Matter of Sherrill v. . O'Brien

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 *Page 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 ; People ex rel. Sinkler v. Terry, 108 N.Y. 1 ; State v. Carroll, 38 Conn. 449 .) 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 ex rel. Knowlton v. Williams ( 5 Wis. 308 ) 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 *Page 214

in office, and it also said that the decision in the mandamus 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 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 ) 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 Constitution, 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. *Page 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 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.