The opinion
*377
Finch, J.
(dissenting). I agree entirely that the board of state canvassers have only ministerial and not judicial powers; that their sole duty is to make certain computations from the figures of the county canvassers, returned to them for that purpose according to law, and having made them to declare the result by the proper certificates; that in the performance of this duty they are not at liberty to consider or act upon any extraneous papers or information beyond that contained in the canvasses themselves, considered and treated wholly as such; and that no question beyond the result of the figures can lawfully receive their attention or solution. To this extent, as I understand it, we are all agreed, and there exists among us no difference of opinion. And so we may regard the proposition stated as fully and definitely settled, in accordance with the unvarying current of authority, and the usage which has been uniform and without a break. It secures for us, at least, so much of solid ground upon which we can all stand in harmony and concord and without any distressing diversities of opinion.
As we apply that doctrine in the case of Sherwood, the inevitable result is that the state board are required to count the votes in his district, to ascertain who has received the plurality of such votes, and to give to that individual a due certificate of the fact ascertained. That is all which Sherwood has at any time asked. Our decision entitles him to his relief even though his mandamus be quashed; for it is not to be assumed that the state canvassers will violate the settled law of the state as expounded to them by its court of last resort. Indeed they themselves, in and by the terms of the stipulation upon which all these cases have been heard, have promised and agreed to act in accordance with the conclusions of the court. We have interpreted the law for them; we have declared that whether Sherwood was or was not eligible is a subject with which they have no concern, a question which they cannot consider, and which, however decided, can have no influence or effect upon the one distinct and definite duty which they have to perform. They are men of character and reputation, and it is not to be imagined that the strong and
*378
specific force of a mandamus is necessary to make them do their duty, as that duty has been defined by this court, and as they themselves have formally promised to perform it.
The question, therefore, whether the present writ should be sustained or quashed is, in and of itself, not very important. If the immediate result to the relator was alone to be considered the discussion might end here. • I think it should have ended here: but the technical question of the continuance and operation of the writ has been used to put upon us the abstract question of Sherwood’s eligibility, and serve as a justification for a judicial expression of opinion on that subject. What just or useful purpose may be thus subserved I have been unable to discover. Whatever we may think or say about it cannot alter or affect the purely ministerial duty which the state canvassers must perform. Hor can our opinion have any legitimate effect upon the ultimate determination of the question by the senate. As to them it may possibly be regarded as an interference with their duty and an attempt to hamper their independent action. That body may very easily construe our judgment as an invasion of their jurisdiction, an unwarrantable trespass upon a co-ordinate branch of the government, and it would not be strange if they should repel it with indignation, and while not rudely bidding us to keep to our jurisdiction, should find some polite paraphrase to convey that idea. I am afraid we should deserve the rebuke for three reasons, which I shall seek to develop and explain: and these are that the question of Sherwood’s eligibility is immaterial to the relief asked; that it furnishes no answer to or defense against the writ; and that we have no jurisdiction to determine the question in any event.
The ground upon which the majority proceed is said to be that the relator, on an application for a mandamus, must show a clear legal right to the relief which he seeks; that this relator to establish such right must show that he was duly elected to the office of senator; that he did not and could not do that because he was ineligible; and so the writ ought not to have been issued. How, is it a sound method of judi
*379
cial reasoning to say that a man must show that he was duly elected to an office before he can require the state canvassers-to count the votes-so as to know whether he
was
elected or not ? He comes to this court and demands its aid to ascertain from the proper authority if he
was
elected, and the court-says he has no right to have the votes counted unless he can prove the precise fact which he seeks to ascertain. One can imagine such a candidate telling his experience after all was over, and complaining with a somewhat dazed expression that he went to the court to compel a count of the votes and the-judges told him that he could not have it because he was ineligible ; and then he went to the senate for his seat, and the members of that body told him he
was
eligible but could not have his seat because the votes had not been counted. Such a, possible result shows us Avhere the probable fallacy of the reasoning relied on may be found. It lies in the substitution, for the relief actually asked and sought of another and different relief not asked and not sought; in treating what is a step-in or stage of a process as the exact equivalent of the ultimate result of that process; and in a declared inability to see the difference under its clothing of ambiguous phrases. Sherwood’s right to his office is one thing; his right to know hovr many votes were cast in his favor and who received the most is quite another. He has not asked this court to adjudge him. his office, or to- decide that he was duly elected to it; he is, therefore, not called upon to show that he
is
entitled to it, or
vms
duly elected to it. The relief he
does
ask is that the votes for senator cast in his district shall be counted and the result properly certified. He sIioavs a clear legal right to that relief for the law awards it, and, as we have held this day, it is immaterial to that relief at the hands of the canvassers whether he is eligible or not. To obtain that it is enough for him to-show that there has been an election, that votes were cast for Mm as a candidate, that a statement of them has been sent to the state canvassers, and they refuse to count them for a reason which is no reason and does not excuse. That makes his case,, that shows his clear legal right to the relief which he asks, and!
