Lawrence Lewis.

American and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] online

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partment, and one of the rules provided that in case testimony
upon complaints made against any member of the police force
should be heard by less than three commissioners, it should
be ** laid before and examined by the several commissioners
before judgment thereon." In this case the evidence was
taken before one of the commissioners, and thereafter at a
regular meeting of the board, when three only of the four
commissioners were present, it was presented to and con-
sidered by them, and they adopted a resolution that the
charges against the relator were true, and that he be removed
from the police force. This decision was affirmed at general
term, and the relator has appealed to this court, and claims
that his removal from the police force was without juris-
diction, and wholly void, because the evidence was not con-
sidered and action thereon taken by all the commissioners.
He claims that the rule of the police department referred to
required that the evidence should be laid before and ex-
amined by the several commissioners, to wit : All the com-
missioners. It was held by the general term that
ISSS"^boaS it was sufficient to answer the requirement of this
SLwJ^AniS rule that the evidence was laid before and ex
ammed by the several commissioners constituting
the board at a regular meeting thereof, and we are con-
strained to adopt that construction. We can perceive no
reason for supposing that it was intended by the rule to
deprive the board at any of its regular meetings of juris-
diction to act upon such evidence, or that it was intended
that all the commissioners should severally examine the evi-
dence while a* majority of them, at any regular meeting, were
vested with power by the statute to perform any act within



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PEOPLE ex reL swift v. POLICE COMMISSIONERS. 75

the jurisdiction of the board. We think the language of the
rule is satisfied with the construction given at the general
term, and that the interpretation of the rule by the board
which made it, as evidenced by its practice thereunder, should
have some weight.

It is also claimed by the learned counsel for the relator that
as the Board of Police Commissioners consisted of four mem-
bers, it was necessary that they should all be present at a
meeting in order to g^ve jurisdiction for any action whatever
under section 27,2 R. S. 555, which provides that "when-
ever any power, duty, or authority is confided by law to three
or more persons, and whenever three or more persons or
oflBcers are authorized or required by law to perform any act,
such act may be done, and such power, authority,, or duty
may be exercised and performed by a majority of such per-
sons or oflScers upon a meeting of all the persons or officers
so entrusted or empowered, unless, special provision is other-
wise made." But that section was amended by chapter 321
of the Laws of 1874, so as to authorize action by a majority
at a meeting properly held, of which all have had notice. It
is also specially provided in the Consolidation Act — chapter
410 of the Laws of 1882, section 46 — that "a majority of the
members of a board in any department of the city govern-
ment, and also of the board for the revision and correction of
assessments, shall constitute a quorum to fully perform and
discharge any act or duty authorized, possessed by, or ihiposed
upon any department or any board aforesaid, and with the
same legal effect as if any member of any such board afore-
said had been present, except as herein otherwise specially
provided." And there is no speciaV,^rovision requiring all
the police commissioners to be present upon the trial of any
member of the force upon ajDijr charges presented against him.
Therefore, it was compete|jif*-for the three commissioners
constituting a majority of the whole board, at any regular
meeting, to take action upon the complaint made against the
relator and the evidence relating thereto.

We have Carefully considered the evidence, and find it
suflScient to justify the action "of the commissioners, and we
cannot, therefore, interfere with their determination.

The order should be affirmed, with costs.

All concur.



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76 KENT V. BOARD OF FIRE COM. OF NEW YORK CITY.



People ex rel Kent

V.

Board of Fire Commissioners of New York City.

{Advance Case, New York, October 6, 1885.)

On a common-law certiorari to review the judicial action of boards,
commissioners, or inferior officers, the court was limited to the question of
jurisdiction. By statute the court is authorized to look into the pro-
ceedings to see whether any rule of law has been violated, or whether
there is an absence of evidence to support the adjudication. But ques-
tions of fact arising upon conflicting evidence, or matters of judgment or
discretion, are not reviewable on certiorari. Therefore, held that the Gen-
eral Term of the New York Supreme Court would not review the discre-
tion of the Board of Fire Commissioners of New York City in respect to
punishing a police-officer for neglect of duty, and impose a milder punish-
ment than the one imposed by the commissioners.

D\ J. Dean for the Board of Fire Commissioners.
Wm, King Hall for the people.

