
    The People ex rel. Horace M. Lower, Resp’t, v. Timothy J. Donovan, Inspector, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October 4, 1892.)
    
    Mandamus—Cannot be issued by judge at chambees—Elections.
    A judge at chambers in the city of New York, or elsewhere within the state, has no jurisdiction to issue a writ of mandamus, and as no court can be opened on the day of general election, no such writ can he issued on that day to compel an inspector of election to accept a vote.
    (Geay, J., dissents.)
    Appeal from a judgment of the supreme court, general term, first department, affirming an order of special term convicting appellant Donovan,, an inspector of election, of contempt.
    
      Henry Grasse, for app’lt; David Leventritt and Chas. H. Knox, for resp’t.
    
      
       Reversing 45 St. Rep., 141.
    
   Andrews, J.

—On the 3d day of November, 1891, the day of the general election in this state, the Hon. A. R. Lawrence, one of the justices of the supreme court, upon application made to him at his chambers in the city of New York, in behalf of the relator a duly qualified elector of the seventh election district of the second assembly district of that city, made an order requiring the inspectors in that election district to show cause before him at the court house in said city at 3 o’clock, p. M., of that day, why a writ of peremptory mandamus should not be issued commanding and requiring them to permit the relator to take the disability oath provided in the election law, and upon taking the oath to permit him to retire with a person of his selection to one of the booths and compartments provided in said election district, for the purpose of preparing his ballot, and to accept, receive, and deposit the ballot when prepared, etc. The affidavit upon which the application was made set out certain facts which, in the opinion of the learned justice, entitled the relator to this relief. The order to show cause was served on Donovan and the other inspectors within the time limited by the order, but they did not appear- on its return, and thereupon, due proof of the service^ of the order having been made, and of other facts, the justice issued a peremptory writ following the order to show cause and commanding the inspectors to do and permit the things therein stated.

The peremptory writ was served on the inspectors before the closing of the polls, and there is evidence tending to show that they refused to obey it. Subsequently application was. made to the court at special term to punish the inspectors for contempt in disobeying the writ, and the proceedings resulted in an order adjudging the defendant Donovan guilty of contempt and imposing upon him a fine of $250 and ten days imprisonment as a punishment for his misconduct. The order was affirmed on appeal to the general term, and the present appeal is from the order of affirmance.

The order made by the special term is challenged on the ground that Mr.' Justice Lawrence, sitting at chambers, and not as a court, had no jurisdiction to issue the mandamus, for the disobedience of which the order punishing the defendant for contempt was made. If this point is well taken it disposes of the case, and the orders of the special and general terms must be reversed; for it is a clear proposition that an order made by a court or judge in a proceeding of which the tribunal or officer had no jurisdiction, and which is not merely irregular or erroneous, is not-a lawful mandate and disobedience thereto cannot be punished as a contempt. Code Civ. Pro., § 8; Eng. & Am. Ency. of Law, Vol. 3, p. 788, and cases cited.

The power to issue the writ of mandamus was at common law lodged exclusively in the court of king’s bench, because of the general superintendence it exercised over all inferior jurisdictions, and unless conferred by statute could be exercised by no other court in the realm. It was one of the prerogative writs, and if any trace is to be found of an attempt by any other court to exercise the jurisdiction in the absence of a special statute conferring the authority, it was in the nature of a usurpation. Awdeley v. Joye, Poph., 176; 2 Blk. Com., 110; Moses on Mand., 16; People ex rel. Ryan v. Green, 58 N. Y., 296. The jurisdiction resided in the court and not in the individual judges, and the writ was issued in term and not in vacation.

In colonial times the supreme court of the colony of New York, by the ordinances of 1699 and 1704, was invested with all the powers of the courts of King’s Bench, common pleas and exchequer in England, and by the Revised Statutes, 2 R. S., 3d ed., 259, § 1, the supreme court of the state was declared to be vested with all the powers and jurisdiction which belonged to the supreme court of the colony of New York, with certain exceptions not now material to be noticed. The same statutes regulated proceedings by mandamus, and while they do riot expressly limit the power to issue the writ to the supreme court, or prohibit its being issued by a judge out of court, they assume that the power inheres alone in this supreme jurisdiction and is to be exercised by the court as such. 2 Rev. St., 680, Tit. Writs of Mandamus and Prohibition.

