
    The People ex rel. Thomas W. Barron v. James J. Martin et al., Police Com’rs.
    
      (Supreme Court, Chambers, New York County,
    
    
      Filed November 4, 1892.)
    
    Elections—New York city—Inspectors.
    Under the provisions of the consolidation act, as amended by chap. 400, Laws 1892, a majority of the board of inspectors of election of each election district of the city of New York has power to act as a board of inspectors.
    Application for a writ of prohibition.
    
      James W. Hawes, for relator; David J. Dean and Theodore Connoly, for resp’ts.
   Ingraham, J.

The question that I am here asked to determine is one that is not free from doubt, and as a prompt decision is required, I have time merely to state the conclusion to which I have arrivéd.

The chapter providing for the conduct of elections in the city of New York, contained in the consolidation act, in force prior to the amendment of 1892, provided a consistent scheme for the registration of voters and the casting of votes on election day, based upon the fact that in each election district four inspectors of election were provided, who should determine the various questions presented as to the registry of voters and the voting of such persons as should be registered on election day.

Section 1876 expressly requires that all acts of the board of inspectors should be by the concurrence or assent of a majority of all the inspectors of election in any election district. Thus, any duty devolving upon the inspectors as a board could only be performed by three inspectors.

Both §§ 1858 and 1866, in requiring the concurrence of three inspectors, expressly recognize that in each election district there are more than three inspectors of election. Thus, in § 1858, the question as to the qualification of the person presenting himself for registration is to be determined by “at least three of the board of inspectors of election,” and § 1866 provided that if the vote of a person presenting himself to vote is received, “ at least three of the inspectors ” shall write, in the appropriate column bearing the heading “ voted,” and opposite the name and residence of such person, the word “yes.” And the section also provides that the chairman of such inspectors in each election district shall, if present, and, if absent, then one of the other inspector's shall, upon any person offering to vote, announce, in a loud, clear and distinct manner, the name of such person, showing that the provisions of this section were based upon the fact that there were more than three inspectors of election.

Section 1877 also emphasizes the intention of the legislature.. It is there provided that it should be the duty of said inspectors of election, or a majority of said inspectors, to be in constant attendance during the hours and times fixed for the discharge of their official duties.

Reading the whole chapter, the one clearly expressed intent was that a majority of the inspectors should be required to assent, to each act of the board, and that it was not the intention to require that all of the inspectors should be present when the board was to act as a board ; where there were' four inspectors, that at least three should be present, and three should determine the? questions that the board, as a board, had to determine.

The object of this provision is clear, for the consequences of stopping the whole business of receiving votes on election day,, because of the absence or inability to act of one inspector,’would be that many persons would be in effect disfranchised, and the whole machinery of election thrown into confusion.

By the amendment to § 1850 provided for by chapter 400 of the Laws of 1892, p. 823, the provisions of this chapter of the consolidation act were changed so as to provide for but three inspectors of election instead of four in each election district Then-two instead of three became a majority of the inspectors in each district. By § 1877 two were required to be present at the times-fixed for the discharge of their several duties, and the assent of two was required before the board could act.

I think it clear that the language used in §§ 1858 and 1866' must give way to this obvious intent of the legislature. The language used in those sections would be inapplicable to a board of three inspectors.

In the construction of statutes, and considering the effect of such an amendment as the one now under consideration, it is the duty of the court to ascertain and carry out, as far as possible, the-intention of the legislature as expressed in the acts themselves,, and. where that intention is clear, it is the duty of the court to» disregard any terms used which would in effect defeat such intentian; and to hold that the presence of all the inspectors was necessary before the board, as a board, could act would expressly defeat the intention of the legislature, as shown through all the provisions-of the act, that the presence of a majority of the board, was sufficient to authorize the board to perform the duties imposed upon, it, and this conclusion is greatly strengthened by the system-adopted by the legislature for other portions of the state, where: three inspectors of election are provided for, and where a majority of such officers are authorized to perform the duties required of the board, and that at the same session of the legislature at which the act of 1892 was passed, by § 19 of chapter 677, known as the- “ Statutory Construction Law,” it is provided that whenever three, or more public officers are given any power or authority, or three or more persons are charged with any public duties to be' performed or exercised by them jointly, or as a board, a majority of all such persons or officers, at a meeting duly held at a time fixed by law, may perform and exercise such powers or duty.

I agree with counsel for the relator that if the law is clear, the court has nothing to do with the consequences of enforcing i t, but-that the law as written must be enforced. But where the question of constructive repeal or modification of the provisions of law is to be determined, the object sought to be obtained is always to be considered, and it is the duty of the court where such object is -clearly expressed to give force to the intention of the legislature, ■and so far as possible to carry such intention into effect.

This principle has been many times applied by the courts in ■construing acts of the legislature. In L. S. & M. S. R. Co. v. Roach, 80 N. Y., 844, Earl, J., says: “ The lawmakers cannot always .foresee all the possible applications of the general language they -use, and it frequently becomes the duty of the courts, in construing .statutes, to limit their operation so that they shall not produce absurd, unjust or inconvenient results not contemplated or intended. A case may be within the letter of the law and yet not within the intent of the lawmakers, and in such a case a limitation or exception must be implied.”

See, also, Matter of Rochester Water Commissioners, 66 N.Y., 418, where it was held that when, from the language of a statute and., an amendment a different intent from that which would undoubtedly apply from the language used is apparent, such effect will not be given it, and where other acts of the legislature passed at or about the same time corroborate the evidence of intent, as gathered from the statutes under review, the duty of the court is to give effect to the intent rather than to the literal terms of the act, and Chase v. Lord, 77 N. Y., 18.

My conclusion, therefore, is that under the statutes as they now -exist, a majority of the inspectors of election of each district has ' power to act as a board of inspectors, and that the relator was not justified in refusing to act because of the absence of one inspector.

I have not considered, and do not intend to decide, that in this «ose a writ of prohibition is the proper remedy. As I have come to the conclusion before stated, it is not necessary to pass upon that question.

The application for a writ must, therefore, be denied.  