
    SENECA NATION OF INDIANS v. JOHN.
    
      N. Y Supreme Court, Special Term; Erie County ;
    
    
      July, 1891.
    1. Officerf.] The right to a public office, in possession of a person claiming under the color of an election cannot be contested by an attempt of another person claiming title to exercise its functions. The title to an office can only be tried by a direct action brought for that purpose.
    2. Corporation; creatioji by statutory recognition.] The statutes of this State establishing the Seneca Nation of Indians as a distinct community and in recognizing the constitution adopted by them and acknowledging it in the State’s dealings with the Indians have sufficiently organized them into a public corporation
    
    
      3, Seneca Indians.] The Seneca Nation of Indians, being a public corporation, the title of a person assuming to act as its president, may be tried in an action under Code Civ. Pro. § 1948 providing that the attorney .general may maintain an action against a person who usurps a public office.
    .4. The same.] The right of the Seneca nation to such an action is inherent to it as a corporation, notwithstanding it is not mentioned in the statute enumerating what actions may be brought by the nation.
    
    5. Injunction ; officel\ Under the rule that public bodies and officers may be restrained by injunction from proceeding in violation of law to the prejudice of the public and injury to individual rights, a public corporation may obtain an injunction against a person claiming to be lawfully an officer of such corporation from assuming to act as such, where the office is in the actual possession of another.
    
      ■6. Election of officersl\ Where the election for president of the Seneca Nation of Indians, a public corporation, was held at the place at which it was customary to hold elections for a long number of years, the meeting house in which the elections were directed by law to be held, having been burned, and although the clerk and inspectors of election were not properly qualified, and some illegal votes were received, but not sufficient to change the result,—Held, the person receiving a majority of the votes at such election should not be deprived of the office.
    ■7. Injunction; Security.] The Seneca nation of Indians, being a public corporation within Code Civ. Pro. § 1990, are not required to give security for the purpose of procuring a preliminary injunction.
    Motion to vacate a preliminary injunction.
    The action was brought by the Seneca Nation of Indians against Andrew John, Jr., to restrain defendant from assuming to act as President of the Nation. It appeared that at the expiration of Andrew John’s term •of office as president, an election was held, and one Thomas Kennedy was declared elected as his successor, and that Kennedy entered upon the discharge of his duties as President of the Nation. John, howeve^ ■claimed the right to hold over on the ground that Kennedy was not qualified to hold the office, and that his election was irregular. The further facts are stated in the opinion.
    
      Hudson Ansley, plaintiff’s attorney.
    
      Leroy Andrus, for defendant.
    
      
       In respect to the legal rights of individual Indians, see opinion of Professor Thayer, in 1 Harvard Law Review, 149, and for the history and presenc state of the law as to the Indians, article by Austin Abbott, in 2 Harvard Law Review, 167; articles by Prof. James B. Thayer, in the October and November numbers of the Atlantic Monthly for 1891; and paper by William B. Hornblower, Esq., in Proceedings of American Bar Association, Boston, 1891.
      * Laws 1845, chapter 150, § 1; (2 R. S. [6 ed.] 1051, § 84), provides that “ The Seneca Indians residing on Alleghany and Cattaraugus reservations in this State, shall be deemed to hold and possess the said reservations as a distinct community, and in and by the name of ‘ the Seneca Nation of Indians,’ may prosecute and maintain in all courts of law and equity in this State, any action, suit or proceeding which may be necessary or proper to protect the rights and interests of the said Indians, and of the said nation, in and to the said reservations, and in and to the reservation called the ‘ Oil Spring reservation,’ and every part thereofand especially states that the nation may maintain ejectment to recover possession of any part of the reservation, or trespass for any injury to it, or an action for damages for any injury to the common property, or to recover such property, as if brought by a citizen of the State.
      The constitution of the Seneca Nation of Indians was recognized by a joint resolution of the assembly and senate passed in 1849, (2 R. S. [6 ed] p. 1060, as follows: “ Whereas, it appears from the communication of his excellency, the governor, made to the legislature on the 20th day of March, instant, that a portion of the native Indians residing in this State on the Cattaraugus and Alleghany reservations, met in convention, and on the fourth day of December last, formed a constitution for their government, founded on popular elections, and thereby abrogated their former government by chiefs; and, it further appearing that such new constitutional .government has been recognized by the government of the United States, as the government, de facto, of said Indians, therefore,
      
