Summary
Certiorari to the clerk of Hunterdon County.
this case a Certiorari had been directed to the Clerk of the County of Hunterdon, commanding him to certify the * * w return of the election of the Sheriff of that County, held in October 1794. The Clerk in obedience to the writ, returned the account of the votes taken, from which it appeared that 7 1 r Jacob Anderson the defendant had the greatest number of votes, and that S. Stockton, the then Clerk, had certified that Anderson was duly elected Sheriff of the County,
These proceedings were had to try the validity of this , , , . , . election, and to ascertain whether Anderson was entitled to ^ office* The ground upon which they were instituted was, the alleged fact that Anderson was not a freeholder at ’ ° . the time of the election, and had not been so during the space r ., . , • , , ,. of three years immediately preceding,
produced and after some opposition were permitted by the court to read several affidavits, by which it appeared that Anderson had said when summoned as a juryman, that he was not a freeholder; and circumstances were stated leading to the belief that he had not been a freeholder since the year 1791.
They then contended that under the act of 1788 it was necessary that a person should be seized of a freehold estate during the whole of the three years immediately preceding his election to the office of sheriff.
1st The certificate of the Clerk of the County that Anderson was duly elected sheriff.
2d A. certificate that he was duly qualified to execute the office.
3d A certified copy of the bond to execute the office, and the approbation of the Judges. - - ,
4th His commission as sheriff.
He then contended—
1st That the Supreme Court had no jurisdiction of the matter.
2d That the sheriff having been elected by the people, having given the security required by law, and having received his commission, was entitled to hold the office notwithstanding the present certiorari.
By the 15th Article of the Constitution of New-Jersey the inhabitants of each coulity qualified to vote, shall annu- ‘‘ ally elect one sheriff.” Anderson was therefore duly elected by the people, and this court cannot at this time set aside their decision. The objection, if existing, should then have been made; the people should have been informed that they were giving their votes for a person not eligible to the office. His opponents should then have objected; they ought not to be permitted, after the election was decided, when the term of service is now half over, to question its legality.
Under the act of IT88. the sheriff elect is to enter into bonds and give security for the faithful performance of his duty. Here therefore was another opportunity' afforded to the prosecutors to urge their objections; but they suffered this to be done quietly and without opposition.
Still however the commission had not issued, and the prosecutors should then have come forward, and prevented the Governor from granting a commission to a person not qualified by' law to hold the office. This opportunity also was omitted.
After this gross negligence the court ought not to listen to these attempts. It is not merely Anderson who is now interested in the event of this prosecution, though in that case it would be hard, after such a lapse of time, after having passed through half his term of office, and after the prosecutors have omitted to urge their objections when more appropriate occasions offered, to dispossess him; but others have a right to oppose this investigation. In the exercise of this office for six months he has served many writs, he has paid and received much money, he has imprisoned many persons, and has in all probability conveyed many estates. The objection that has been brought forward, goes to prove his election void ab initio; that he never did legally hold the office, aitd consequently to vitiate and invalidate every act performed by him as sheriff.
But the facts of his being elected, of his having executed the bond for the faithful performance of the duties of his office, having taken the requisite oath, and receiving his commission amount to something more than mere prima facie evidence, that he was legally qualified. The court have a right from these circumstances to presume in his favour» The objection if it existed at all, existed before his election, and these circumstances are entitled to some weight in considering its force.
The evidence adduced is not sufficient to counterbalance this presumption in our favour; the facts that are stated in the affidavits are by no means conclusive, and in such a case ought not to be assisted, or viewed with a favourable eye» A bare possibility that he is qualified, should be sufficient to satisfy the court in opposition to this testimony.
The case before the court may be resembled to a case on which a jury have passed a verdict, where it has repeatedly been held that if by any means whatever the plaintiff can be supposed to have a title as laid in the declaration, the court will after verdict hold it right Morris v. Barry 1 Wits. 1. 2 Str. 1180. They will intend any thing in support of a verdict.
An analogy may also be perceived between this case ahd one in which a juryman is challenged for want of a freehold. Such a person is disqualified to act as a juryman but the objection comes too late after verdict. Compl. Jurym. 270. The cause of challenge must be made out at the trial, other» wise it is good for nothing.
This objection also is like a matter pleadable in abatement, which if pleaded at the proper time, and in the proper manner would be fatal; but if then omitted, cannot afterwards be taken advantage of.
