); Dennett, Petitioner (32 Maine, 508); State v. Stone (120 Mo. 428); State v. TheGovernor (25 N.J.L. 331); Mauran v. Smith (8 R.I. 192);Bates v. Taylor (87 Tenn. 319; 85 Tex. 622); Marbury v.Madison (1 Cranch, 137). The ministerial duties which it has been held in different states may be compelled by mandamus are the commissioning of a clerk of a court, the issuance of a warrant for the attorney-general's salary, the auditing of an officer's claim for expenses, the commissioning of officers chosen by the legislature, the issuance of state bonds to a railroad company, the *Page 142 authentication of a bill in the governor's possession as a statute, the issuance of a proclamation that a bank is authorized to begin business, and such duties imposed by statute upon the governor as might have been imposed upon another officer, when ministerial. On the other hand, in a large number of other states, it has been held that a mandamus will never issue against the governor, regardless of the duty imposed upon him by the Constitution or statute. In those cases it was considered to be against public policy and political necessity, and to be immaterial that the duty might have been imposed upon another person; that inasmuch as it was imposed upon the governor, its performance was an executive act, under the responsibility of his executive station, and under the sanctity of his official oath. Perhaps the leading case in support of the latter contention is that of Sutherland v. The Governor (29 Mich. 320), in which the opinion was delivered by Judge COOLEY. In that case the court was asked to compel the governor to perform the duty imposed upon him by statute, of certifying as to the completion of certain work. The judge says with reference thereto: "It is not claimed on the part of the relators that this court, or any other, has jurisdiction to require and compel the performance by the governor of his political duties, or the duties devolved upon him as a component part of the legislature. It is conceded that these, under the Constitution and laws, are to be exercised according to his own judgment and on his own sense of official responsibility, and that from his decision to act, or decline to act, there can be no appeal to the courts. Nor is it pretended that where any executive act whatsoever is manifestly submitted to the governor's judgment or discretion, such judgment or discretion can be coerced by judicial writ. What is claimed is, that where the act is purely ministerial and the right of the citizen to have it performed is absolute, the governor, no more than any other officer, is above the laws, and the obligation of the courts, on a proper application, to require him to obey the laws, is the same that exists in any other case where an official ministerial duty is disregarded. * * * There is no *Page 143 clear and palpable line of distinction between those duties of the governor which are political and those which are to be considered ministerial merely, and, if we should undertake to draw one and to declare that in all cases falling on one side of the line, the governor was subject to judicial process, and in all falling on the other, he was independent of it, we should open the door to an endless train of litigation. * * * However desirable a power in the judiciary to interfere in such cases might seem from the standpoint of interested parties, it is manifest that harmony of action between the executive and judicial departments would be directly threatened, and that the exercise of such power could only be justified on most imperative reasons." Again he says: "When duties are imposed upon the governor, whatever be their grade, importance or nature, we doubt the right of the courts to say that this or that duty might properly have been imposed upon a secretary of state, or a sheriff of a county, or other inferior officer, and that inasmuch as in case it had been so imposed, there would have been a judicial remedy for neglect to perform it, therefore, there must be the like remedy when the governor himself is guilty of a similar neglect. The apportionment of power, authority and duty to the governor, is either made by the people in the Constitution, or by the legislature in making laws under it; and the courts, when the apportionment has been made, would be presumptuous if they should assume to declare that a particular duty assigned to the governor is not essentially executive, but is of such inferior grade and importance as properly to pertain to some inferior office, and, consequently, for the purposes of their jurisdiction, the courts may treat it precisely as if an inferior officer had been required to perform it. To do this would be not only to question the wisdom of the Constitution or the law, but also to assert a right to make the governor the passive instrument of the judiciary in executing its mandates within the sphere of his own duties. Were the courts to go so far, they would break away from those checks and balances of government which were meant to be checks of co-operation, and not of antagonism or mastery, and would *Page 144 concentrate in their own hands something at least of the power which the people, either directly or by the action of their representatives, decided to entrust to the other departments of the government." In this state we have not found, nor has our attention been called to, any controlling authority upon the question. Under our Constitution the right of sovereignty rests in the people of the state, who, from time to time, delegate their power to rule to a government chosen by themselves, consisting of three departments, known as the executive, legislative and judicial. In England the power of the king to govern was modified from time to time by various grants from him, and by Magna Charta, under which the lawmaking power finally devolved upon Parliament, and the judicial power upon the courts, created by law. This division of power was followed in the formation of our American governments. In our own state the common law was continued in force, except in so far as it has been altered by the Constitution or the legislature. Under our Constitution the executive power of the state answers to that of the king, and devolves upon the governor during the term for which he is elected. The legislative power is vested in the senate and assembly, which take the place of Parliament, and the judicial power in the courts established in accordance with the provisions of the Constitution. The three great branches of government are separate and distinct, but are coequal and co-ordinate; their powers have been carefully apportioned; one makes the laws, another construes and adjudges as to the rights of persons to life, liberty and property thereunder, and the third executes the laws enacted and the judgments decreed. While each department, in its sphere, is in a sense independent, each operates as a check or restraint upon the other. The acts of the legislature have to be presented to the executive for his approval. The courts may then construe the acts and determine their validity under the Constitution; and the executive may, in criminal cases, modify the action of the courts by the interposition of his pardoning power. But in every case in which one department controls, *Page 