
    People ex rel. John McMackin et al., App’lts, v. The Board of Police of the City of New York, Resp’ts.
    
    
      (Court of Appeals,
    
    
      Filed October 25, 1887.)
    
    1. Mandamus—Inspectors of election—Who entitled to under Laws-1887, chap. 490—New York (city of.)
    An action was brought asking for a peremptory writ of mandamus to compel the defendant to appoint as inspectors of election the members of a certain party, under Laws 1887, chapter 490. Held, that in suchpases the court will not be driven into issuing a peremptory writ to guide the conduct of public officers charged with this public duty, upon any narrow construction of a return to its alternative writ, where from all the papers it is seen that there is a substantial issue of fact and of a material nature, which should be decided in the way pointed out by the law before the issuing of such a writ.
    53. Same—Return to writ—When members of board may deny allegations contained" in writ.
    When a board of public officers stands at a tie, so that no return putting at issue the material facts alleged in the alternative writ can be agreed upon by the majority of the board, the court of appeals will not reverse the action of the lower court in permitting individual members of the board to put in a denial under oath of some or all of the material allegations contained in the writ, and in directing a trial of such issues in a legal way.
    3. Mandamus—When writ issued.
    The remedy by mandamus is of an exceptional character, and the writ issues only in that class of cases where a clear legal right is made to appear and there is no other adequate and legal means to obtain it. The granting or refusing the writ is somewhat a matter of discretion.
    Appeal from an order of the supreme court, general term, first department, affirming an order of the New York county special term denying a motion for a peremptory mandamus and directing the issuing of an alternative writ.
    
      Edward M. Shephard, for app’lts; E. Ellery Anderson, for resp’ts.
    
      
       Affirming, ante.
      
    
   Peckham, J.

—The remedy, by mandamus, is of an exceptional character, and the writ issues only in that class of cases where a clear legal right is made to appear, and there is no other adequate and legal means to obtain it. The granting or refusing the writ, especially where it is asked against public officers to compel the performance of an alleged duty, is somewhat a matter of discretion.

These principles are elementary and require the citation of no authorities for their support.

In the proceeding at bar the writ is not asked for to establish or maintain any private right or interest, but the relators ask that it shall issue against a board of public officers to compel the performance by it of what the relators allege to be a public duty. They claim to be the representatives of a constituency of over fifty thousand voters in New York city, and they allege that the legislature, by the act, chapter 490, of the laws of 1887, provided for the appointment of inspectors of election by the defendants to represent this large body of voters at the ballot boxes. It is seen from this statement that the relators have no private interest in this question, but the interest and the right rest with that body which they claim to represent, and which, from their papers, amounted to nearly seventy thousand voters at the last municipal election. If the relators are in reality the proper representatives of such a constituency the defendants under the act should appoint an inspector for each district as applied for. But the question is whether these relators are such representatives. On the paper produced and read by them on the application for the writ, they made out a case for such appointment, and, if their papers were uncontradicted, the application for the writ should be granted.

But are their papers uncontradicted?

' To answer this question in such a case, where public interests and the right of this large body of voters to be represented at the ballot boxes under the act of last winter are concerned, the court ought to and will look carefully into the record for the purpose of seeing where the right of the case is, and in the exercise of a legal and proper discretion in regard to issuing the peremptory writ, will refuse if satisfied from the record that there is an honest dispute on some substantial basis, regarding material facts, which ought to be properly settled before the writ issues, even though in the strictest and most technical construction of the papers or pleadings, it should appear that these issues are inartificially or loosely made up. The legislature intended that where so large a part of the voting population as 50,000 should vote outside of the two great parties, that such part should have an inspector of election at each "ballot box to see that the election was fairly conducted and that their interests wore not improperly overlooked.

When individuals claiming to be representatives of this body of voters appear before the courts, and such claim is uncontested, or the contest is based- upon no substantial grounds, there is no doubt as to the dirty of the court under such circumstances. But in the case at bar an inspection of the record shows that there are three different bodies, each claiming to be the sole and proper representative of the voters who deposited 68,000 votes for their candidate for mayor of New Y ark in the fall of 1886, and each body claims to be entitled to the appointment of the additional inspector. The learned counsel for the appellant here claims that there is no substantial contradiction in this record as to any material fact, and that the special term should have, therefore, granted the application of his clients.

We do not agree with this view of the contents of the record.

