People ex rel. Livingston v. Taylor

1 Abb. Pr. 200, 45 Barb. 129, 30 How. Pr. 78

Opinion

By the Court.

*—Ingraham, P. J.

We are not furnished with the evidence on which the relator applied to the commissioner of jurors to have his name stricken from the list of jurors, and therefore we cannot decide whether he was entitled thereto, and the only question before us on this appeal is whether a mandamus will lie to the commissioner, of jurors for such a purpose, if it be conceded that the relator is entitled to the relief he asks.

The office of this writ is twofold: one when addressed to courts of inferior jurisdiction, and to judicial officers, and to officers exercising judicial powers, to compel them to act and to decide on matters before them; the other when addressed to ministerial officers, to do the- act which they are charged with unlawfully refusing to do. The commissioner of jurors is not a judicial, but a ministerial officer. It is true he has to decide on the sufficiency of the excuse offered by a juror to have his name stricken from the list of jurors, but still the nature of that excuse, and the duty of the officer, is clearly defined by the statute, and when the truth of the facts relied on is shown to him, he has no discretion to exercise, and has no right to keep the name of the juror on the list. If the statute vested any discretion in the officer, the rule is different. In the language of Ejiott, J., in The People v. The Contracting Board (27 N. Y., 378), there must be a clear legal right not merely to a decision, but to the thing itself.

There is, also, another principle applicable to this writ—that it issues where the party has no other remedy. There could be no other remedy to the relator but to bring a certiorari and review the proceedings of the commissioner in that form of proceeding. That his acts are subject to review in one or the other mode, there can be no doubt. It never was' the intent of the law to leave this officer at liberty to exercise an arbitrary control over those who are to form the list of jurors. The law has particularly enumerated those who are to be placed upon it, and he is bound to comply with those provisions. The objection to a review by certiorari is, that it would bring up the whole record, which he is required to keep, and where such a course would lead'to great inconvenience, the courts have held that the writ of mandamus might be resorted to. This rule is stated by Mitchell, J., in Adriance v. The Supervisors (12 How. Pr., 226), where he says, “ The general principle may be stated, that where a specific duty is imposed on public officers by statute, and they do not conform to the statute, and the omission to perform affects a particular party only, and not the whole list, a mandamus will issue.”

Mor is this remedy to be withheld because the relator might have an action for damages, Judge Mitchell, in the last cited case, says, “ It is better for the public that the specific remedy 'be applied to removing the wrong directly, that to have actions for damages, in which the officer may be punished, although he erred only in judgment.” So, in The People v. The Mayor, &c. (10 Wend., 393), it is said that where a specific duty was imposed hy statute on a public officer he may be compelled to execute it by mandamus, although an action for damages might also lie. In the case of The People v. Miner (37 Barb., 466), the writ issued to the register to compel the satisfaction, of a mortgage, although in that case he had to decide upon the sufficiency of the satisfaction piece, and Selden, J., in The People v. The Contracting Board (supra), says: “ There are many questions requiring the decision of ministerial officers which involve, to some extent, the exercise of legal discrimination in their solution, but which are not regarded as judicial questions, and consequently the decision of them is not conclusive in collateral proceedings.”

My conclusion is that the writ may issue'to,this officer.

The list in which the relator’s name is inserted has ceased to he of any importance, as the period of time for which it was to be in force has expired. There is no propriety therefore now in issuing the mandamus, and nothing can be done except to reverse the order of the special term as to the power of issuing this writ in this case.

Order reversed.

Present, Ingraham, P. J., and Leonard and Barnard, JJ.