*380
which is only one step or stage in a process leading to a wider ultimate result, and one which depends not only upon that step but upon very many others.
I think it possible to uncover what I deem the fallacy of the prevailing opinion in another way. Let us suppose that there has been a very close election, so close that it turns on a question how two or three ballots are to be treated, and the state <canvassers refuse to count. One of the candidates applies, as Sherwood did, for a mandamus to compel their performance of that duty. This court says to him — no: we will not order ¡a count until you satisfy us that you have been duly elected to ±he office which we see you are trying to obtain. Could anything be more unreasonable or absurd ? Does not the illustration demonstrate that the candidate who seeks to compel a (Count need not show that he was elected at all in order to ■entitle him to the precise measure of relief which Sherwood has asked in this case ? It is of no consequence whether the latter has or has not been duly elected, so far as the present ¡application is concerned ; and the issue thrust upon the court is wholly immaterial, and only made to seem material by substituting for one step in a process its complete and ultimate result. If it be objected to my illustration that I put a case in which it was possible that the relator might have been duly ■elected, while here there was no such possibility, I answer that' the objection begs the question. It
is
possible that Sherwood
was
duly elected. Neither this court nor any other can forestall the judgment of the senate. We do ourselves honor overmuch when we assume to act as prophets for the constitutional tribunal, and to handicap the rights of the relator before that body.
It was jirecisely such a state of affairs as that which I have ■-described which this court had in view in
People ex rel. Freer
v.
Canal Appraisers
( 73 N. Y. 446 ), where it was said:
"
When the act, the doing of which is sought to be compelled' by mandamus, is the final thing and if done gives to the relator
all
that he seeks proximately or ultimately, then the question whether he is entitled to have that done may be inquired into
*381
by the officer or person to whom the mandamus is sought, and is also to be considered by the tribunal which is moved to-grant the mandamus; but where the act to be done is but a step towards the final result, and is but the means of setting in motion a tribunal which is to decide upon the right to the final relief claimed, then the inferior officer or tribunal may not inquire whether there exists the right to that final relief, and can only ask whether the relator shows a right to have the act done which is sought from him or it.” In the present case. Sherwood’s final and ultimate relief is the judgment of the" competent constitutional tribunal that he is duly elected senator and entitled to hold the office, and that final relief involves not only his plurality of votes, but his qualifications as well j and he is here, not asking that final relief, but seeking to take one step necessary as a preliminary to it, which involves only the count, but not the qualifications, and neither the canvassers nor the court, in considering his right to that step, can inquire into his right to a different and further ultimate relief.
It follows within the rule established that the relator was not bound to prove what he was not required to assert to entitle himself to the relief which he demanded, and that the issue of his qualification was immaterial.
