37 N.Y.S. 633 | N.Y. Sup. Ct. | 1896
This is an application for a writ of mandamus
against the board of audit of the town of Champlain, requiring it to reconvene and audit the claim .presented by the relator to the said board at its last, meeting in 1895. Several questions are raised by this application. It is not disputed that it was the duty of the board of audit to audit and allow all proper claims made
The more serious objection to the claim of plaintiff arises from the fact that he does not appear to have been, at the time these services were rendered, either a town officer, or a county officer of the county of Clinton. The only information to be obtained upon that point is the affidavit of the relator attached to the said claim, verified on the 22d day of October, 1895, in which the relator and claimant says that he is a resident of the town of Saratoga Springs, in the county of Saratoga, and that he is a. deputy sheriff of the county of Clinton. That the sheriff of the county of Clinton has no authority to appoint a deputy residing in any other county, and continuing to reside in any other county, than the county in which the sheriff resides, seems to me too plain to admit of argument. A bare reading of the statutes ought to suffice to carry conviction upon this proposition. Section 15, chapter 5, title 1 of the Revised Statutes, "relating to public officers of the state, provides:
“ The following officers, namely: sheriffs, clerks of counties, coroners, district attorneys, marshals of cities, the clerk of the Court of Oyer and Terminer and General Sessions in New York,*94 the registrar ■ and clerk of that eity, police justices and. assistant justices in that city and their clerks, are so far local as to require . the residence- of every person holding such office within the county or city in,which the duties of his office are required by law to be executed.”
Section -73 of article 5, chapter 12, of the Revised Statutes, relating to sheriffs, etc., reads:
“ § 73. Every'sheriff may appoint such and so many deputies as he may think proper,' and persons may also be deputed by any sheriff or under sheriff by an instrument in writing to do particular acts.”
Section 7 of chapter 5, part 1, title 6 of the Revised Statutes, being general provisions applicable' to all civil officers of the state, provides:
“ § 7. In all cases not otherwise provided for each deputy shall possess the powers and perform the duties attachéd by law to the office of his principal during a vacancy in such office and during the absence , of his principal”
Subdivision 4 of section 34. of article 4, chaptér 5, of the Revised Statutes, relating to resignations, vacancies, removals, etc., provides as follows:
“ §. 34. Every office shall become vacant on the happening of either of the following events before the expiration of the term of such office. "" * * (4) His ceasing to be an inhabitant of the state, or, if the office be local, of the district, County, town or city for which he shall have been1 chosen or appointed, or within which the duties of his office are required to be discharged.”
That the office of sheriff and that of deputy sheriff are local seems to- be fixed by statute. If it needed any statutory determination to convey the meaning of a “ local office,” such has already been determined by section 15, hereinbefore referred to. Section ll9 of chapter 272 of the Laws of 1892 seems to prohibit the appointment by a sheriff of' any person not a citizen and. resident of the state of New York, and a resident of the same county as the sheriff or other officer making such appointment, and prohibits all persons from assuming to exercise the functions of such sheriff who- are not so resident of the county in which the sheriff resides. It can hardly be argued, I think, with 'any degree of force, since the sheriff must, of necessity, under the law, be a resident of the county in which he is- sheriff, that he may appoint deputies residing in other counties throughout the
Application denied.