
    The People of the State of New York ex rel. Herman A. Metz, as Comptroller of the City of New York, Individually and as a Taxpayer Therein, and Others, Relators, v. Charles W. Dayton, a Justice of the Supreme Court of the State of New York, and Others, Respondents.
    
    First Department,
    July 17, 1907.
    Elections — statute authorizing recount — writ .of prohibition granted — stay Of proceedings —stare decisis — courts of co-ordinate jurisdiction.
    As chapter 538 of the Laws of 1907, providing for a recount of votes cast, in the city of New York for the office, of mayor in November, 1905, provides for no appeal from interlocutory orders and prohibits any appeal to the Court of Appeals from the final order of the Appellate Division, a party desiring to test' the "constitutional right of the Supreme Court to proceed under said act is entitled to a writ of prohibition.'
    
      The court may grant a stay of proceedings on the issuance of a writ of prohibition, and will do so when proceedings under a statute attacked as unconstitutional will involve a large expense to the city.
    Á decision hy one department of the Appellate Division should be followed by other departments of that court although deemed to be erroneous.
    Application by the relators, Herman .A. Metz, as comptroller, etc., and others, for a writ of prohibition, directed to Charles W. Dayton, a justice of the Supreme Court, and others.
    
      Francis K. Pendleton, Corporation Counsel, William P. Crowell and Jeremiah S. Richards, for the relators.
    
      Clarence J. Shearn, for the respondents.
    
      
       See Matter of Metz v. Maddox (121 App. Div. 147).— [Rep.
    
   Per Curiam :

We-have had an opportunity of examining the opinion of the Appellate Division of the second department in an application similar to the present, upon which was presented the question of the constitutionality of chapter 538 of the Laws of 19Ó7, upon the determination of which this application depends. We are unanimously of the opinion that this act violates several provisions of the Constitution, among Others, those discussed by • the dissenting opinion, with which we concur, as devolving upon'' the Supreme Court purely administrative or ministerial duties which the Constitution provides shall be performed by certain officers to be appointed in pursuance of its provisions.. As, however, this act is purely local, affecting only the city of -New York, a part of which city is within the limits of each of these judicial departments, we think the orderly administration of justice requires that this court shotild follow the determination of a court of co-ordinate jurisdiction where the same question was presented, so as to avoid a conflict between the two departments affecting parts of the same territory. Therefore, notwithstanding our individual opinions, we will follow the decision of, the second department and deny this application. ' ■

The respondents raise before this court a question which does not seem to have been raised before the Appellate Division of the second department, namely, that a.writ of prohibition is-not a proper remedy, as the relators can review the constitutionality of this act by appeal. One of the relators is the comptroller of the city of New York, who asks for the interposition of the court as' such comptroller and also as a taxpayer, to prevent a misuse, of the public funds, which, if .the act is unconstitutional, .would necessarily follow were the act 'to be earned into effect. It- is not apparent how the comptroller of the city of New York, who is not a party to the original proceeding under the act, could present any application to the Supreme Court. He certainly would have no right to move to vacate any order granted under 'the provisions of this act, as he is not a party, to the proceeding. . •

The act is mandatory, requiring the Supreme Court in any judicial district within which any election districts affected are situated, to proceed to a summary canvass of the vote in any election district specified in the petition. It requires the court to grant an order appointing commissioners to canvass the ballots one by one. It provides that these proceedings shall have precedence over all other business of the court, and provides for a final order basedhpon the report of the commissioners and the determination of the court which shall supersede the returns of the election officers that had been filed, and if it shall change- the previously declared result of the' election, the certificate of election issued pursuant to the act shall supersede the certificate theretofore issued- by any board or officer. The act then allows an appeal from such final order to the Appellate Division of the Supreme Court. There is no provision authorizing any application to the court by any party to the .proceeding to vacate the original order, or to stay such a recount and recanvass of the vote, and no provision allowing an appeal from any interlocutory order or any determination of the court, except the final order; and'the statute expressly prescribes that there shall be no appeal from the, final order of the Appellate Division to the Court of Appeals.

The intent of the statute, therefore, would seem to be to expressly limit appeals -to the one appeal, namely, from the final order of the Special Term to .the Appellate'Division; and there is no method by which the constitutionality of this aet can be reviewed by the-Court of Appeals either by. appeal from final or interlocutory orders,' In People ex rel. Duryee v. Duryee (188 N. Y. 440) the Court of Appeals, in considering the question as to whether an interlocutory order, in a habeas corpus proceeding was appealable to the Appellate Division, expressly held that the Appellate Division had no jurisdiction' to review- such an interlocutory order, because the right of appeal was limited to the final order by section 2058 of the Code of Civil Procedure.

The plain intent of this act is that the proceeding before the court at Special Term should be summary, and we think it would be destructive of the declared intention of the act to allow appeals from interlocutory orders, and that it was the intention of the Legislature to require the court to. proceed in a summary way to the recount and canvass -of these votes, confining the right to review any questions presented to an appeal from the final order of the Special Term to this court, with an express prohibition of any appeal to the Court of Appeals. It would seem,. therefore, that these relators have no remedy by appeal, and that a writ of prohibition is the proper remedy within the principles established in People ex rel. Hummel v. Trial Term (184 N. Y. 30) and People ex rel. Livingston v. Wyatt (186 id. 383).

The question presented is one of the jurisdiction of the Supreme Court to entertain the respondents’ application. If this act is a valid exercise of the legislative. power, the duty is ■ imposed upon the court of entertaining the application. If the act is void as violating the Constitution, the Supreme" Court has no jurisdiction of the proceeding. The question presented, therefore, relates exclusively to the jurisdiction of the Supreme Court, and where a court is proceeding without jurisdiction, prohibition has always been held to be the proper way to restrain such unwarranted- action.

In High on Extraordinary Legal - Remedies (3d ed. § 762) it is said : “ The writ of prohibition may be defined as an extraordinary judicial writ issuing out of a court of superior jurisdiction and directed to, an- inferior court for the purpose of preventing the inferior tribunal from usurping a jurisdiction with which it is not legally vested. * * * The object of the writ being to restrain subordinate judicial tribunals of every kind from exceeding their •jurisdiction, its use in all proper cases should be upheld and encouraged, since it is of vital importance to the due administration of justice that every tribunal vested with judicial functions should be confined strictly tó the exercise,of those powers .with which it has been by, law intrusted.” (See Quimbo Appo v. People, 20 N. Y. 531; People ex rel. Jerome v. Court of General Sessions, 112 App. Div. 424; affd., 185 N. Y. 504.)

The right of the court to stay proceedings is expressly authorized by sections. 2101 and 2102 of the Code of Civil Procedure. And considering the Serious effect upon the. administration of justice, in this department which will inevitably follow upon the proper performance of the duties thrust upon the Supreme Court by this act and the large expense .which will be imposed upon the city of New York, and entertaining the views before expressed, we think that the order. denying the application should contain a provision - by which all proceedings under the act are stayed pending the determination by the Court of -Appeals of the question as to the constitutionality of the act, upon condition', however, that the relators appeal from the order entered upon this application within ten days from- its. entry.

Present — Ingbaham,. McLaughlin, Clabke, Houghton and Lambert, JVJ.

Applieatioii for writ of prohibition denied, proceedings to be stayed pending appeal to the Court of Appeals. '  