The statute of 1873, chap. 239, has been construed as conferring upon certain other courts the power to issue the writ, People ex rel. v. Green, supra, and it may be conceded that the legislature could authorize the writ to be issued by a judge in vacation, although it is difficult to see how such a jurisdiction could be conveniently exercised in view of the fact that the proceeding by mandamus is substantially an action which may involve pleadings, issues, trial and final judgment upon the right, unless the power of the judge acting in chambers and not as a court should be restricted to issuing the writ returnable before the court, as is the procedure in some of the states. The power of the judge to issue the writ involved in the present appeal is placed on § 770 of the Code of Civ. Pro., which declares that “in the first judicial district a motion which elsewhere must be made in court may be made to a judge out of court, except for a new trial on the merits.” The argument is that an application for a writ of mandamus is under the Code a motion and that the writ when issued is an order, and that although elsewhere it can only be issued on application to the court, and not by a judge out of court, nevertheless in the first district, under the section quoted, the motion may be made before, and the writ may be issued by a judge at chambers. It is to be observed that § 770 of the Code of Civ. Pro. is substantially a re-enactment of § 401 of the Code of Procedure. But the former Code expressly excepted mandamus proceedings from its operation (§ 471), and under that Code a judge out of court in the first district had no power in mandamus proceedings other or greater than was possessed by any other judge in any other part of the state. It seems to be clear that under the former Code a judge out of court could not have issued a mandamus, as that power, by practice and the general understanding, could be exercised only by a court, and could not be exercised by a judge out of court.

It remains to consider whether the Code of Civ. Pro. has enlarged the power of a judge in the first district so as to enable him to issue a mandamus out of term, or when not sitting as a court. Prior to the enactment of the Code of Civ. Pro., the writs of habeas corpus, mandamus, prohibition, etc., were regulated by statutes and the practice of the courts. In the Code of Civ. Pro. these statutes and the practice thereunder were brought together and codified under the title “ special proceedings instituted by state writ,” and the writs above enumerated were denominated state writs. The several writs are treated of in separate articles, and the procedure is regulated with great detail. The respective-articles define how and when and by what authority writs to which they severally relate may be issued. The power to issue writs of habeas corpus was, for obvious reasons, conferred upon both the supreme court at special or general term, and upon judges out of court, and judicial officers authorized to perform the duties of a judge. Sec. 2017. But the article relating to-writs of mandamus expressly confines the power to issue the writ to a court at special or general term. Section 2068 is as follows “Except where special provision is made therefor in this article, a writ of mandamus can be granted only at a special term of the-court. In the supreme court, the special term must be one held within the judicial district embracing the county wherein an issue of fact founded upon an alternative writ is triable as prescribed in this article.” The following section (2069) prescribes in what cases the writ may or shall be granted at general term.

Section 2069 contains the only provision in the article which permits any tribunal other than the special term to grant the-writ

The right of a judge out of court to grant the writ seems to-be necessarily excluded by the language of § 2068, since there is. “ no other provision in the article ” conferring upon a judge out, of court the authority. Even if an application for a writ of mandamus is a motion within § 768 of the Code of Civil Procedure, it is taken out of the operation of § 770 by the peremptory and unequivocal language of § 2068. In the article relating to> writs of prohibition are sections limiting the power to issue those writs to the court at special or general term, substantially as in. the case of mandamus.

It is difficult to suppose that the power to issue the extraordinary writ of prohibition was intended to be vested in a judge out, of court, under the language of § 770, and yet this result would follow if the construction placed by the courts below upon the: power of a judge to issue a mandamus is correct; the language; of the statute in both cases being substantially the same.

We find it impossible to avoid the conclusion that a judge at chambers in the city of New York, or elsewhere within the state, has no jurisdiction to issue a writ of mandamus.

The right of a voter to vote may be lost unless this power shall be conferred. Under the statute no court can be opened within the state on the day of any general election to transact any business except for the purpose of receiving a verdict or discharging a-, jury, and for the exercise by a single magistrate of certain jurisdiction in criminal cases. Section 5, title 1, chap. 130, Laws of 1842, as amended by § 2, chap. 240, Laws of 1847.

The voter who is refused the right to vote can resort to no-court for relief until after his right is lost, as no court can entertain his application on election day.

If an enlarged jurisdiction in these cases is expedient, the remedy is with the legislature.

Voters outside of New York can have no relief by mandamus; issued on the day of election, and we think the voters of that city-under the arrangement of the statutes are in the same situation.

Our conclusion requires a reversal of the orders of the special and general terms.

All concur, except GrBAY, J., dissenting.  