Andrews, J. — The relator was duly charged with having
pactb. been under the influence of liquor, while engaged

in the performance of official duty at the Star Theatre, to
such an extent as to render him unable to perform the duty
for which he was detailed. The charge was publicly ex-
amined by the commissioners, upon notice to the relator, and
in his presence. The testimony tended to sustain it. The
relator admitted that he drank a glass of liquor before going
to the theatre, but claimed that he did it because he was un-
well. There was some conflict as to the extent of the in-
toxication.

It is not claimed that illegal evidence was admitted, or that
any rule of law was violated, by the commissioners in the
course of the proceedings. The proceedings, trial, and judg-
ment were in all respects regular, and the commissioners, in
dismissing the relator, kept within their jurisdiction. The in-
toxication of a policeman while on duty, to an extent suffi-
cient to interfere with its performance, is a violation of the
rules of the department, and the statute makes the violation
by a member of the force of such rules, or neglect of duty,



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KENT V. BOARD OF FIRE COM. OF NEW YORK CITY. JJ

or conduct injurious to the public welfare, or any conduct
unbecoming an officer, punishable by the board, by reprimand,
forfeiture of pay for a period not exceeding ten days, or dis-
missal from the force. There was no question either of juris-
diction, procedure, or evidence upon which the general term
could interfere with the decision of the commissioners. It,
however, modified the sentence by substituting, in place of
dismissal from the force (the punishment imposed by the
commissioners), suspension from duty without pay for the
period of six months. The only question is whether the gen-
eral term had power to review the discretion of the com-
missioners in respect to the punishment, and impose a milder
punishment upon its view of the circumstances and gravity
of the ofiFence.

It is clear that no power was vested in the general term to
review the discretion of the commissioners, unless given by
section 2 141 of the Code of Civil Procedure. It rbvibwoncm-
was originally held in this State that, on a common- "^"^^^
law certiorari to review the judicial action of boards, commis-
sioners, or inferior officers, the court was limited to the ques
tion of jurisdiction. The scope of the proceeding was sub-
sequently enlarged, and it came to be held that the court
would look into the proceedings to see whether any rule of
law had been violated, or whether there was an absence of
evidence to support the adjudication. People v. Board Police,
39 N. Y. 506 ; People v. Same, 72 N. Y. 416; People v. Board
Fire Com'rs, 82 N. Y. 358.

But questions of fact arising on conflicting evidence, or
matters of judgment or discretion, were held not to be review-
able. People v. Board Police, 69 N. Y. 408. This was the
state of the law when section 2 141 of the Code was enacted.
It is contained in the article relating to the writ of certiorari^
and is as follows : ** The court, on the hearing, may make a
final order annulling or confirming, wholly or partly, or
modifying, the determination reviewed, as to any or all the par-
ties.'* This section, considered alone, would justify the action
of the general term, and subject the adjudication of inferior
jurisdictions to the supervisory power of the court, whether
resting in discretion or depending upon legal principles. If
this was intended, the section greatly enlarges the scope of
the writ, and vests in the court a jurisdiction which it never



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78 KENT V BOARD OF FIRE COM. OF NEW YORK CITY.

before possessed. But, reading section 2 141 in connection
with section 2140, which defines the questions which may be
determined by the court, it seems quite clear that section 2 141
is an auxiliary section, enacted merely to complete and sup-
plement the jurisdiction conferred by the previous section,
and to remove a doubt which might be entertained in view of
the prior dA:isions as to thp power of the court on certiorari
to correct an erroneous adjudication, instead of reversing it
absolutely. Reading the two sections together, the result is
that section 2140 regulates the jurisdiction of the court in re-
spect to the questions to be reviewed, and section 2141 the
mode in which its determination may be declared and its judg-
ment made effectual. The latter section was not, we think, in-
tended to confer jurisdiction over subjects other than those
embraced in section 2140, or to change the settled policy of the
law that the determination of inferior jurisdiction in matters
confided to their discretion is not reviewable on certiorari.

The order of the general term should therefore be reversed,
and that of the commissioners confirmed.

All concur.



Certiorari. When it will Lie.— It is well settled that courts of
superior jurisdiction will on certiorari review the proceedings of special
jurisdictions or officers. Groenvelt v, Burwell, i Ld. Raym. 454, 469 ; Rex
V, Inhabitants, 1 Ld. Raym. 580; Parks t/. Boston, 8 Pick. 218; Wood v.
Peake, 8 John. 68 ; Wildy v. Washburn, 16 John. 49.