But that issue is not merely immaterial. Beyond that, it is utterly inadequate and ineffectual as a defense to the mandamus. I decline to express any opinion upon the question whether Sherwood was or was not eligible, for a reason which will later appear, and yet, for the purpose of the argument, I may concede him to be ineligible, and still it may be demonstrated that there is no defense to the writ, and that its command should be affirmed. The whole theory on which this issue is presented is that it destroys the relator’s right to relief. Suppose that it does. But has it also destroyed the right of the people ? They are the real plaintiffs; the relator is only their informant. He is not the plaintiff, except in his character as citizen, as one of the people, the source of all power and authority. They are the plaintiffs; it is the sovereign who> comes to our bar, to this court which it created and can destroy,,
*382
with hat in'hand, but with a gravity we had better not overlook, and demands of us that we command five public servants, who hold a public office upon a public trust, to perform a clear public duty in respect to a matter of vital importance to the safety and purity of our institutions, which they threaten not to perform in a lawful way; and we answer that the informant who set the people in motion claimed to have a private interest of his own, and since we are satisfied that he had none, we ■deem it our duty to tear up the people’s writ and turn the people out of court, and leave unfaithful servants to violate .the public law with impunity. In substance, we say to the ■people, we think you are right and the canvassers are-wrong, but we cannot approve of your relator, and in order to defeat him, we quash your writ and turn you out of court. We have mot so been in the habit of treating the people coming before ms for justice. Even in.actions of
quo warranto,
where the ■people, on the relation of a claimant to an office, brought their ■suit to remove a usurper holding it without right, and where it was decided that the relator had no title and could have no relief, it was yet ruled that the court should not quash the writ, but proceed to judgment of ouster against the intruder.
(People ex rel. Judson
v.
Thacher,
55 N. Y. 530 .) The principle is well described by Judge Folger in
People ex rel. Hatzel
v.
Hall
( 80 N. Y. 117 ), where he says, and I quote both his language and his authorities:
“
Besides, in the
Duchess •of Kingston's
case, all the judges were of opinion that the decision of a question raised between her and Hr. Harvey could not be conclusive between her and the Crown. (20 How. St. Tr. 355;
Barrs
v.
Jackson,
1 Phillips, 582 , 586.) The people are not barred by it. They may still inquire by what right the defendant claims the office. The principle stated in
People ex rel.
v.
Thatcher (supra)
applies here: that the sovereign may proceed and inquire where like movement on the , part of a private person will not be entertained because of his ■own acts. See
King
v.
Clarke
(1 East. 38), and the cases there cited and quoted from in the argument of. counsel for .the defendant. And there may be judgment in favor of the
*383
people against the defendant of ouster of him without giving judgment in favor of the relator that he is entitled.
(People ex rel.
v.
Phillips,
1 Denio, 388 ; see also
Comm.
v.
Sparks,
6 Whart. 416 .) ” In the foregoing quotation, the doctrine is clearly established that the defeat of the relator does not defeat the people, and the court must still go on and ascertain the right of the latter. The authority is decisive, and there are none to the contrary so far as I have been able to ascertain. It should be obeyed. If it is, the order appealed from will be affirmed, for, however Sherwood’s right as a candidate may be disregarded, his right as a citizen and elector and the right ■of the people must be sustained. As to them, the only question is whether the state canvassers have threatened to travel outside of the returns; and a few words are to be said on that subject.