The section of the law cited, is also ambiguous, and may be interpreted by requiring the inhabitancy of the sheriff to have continued three years. It does not necessarily imply that the freehold estate should have had that- duration; and certainly a strict interpretation of the law does not in either case require that it should have been the three years immediately preceding the election.
The clause in the act however operates upon the electors» and not on the elected. If they vote for one not qualified, they violate the law, but if he is regularly chosen he is guilty of no violation of duty in holding the office and performing its functions. Nor could the legislature haye intended that all who violated the law were punishable; that every person who gave a vote for an unqualified candidate was a violator of the law and punishable by indictment: they merely intended that it should be directory, and to the electors.
Again, the prosecutors in this case contend that Anderson was not a freeholder within the true meaning of the act of assembly, and this fact is negatived by the defendant. Here then is the question of fact, upon which the case turns, which is triable properly by a jury and not by the court. This is an unprecedented proceeding and contrary to Magna Charta c. 39. and our own constitution. Const. ofN.J. Art. 23d.
But, for a moment omitting the consideration of these matters which stand in the way of the prosecution, and admitting, for the sake of argument, that he has been improperly elected^ the next question is, how is he to be punished for this offence? The act prescribes no punishment, nor does it say that he shall he turned out of office. No construction which can he given to the act, will vest this power in the court.
If the sheriff after his election refuses to enter into the bond and give the security required by law, or to take the <#ath of office, he cannot act; because these are necessary preliminaries. But if not being a freeholder, he is elected by the suffrages of the people and receives his commission, there is no power vested in any tribunal to question the validity of this election, or to remove him from the office. If the provisions of the law have been infringed, let the proper punishment follow. For every violation of the express words of a statute, where no specifick penalty is annexed the offender is liable to an indictment. 6 Bac. Abr. 393, *. 3 Burns. Bcc:. lazy 3$3 37.1 Burns. Just. Jntr-. xxu sec. 8, Or if .any one is injured by his neglect to comply with the provisions of the law, Anderson may be sued by an action on the case.
This also is a novel mode of proceeding. Upon what grounds is the certiorari directed to the Clerk of the County, a mere ministerial officer? Why is it not directed to the electors who voted for him, to the judges of the election, to the Governor and Secretary of state who signed his commission? With the same propriety might it have been directed to them as to him.
But have this court ever upon a certiorari vacated the commission of any officer? There is no such precedent to be found. The uniform course has been by information, when it was designed to remove a person not legally elected. It is .said 6 Bac. Abr, 146. that if a sheriff refuses to take the oaths enjoined on him, or officiates in the office before he hath thus qualified himself, an information shall be granted against him. In the same book 140,144. there are several precedents of informations against sheriffs for refusing to execute the duties of their office. 2 Mod, 299. Salk, 167. 2 Burns’s Ecc. L. 185. 6 Br. Pari. Ca, 181.
In 4 Com. Dig. 415. title “ Information.” letter C. a distinction is drawp between the cases where the statute makes the act an absolute nullity, and where it renders it merely voidable: in the former case a certiorari will be sufficient; in the latter an information is the proper remedy; 2 Mod.-302. cited.
Since the act lately passed (a) by the legislature it would be in vain to pretend that justice could not be obtained, and the improper officer removed with sufficient ease and dispatch; and though that act is of recent date, it merely facilitates a course which ought to have been pursued had it never been
The defendant in this case is entitled to have his rights decided by a jury. The office is an estate valuable to him, and it is contrary to the whole tenour of our law to dispossess him of it in a summary way without the intervention of a jury.
It? a case like the present, at all events, a certiorari is an ¿inusual and improper proceeding. A quo -warranto would iay at common law 3 Bl. Com. 262. Since the passing of the act of the legislature on the subject of informations in the nature of quo warrantos, there can exist no doubt but that it is the proper remedy.
It is one of the best established principles in the common law that when a party neglects to make his objections within n reasonable time he is considered as waving them; and shall not afterwards be permitted to take advantage of the same defects. In this case, we contend that the wisdom of this rule is clearly discernible, and should be strictly applied. The objection which is urged existed before the election, and might have been brought forward then with more propriety than now: there is no equity with them; they stand upon the extreme rigour of the law, and with the same measure they mete, ought it to be meted to them again.
It is not a little singular that in this writ of certiorari, the name of ’Jacob Ander-s on the defendant is not to be found. He is made a party to the prosecution, and his name is introduced into the proceedings by the return of the Clerk. It would to say the least, be somewhat singular upon a proceeding commenced and carried on in this manner, to oust him of his office.
