In Re Peremptory Mandamus to Manning

New York Court of Appeals

In Re Peremptory Mandamus to Manning

34 N.E. 931, 139 N.Y. 446, 54 N.Y. St. Rep. 706, 94 Sickels 446, 1893 N.Y. LEXIS 1019

CourtNew York Court of Appeals

DecidedOctober 10, 1893

StatusPublished

Cited by20 cases

This text of 34 N.E. 931 (In Re Peremptory Mandamus to Manning) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In Re Peremptory Mandamus to Manning, 34 N.E. 931, 139 N.Y. 446, 54 N.Y. St. Rep. 706, 94 Sickels 446, 1893 N.Y. LEXIS 1019 (N.Y. 1893).

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Opinion

O’Brien, J.

In this proceeding the Special Term made an order on the 6tli of March, 1893, granting a peremptory writ of mandamus commanding James H. Manning, mayor of Albany, forthwith to cause to be published, as required by section fifteen of chapter 171 of the Laws of 1892, in the-official city papers, the lists of Democratic inspectors of election and poll clerks appointed by the board of election commissioners of the city upon the resolution of Charles H. Armatage, the petitioner, and chairman of the board, to serve at a local election to be held in said city April 11, 1893, and for which registration of voters was to be made March. 11, 1893. The mayor appealed from the order granting the writ, and the General Term reversed it in September, 1893, and the petitioner has appealed to this court.

The statute requires that inspectors and poll clerks shall be appointed at each election. Their power to perform any official duties expires after the election for which the appointment is made has been held. Any decision, therefore, which. *448 we can make on this appeal can have no practical effect. If, for instance,-we should reverse the order of the General Term and affirm that of the Special Term, as we are asked to do by the appellant, the latter order could not be enforced as the election has been held and the time and occasion for the inspectors to act has long since passed.

The appeal does not now present an actual litigation but an abstract question. The practice of this court has been to refuse to entertain appeals when it is plain that nothing can be accomplished by the decision. The inspectors and clerks selected for the election of April last cannot be appointed. There is no office to fill, and there are no duties for them to perform. To require now that their names be published would be to do a vain thing, and this court has uniformly dismissed the appeal when, from lapse of time, no decision could be made that would have any practical effect upon the controversy or the parties. It is said that the same question must arise in the appointment of inspectors and clerks to serve at the general election to be held in the state in November next. We have no judicial knowledge that the peculiar conditions which produced this controversy still exist, and even if we had it would scarcely be proper to construe the statute for the appointment of these officers in advance of any action of the .appointing power. If the spirit of the statute was not carried ■out, either in the selection of the inspectors or the publication ■of their names in the present case, we cannot assume that the .same course will, be pursued by both parties again. The ■demands of actual practical litigation are too pressing to permit the examination or discussion of academic questions, such as this case in its present situation presents. (People ex rel., etc., v. Phillips, 67 N. Y. 582; People ex rel., etc., v. Walter, 68 id. 408 ; People ex rel., etc., v. Common Council of Troy, 82 id. 575; Bryant v. Thompson, 128 id. 426; Merrill on Mandamus, §§ 75, 77, 78.)

The appeal should, therefore, be dismissed.

All concur.

Appeal dismissed.-

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O’Brien, J.

In this proceeding the Special Term made an order on the 6tli of March, 1893, granting a peremptory writ of mandamus commanding James H. Manning, mayor of Albany, forthwith to cause to be published, as required by section fifteen of chapter 171 of the Laws of 1892, in the-official city papers, the lists of Democratic inspectors of election and poll clerks appointed by the board of election commissioners of the city upon the resolution of Charles H. Armatage, the petitioner, and chairman of the board, to serve at a local election to be held in said city April 11, 1893, and for which registration of voters was to be made March. 11, 1893. The mayor appealed from the order granting the writ, and the General Term reversed it in September, 1893, and the petitioner has appealed to this court.

The statute requires that inspectors and poll clerks shall be appointed at each election. Their power to perform any official duties expires after the election for which the appointment is made has been held. Any decision, therefore, which. *448 we can make on this appeal can have no practical effect. If, for instance,-we should reverse the order of the General Term and affirm that of the Special Term, as we are asked to do by the appellant, the latter order could not be enforced as the election has been held and the time and occasion for the inspectors to act has long since passed.

The appeal does not now present an actual litigation but an abstract question. The practice of this court has been to refuse to entertain appeals when it is plain that nothing can be accomplished by the decision. The inspectors and clerks selected for the election of April last cannot be appointed. There is no office to fill, and there are no duties for them to perform. To require now that their names be published would be to do a vain thing, and this court has uniformly dismissed the appeal when, from lapse of time, no decision could be made that would have any practical effect upon the controversy or the parties. It is said that the same question must arise in the appointment of inspectors and clerks to serve at the general election to be held in the state in November next. We have no judicial knowledge that the peculiar conditions which produced this controversy still exist, and even if we had it would scarcely be proper to construe the statute for the appointment of these officers in advance of any action of the .appointing power. If the spirit of the statute was not carried ■out, either in the selection of the inspectors or the publication ■of their names in the present case, we cannot assume that the .same course will, be pursued by both parties again. The ■demands of actual practical litigation are too pressing to permit the examination or discussion of academic questions, such as this case in its present situation presents. (People ex rel., etc., v. Phillips, 67 N. Y. 582; People ex rel., etc., v. Walter, 68 id. 408 ; People ex rel., etc., v. Common Council of Troy, 82 id. 575; Bryant v. Thompson, 128 id. 426; Merrill on Mandamus, §§ 75, 77, 78.)

The appeal should, therefore, be dismissed.

All concur.

Appeal dismissed.-

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Bluebook (online)

34 N.E. 931, 139 N.Y. 446, 54 N.Y. St. Rep. 706, 94 Sickels 446, 1893 N.Y. LEXIS 1019, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-peremptory-mandamus-to-manning-ny-1893.

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