The complication began with the action of the board of ■county canvassers of the county of Steuben. To that body was presented by Charles E. Walker, who was the candidate opposed to Sherwood, and defeated at the polls by a majority of about fifteen hundred, a protest against the issue of any certificate to the latter, accompanied by affidavits showing that, at the date of the election, Sherwood was in fact a park commissioner of the Hornellsville park in said ■county. The county canvassers, on the tenth of November, after making a correct and truthful statement of the votes actually cast, passed a series of resolutions to the effect that they believed Sherwood to be ineligible to the office of senator; that they themselves had no lawful authority to act upon the fact; but that they accompanied their returns with a statement of the proofs presented and of their belief, and that they transmitted copies of the protest and proofs to the state board “for their consideration and for such action thereon as they may deem lawful and proper.” The moving papers show that Charles F. Tabor, attorney-general, and one of the state board, had given an opinion, in 1ns official capacity, before the election that Sherwood was ineligible, and had also declared, so publicly that the
*384
newspapers repeated it, that the action of the county canvassers was a virtual refusal to count any votes for Sherwood; that Walker, after a consultation with “prominent state officers” at Albany, openly declared that he expected to receive the certificate of election from the state board of canvassers ; and that persons intimate with the members of such board, and likely to know their purposes, had so declared. Hr. Tabor makes no denial. Hr. Bice, who is secretary of state, makes none, but says in significant general terms that the board in its collective capacity intends to do what is right. Disturbed by the menace involved in the action of the county board, and the threatened procedure of the state board, Sherwood appealed to the court. Under the order of the Special Term, the county canvassers rescinded their resolution of ¡November tenth; adding, “ and the said resolution, together with the protest, certificates, affidavits and proof therein referred to (other than the certified statement required by statute) he and they are hereby withdrawn from the consideration of the state board of canvassers.” These papers had been received and filed in the office of the secretary of state, who had no lawful authority to receive or file them. After the county canvassers had directed their withdrawal, the deputy county clerk, by authority of the county clerk as secretary of the hoard, and of the resolution of withdrawal, demanded of the deputy secretary of state a return of the protest and papers. That official refused, saying that demand must be made of the board of state canvassers. When it is remembered that the papers were not in possession ■ of the state board, and never had been, because the count of Sherwood’s district has not been entered upon, that they remained solely in possession of the secretary, filed and held, and for no possible lawful purpose, the answer becomes a distinct admission of persistence in the unlawful purpose of their use. Added to all the rest, we find the ineligibility of Sherwood formally set up as an answer to the writ, and the deputy attorney-general appearing before us and distinctly" claiming, in behalf of the board which he represents, that they could and should consider and determine that question.
*385
The fact, therefore, is quite beyond contradiction that the secretary of state, as such, and the state board of canvassers have either actually transcended, or threaten to transcend, their power and authority; and that fact is established, although it was not necessary to establish it, since it was held in
Virginia
v.
Rives
( 100 U. S. 313 ) that where the duty is a public one, there is no need of a demand and refusal. The law stands in lieu of a demand, and the bare omission to perform the duty in place of a refusal. Since, then, the duty of the state board is a public duty, and one in which the people are interested, the people’s writ commanding them to do that duty cannot be answered or quashed by showing that the private personal right of the relator may not succeed.
But even as against him there is no defense to the writ. Grant that his right as a candidate for the office of senator is answered, and yet there remains his right as a citizen and elector which is fully set out in and shown by the moving papers, a right which we have just recognized in the
Dutchess Co.
case, and the right of the people to compel by mandamus the performance of a public duty. In
People ex rel.
v.
Collins
( 19 Wend. 56 ), it was decided that in a matter of public right any citizen of the state may be a relator in an application for a mandamus, and the doctrine was repeated in
People ex rel.
v.
Sup. of Sull. Co.
( 56 N. Y. 253 ); and even more explicit, and 1 think quite decisive, is the case of
People ex rel.
v.
Halsey
( 37 N. Y. 344 ). In that case the relator failed utterly to show any private or personal right to the relief demanded, and the writ was not sued out by the attorney-general, and yet the order of the writ Avas affirmed because it required the performance of a public duty. The court said in ansAver to the objection taken;
“
Inasmuch as the people themselves are the plaintiffs in a proceeding by mandamus, it is not of Arital importance avIio the relator should be, so long as he does not officiously intermeddle in a matter with which he has no concern. The office which a relator performs is merely the instituting a proceeding in the name of the people and for the general benefit. The rule, therefore, as it is sometimes stated, that a relator in a writ of
*386
mandamus must show an individual right to the thing asked, must be taken to apply to cases where an individual interest is
alone iwool/oed,
and
not
to cases in which the interest is common to the whole community.” The court referred to cases holding a different doctrine in some other states and then added: “But the practice which has so long prevailed here, though never, so far as I can discover, passed upon directly by the court of last resort, where the objection was raised, seems to be a reasonable and convenient one, and ought now to be considered as settled.” The court were unanimous in affirming the order. We ought to be equally unanimous in affirming the present order, whatever our opinion as to Sherwood’s eligibility, for we cannot defeat the right that he has as citizen and elector beóause he also claimed another right which he has not; and least of all can we defeat the clear right of the people which stands wholly undefended.
