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(Returns.) canvass the returns; this objection was sustained by the court. The defendants then offered in evidence the returns of the inspectors of election, which were objected to, on the ground that the certificate of election could not be controverted; the court sustained this objection; and to these rulings the defendants' counsel excepted. There was a judgment for the plaintiff which, having been affirmed at a general term, the defendants prosecuted this appeal.

Hand, for the appellants.

Hadley, appellee, in propriâ persona.

DENIO, C. J. There being no conclusions of fact found by the judge, the only questions which are open for examination upon this appeal, are those which arise upon the exceptions to rulings taken in the course of the trial.

The election for mayor and officers, in 1856, was held on the day appointed by law, the second Tuesday (8th day) of April, and the terms of the newly-chosen officers commenced on the first Tuesday of May thereafter. Laws 1855, ch. 196, SS 1-3. The law requires the inspectors of election to file a statement and certificate, setting forth the number of votes given for each person, for each respective office, with the clerk of the common council, within twenty-four hours after the completion of the canvass, and that “the common council, at its meeting thereafter, shall canvass such returns, and determine and declare the result.” Laws 1855, ch. 86, $ 11. The officers chosen are, on or before the time when their terms commence, to take the oath of office prescribed by law. Ibid., § 12. The plaintiff had given in evidence a certificate of the determination of the common council, at a meeting held on the 15th April, one week after the election. This was, at least, primâ facie evidence of the act of the common council; the document was given in evidence without objection, and it was not attempted to controvert the fact, that the proceedings of the council, set forth in it, had

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(Returns.) taken place as stated. But the defendants offered to prove another canvass before the common council, at a meeting on the 6th May following; it is not stated in the offer, nor mentioned in the case, that the new canvass resulted in electing Mr. Quackenbush; but such, I suppose, was the intention of the offer; the evidence was excluded, and this is the point of the first exception.

The act does not prescribe that the canvass shall be made at the first meeting of the council after the election, a word having apparently dropped out in transcribing or printing the section; the meaning, as it stands in the statute-book, is, that the canvass shall be made at some meeting of the common council after the election; it was regular and legal to perform that duty, at the first meeting, and this was what was done, as stated in the certificate. Having been once legally performed, the power of the council was exhausted; the board had no power to reverse its decision, by making a different determination. The court was, therefore, right in rejecting the evidence which was offered.

The second exception was, to the decision by which the court excluded the inspectors' returns; the object, I suppose, was, to show that the returns elected Mr. Quackenbush and not Mr. Perry. But the law having committed to the common council the duty of canvassing the returns and determining the result of the elections from them, and the council having performed that duty and made a determination, the question as to the effect of the returns, was not open for determination by a jury, in an action in which the title of the officer came up collaterally. If the question had arisen upon an action in the nature of a quo warranto information, the evidence would have been competent; but it would be intolerable, to allow a party affected by the acts of a person claiming to be an officer, to go

behind the official determination, to prove that such official determination arose out of mistake or fraud.*

* See Peyton o. Brent, 3 Cr. C. C. 424; Hunter 0. Chandler, 45 Mo. 453.

(Returns.) It follows, that the remaining exception was not well taken; the court excluded the determination to remove Conlon, made at a meeting consisting of Mr. Quackenbush, acting for that purpose as mayor, and the recorder and an alderman. The mayor is an essential member of the council provided for hearing charges against a policeman, unless he be absent, in which case, the chief of police is to take his place; Mr. Quackenbush was not the mayor, and consequently, no legal body for hearing these charges, was assembled; the act of removing Conlon was consequently void, and he was not removed; the papers which were offered were properly rejected.

It seems probable, that the action might have been successfully defended, on the ground that Conlon had failed to perform the duties of his office, and had acquiesced in the irregular order for dismissal which had been made; it seems, he admitted himself to be guilty of the charges brought against him, and there is an inference that he retired from the police, arising out of the want of any proof or allegation of a subsequent performance of duty, as a policeman. But there is no finding of facts to raise that question; the defendants' counsel seem to have chosen to place their defence upon the title of Mr. Quackenbush to the office of mayor, and they raised no question except that which related to the evidence of his election, and the validity of his acts; having failed to sustain their position on these questions, they cannot ask to have the judgment against them reversed.