When a new jurisdiction is created by statute, it is held, in the absence
of any statutory provision, that courts of general superior jurisdiction may
review the proceedings of the officers or body exercising such jurisdiction.
Boston V, Parks, 8 Pick. 218; Miller v. Trustees of School, 88 111. 26;
Ewing V, City of St. Louis, 5 Wall. 413; Dorchester v, Wentworth. 11
Post. 451 ; D wight v. City Council of Springfield, 4 Gray, 107 ; 2 Dill. Mun.
Corp. §925.

Even where it is expressly provided by Statute that the proceedings of
the inferior tribunal shall be "final and conclusive/' or "without appeal,"
it is held that there is a right to review its proceedings by writ of certiorari.
Thus, in certiorari from the decision of a justice of the peace under the
" Conventicle act,** which provided " that no other court whatsoever shall
intermeddle with any cause or causes of appeal upon this act, but they
shall be finally determined in the quarter-sessions only," it was held that
the writ would lie. Rex v. Morely, 2 Burr. 1040. See also Lawton v. Com-
missioners of Cambridge, 2 Caines, 179 ; Ex parte Heath, 3 Hill, 42, 52.

At common law the writ of certiorari would not lie unless the act to be
reviewed were a judicial act as distinguished from a ministerial or legis-



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ATTORNEY-GENERAL V. LAUGHTON. 79

lative act. People v. Mayor, etc., of New York, 2 Hill, 9 ; In the matter
of Mount Morris Square. 2 Hill, 14-21.

In New Jersey, however, it is held that all acts of a municipal corpora-
tion, whether judicial, ministerial or legislative, can be reviewed on cer-
tiorari. Camdem v. Mulford, 2 Dutch. 49 ; Canon v, Martin, 2 Dutch.
594; Morris Canal Co. v, Jersey City, i Beasley, 252; Holmes v, Jersey
City, I Beasley, 299.

And in other States the courts are liberal in construing acts to be
judicial. Thus the mayor and aldermen of the town of Boston, being em-
powered to lay out or widen a street " whenever* in their opinion the safety
or convenience of the inhabitants of said town shall require it," it was
held that the power thus conferred was a judicial one, and that its exercise
could be reviewed on certiorari, Pkrks v, Boston, 8 Pick. 218; Dwightz/.
Springfield, 4 Gray, 107 ; Stone v. Boston, 2 Mete. 220.

Certiorari. What Questions may be gone into.— 2 Dillon, Mun.
Corp. (3d ed.) § 928, states the law on this subject as follows : " Although
there is some contrariety of opinion as to just what the writ removes, and
as to whether the evidence, if certified, can be considered at all, the more
liberal and better view is that the revisory court may not only inquire into
the jurisdiction of the inferior tribunal, but into errors of law occurring in
the course of the proceedings and affecting the merits of the case, and
may also ejtamine the evidence embodied in the return, " not to determine
whether the probabilities preponderate one way or the other, but simply
to determine whether the evidence is such that it will justify the finding
as a legitimate finding from the facts proved, whether that inference would
or would not have been drawn by the superior tribunal." Milwaukee
Iron Co. V, Schubel, 29 Wis. 444.

In certain States, however, it is held that the only questions that can be
gone into are those of jurisdiction ; that is, " whether the inferior jurisdic-
tion has pursued the powers and conformed to the requirements of the
law under which it professes to act." 2 Dill. Mun. Corp. (3d ed.) § 928 n. i.
Parks V. Boston, 8 Pick. 218; People, etc., v. Mayor, etc., of New York,
2 Hill, 9; In re Mount Morris Square, 2 Hill, 14; Stone v. Mayor, etc., 15
Wend. 157, 167 ; Locke v, Lexington, 122 Mass. 290.



State ex ret. Attorney-General

V.

Laughton.

(Advance Case, Nevada. October 23. 1885.)

Making a person an ex-officio officer, by virtue of his holding another
office, does not merge the two offices into one.

The failure of the lieutenant-governor to give the bond required by
statute, as ex-officio State librarian, does not create a vacancy in the office
of lieutenant-governor.



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8o ATTORNEY-GENERAL V. LAUGHTON.