        Resolved, (if the senate concur), that the recognition by the .gpvernment of the United States of the new constitutional government lately formed by the Indians residing on the Cattaraugus and Allegany reservations, establishes tne new government as that which the State of New York must receive and acknowledge in its dealings with said Indians, and that the officers of this State ought, and are hereby instructed, to respect such new government accordingly.
      
        Resolved, that in future the annuity which, under the treaty with the Senecas, is made payable to the chiefs of that nation, hereafter be made by the treasurer, on the warrant of the comptroller, to the order of such officer or agent as shall, under said new constitution, be appointed to receive the same and give proper discharges therefor.”
      Laws 1849, chapter 378 (2 R. S. [6 Ed.] 1061 § 126), provides that “ail the powers and duties which by any laws of this State are .granted to or charged upon the chiefs of the Seneca Nation of Indians, residing on the Cattaraugus and Alleghany reservations in this State, are hereby transferred and granted to and charged upon the president and counselors of the Seneca Nation of Indians, holding or who shall hold office under the constitution of said nation, of the fourth day of December last, and all powers and duties granted to or charged upon said chiefs in council by the laws of this State, are hereby transferred and granted to and charged upon ■such president and counselors in council assembled.”
    
    
      
       Laws 1845, ch. 150, § 1 (above cited).
    
   Daniels, J.

The motion is made to vacate an injunction. This injunction restrains and enjoins the defendant from assuming to act as the President of the Seneca Nation of Indians, and from discharging the duties pertaining to that office. He was elected to the office of president in May, 1890, and under that election held the office for the period of one year, when, according to the papers which have been produced on the hearing of the motion, his term of office expired. Prior to the expiration of that term, and in May, 1891, an election was again held for the- office of President of the Nation, as well as that of other officers, for the ensuing year. And at the close of the election, the board of canvassers, after canvassing the votes, declared Thomas Kennedy to have been elected to the office of President of the Nation. Of this board the defendant is stated to have been a member, and that as the result of the canvass it was unanimously declared that Thomas Kennedy had been elected to the office of president. But when it became necessary to certify the fact, the defendant declined to join in the certificate, alleging as the ground of his refusal that Kennedy had been convicted of a felony, consisting of an assault in the second degree, and for that reason, under the Constitution of the Nation was ineligible to the office of president. And to sustain the application to vacate the injunction, the fact has been proved that such a conviction did take place. And it has been claimed on behalf of the defendant that Kennedy for that reason was ineligible to the office, and that the defendant held over under the election of the preceding year.

This position has been taken under what is referred to as section 9 of the constitution adopted for the government of the Nation. And as that is contained in the moving papers, it has declared that every Indian of the Seneca Nation of the age of twenty-one years and upwards, residing upon either of its reservations, who should not have been convicted of a felony, shall be eligible to any office in the gift of the people of the. Nation. But on behalf of the plaintiff this objection!, has been answered by the statement, which is not contradicted in the case, that the constitution containing; this provision was adopted in 1868, and had never been, ratified by the legislature of the State, or by the congress of the United States ; and that the Nation hadi in fact continued to be governed under a constitution adopted in March, 1862, which had been ratified and approved by the legislature of the State of New York, and contained no such provision concerning the ineligibility of a candidate for the office of president. And it appears by chap. 124 of the laws of 1865, that the legislature declared the constitution of 1862 to be the legitimate government of the Seneca Nation. And as that appears to have contained no such restriction as the constitution of 1868 upon this subject, and this, constitution was not ratified or approved, it is to be: inferred that no provision was in force rendering Kennedy ineligible to the office of president on account, of this conviction.

