| N.Y. App. Div. | Jul 1, 1898
The respondent Daniel Noble is the Candidate of the Democratic party for surrogate of the county of Queens. By chapter 588 of the Laws of 1898 the Legislature provided for the erection of a new county, to be called the county of Nassau, from tlm territory comprised within the limits of the .towns of Oyster Bay, North Hemp-stead and Hempstead, in Queens county. -The act in express terms directs that at the general election of 1898 there shall be elected for said county of Nassau a county judge, a'district', attorney,- a. sheriff, a county clerk, a county treasurer and a county superintendent of the poor, and candidates for these offices have been regularly put in nomination. Mr. Noble learned from the county clerk of Queens county that, notwithstanding this legislation in respect to-Nassau county, it was the intention of that officer-in making up and printing the ballots for use at the coming general election-in the three townships which constitute, or are -to constitute, that county, “ to include the names not only of all candidates nominated for. county officers
The act to erect the county of Nassau became a law on April 2.7, 1898. The last section provides as follows: “ This act shall -take effect On the. first day of January, eighteen- hundred- and - ninety-nine, except as to such parts as are otherwise provided for, and as to
Subdivision 2 of section 15 relates to the county buildings of Rassau -county, and provides that the question of their location shall be voted upon by the electors of the towns of Oyster Bay, Rorth Hempstead and Hempstead at the general election this year. By section Í of the act, which also took effect immediately upon its approval by the Governor, it is provided: “All the county officers for the county of Rassau hereby erected, which are authorized by' law, shall be elected at the general election of this state in eighteen hundred and ninety-eight.” The final provision of the statute, above quoted, also gave effect at once to the direction to which I have already referred, found in section 3, that a county judge, district attorney, sheriff, county clerk, county treasurer and county superintendent of the poor for Rassau county shall be elected this year. Reading these various parts of the statute together, we entertain no doubt that the learned judge at Special Term is correct in his conclusion that their effect was at once to set up the towns of Oyster Bay, Rorth Hempstead and Hempstead as a new county for the purpose of the approaching general election.
If this is so,'it follows that in voting for county officers the electors in the territory of these three townships can be allowed to vote only for candidates to fill the county offices of the county of Nassau. It is unreasonable to suppose that the Legislature intended to empower an elector in the new county. not only to take part in choosing the local officers of the county where he lives, but also to participate in the selection of such officers in another county of which he will be a non-resident after January 1, 1899. The language of the act, taken as a whole, negatives any such intention, and is rightly interpreted by Mr. Justice Gaynor, when lie says r “The electors of the new county by becoming such ipso facto cease to be electors of Queens county.”
As against this construction of the statute, however, it is argued in behalf of the appellant ■ that the entire enactment is invalid because its provisions in respect to the board of- supervisors of Rassau county violate the requirement of the State Constitution
• It is the 5th section of the act to which this destructive effect is attributed. That section reads as follows: “ The supervisors of the-said towns of Oyster Bay, North Hempstead and Hempstead, elected at the annual town meetings held in eighteen hundred and ninety-eight, shall constitute, and are hereby declared to constitute the-board, of supervisors of the said county of Nassau, with all the powers and privileges appertaining to such board, and shall hold their first annual meeting-on the third day of January, eighteen hundred and. ninety-nine, at the place where the public buildings; for the said county of Nassau shall be located.”
It was held below that, even if section 5 of the. Nassau County Act were unconstitutional, the remainder of the act would not fall with it. But we think that the section is constitutional. It gives a board of supervisors to the new county. That board is composed of members who have been duly elected supervisors of the several towns which make up the new " county, in the manner and for the-period provided bylaw. This fulfills the mandate of the Constitiv tion. Although the board of supervisors is a county organization, its members are not elected by the body of electors of the county, but are chosen by the electors of their several towns respectively, and. individually they are classed as town officers. (Town. Law,
While holding that the Nassau County Act is constitutional, we do not decide that the board of supervisors of the new county comes into existence for all the purposes of that, body prior to the 1st day of January, 1899. That it comes into existence for some purposes, however, seems reasonably clear. The manifest intent of the Legislature, as disclosed by the provisions relating to the election of county officers of the new county, was to enable the electors of the three townships comprised therein effectively to choose such county officers at the general election in 1898. To accomplish this result, it is necessary that the votes cast for such officers shall be. duly canvassed. There is nothing in the statute directing that they be canvassed by the authorities in Queens county ; and the fair implication from the provisions for the election of county officers for Nassau county this year (which took immediate effect) is that the election and canvassing machinery essential or appropriate to render the election effective is to be established in the new county now. To this end. the hoard of supervisors of the new county should meet as a board of canvassers as prescribed in the Election Law and proceed to canvass the votes in accordance with the requirements of that • statute. (Election Law,
While the court .at Special Term disposed of the application as a. motion for a-peremptory writ of mandamus, no such writ appears to have been granted, but an order was entered simply directing the county clerk to omit from the official- ballots for the towns of Oyster Bay, North Hempstead and Hempstead the names of all candidates . ' nominated for county officers of Queens ■ county. ■ Wé infer from the brief of respondent’s counsel that he supposed this' form of ■order to be warranted by section 8.8 of the Election Law. It seems to us, however, that the .provisions of that section have nd applicar tion to a casé like the present, but relate only to actual errors or omissions already made in the preparation of the ballots before, the, proceeding is commenced. In affirming the conclusions of the court below," therefore, we must modify the form of the order so that it shall provide for .the issuance, of a peremptory writ of mandamus.
. All concurred. .
Order modified so as to direct that a peremptory writ of mandamus issue to the appellant, commanding him, in preparing the ballots to be voted at the ¡next general election in- the towns of Oyster ■ Bay, North Hempstead and Hempstead, to omit therefrom the names - -of all candidates for county offices of the county of Queens,, and the designations of such offices; and as thus modified, order affirmed, without costs. '
$ic.
Laws of 1890, chap. 569.—[Rep.
Laws of 1892, chap. 686.—:[Rep.
Laws of 1896,' chap. 909.— [Rep.