
    The People, ex rel. Robert J. Livingston, vs. Douglass Taylor, commissioner of jurors.
    The commissioner of jurors, in the city of New York, is not a judicial, but a ministerial officer.
    A mandamus will lie to the commissioner of jurors to compel him to strike from the list of jurors the name of a person not liable to jury duty.
    A PPLIOATIOU was made in this matter to the special. IX term for a mandamus, commanding the respondent to strike the name of the relator from the list of jurors in 1864.
    The writ was granted by default, but subsequently the default was opened, and the judge decided that he had no power to issue the writ in such a case. Thg relator appealed.
    
      
      Lewis L. Delafield, for the relator.
    I. Proceedings in mandamus cases are to be reviewed by appeal, and not by writ of error. (The People, &c. v. Church, 20 N. Y. Rep. 529. The People, &c. v. Albright, 14 Pr. Rep. 305. Laws of 1854, p. 592.)
    II. The order is appealable. It was based solely upon the idea that the court has no right to direct the commissioner to strike off the relator's name, as directed by the writ. It has been repeatedly held that when a court refuses to exercise a discretion vested in it by law, under the impression that it does not possess the power which it is called upon to exercise, and in consequence an erroneous decision is obtained, such decision will be reversed on appeal. (Beach v. Chamberlain, 3 Wend. 366. McElwain v. Corning, 12 Abb. Pr. Rep. 16. McMahon v. Mutual &c. Ins. Co., Id. 28. Artisan's Bank v. Treadwell, 34 Barb. 553.)
    III. The only question is, has the court the power to compel the commissioner to strike a'name from his list which he has erroneously placed there ? Has it any control over him; or is he, as the opinion of the judge below would indicate, the only officer known to our law, who is beyond the reach of the law ? The relator presses the following views upon the court with the greatest earnestness, because if any other views should prevail, the commissioner would be clothed with arbitrary power, and could put any person of any age or sex upon Ms list, and there would be no adequate redress. There can be no question as to the duty of the commissioner to strike off of his list the name of an exempt, at any time. It is his duty to make and “correct” the list. The statute provides that “the names of all persons found to be exempt from serving as jurors shall be struck from the list, and the ground of exemption recorded.” (3 R. S. 698, § 20.)
    IV. The commissioner of .jurors is a ministerial officer, and in no sense a judicial officer. The court still has all the power that it ever had over jurors, but it is relieved from the routine business of attending the preparation of the jury list and summoning of jurors. The commissioner in the city of New York is substituted for town officers in other parts of the state, and it can not be claimed that they are judicial officers. (3 R. S. 695, §§ 4, 5.) That he is a ministerial officer is apparent from the provisions of the statute. 1. He is appointed by the judges, just as they appoint clerks and criers. (Id. 697, §§ 15-19.) The commissioner appears in his true character in section 34, where he is called a “clerk” of the board for the selection of grand jurors. (Id. 701, §34.) Neither judges nor supervisors could appoint a judicial officer without violating the constitution. Judicial powers can not be delegated. (Entick v. Carrington, 19 Howell, State Trials, 1063.) 2. The statute reads: “ The said jurors shall be selected” by the commissioner. (3 R. S. 697, § 15.) The word “said” is explained by section 14, as “all persons residing in said city, who shall be qualified to serve as jurors.” These qualifications are fixed by law. (3 R. S. 695, § 5, and 697, § 14.) All the commissioner has to do is “to select” certain designated persons ; he has no discretion in this. (§§ 15-20.) After this selection he must give notice that the jury list is ready for correction, and must strike from it the name of exempts. (3 R. S. 698, § 20.) He has no discretion to determine who are exempts; that is fixed by laio. But if exempts do not apply to be excused, they can not be held for duty; and the court always discharges them when summoned. It would be ground for challenge to the array, if an unqualified person, ex. gr. a non-resident, were upon the jury. (3 Black. Com. 351-359.) 3. The commissioner can not fine jurors for non-attendance ; the court must do this. (3 R. S. 698, § 21.) And the court may, as it constantly docs, excuse jurors from serving, without consulting the commissioner. And the court may remit the fine for any reason that it thinks fit, as it constantly does. The commissioner may also remit the fine; but he can only do this upon “legal excuse” fixed by law. (3 R. S. 698, § 22.) That the courts have the right to excuse from duty and to remit fines, as is their practice, is apparent, from section 25, which provides that defaulting jurors must be excused by the court, unless this power is specially delegated to the commissioner by order of the court; and from section 21, which provides that the court must ascertain whether the jurors have been duly summoned, before it can fine them. 4. The conclusion of the matter is, that the commissioner, like other officers of the court, is under the direction and control of the court, and holds office to relieve it of burdensome ministerial' duty, and has no general discretion, and can only exercise certain powers clearly defined and fixed by statute; and that other powers of a much higher grade connected with the jury system, were never entrusted to the commissioner, and may be exercised by the court at its discretion. 5. The duty of a clerk in “approving” an official bond is ministerial, and may be enforced by mandamus. (Gulick v. New, 14 Ind. R. 93.) The register may be compelled by mandamus to satisfy a mortgage. (The People, &c. v. Miner, 37 Barb. 466.) And both of these acts require an exercise of judgment and discretion, not necessary in selecting jurors pointed out by law.
    V. But granting (for the argument only) that the commissioner is a judicial officer, it clearly appears from the statute (see last point) that he has no general discretion; but that his conduct is governed by fixed principles and rules, from which he can not depart. The qualifications of jurors are fixed by law'. All the commissioner has to do, is to select the designated' persons. It is well established that the discretion with which courts will not interfere is such as is- general, and not regulated by fixed principles, and that whenever the discretion is fixed by principle and law, the courts will control that discretion by mandamus. (The People v. Superior Court, 5 Wend. 114. S. C. 10 id. 285. Hull v. Supervisors of Oneida Co., 19 John. 259.) The law is thoroughly discussed in Manor v. McCall, (5 Geo. R. 522.)
    VI. The statutes relating to the commissioner nowhere provide in terms that he shall not be subject to the control of the Supreme Court. And without such express enactment he is subject to it. The authorities cited show that the right to review can not be taken away without an unequivocal declaration to that effect by the legislature. They show that the Superior Courts in England ánd in this state have disregarded the strongest intimations of the legislative will, unless they came up to this standard; and the law may be considered as settled, that language as enqxhatic as that/ contained in this statute will riot deprive a party of the right of review. “In justication of this strictness, it has been alleged that administrative and judicial, or quasi judicial, powers are frequently delegated to men without legal experience who may err through ignorance, or abuse their trust from interested motives. It has, therefore, been deemed indispensable to the security of the citizen that a superintending power should exist somewhere, over inferior courts and officers, to restrain irregularities, and to correct errors of law, and, above all, errors of jurisdiction.” (Per Gardiner, J. delivering the opinion of the Court of Appeals in matter of Canal &c. street, 12 N. Y. Rep. 411, 412. See also point v. of N. Hill, Id. p. 407.)
    VII. Any view which makes the commissioner a judicial officer would render the act under which he claims unconstitutional and void. The judicial powers of the Supreme Court can only 'be stripped from it by constitutional enactment. The legislature can not transfer the judicial power of the Supreme Court to any other body or person. (Const, art. 6, § 3.)
    VIII. The objection of the Judge below that the court and commissioner having co-ordinate powers, (admitting this only for argument,) the court should not interfere by mandamus, is not insuperable. A mandamus lies to the Common Pleas to restore an attorney removed by it.' It was admitted that the Common Pleas had full power to remove the attorney, but the Supreme Court examined the testimony, and not being satisfied that this power was properly exercised, they issued their mandamus. (People v. Justices of Delaware County, 1 John. Cas. 181. People v. Chenango County Justices, Id. 179.)
    IX. Ho other order cari he entered, because the defendant having made a return, can not object to the mandamus, for by making the return, he has admitted that he ought to obey it. (Case of Mayor of Norwich, 12 Mod. R. 322.)
    