But it further appears, in contradiction of the affirmation contained in the affidavit of the defendant, that, after Kennedy was declared by the board of canvassers to be elected to the office of president, and a certificate of that fact was made by the board of canvassers,, that, he entered upon the discharge of the duties of that office. This is stated in the complaint of the plaintiff wherein it is alleged that Kennedy “ duly qualified as such president, and entered upon the discharge of his duties as such, and has been, and for and during all the time, and now is, exercising and performing the duties of his office to the best of his ability.” This complaint was sworn to by William C. Hoag, who is the treasurer of the Nation. And this averment is direct and positive, and by the affidavit verifying the complaint is attested as true to the knowledge of this affiant. Kennedy him self also, in his own affidavit made toopp ose the motion has stated the same fact, that the votes were canvassed that a certificate of his election was made by the canvassing board, and immediately thereafter he duly qualified, and since then has been acting as president of this Nation. And these affidavits are sufficient to overcome the general statement in that made by the -defendant, in which he denied that Kennedy was acting as president of the Seneca Nation. It is not, however, from the form of the defendant’s affidavit to be inferred that he intended to deny the fact that Kennedy had entered upon the discharge of his duties and the exercise of his authority as president of the Seneca Nation otherwise than on account of his ineligibility under the section of the constitution of 1868, which has already been referred to. And being in this manner in the office of president of the Nation, and engaged in the discharge of its duties and the exercise of its authority, the defendant was not in a position to contest that authority by attempting to resume it on his own part, and in combination with others claiming to be the lawful president of the Nation. The right or title to the office could not be determined in this manner. For even though Kennedy might be-ineligible to the office by reason of the fact alleged against him, he was still in its possession under color of an election, in which it appears that he received a majority of the votes which were cast, and he was declared elected upon a canvass of those votes, and a certificate to that effect made by the canvassers. And after entering upon the duties of ithe office under that apparent legal authority, his right ito it could not be set aside, or defeated, by any attempt •on the part of the defendant to resume the authority ■of the office. Kennedy thereby became, even though Ihe might have been ineligible, what is known as the de Jacto president of the Nation. And while he held the office under that authority, his title could only be denied and overthrown by a direct proceeding brought for that purpose in an action to try the right to the ■office.

In the case of Lambert v. People (76 N. Y. 220), an ■oath had been taken before a notary who was a resident of the State of New Jersey, and for that reason ineligible to the office under the laws of this State. And it was proposed to prove that fact for the purpose •of establishing the position that the affidavit had been illegally sworn to. But the court held that the officer was still in the possession of the office under color of his appointment, and that his official act could not be nullified by evidence of this description. On this subject it was said that The effect of the testimony^ offered would have been to assail the authority of the ■officer who administered the oath. The rule is well ■settled that the acts of an officer de facto are valid, as •respects the public and the rights of third persons, and it is not allowable to assail the title of such officer in a •collateral proceeding ” (Id. 231). The same rule was applied to the position of the Commissioner of Jurors in Dolan v. People (64 N. Y. 485). The objection was taken that he was illegally in the office, and for that reason was vested with no authority to draw the jury. But the court held that “ A jury drawn by a de facto commissioner would be as regular as one drawn by a .de jure commissioner ” {Id. 495). And the principle is one of general application where a person has entered upon the discharge of the duties of his office under •color of an election or appointment, that the title to the office can only be questioned in an action brought for that object and to secure his removal.