Again, a certiorari is designed to bring certain proceedings before the court, in order to determine their legality or illegality. If they are absolutely void a certiorari is the proper remedy, if only voidable, tbey cannot be set aside by this writ. But when an act of Parliament declares any thing void, it is only voidable Ld. Hard. 311. 1 Bl. Com. 163. There must be a judgment given by some legitimate tribunal upon tbe case.
In this respect it differs with a writ of Shio xvarratito, which is in the nature of a writ of right; 3 Bl. Com. 262. an information is similar to a declaration, 4 Com. Dig. 409; and it lies where a man omits any thing which is commanded, or does what is prohibited by statute, lb. 413. as if an officer neglects or abuses his authority; {lb. 414.) or for usurping ran office. Ibid 41 fd
Cited 12 Vinner’s Abr. 201. on the subject of negative testimony; — and 4 Com. Dig* 415. where a statute prohibits any to be a justice of the peace who has not j£40 per annum &c. an information is not necessary.
It is to be considered—
1st Whether Anderson Ivas a person capable of holding this office?
2d Whether his eligibility has been determined by any competent tribunal.
Bd Whether the election of an ineligible person is not absolutely void.
4th Whether if void, this is not the proper mode of removing him from his situation.
1st The principal question to be considered, is whether he should be a resident freeholder for the three years next previous to his election. The words are “ Be it enacted that “ no person shall hereafter be eligible to the office of sheriff “ in any county of this state, unless he shall be, and hath “ been an inhabitant thereof, and possessing a freehold estate “ in his own right in fee simple, in the same county for three “ years previous to his election.”
It would seem impossible to strain these words, so as to involve in any ambiguity or doubt the obvious meaning of the legislature. The participle “ possessing” is joined to the word “ inhabitant” and means having during the time of stích habitancy,, It is impossible by argument to prove sq palpable a truth.
This being the construction, it is said that it bound only the electors and is altogether a directory law. Upon what grounds this idea is built it is difficult to imagine. The terms used are general, it would render it altogether inefficacious to confine its meaning in this manner, and defeat every end which the legislature can be presumed to have had in view.
2d It is said that four different tribunals have already determined this question in favour of the defendant. But it never came before them for their decision, and they had neither power nor right to adjudicate upon it.
The people, who elected Anderson certainly did not constitute a tribunal to decide whether he was legally qualified to hold the office. They came forward merely to give their suffrages, and it would have been a most singular spectacle to have seen them assuming the powers of a court, hearing the question argued by counsel, and deciding upon it as if they were a regularly constituted tribunal of justice.
Nor had the judges of election any greater powers in the business. Their duties and authority are plainly pointed out and prescribed by statute, and it is in vain that we search the law for the clause which vests in them these important functions. The act declares what their duties are, but does not constitute them tribunals of justice.
It is the same with the vice President or Governor. lie is merely an executive officer^ he must grant the commission upon the certificate, and cannot inquire into the legality of the election, or the qualifications of the elected.
If these different persons then had not, as they clearly had not, authority to adjudicate upon this question, or to hear the objections to the validity of the election, all the objections to these proceedings on account of their being brought forward at a late period, must fall to the ground.
3d The election is altogether void. If the Legislature has in express terms declared what shall make a span eligible, and the conditions prescribed are not complied with, the election is absolutely void. It has been repeatedly holden in England that votes given for an unqualified. person were thrown away. 2 Burr. 1021.
With regax*d to all the arguments drawn ab inconvenient¿, it is a uniform rule that they are never to be weighed against a clear decision of the law; when the matter is doubtful, or the point raised is to be settled for the first time, then they are maturely to be considered. If therefore this election was absolutely void, the Court ought not to be deterred from removing him, by any apprehension of the consequences which may flow from their determination.
But in the present case these arguments are altogether groundless. All acts done in the performance of his duty by one who is officer de facte, or who is in under a colour of right are valid to every intent. King v. Lisle. (Andrews ±68. J
TIlis then is ProPer course of proceeding. This Court is vested with a superintending jurisdiction over all inferior tribunals, and ministers and officers of justice. It has the power to keep them within their appropriate spheres of duty, and to take care that they adhere to the laws by which they ought to be governed.
We are told that a §luo warranto is the remedy we should have pursued: but this remedy lies only where an office is held by grant or prescription, and is not a proceeding which is proper for the present case. If in this case then a quo -warranto is not a proper remedy, a certiorari is. The Court will not refer to an act passed since these proceedings commenced, in order to ascertain whether we might have taken another course: we looked at the law as it stood at the time, and governed ourselves accordingly.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