And that brings me to my third proposition that we have no jurisdiction to consider or determine Sherwood’s qualification for office, because that jurisdiction has been explicitly taken away from us, and this court has so deliberately decided. The Constitution provides (art. 3, sec. 10), “ each house shall determine the l^ules of its own proceedings and be the judge of the elections, returns and
qualifications
of its own members.” The meaning and the force of this provision has been carefully decided by this court.
(People ex rel. Hatzel
v.
Hall,
80 N.
Y.
121 .) We there said that “it is conceded by the text writers that each of these houses has the
sole
power to judge thereof exclusive of every other tribunal,” and we cited 1 Kent, 235; 1 Story on Const. § 833; Cooley Cons. Lim. 133. In further elucidation of the doctrine, we asserted and showed that it rested not merely upon the constitutional language, but upon the exigencies of free institutions, and respect for the independence of legislative bodies, whose authority emanates directly from the people. Kent says “ there is no' other body known to the Constitution to which such a power might be safely trusted.” Coming down to the precise question involved, we said: “ Though the Constitution confers upon specified
*387
courts general judicial power, there are certain powers of a judicial nature which, by the express terms of the same instrument, are given to the legislative body, aqd among them this which we are considering. All powers are then in the hold of the people. They are about to distribute.these powers among the bodies which they at the same time create. When it is said on such occasion to either house of the
legislature—‘
You are to be the judge of the election of members to your body,’ —■ there is a specific conferment of this particular power; and when it is said at the same time to the judicial body — ‘ You are to have general jurisdiction in law and equity,’—though the conferment of power is general, there is by force of the concurrent action,
excepted, from, the general grant the
specific authority definitely bestowed with ‘the same breath upon another body.” And the court added: “ The power thus given to the houses of the legislature is a judicial power, and each house acts in a judicial capacity when it exerts it The express vesting of the judicial power, in a particular case so closely and vitally affecting the body to whom that power is given,
takes it out
of the general judicial power, which is at the same time in pursuance of a general plan that has regard in each part to every other part bestowed upon. another body.” I have quoted thus liberally from the opinion in the case cited, because it settled the law on that subject. I do not understand that anybody disputes the doctrine, or claims that we can directly adjudicate upon Sherwood’s qualifications. I
do
understand the claim to be that we may do so indirectly, on the road to a judgment which we have jurisdiction to make : in other words, that we may transcend our jurisdiction on the way, when and as far and as often as we please, provided that, in the end, we render a judgment which we have a right to make: that we may exceed our jurisdiction and usurp that of another tribunal to obtain an unlawful reason for a judgment which we have a right to render; and that, because the jurisdiction we really
Juma
is invoked, we may assume in its aid- a jurisdiction which we have
not.
I distrust the proposition; and especially in a case where, as in
*388
this, the final judgment sought rests wholly and entirely upon the transcended jurisdiction, and where that judgment, however innocent in its form, is in truth in its entire substance and intended effect a direct and positive adjudication upon a subject-matter of which we have no jurisdiction. Where the difficulty lies in a want of jurisdiction over the subject-matter, no consent will give it, and no invocation break down the constitutional barriers. I cite for the present purpose but two authorities, because I deem them ample and sufficient.
(People ex rel.
v.