Brown, J. James Conlon, the plaintiff's assignor, was one of the policemen of the city of Albany, duly appointed on the 9th April 1856, to serve for the term of two years from the 20th May thereafter, and until his successor should be appointed, or he was removed for

The exception to the proceedings at the circuit, was one taken to the rejection of the defendants' evidence, and it presents the principal question upon which the (Returns.) plaintiff's right to maintain the action depends. By the 11th section of the act of 4th April 1851, the inspectors, at an election for municipal officers in the city of Albany, shall certify and declare the result of the canvass of the votes, and file such certificate and statement in the office of the clerk of the common council, within twenty-four hours after the completion of the canvass, and the common council, at its meeting thereafter, shall canvass the returns and declare the result. There was an election for mayor and other officers, in the city, on the 8th April 1856, and for the purpose of showing who was duly elected mayor, the plaintiff produced and proved the certificate of the members of the common council, dated the 15th April 1856, declaring that Eli Perry, having received the greatest number of votes, was duly elected; this certificate was in due form, and was produced from the files of the clerk of the common council. It was then proved, that Eli Perry qualified and entered upon the duties of his office, as mayor.

cause.

Policemen are removable from office, for cause shown, by the mayor, and in his absence, the chief of police, and the recorder and one alderman, who are to examine the charges, hear evidence, &c., upon both sides, and acquit, remove or suspend, in their discretion. The defence was, that Conlon had been removed from his office, for drunkenness and misconduct, after a trial before the mayor, recorder and alderman Benson, on the 6th November 1856, at which Conlon appeared, and was heard in his defence. To lay the foundation for this defence, the defendants offered evidence to show that, on the 6th May, some time after Eli Perry was declared duly elected, the common council of the city made another canvass of the votes, and filed another certificate, in which it was declared that John V. P. Quackenbush was duly elected mayor, &c. This evidence was, upon objection, rejected and the defendants excepted. An offer was then made, to read in evidence the returns of the canvassers and inspectors for the elec. (Returns.) tion on the 8th April 1856, for the purpose of showing that John V. P. Quackenbush had the greatest number of votes for the office of mayor, at the election. This evidence was also rejected, upon objection, and the defendants again excepted. The defendants' counsel next offered in evidence, the return of a trial of Conlon, upon the charge of drunkenness and misconduct, by John V. P. Quackenbush, acting as mayor, recorder Paddoch, and one of the aldermen of the city, Conlon's plea of guilty, and his dismissal from office, by such city officers. This evidence was objected to and rejected, and the defendants excepted.

The legality of the trial of Conlon, and the judgment of dismissal said to have been rendered against him, depended upon the question, who was the mayor of the city at the time, and the effort of the defendants was, to show that Quackenbush was the mayor, at the time of the alleged trial; the defendants claimed that, notwithstanding Perry had obtained the canvassers' certificate, Quackenbush really had the most votes, and was entitled to the office. The judge decided that mayor Perry's title to the office could not be the subject of investigation and inquiry in this action, and on that account rejected the evidence. This was entirely right; Eli Perry had the certificate of the canvassers, the authority appointed by law to examine the inspectors' returns, and determine who had the most votes and the right to the office; he was, therefore, mayor de facto, and notwithstanding John V. P. Quackenbush might have received the greatest number of votes, and be rightfully entitled to the office, yet, wanting the certificate, he was not, for the purposes of the trial and dismissal of Conlon, the mayor of the city; and the proceeding upon which the defendants relied, to show that Conlon was not a policeman, at the time the service, for which he claimed compensation, was rendered, was coram non judice and void. The judgment should be affirmed.

Judgment affirmed.

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