144 N.Y.S. 163 | New York County Courts | 1913
The respondent was elected to the office of town superintendent of highways of the town of Oyster Bay, in this county, in the spring of 1911, for a term of two years commencing on the first day of November, 1911. In the spring of 1913, he was re-elected for a term of two years to commence on November 1, 1913. On the twenty-third day of May, 1913, charges in writing were preferred against him by John N. Carlisle, commissioner of highways of the state of New York, and filed with the town clerk of the town of Oyster Bay on the twenty-sixth day of May, 1913. A copy of said charges was served upon the defendant. Thereafter, on June 20, 1913, a hearing was had upon said charges before the town board of Oyster Bay, which resulted in a finding dismissing the charges. An order was entered thereon and filed in the office of said town clerk on said day and an appeal from said order is now taken to this court, pursuant to the provisions of section 46 of the Highway Law.
The charge contains five specifications, the first alleging that the respondent took ten loads of screenings belonging to the state of New York and used them for the improvement of the town highways; the second alleging a failure to comply with the requirements of subdivision 4 of section 47 of the Highway Law requiring the filing in the office of the town clerk of a list of the names of the persons employed in the proper maintenance and repair of highways in the town, and the compensation paid to each, and the capacity in which they were employed; the third alleging a violation of section 105 of the Highway Law in that said respondent paid in the aggregate more than seven thousand five hundred dollars for various purposes in the repair and improvement of highways in the town without entering into any agreement
Section 46 of the Highway Law provides that a town superintendent may be removed for malfeasance or misfeasance in oEce. Misfeasance is the wrongful and injurious exercise of lawful authority, or the doing of a lawful act in an unlawful manner; while malfeasance is doing an act which is positively unlawful or wrongful. Bouvier Law Dict. 421. A misfeasance is a default in not doing a lawful act in a proper manner, or omitting to do it as it should be done; while a malfeasance is the doing of an act wholly wrong and unlawful; and non-feasance is omission to perform the required duty at all, ór a total neglect of duty. Cott v. Lynes, 33 Conn. 109. The acts alleged to have been committed,, if proven, would constitute both malfeasance and misfeasance in oEce.
As to the first count alleging the taking of stone, the evidence fails to support that charge. • It appears that an employee of the respondent took state stone and placed it upon a town highway. But he did it without the lcnoviledge or consent of the respondent. Immediately upon learning of it the respondent replaced the stone. Under the circumstances this was all that he could do. There is no proof to sustain the fifth specification. This leaves the second and third specifications. As to the second specification the respondent admitted upon the trial that he did not file a list of the names of the persons employed by him as required by law. As to the third specification: It appears that on June 10, 1912', the respondent and a majority of the town board entered into a written agreement which provided for the improvement of certain highways and the expenditure of certain
The provisions of the Highway Law regulating the manner of contracting for the expenditure of the moneys raised for highway purposes were incorporated in the Highway Law by the legislature as a safeguard for the protection of the moneys of the people, and it is the duty of the highway superintendent to conduct his office and perform his duties in the manner prescribed by the act and not according to his own individual notions or judgment. Not only did the express provisions of the law require the respondent to expend the moneys in the manner required by law, but the respondent actually entered into an agreement with the town board fixing and prescribing the manner in which the moneys should be expended. The respondent must have known that having made such an agreement with the town board he was bound by its provisions and could not expend the moneys as he saw fit, and in utter disregard of the provisions of
On May 13, 1913, an agreement was entered into by three of the members of the town board and this respondent calling for the improvement and repair of the highways which the respondent had already repaired or improved with the money appropriated for the work under the agreement of June 10, 1912. As will be seen, this agreement wus entered into about the time that the charges were formulated and with full knowledge on the part of the respondent, as well as those members of the town board who entered into this agreement, that the respondent’s official conduct had been investigated and that a charge of malfeasance and misfeasance was to be made against him. It is claimed by the respondent that this agreement is a ratification of his unauthorized acts and exonerated him from these charges. There could be no ratification by the board of his acts. The observance of the provisions of the statute is imperative.
The statute (Highway Law, § 105) provides that
The making of this second agreement is in itself an admission that the respondent had violated the provisions of the statute governing the expenditure of the highway moneys. Said second agreement was made for the very purpose of making lawful the un
It appears from the evidence that it was well known to the public prior to respondent’s re-election that his accounts and acts as highway superintendent were under investigation by the state auditors and that these matters and charges of malfeasance were made public in the local press and discussed by the electors. After a full discussion and consideration of these very charges against the respondent, the electorate of the town returned the respondent to office, re-electing him for a term of two years commencing on the 1st day of November, 1913.
It is well settled that the court has no power to remove a public officer for acts done prior to his present term of office (People v. Ahearn, 131 App. Div. 30; affd., 196 N. Y. 221; Conant v. Grogan, 6 N. Y. St. Repr. 322; State ex rel. Tyrrell v. Jersey City, 25 N. J. L. 536), so that the respondent’s term of office to which he was elected last spring could not be affected by a determination adjudging him guilty of malfeasance or misfeasance in his present term. The respondent’s re-election, however, cannot, as a matter of law, have any controlling influence or effect upon the determination of this matter. The fact that the people have the right to nominate and re-elect a man to an office from which he has been removed does not affect the binding force of the express provision enacted by the people themselves that an official who has violated the mandate of a statute which has been expressly enacted to govern and control his official acts shall be removed from office and prevented from continuing to exercise the trusts, powers and duties of
The order of the town board of Oyster Bay appealed from, dismissing the said charges against the respondent, must be reversed.
Order reversed.