In re Smith , 101 N.Y.S. 992 ( 1906 )

Nash, J.:

This is an appeal from an order of the Special Term,.directing the appellant, Sidney II. Cook, to deliver to the respondent, Ambrose E. Smith, all the books and papers appertaining and belonging to the office of supervisor of the town of Camillus in Onondaga county.

The proceeding was instituted under section 2471a of the Code of Civil Procedure. The facts are undisputed.

Sidney H. Cook was elected supervisor of the town of Camillus, Onondaga county, H. Y., in Hovember, 1903, for the years 1904 and 1905. His term of office was two years beginning January 1, 1904, and ending December 31, 1905. • At the election in the town of Camillus in Hovember,.1905, Cook and Smith were opposing candidates for the office of supervisor, and Smith wras elected, he having received a majority of seventeen votes. Thereafter- a cer-' ■tificate of election was issued to Smith. Tie failed to qualify as, supervisor, being at the time of his election and at the time the certificate of election was issued to him ineligible to hold office by reason of being trustee of school district No. 9 of the town of Camillus..-Oook continued-in the office of supervisor of the town- of Camillus, and as a member of the town board performed all the functions-of ■ his office and voted with-the town board on all matters coming before said town - board. On February 3, 1906, a meeting of the ■town bóárd of the town of Camillus was held at which there were present Cook, supervisor; Ellis, town clerk, and Sebring, Le Roy, Bingham and Goodfellow, justices of the peace, The following proceedings were had : Hr. Sebring offered the following resolution : “ Resolved, That this Board now consider the question of a vacancy in the office of supervisor of the Town.of Camillus, and fill such vacancy, if any, and to consider the approval of the undertaking of the person appointed to fill said vacancy.” The roll was called and the following named persons voted “Yes:” -Cook, Sebring, Bingham, Le Roy, Goodfellow, Ellis; total, six. Chair declared the motion carried. Ambrose E. Smith and James C. Bennett were each placed in nomination for the office of supervisor to' fill the vacancy. Objection ivas made to Hr. Cook’s voting, upon the ground that for the purpose of choosing Ins successor the office was deemed vacant, and he had no power to vote upon the question! The objection was overruled, and upon a roll call, Cook, Ellis- and Bingham voted for Bennett, and Sebring,, Le RoyAnd Goodfellow voted for Smith. • The chair announced that each candidate received three votes and there was no choice. A recess was then taken, and upon the board being called again to order, an oath of office signed by. Hr. Smith as supervisor, and a bond executed by Hr. Smith'as principal, and two sureties, were handed to ■ the clerk for filing in the toWn clerk’s office. Hr. Sebring, a justice of the peace, offered: a resolution that the bond of Hr. Smith as supervisor be approved; upon a roll call' objection was made to Hr.. Cook voting upon the resolution. The objection was, overruled, and roll -call résu-lted as follows : For the resolution,. Sebring, Le Roy and. Goodfellow ; against,. Cook, Bingham and Ellis.. The chair decided the resolution lost, ' Before the result Was declared objection thereto was made for the reason's heretofore given to "Mr. Cook voting. During a recess the bond of Mr. Smith was signed as approved by Messrs. Sebring, Le Eoy and Goodfellow.

Thereafter Smith demanded the books and papers of the office of Cook, and upon his refusal to deliver the same to Smith, this proceeding was brought.

Section 84 of the Town Xaw (Laws of 1890, chai). 569) provides that- whenever the term of office of a supervisor shall expire, and another person shall be elected or appointed to the office, the succeeding officer shall, immediately after he shall have entered upon the duties of his office, demand of his predecessor the books under his control belonging to such office, and the person going out of office, whenever so required, shall deliver such books and papers to his successor.

If the applicant, in a proceeding under this section (Code Civ. Proc. § 2471a), produces a certificate of his election or appointment to the office in question from the proper officer, With proof that he has duly qualified, he is entitled to the delivery of the books .and papers pertaining to the office. (Matter of Sells, 15 App. Div. 572.)

Section 65 of the Town Law (as amd. by Laws 1897, chap. 481) provides that when a vacancy shall occur iii any town office, the town board or a majority of them may appoint a suitable person to fill the vacancy.

Section 5 of the Public Officers Law (Laws of 1892, chap. 681) provides as follows: “ Every officer,, except a judicial officer, a notary public, a commissioner of deeds, and an officer whose term is fixed by the Constitution, having duly entered on the duties of his office, shall, unless the office shall terminate or be abolished, hold over and continue to discharge the duties of his office, after the expiration of the term for which he shall have been chosen, until his successor shall be chosen and qualified; but after the expiration of such term, the office shall be deemed vacant for the purpose of choosing his successor.”

We" think that, under the provisions of this section, Cook, as a member of the town board, had no legal right to vote upon the resolution to appoint his successor. This must be regarded as the proper effect to. be given to the provision that after the expiration of the term (his term, which had expired) the office shall be deemed vacant for the purpose of choosing his successor. He could, after the term for which he was chosen, hold, over and continue to discharge the duties of his office, except for the purpose of choosing his successor. To. hold that' he could vote upon a resolution to choose a successor for himself, if he were a candidate, would do violence to the spirit if not the letter of the section. It would be permitting a person to elect himself to office, and this might be done by three members of the town board if similarly situated. We should be loath to so construe the statute, if its provisions were much more ambiguous than' they are. But we think the obvious signification and import of the phrase, “ the office shall be deemed vacant for the purpose of' choosing his successor,” is, that for all purposes, including the right of Cook to vote upon the question of his successor, his office is to be deemed vacant.

- There is no force in the suggestion that the proper remedy of the moving party is quo warranta. There is no one who claims or who has usurped the office. Quo warranta will lie only where the party proceeded against is a defacto or de jure officer, is in possession of the office and the facts are in dispute..

By force of the provisión of the statute the office is vacant, except as the applicant Smith is the incumbent.

The order should be affirmed.

■ All concurred, except Kruse, J., who dissented in a memorandum.