In Hall v. Luther, 13 Wend., 491, where the office ■of sheriff was brought in question, it was said by the ■court that “ He was sheriff de facto, and his title to his office could not be inquired into collaterally. A proceeding in quo warranto should be instituted.” Id. 494. And this was generally affirmed in People, v. White (24 Wend. 520), which, in the reversal afterwards directed by the court of errors, left this principle undenied and unassailed. And that is that “ Where there is color of lawful title, the officer must be obeyed and his acts respected until judgment of ouster is pronounced against him in the proper proceeding for that purpose ” {Id. 526). The right of a constable to. execute process was denied in People v. Hopson (1 Denio, 575), on account of his having omitted to take the oath of office prescribed by law. But in overruling the objection it was added by the Court that “ It is equally well settled that the acts of an officer de facto, though his title may be bad, are valid, so far as they concern the public, or the l'ights of third persons, who have an interest in the things done. Society could hardly exist without such a rule ” (Id. 579). And it was said generally in Demarest v. Wickham (63 N. Y. 320), concerning the election of certain persons as Aldermen, that “ Their election, followed by their assumption of the office, constituted them officers defacto but not de jure. The remedy which the law gives against them is a proceeding, by information, in the nature of a quo zvarranto, issued by the Attorney-General in the name of the people of the State, to remove them as intruders into the office claimed by them. They are not made parties in this action, and it is not brought in the name of the People of the State (Id. 323). And so it was also generally held in Mayor, etc. v. Tucker (1 Daly, 107), and People v. Jones, (17 Wend, 81, 84).

To contest the title of Kennedy to this office of President, the daw has prescribed an effectual remedy. And that is by an action instituted by the AttorneyGenei-al, which may be taken where a person usurps, intrudes into, or unlawfully hold's, or exercises within the State a franchise, or public office, civil or military, or an office in a domestic corporation (Code Civ. Pro., § 1948. sub. 1). And that is sufficiently broad to include this action. For by the statute of the State these Indians were constituted a distinct community in and by the name of the Seneca Nation of Indians (2 R. S. 6th Ed., 1051, § 84). And as such in the year 1849 they were recognized by the legislature of the State of New York. At that time they had met in convention and formed a government for themselves founded on popular elections, and had adopted a constitution to that effect. This was recognized by the Government of the United States; and the government of this State accepted and acknowledged it in its dealings with these Indians (Id. 1060, § 125).

And since that time, under like authority, they have proceeded to modify their system of government, and to. make such changes as in their judgment appeared to be adapted to their condition and situation. And in this respect a generous and enlightened policy towards these Indians has been observed on the part of the government of the United States, as well as of the State of New York.

This action was sufficient to organize these Indians into a public corporation, securing to them the election of their officers and the perpetuation of their government, and entitling the Nation to the protection of actions against usurpers in their offices by a proper proceeding for that purpose instituted by the Attorney-General. And upon that subject it has been held generally that even offices in a private corporation, may be contested and the title disposed of by means of an action of this description (Com. v. Anison, 15 Sergt. & R., 127; Com. v. Union Fire, etc. Co., 5 Mass. 231 ; State v. Buchanan, Wright's Ohio Reports, 233; People v. Tibbits, 4 Cow., 358). If, therefore, Kennedy has illegally entered upon the exercise of the authority of this office and the discharge of its duties the remedy for that is not by a resumption of the authority by the defendant as the President of the preceding year holding over in his office, but by an action to try the title or right of Kennedy to this office. That is an orderly proceeding, attended with no disturbance whatever of the public affairs of the Nation, and at the same time vindicating its authority under its constitution. And that is the only means which the law permits to be resorted to for the purpose of redressing the ground of complaint asserted in behalf of this defendant. Any other proceeding on his part, having the effect of creating a conflict of authority between himself and Kennedy, and the disturbance of the peace and good order of the Nation, is illegal and requires to be prevented. And the Nation itself is the proper party in the first instance to. take measures to prevent this disturbance of the peace and good order of its members.

