People Ex Rel. Smith v. . Weeks , 176 N.Y. 194 ( 1903 )

The county of Nassau came into existence January 1, 1899, by ch. 588, Laws 1898, section 5 of which provided that the first meeting of the board of supervisors should be held January 3, 1899.

During such session the board passed an act pursuant to statute (Ch. 481, Laws 1897) fixing the first Tuesday in April as the time when biennial town meetings should be held. Such an election was held April 2, 1901, and seven days later the board of supervisors, the members of which had been elected at that meeting, passed a resolution providing that the biennial town meetings in the year 1903 and thereafter should be held on the first Tuesday after the first Monday in November.

The authority for this resolution was deemed by the board to be furnished by an amendment (Ch. 191, Laws 1901) to section 10 of the Town Law, which for the first time permitted boards of supervisors to change the time of holding biennial town meetings to the fall. But for the passage of this resolution the biennial election would have been in April, 1903, in pursuance of the provision of the resolution first adopted. The operation of the statute upon the resolution first adopted fixed the term of office for which the supervisors were elected in 1901 at two years. One of the results accomplished by the resolution of April 9, 1901, if it was a valid resolution, was to extend the term of office of those supervisors several months.

In March, 1903, and upon the last day fixed by the statute for filing certificates for independent nominations for town officers at a spring election, certificates of nomination for the offices of supervisor, town clerk and all other town offices were duly presented to the town clerks of the several towns of the county of Nassau. The clerks refusing to receive such certificates, Mr. Justice GAYNOR made an order directing said town clerks to receive such certificates, and to call an election in the several towns, which was done, an election held and the successful candidates inducted into office. That order was affirmed by the Appellate Division of the second department, and an appeal taken to this court; but it was not heard, because the election having passed, and the candidates having taken possession of their offices, the question had become purely an academic one.

August 3, 1903, relator demanded of the clerk of the town of Hempstead that he make and transmit to the county clerk a notice stating each town officer to be voted for at a biennial town meeting to be held on the first Tuesday after the first Monday in November, 1903, pursuant to the resolution of the board of supervisors (supra). The town clerk refused, and relator applied for an order compelling him to make and file such a list. The application was denied. After affirmance by the second Appellate Division an appeal was taken to this court.

The leading question presented is whether the resolution of April 9, 1901, was in all things valid, for if it was the order to compel an election in April, 1903, should not have been granted, and the proper time for the election will be on the first Tuesday after the first Monday in November, 1903.

The necessity for a prompt decision in order that the officials charged with the responsibility of the local election machinery may be advised of their duty in the premises prevents us from doing much more than presenting briefly the conclusion at which we have arrived, which is, that there was no statutory authority for the passage of a resolution like the one in question, extending the term of office of the officials affected.

The resolution of April 9, 1901, is not supported by ch. 391, Laws 1901, because (1) such act did not become a law until April 17, 1901, eight days after the passage of the resolution; and (2) an examination shows the statute was not intended to be retroactive in its effect, for its provisions are in terms limited to town officers "hereafter elected," and to cases where the resolution changing the town meeting is "thereafter" adopted.

The April 9th resolution, therefore, must find its support, if at all, in prior statutes. The first act authorizing boards of supervisors to provide for the holding of town meetings at the time of general elections in the fall is chapter 374, Laws 1900. The next and only other statute on the subject, prior to the resolution in question, is chapter 191, Laws 1901. It was possible under these acts to have provided for a change of town elections from spring to fall without offending against article III, section 26, of the Constitution, which provides that members of boards of supervisors shall be "elected in such manner and for such period as is or may be provided by law." This could have been accomplished by a resolution in the form suggested by respondent's counsel, to wit:

"The biennial town meetings in the several towns of the county of Nassau in the year 1903 shall be held in April, pursuant to the resolution passed by this board January 3, 1899. At said town meeting there shall be elected a supervisor, town clerk, et al. (comprising list of town officers) whose term of office shall begin at the expiration of the term of their predecessors, and shall end at midnight on December 31, 1905. A town meeting to elect the successors to the said town officers shall be held on the first Tuesday after the first Monday in November, 1905, and the town officers elected thereat shall take office on January 1, 1906; thereafter town meetings shall be held on the first Tuesday after the first Monday in November."

A resolution in that form would have been fully authorized by the statutes referred to, and would not have offended against any provision of the Constitution.

The resolution adopted, however, attempted to extend the time of the town officers then in office beyond the period of two years authorized by chapter 191, Laws 1901, for which term they had been elected, and hence was not only without statutory authority in its support, but was in violation of it. The resolution, therefore, was without authority and void, and the decision below should be affirmed, without costs.

O'BRIEN, BARTLETT, MARTIN, VANN, CULLEN and WERNER, JJ., concur.

Order affirmed.