In re Sherill (State Report Title: Matter of Sherrill v. O'Brien) | Cases | Westlaw

In reaching the conclusion which we have announced in the opinion of Judge CHASE, we have not by any means failed to fully weigh and consider the results that may follow from our decision. While our supreme duty is to enforce the provisions of the Constitution, upon which, as a foundation, the whole fabric of the government of this state rests, we fully appreciate that government is or should be pre-eminently a practical thing, and that courts should long hesitate to throw the government into confusion and disorder by declaring an act of the Legislature invalid, and so declare only when the violation of the constitutional mandate is clear and certain. That the violation of the Constitution is too plain to be disregarded is the conclusion to which we have been forced by the reasons stated by my Brother CHASE; but at the same time we think it not only proper, but our duty, to say that in our opinion the fear that our decision may throw the government of the state into confusion is unfounded. When this appeal was before us immediately prior to the general election last year, in dismissing that appeal we unanimously said that, whether the apportionment act of 1906 was constitutional or not, the Legislature which might be actually chosen by the electors of the state under that apportionment would be a de facto Legislature, whose acts would, in all respects, be binding. To that declaration we still adhere, and we understand no one to gainsay it. It is now, however, suggested that, when our decision that the apportionment act is unconstitutional is announced, from that time the present Legislature will no longer be a de facto body. This suggestion is without force either in principle or under the authorities. An act of the Legislature if invalid, as violating the Constitution, is invalid from the time of its enactment, not merely from the declaration of its character by the courts. But, though the appointment or election of a public officer may be illegal, it is elementary law that his official acts *213 while he is an actual incumbent of the office are valid and binding on the public and on third parties. 2 Kent's Comm. 295; People ex rel. Bush v. Collins, 7 Johns. 549; Wilcox v. Smith, 5 Wend. 231, 21 Am. Dec. 213; People ex rel. sinkler v. Terry, 108 N. Y. 1, 14 N. E. 815; State v. Carroll, 38 Conn. 449, 9 Am. Rep. 409. In the case last cited there is one of the best expositions of the doctrine of de facto officers to be found in the Reports. The doctrine is not one of convenience merely, but of necessity. In State v. Williams, 5 Wis. 308, 68 Am. Dec. 65, it was contended that a statute of the state was invalid because approved by a Governor whom the courts subsequently declared not to be entitled to the office. Nevertheless, it was held that, as the statute was approved by an actual incumbent of the office of Governor, it was in all respects valid and effective. Of course, an officer who, though de facto, is not such de jure, may be ousted from the office he illegally holds by proceedings instituted to try his title to the office, and, when adjudged a usurper, he ceases from that time to be an officer de facto. But to have this effect the judgment must be rendered in a proceeding to oust him from office. It is not sufficient for the purpose that his title to office be declared bad in a collateral proceeding. A notable example of this principle is the case of People ex rel. Smith v. Schiellein, 95 N. Y. 124, which was an application for mandamus against the town board of New Lots to canvass the vote and award a certificate to the relator, who claimed to have been elected a justice of the peace at the town meeting. The right of the relator depended on his claim that a statute directing justices of the peace of the town of New Lots to be chosen at the general election was unconstitutional and void; and so the courts held. It happened, however, that one of the defendants in the proceeding was a justice of the peace elected and holding office under the very statute declared invalid. He insisted that, if the statute was invalid, he was not a justice of the peace nor a member of the town board, and therefore the writ should not run against him. This court overruled the objection, saying it was sufficient that Watson, the defendant, who raised the objection, was actually *214 in office, and it also said that the decision in the mandamus damus suit of itself did not oust him. Judge Ruger wrote for the court: ‘It may be that one of the results following the determination of this appeal will be his removal from office, but that will not be the direct result of our adjudication. Title to his office is not triable in this proceeding, and therefore cannot be here adjudicated.’ It was therefore entirely possible that had no proceedings been taken against Watson, or had **134 he not voluntarily relinquished office, he might have remained therein despite the adverse decision of the court, and his acts would have been valid. The position of the members of the present Legislature is much stronger. The proceeding before us is not to try the title of any member of the Legislature to his office, but against certain administrative officers as to the conduct of an election. Therefore, were it possible for the courts to try the title of members of the Legislature, this decision would not directly affect that title. But, under the Constitution, each house of the Legislature is the exclusive judge of the election and qualification of members. The courts have no jurisdiction to determine the title of any member. In the case of People ex rel. Sherwood v. State Board of Canvassers, 129 N. Y. 360, 29 N. E. 345, 14 L. R. A. 646, by a divided court, it was held that the relator being disqualified under the constitution from election as a senator the courts would not compel a board of canvassers to give a certificate of his election, but even the majority opinion conceded that the ruling of the court would in no way bind the Senate, when convened, on the question of the relator's rights. As already said, the senate and Assembly elected under the apportionment act, and actually assembled, constitute in any aspect a de facto Legislature. As a de facto body each house has, under the Consitution, not only the exclusive power, but the exclusive right, to judge of the title of any of its members to a seat therein. Whoever either house receives as its legally elected member and entitled to a seat becomes thereby a de jure member of that house, even though the courts, were such a question triable before them, might be of a different opinion. *215 It follows, therefore, that not only is the present Legislature a valid Legislature, but that each member thereof, so long as the particular house to which he belongs does not oust him, is as to all the world not only a de facto, but a de jure, member, and he is entitled to all the privileges of a member, the exemption of his person, the right to his salary, and the like, and his title to office cannot be challenged before any tribunal except the house itself. Thus there can be no vacancy in any particular district which the Governor or other officer can call upon the electors to fill, unless the house ousts the member and declares him not entitled to his seat. All, this, however, does not show that our decision is a mere brutum fulmen and of no practical effect. While the court cannot pass on the title of any present member of the Legislature, it can control the action of administrative officers in the conduct of the next election that takes place. If the present Legislature should pass a new apportionment bill in compliance with the provisions of the Constitution, the next general election at which members of either house are to be elected will be held under the new statute. If the Legislature fails to discharge this duty, then the election must be held in accordance with the apportionment under the Constitution of 1895. In other words, while the courts cannot interfere with the present Legislature, they can compel future elections to be held in compliance with the Constitution.