It has, however, been urged that inasmuch as the legislature has prescribed certain specified actions which may be brought by the Seneca Nation, that it was not intended that an action to restrain the usurpation of official authority should be maintained by the Nation. The actions which have been particularly enumerated in this manner are mentioned in (2 R. S. 6th ed. 1051, § 84). But this section contains no language excluding other actions which may be necessary for the vindication or support of the rights, or good order, of the Seneca Nation. And the legislature has provided further by the next section, in defining the duties of the attorney of the Seneca Nation, that “He shall prosecute and maintain all such actions, suits and proceedings for them, or any of them, as he may find necessary and proper.” And it has generally been provided, as one of the inherent rights of a corporation, that it shall have the power to sue and be sued, complain and defend in any court of law or equity (2 R. S. 6th ed. 390, § 1). And even without that authority it was held, as part of the common law, that one of the incidents resulting from the creation of a corporation, was the right to sue and be sued, implead and be impleaded, grant and receive, by its corporate name, and do all other acts as natural persons may (Angell & Ames on Corporations, 10th ed. § 110). And inasmuch as this suit had become necessary to maintain and secure the good order of the Seneca Nation, and the administration of the duties of the president, it was regularly instituted under this authority. For in People v. Canal Board (55 N. Y. 390), it was held generally that public bodies and public officers may be restrained by injunction from proceeding in violation of law, to the prejudice of the public, or to the injur}7 of individual rights. And a usurpation of powers, it was said, may, by this process, be prevented in a proper case (Id. 393), which seems to be ample for all the purposes of this action. And such also is the effect of Reis v. Rodee (34 Hun, 161). The defendant, consequently, cannot resume the authority of this office, as he has attempted to do that, even though Kennedy may, as a matter of fact, prove to be ineligible as its encumbent. That question cannot be raised or contested in the manner in which it is proposed to be done by the defendant, but may be contested by a proper action brought upon his relation by the attorney-general of the State. And that is the only manner in which this contest can regularly be made or brought before the courts for its determination.

The affidavit of the defendant contains many asserted irregularities in the conduct of the election in May, 1891. It is stated that the polls were not opened at the time when that should have been done, but at a later period in the morning; that the election was not held at the meeting house where it had been declared by the constitution it should be held, and that the officers who acted as inspectors, and the clerk, were not qualified so to act, and that illegal votes were received, and corrupt influences made use of to control the conduct of the electors. But these allegations, together with others affecting the regularity of the election, have been positively denied by affidavits presented on the part of the plaintiff, which seem to be ■entitled to acceptance as the truth of the case. It is .shown by them that all the votes which were offered were in fact received by the inspectors, so that no person was disfranchised by any irregularity in the conduct of the election. And where that may appear to be the fact, the electors cannot be deprived of the beneficial results of the election by reason of any of these irregularities. It was shown as a fact that the meeting house where the election was directed to be held had been burned twelve or fifteen years preceding the election, and that the election in 1891 was held at the same place where it had been held with the apparent approval and sanction of the Nation, during the intermediate period of time. It was also shown that the inspectors adjourned for dinner and for supper and took the ballot-box with them, that this box was locked and the key delivered and remained in the possession of another person. And in this respect a greater degree of security was observed than in preceding elections, in which it was stated to be the custom to adjourn for these meals and take the ballot-box with the inspectors, but without, however, observing the precaution of locking it and delivering the key to another person. It was also denied that illegal votes were given, with possibly one exception of an individual who was related by marriage to the defendant, and not entitled to vote by reason of the fact that he was under twenty-one years of age. But the statement is made that his vote was not given to Kennedy, and therefore did not affect the result declared in his favor. And so it also appears to be the fact that no illegal votes were received for him which by any possibility could reduce his vote below a majority of those given for the office of president at this election. The object of the law is to secure a fair expression of the legal voters entitled to vote at the election. And when that may be secured, irregularities of the character complained of in support of this application are not sufficient to deprive the person who receives the majority of the votes of the office to which it is intended on the part of the voters he should be elected (People v. Cook, 4 Seld., 67).

It is not important to inquire concerning the regularity of the vote that was given for other officers at the election in 1891. For even though they may not have been properly declared elected by the board of canvassers, as is conceded to be the fact concerning one of the candidates, that will not effect the right of the parties to this action. The objections to the undertaking are avoided by § 1900 of the Code of Civil Pro., dispensing with security in an action brought by a Municipal corporation. And this action is sufficiently within the intention, if not within the language, of that section, to justify its application to it.

The motion to vacate the injunction must, therefore, be denied, with costs.  