      Wm. C. Trull, for the respondent.
   By the Court, Ingraham, P. J.

We are not furnished with the evidence on which the relator applied to the commissioner of jurors to have his name stricken from the list of jurors, and therefore we can not decide whether he was entitled thereto, and' the only question before us on this appeal is whether a mandamus will lie to the commissioner of jurors for such a purpose, if it be conceded that the relator is entitled to the relief he asks.

The office of this writ is two-fold; one when addressed to courts of inferior jurisdiction and to judicial officers, and to officers-exercising judicial powers, to compel them to act and to decide on matters before them; the other when addressed to-ministerial officers, to do the act which they are charged with unlawfully refusing to do. The commissioner of jurors is not a judicial, but a ministerial officer. It is true, he has to decide on the sufficiency of the excuse offered by a juror to have his name stricken from the list of jurors, but still the nature of that excuse, and. the duty of the officer, is clearly defined by the statute, and when the truth of the facts relied on is shown to him, he has no discretion to exercise, and has no right to keep the name of the juror on the list. If the statute vests any discretion in the officer, the rule, is different. In the language of Emott, J. in The People v. The Contracting Board, (27 N. Y. Rep. 381,) there must be a clear legal right not merely to a decision, hut to the thing itself.

There is, also, another principle applicable to this writ— that it issues where the party has no other remedy. There could be no other remedy to the relator but to bring a certiorari and review the proceedings of the commissioner in that form of proceeding. That his acts are subject to review in one. or the other mode, there can be no doubt. It never was the intent'of the law to leave this officer at liberty to exercise an arbitrary control over those who are to form the list of jurors. The law has particularly enumerated those who are to be placed upon it, and he is bound to comply with those provisions. The objection to a review by certiorari is, that it would bring up the whole record, which he is required to keep, and where such a course would lead to great inconvenience, the courts have held that the writ of mandamus might be resorted to. This rule is stated by Mitchell, J. in Adriance v. The Supervisors, (12 How. Pr. Rep. 226,) where he says, “the general principle may be stated, that where a specific duty is imposed on public officers by statute, and they do not conform to the statute, and the omission to conform affects a particular party only and not the whole list, a mandamus will issue.”

For is this remedy to be withheld because the relator might have an action for damages. Judge Mitchell, in the last cited case, says, “it is better for the public that the specific remedy be applied to removing the wrong directly, than to have actions for damages, in which the officer may be punished, although he erred only in judgment.” So in The People v. The Mayor, &c. (10 Wend. 393,) it was said that where a specific duty was imposed by statute on a public officer he may be compelled to execute it by mandamus, although an action for damages might also lie. In the case of The People v. Miner, (37 Barb. 466,) the Writ was issued to the register to compel the satisfaction of a mortgage, although in that case he had to decide upon the sufficiency of the satisfaction piece, and Selden, J. in The People v. The Contracting Board, (supra;) says; There are many questions requiring the decision of ministerial officers which involve, to some extent, the exercise of legal discrimination in their solution, but which are not regarded as judicial questions, and consequently the decision of them is not conclusive in collateral proceedings.

[New York General Term,

November 7, 1865.

My conclusion is that the writ may issue to this officer.

The list in which the relator’s name is inserted has ceased to he of any importance, as the period of -time for which it was to be in force has expired. There is no propriety therefore now in issuing the mandamus, and nothing can be done except to reverse the order of the special term as to the power of issuing this writ in the case.

Order reversed.

Ingraham, Leonard and Geo. G. Barnard, Justices.]  