Mahaney,
13 Mich. 481 , and 56 N. Hamp. 577.) In the first of these cases tiie legislature had passed a police act for the city of Detroit, giving it immediate effect, which required a two-third-vote. A quo warranto was issued to the newly appointed marshal which challenged his right to his office. The court had undoubted jurisdiction to issue the writ, and to render judgment of ouster upon it, and that jurisdiction was duly and regularly invoked, and, on the theory adopted here, that invocation authorized the court on the road to a judgment of ouster to rest upon reasons in excess of their jurisdiction, and in violation of the constitutional provisions. Just that they were asked to do, and just that they deliberately refused to do, upon the ground that it would transcend their jurisdiction. It was conceded that the journals and records .of the legislature were regularly before the court and could properly be examined and considered. They showed that nine persons, necessary to make up the two-thirds, had voted for the bill, who held their seats in spite of the proven fact that they had not been elected at all, except by the soldier vote cast outside of the state under a law which had been decided to be unconstitutional. There was a claimed necessity to unseat legislators and establish the doctrine of invocation. But the court, led by an able constitutional lawyer, declined to do the wrong, although duly “ invoked.” Judge Cooley said, after pointing out the same distribution of powers between the courts and the legislature which exists in this state:
“
It is sufficient for us to say that the Constitution has not conferred upon us this jurisdiction, and whether the decis
*389
ion made is right or wrong we shall leave it where it has been left by the fundamental law of the state.”
The blew Hampshire case was quite peculiar. A law of that state permits an application to the court for an opinion and advice upon legal questions submitted. The legislature made such application. They invoked the existing jurisdiction. The court had authority to receive and act upon the request and to give an answer. But the question put was whether certain senators had been lawfully summoned by the governor and council and properly admitted to their seats. If ever there was an “invocation,” in the exercise of an admitted jurisdiction, to go beyond it, and usurp the rights of another tribunal on the road to an answer, it was this. But the court resisted the temptation and refused to answer, on the ground that they were not at liberty so to do, and added: “If a precedent of interference by one department with the discharge of its duties by another should be established by the form of a judicial decision a dangerous blow would in our judgment be struck at one of the most vital principles of our system of government.”
Undoubtedly there is enough astuteness among us to suggest that these were cases where the legislature had acted. But what of that? If, on the road to a lawful decision, jurisdiction may be transcended at all, it may as well be done by an unlawful review as by an unlawful opinion in advance. I have found no cases to the contrary of those cited. The industry of the deputy attorney-general, ranging over every state in the Union, has found none except those which beg the entire question ; since in every one cited by him, I think there was some existing law authorizing the court to adjudge upon the official title, or the election itself was a nullity, and there was not, as here, a constitutional prohibition against an exercise of the jurisdiction.
And so I deny the asserted doctrine of “ invocation; ” of a “ right to do evil that good may come; ” of excusable judicial usurpation ; and if the doctrine has anywhere got its dangerous and destructive hold upon our law, which I do not believe, it
*390
should, be resolutely shaken off. But let us not deceive ourselves. The excess of jurisdiction is not even excusable, for it has neither occasion nor necessity. I have discussed that somewhat already, but may be permitted to add a few words more. The order to show cause and the affidavits of the petitioner raise no issue beyond that of the right of the state board to do anything more than count the votes and certify the result. He did not invoke either the consideration or decision of the question whether he was or was not duly elected to the office of senator; and if the defendants had made no answer except to assert a right to consider extraneous papers, the issue of eligibility would not have been before the court, or involved in the jurisdiction invoked. It is clear that the petitioner on his part invoked no action or jurisdiction to which a ruling on his eligibility was essential or necessary. It made its first appearance in the answer of the state board. But it was no defense to them. It was no justification for their threatened action, and no answer to the demand upon them to perform their public duty. And so the issue of eligibility was not necessary and not even pertinent to the jurisdiction invoked on either hand, and has no excuse, that I can discover, for its presence in the case.
But here this discussion must end. If what I have said does not convince the majority of the court, nothing that I can say will do so. I have tried faithfully and, I hope, with proper respect, for certainly I have not meant to be wanting in that, to point out the mistake which, it seems to me, they are about to make. Theirs, however, must be both the responsibility and its consequences.
I think the order and judgment should be affirmed.
All concur with Eabl, J., except Finch, J., who reads for affirmance, and Andrews, J., concurring.
Orders reversed.