I should hesitate to agree with the opinion of my Brother CHASE as to the unconstitutionality of the apportionment act if I were not convinced that the amendment of the state Constitution, in 1894, had materially changed the rules which should govern the apportionment by the Legislature of the representatives of the citizens of the state.

In the case of People ex rel. Carter v. Rice, 135 N. Y. 473, 31 N. E. 921, 16 L. R. A. 836, which involved the apportionment act of 1892 and in the decision of which I took part, I was of the opinion that the then existing constitutional provision vested a certain discretion in the legislative body in exercising its power, with *216 which the court should not interfere, when there had been neither a flagrant disregard, nor an unmistakable violation, of the constitutional injunction that the apportionment should be ‘as nearly as may be’ according to the number of citizens. As may be discovered from the debates in the constitutional convention of 1894, the decision in the Rice Case moved that body to recommend new provisions, or rules, for an apportionment. They were intended to remedy whatever defectiveness in the old rules made possible the inequalities observed in the preceding apportionment act.

It is of great significance, and it necessarily has a most important bearing upon the attitude of the court towards the legislative action, that the article of the Constitution (article 3, § 5) expressly provides for a judicial review of any apportionment by the Legislature. The Legislature now exercises its power subject to a review by the court of its act, which any citizen may invoke. The article, in its present form, as Judge CHASE well points out, reduces the discretionary power of the Legislature to a minimum. The limitations upon its exercise are relaxed practically only with respect to the preservation of county, town, and block lines. It is the intention of the people of the state, as declared by the recent amendment of the article of the Constitution, that in the apportionment of districts, there shall be as near to an exact equality in the number of inhabitants as is possible from a consideration of nothing else than the constitutional provisions upon the subject; that the districts shall consist of contiguous territory; that they shall be in as compact form as possible; and that divisions of counties, towns, or blocks shall only be made in the cases specified. It was to insure that such an apportionment should be governed by no considerations of convenience, nor rest in **135 a large political discretion, that a review by the court was expressly provided for. That has been made mandatory, which before was discretionary. In my opinion, before this amendment of the Constitution, it was a grave and a doubtful question whether, in the absence of a gross and plain violation of the Constitution, the court was justified in interfering with *217 the execution by the legislative department of the government of its duty of apportionment. But, by the anendment, the matter is placed upon a different basis, and the duty is devolved upon the court to review an apportionment, when complained of, and thereby to enforce the constitutional mandates as they are expressed.

For these reasons, I shall concur with Judge CHASE'S opinion that this apportionment act is violative of the constitutional provisions.

I am also in agreement with the CHIEF JUDGE that no serious or real embarrassment can arise with respect to governmental or legislative acts. However the lay mind may apprehend confusion as the result of our decision, the legal situation, in my opinion, is clear and is correctly stated by Judge CULLEN.