There is nothing in the constitution of Nevada prohibiting he same
person from holding the office of lieutenant-governor and the office of
State librarian. Such being the case, the legislature had power to create
the last-named office, and make the lieutenant-governor ex-officio State
librarian, and to impose reasonable conditions precedent to the holding of
the legislative office. It had power to require the giving of a bond to se-
cure a faithful discharge of the duties of that office, and to provide that
such bond should be kept good ; and in case of failure so to do, that the
office should become vacant.

The act of February 17, 1883, making the lieutenant-governor ex-offuio
State librarian, and the act of March i, 1883, requiring th^ex-officw State
librarian to give a bond, must be construed together with the provisions
of the general statutes declaring under what circumstances an office shall
become vacant, providing for the release from liability of any surety, and
prescribing the result of a failure to file a new or additional bond, within
the time stated, after the filing by a surety of a l^;al statement in the office
of the Governor or Secretary of State, and the service of a l^al notice
upon the officer.

Under such section a surety desiring to be released from an official bond
must file with the Governor, or with the Secretary of State, a statement in
writing, duly subscribed by him, or some one in his behalf, setting forth
the name of the office of the person for whom he is surety, the amount for
which he is liable as such, and his desire to be released from further lia-
bility on account thereof, and a notice containing the objects of such state-
ment must be served personally on the officer. Held, that such notice and
statement need not be contained in two separate papers ; that the notice
need not state the time when, nor the place where, the statement was filed ;
that the statement and notice in the present case were sufficient, and that
the latter was personally served on the respondent.

Application for quo warranto. The opinion states the
facts.
R. M. Clarke for the relator.
A, C. Ellis for the respondent.

Leonard, J. — This is a proceeding to determine the right
Facts. of Fcspondcnt (i) to hold the oflBce of lieutenant,

governor, and (2) to hold the office of State librarian.

At the general election for State officers in November,
1882, respondent was elected lieutenant-gcvernor. He after-
wards qualified according to law, and he entered upon the
duties of said office on the first Monday in January, 1883. O^^
the 17th of February, 1883, an act was passed, to take effect
March 2, 1883, which provides, among other things, that the
lieutenant-governor shall be ex-officio State librarian. Stats.
1883,41. On the I St of March, 1883, an act was passed (to



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ATTORNEY-GENERAL V, LAUGHTON. 8 1

take effect immediately), which provides that, " before enter-
ing upon the duties of the office (State librarian), the lieu-
tenant-governor, as ex-officio State librarian, shall execute an
official bond in the sum of one thousand dollars, with sureties
to be approved by the Governor, conditioned for the faithful
discharge of his duties, and delivery over to his successor of
all the books and other property belonging to the State
librarian." . . . Respondent gave the required bond, with J.
R. King and D. L. Bliss as sureties, each in the sum of one
thousand dollars, and entered upon the discharge of the
duties of State librarian.

Section 2633 of the compiled laws provides that " every
office shall become vacant upon the occurring of either of the
following events before the expiration of the term of office :
. . . Fifth. A refusal or neglect of the person elected or ap-
pointed to take the oath of office, as prescribed in section 22
of this act ; or when a bond is required by law, his refusal or
neglect to give such bond within the time prescribed by
law." . . .

By sections 2929, 2930, 2931, it is provided that "any
surety on the official bond of any State . . . officer, or on the
bond or undertaking of any person, where, by law, a bond or
undertaking is required, may be released from all liabilit}'^
thereon, accruing from and after proper proceedings had
therefor, as provided in this act."

" Any surety desiring to be released from liability on the
bond of any State officer shall file with the Governor or Sec-
retary of State a statement in writing, duly subscribed by
himself, or some one in his behalf, setting forth the name and
office of the person for whom he is surety, the amount for
whicn he is liable as such, and his desire to be released on
account thereof. A notice containing the objects of such
statement shall be served personally on the officer." . . .

" If any officer . . . shall fail within ten days from the date
of a personal service ... to file a new or additional bond or
undertaking, the office or appointment of the person or officer
so failing shall become vacant, and such officer or person shall
forfeit his office or appointment, and the same shall be filled
as in other cases of vacancy, and in manner as provided by
law, and the person applying to be released from liability on
such bond or undertaking shall not be holden or liable there-

9 Cor. Cas. — 6



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82 ATTORNEY-GENERAL V. LAUGHTON.

on, after the date herein provided for the vacating and for-
feiting of such oflSce or appointment."