It is made up exceedingly loosely, and it is somewhat difficult to tell exactly what was before the learned judge at special term. We think enough appears, however, to authorize us in holding that he was right in denying the writ on account of the existence of disputed .questions of fact. The record contains the brief opinion of the learned justice, in which he says: “ There is an insuperable objection to granting a peremptory writ of mandamus to either of the petitioners in this matter.” And, again: “ There is, however, involved in this application a question of fact as to which, if either, of the three applicants is the party or organization which cast over 50,000 votes at the last municipal election.”

This language certainly imports that others than the relators had applied for the writ, for it speaks of three applicants therefor. I also find in the record, entitled, “In the matter of the appointment of "the additional election inspectors,” a statement of an “order to show cause obtained on motion of counsel for progressive labor party.” Also a statement entitled in the same way with the following: “ Order denying motion without prejudice and vacating injunction. The foregoing order, copy of which is hereto annexed marked exhibit No. 2, was read and placed on file. ”, The present proceedings are entitled in the name of the people with Hr. HcHackin and another as relators. This, therefore, shows in this very record that there were other proceedings of a like nature before the special term. I find no copy of that order to show cause, or of its denial, printed in the record, but being referred to therein, and being now presented to the court, we think it proper to look at them to see just what was done. It was an application in behalf of the progressive labor party, and the order to show cause why the writ should not issue is entitled as stated above, and recites that it is granted upon the annexed affidavit of William Penn Rogers, and the exhibits and papers therein referred to.

The affidavit is annexed and shows, if true, quite a clear case for the appointment of inspectors for the party therein spoken of, viz.: The progressive labor party. The order is dated the 21st of September, and enjoins the proceedings of the defendants until the hearing and decision of the motion. Mr. Justice Patterson, at special term, in his opinion already referred to, recites the fact that the defendants have been enjoined since the 21st of September. There was no injunction in the order procured by the relators. All this is alluded to for the purpose of the argument that it fairly appears from this very record now before us that there were several applications for a mandamus against the defendants which were heard together and somewhat informally before the learned justice at special term, and that from the recital in the order to show cause- which is above referred to, although not printed, it appears there was an affidavit of Mr. Rogers upon which the order to show cause was granted, which must have been sworn to therefore as early as the 21st of September, and an inspection of it shows that it was so sworn to. It is not necessary, therefore, to rely wholly on the affidavit of Mr. Rogers, appearing in the record as sworn to October 6 as raising an issue of fact, for this affidavit of September 21 does it in clear and emphatic terms, and as the applications were all heard together, the papers used may all be referred to for the purpose of showing the issues therein. From all this we think it is sufficiently apparent that there were questions of fact existing in these various applications for a mandamus which required Mr. Justice Patterson to deny a peremptory writ and justified him in issuing an alternative one.

The order denying such application must therefore be affirmed.

The alternative writ having been issued and served, it is claimed by appellant’s counsel that there is no issue raised by the return of the board, and that the two individuals who are members of the board should not have been allowed -to make a return, and if their return is to be permitted, that even then there is no issue raised by it and no answer made to relators’ application. It may be, perhaps, admitted that in strictness there is no proper denial in the return of the board, but in that of the two individual members thereof we think it is conclusively shown that there is a serious question of fact, having a substantial basis, to be decided, before the relators shall be entitled to the writ asked for.

While not deciding what would be the rule in cases of strictly private rights, we think that in cases such as this, where the question is who are the real representatives of this constituency, the court will not be driven into issuing a peremptory writ to guide the conduct of public officers charged with this public duty, upon any narrow construction of á return to its alternative writ, where from all the papers it is seen that there is a substantial issue of fact and of a material nature which should be decided in the way pointed out by the law before the issuing of such writ. In such casas, it is a wise and proper exercise of discretion to refuse the application.

When a board of public officers stand at a tie, so that no return putting at issue the material facts alleged in the alternative writ can be agreed upon by a majority of the board, we are not inclined to reverse the action of the lower court in permitting individual members of the board to put in a denial under oath of some or all of the material allegations contained in the writ and in directing a trial of such issues in the legal way.

We think the action of the supreme court was right and its orders should therefore be affirmed.

The opinion of the learned general term contained a provision for the entry of an order to try at once the questions arising in the proceeding. We assume that the parties will still be willing to waive a trial by jury to immediately test the question as to which body is entitled to the inspectors, and we therefore affirm the proceedings, with leave to apply to the supreme court for the trial of the issues forthwith before one of the justices thereof or in such other way as the parties may agree upon and the court shall approve of.

All concur.  