145 modifies or influences the action of another, it acts strictly within its own sphere, thus giving no occasion for conflict and thus preserving the purpose of the original scheme of a division of power among the three co-ordinate branches of government, each operating as a restraint upon the other, but still in harmony. As we have seen, the power of the king has been divided — a portion delegated to Parliament and another portion to the judiciary — but except as delegated to the legislative and judicial branches of the government, his common-law powers remain unchanged, and in our government have been transmitted to the executive. Under the common law a writ of mandamus issued in the king's name to inferior courts, officers, corporations or persons, requiring them to do a particular thing specified. It being issued in the king's name, did not run to himself, to Parliament, nor to the judiciary, except such inferior courts as the higher courts had the power to review. Under our Code the writ issues out of the court as an order of the court; but we have attempted by no provision of the statute to change the force and effect of the common-law writ, nor its object and purpose. It, therefore, follows that the writ never issues to the executive or legislative branches of the government, nor to the judicial branch having general and final jurisdiction. Again, it is the well-settled practice of the court not to determine abstract questions not involved in the litigation, or in regard to which it has no power to enforce its judgments and decrees. The only way in which a mandamus can be enforced is by the commitment of the party who refuses to obey its commands as for a contempt. But the courts have no power to commit the governor for a contempt. They have no power over his person. He may be impeached, but there is no other way in which he may be deprived of his executive office. It is said, however, that it is not to be supposed that the governor will refuse obedience to the law; but the application in this *Page 146 case for the mandamus shows that he already has refused to do the act sought to be compelled by this writ. But again, it is contended that in this case the executive is one of a board of officers, and that the board may be compelled to act by mandamus. Conceding him to be one of a board of public officers, the duty is one that devolves upon him by virtue of his office. If the courts have not power over his person to enforce its decrees in the one case, they have not in the other. We have already referred to the discussion of Judge COOLEY in the Sutherland case, with reference to the grade of duties imposed upon the executive, including ministerial acts, together with those involving executive judgment and discretion; and without repeating his argument here, it appears to us that his reasoning is unanswerable and his conclusions correct. While we are of the opinion that a mandamus will not issue to the governor to compel performance of an act by him, we see no reason for its not running, during the recess of the legislature, to the lieutenant-governor and speaker of the assembly. During the session of the legislature, they, as members thereof, are not subject to arrest; and it may be that the courts, during that time, would not have the power to enforce their mandates against them; but, after the adjournment of the legislature, and the time has elapsed given by the statute in which they are exempted from arrest, we think their obedience to the writ may be compelled by the courts. True, under the provisions of the Constitution, they in turn may succeed to executive power, upon the happening of certain events; but until they respectively become vested with the powers of the governor, they form no part of the co-ordinate branches of the government, except, as we have already stated, when the legislature is in session. There is another reason which must control our action in this case. As we have seen, the alternative writ of mandamus was issued during the administration of Governor Morton, when Saxton was lieutenant-governor and Fish was speaker. The Special Term denied the writ, but, upon appeal, the Appellate Division reversed the order of the Special Term *Page 147 and ordered the writ to issue to the governor, lieutenant-governor and speaker then in office, who were the successors of those in office at the time the alternative writ was issued. This was done without notice to the new officials, and without bringing them in or making them parties to the proceeding. The act charged against the former officials was a misdemeanor, and punishable as such, and they were liable individually in damages to the party aggrieved. The delinquency charged is personal, and does not involve a charge against the state. It is not a claim prosecuted against the state in which it alone is interested, as where a mandamus is issued to a treasurer or comptroller of the state, to compel the payment of a claim against it, which is litigated by the officer for and in behalf of the state, in which the courts have permitted the mandamus to issue to the successor in office. In cases in which the delinquency charge is personal, the petition for a writ of mandamus abates upon the death, resignation or termination of office of the official charged, unless it is preserved by statute. (Warner Valley Stock Co. v. Smith, 165 U.S. 28, 31, and cases there cited.) Under the provisions of our Code of Civil Procedure, section 755, a special proceeding does not abate by any event, if the right to the relief sought in such proceeding survives or continues; but this provision only applies to cases where the party dies after this act takes effect. There has been no death of a party in this case. Certain of the parties proceeded against have gone out of office, and it may, therefore, be doubted whether this section keeps the proceeding alive. But, assuming for the purpose of this case that it does and that the relator still has the right to prosecute his proceeding for his restoration, against whom must such proceeding continue? It cannot be continued against the old officers, for they no longer have power to restore him. It must, of necessity, therefore, be prosecuted against the new officers, for they alone have the power to reinstate him. It may be that the provisions of the Code fail to point out the precise practice that should be adopted by the relator in this case. *Page 148 But there is no apparent reason why the provisions of the Code controlling actions and special proceedings against county, town and municipal officers, should not apply as well to state officers. The practice therein provided for is simple and affords ample protection to all parties. Section 1930 provides: "In such an action or special proceeding, the court must, in a proper case, substitute a successor in office, in place of a person made a party in his official capacity, who has died or ceased to hold office; but such a successor shall not be substituted as a defendant, without his consent, unless at least fourteen days' notice of the application for the substitution, has been personally served upon him." As we have seen, no substitution has been made in this case. The order of the Appellate Division should be reversed, and that of the Special Term affirmed.