On July 31, 1885, D. L. Bliss, one of the sureties named,
filed in the office of the Governor and of the Secretary of
State the following document, in writing :

"Carson City, July 31, 1885.
*' Hon. Chas. E. Laughton, Carson, Nev.

" Sir, — You are hereby notified that I, as surety for the sum
of one thousand dollars ($1000) upon your official bond asex-
officio State librarian of the State of Nevada, desire to be re-
leased from further liability on account thereof, and to with-
draw and be discharged from said bond.

"D. L. Bliss."

It is claimed by plaintiff that an exact copy of this paper
was served personally on respondent, at his office in Carson,
July 31, 1885. Respondent denies the service. Its validity
will be considered further on. Respondent has not filed a new
or additional bond.

On September 4, 1885, the Governor filed in the office of
Secretary of State his written proclamation declaring the
office of State librarian vacant.

I. There is no vacancy in the office of lieutenant-governor,
FAauRBTOFiLB ^^3^ ^^^isou of respoudeut's failure to file a new or
S^ra^SJ^S- additional bond. It is claimed and conceded by
"*^ both sides that the office of lieutenant-governor

and the office of State librarian are separate and distinct.
Making a person an ex-officio officer, by virtue of his holding
another office, does not merge the two into one. People v.
Edwards, 9 Cal. 286; People v. Love, 25 Cal. 520; Lathropz^.
Brittain, 30 Cal. 680 ; People v. Ross, 38 Cal. 76 ; Territory
of Wyoming v, Ritter, i Wy. 333 ; Denver v. Hobart, 10 Nev.

31-

It is true, the lieutenant-governor is required to give the
bond, because the lieutenant-governor and librarian are one
person ; but he gives it for the ex^fficio office, not the prin-
cipal one. The sureties are not, and were not, intended to be
liable for any malfeasance outside of the ex-officio office. We
cannot say in this proceeding that respondent's right to hold
the office of lieutenant-governor, and enjoy the emoluments
thereof, depends upon a faithful discharge of the duties ol



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ATTORNEY-GENERAL V. LAUGHTON. 83

State librarian, or upon his compliance with the
statute concerning the bond required of him as
librarian. We cannot pronounce the office of lieutenant-
governor vacant, unless respondent has done something, or
failed to do something, which the law declares shall produce
a vacancy therein.

The fault here charged is failure to give the bond required
as State librarian. For that fault, if it exists, the only penalty
that can follow in this proceeding is, at most, to declare that
the office in which the bond is required was, by such failure,
vacated and forfeited.

2. Did the office of State librarian become vacant in law by
reason of a failure on the part of respondent to file holddw two
a new or additional bond, within the time pre- o'"^"-
scribed, after the filing by D. L. Bliss, in the office of the
Governor or Secretary of State, of a legal statement, and after
personal service of a legal notice ?

There is nothing in the constitution of this State prohibiting
respondent from holding the office of lieutenant-governor and
the office of State librarian. Grossman v. Nighting^U, i Nev.
326. Such being the case, the legislature had power to create
the last-named office, and make the lieutenant-governor ex-
officio State librarian. If the legislature had the pK)wers men-
tioned, it must follow that it had authority, also, to impose
reasonable conditions precedent to tl.e holding of the legis-
lative office. It had power to require the giving of a bond to
secure a faithful discharge of the duties of that office. It could
provide that such bond should be kept. good, and, in case of
failure to do so, that the office should become vacant.

When the statute of February 17, 1883, making the lieu-
tenant-governor ex-officio State librarian, and the
statute of March, 1883, requiring the lieutenant- 8bii™?t?S



governor, as ex-officio State librarian, to give a
bond, were passed, they were genei*al statutes declaring under
what circumstances all offices should become vacant, provid-
ing for the release from liability of any surety, and prescribing
the result of a failure to file a new or additional bond within
the time stated, after the filing by a surety of a legal state-
ment in the office of the Governor or Secretary of State, and
the service of a legal notice upon the officer.
These different statutes must be construed together, and in



Online LibraryLawrence LewisAmerican and English corporation cases : a collection of all corporation cases, both private and municipal (excepting railway cases), decided in the courts of last resort in the United States, England, and Canada [1883-1894] → online text (page 9 of 73)