38 A.D. 539 | N.Y. App. Div. | 1899
Lead Opinion
Some time prior to March, 1898, Augustine Smith was elected as a justice of the peace of the town of New Rochelle. On the 29th d.ay of that month, and while holding the office to which he had previously been elected, Mr. Smith was chosen by the electors of the town of New Rochelle as town clerk. This latter office Mr. Smith accepted, and the relator claims that by this act the office of justice of the peace became vacant, and he asks for a writ of mandamus to compel the town board to meet and fill such vacancy, as provided by law.
The question presented is whether the two offices are incompatible within the meaning which the courts have given to that word. It is conceded that there is no vacancy within the provisions of section 20 of chapter 681 of the Laws of 1892, which prescribes the conditions under which all offices shall be deemed' vacant; but it is urged that by accepting the second office the first became vacant, by reason of the
Angelí & Ames on Corporations (11th ed. § 434) says: “A resignation by implication may not only take place by an abandonment of the official duties, as before mentioned, but also by being-appointed to and accepting a new office incompatible with the former one. It was supposed at one time that such a resignation could only be where the second office is superior to the former. It. has, however,'been determined to be unimportant, and that if one holding a superior office accept a subordinate one that is incompatible, the appointment to the second operates to vacate the former. * *' *- Where the offices are not in fact incompatible, acceptance of a second may be a resignation of the first, on account of the form of the. Constitution; for it is not to. .be presumed that when the government constitutes 'a certain number of distinct offices, it means that the corporation may consolidate two or more of- them in one. person.” In the case of Milward v. Thateher (2 T. R. 81,. 87) the court held that “ If the corporation consist of a mayor,, recorder, town clerk and - twelve aldermen, the recorder or town clerk cannot be an alderman, although there be no inconsistency in the dutips of the two officers, for such a method of electing, would
Under the provisions of chapter 20 of the General Laws (The Town Law, Laws of 1890, chap. 569, § 160), “The supervisor, town clerk and the justices of the peace, or any two of such justices, shall constitute the town board in each town.” This town board is authorized to audit the accounts of the justices of the peace, as well as of the town clerk, both of whom are allowed two dollars per day for each day actually and necessarily spent in the service of the town (§ 178) besides certain fees. The respondent Smith, if permitted to' hold both of these offices, may either have two votes in deciding upon his own claims before the town board, or the town board must be deprived of the full number of members provided for by law. In either event, considerations of public policy would be overlooked for the personal aggrandizement of the individual. Smith might be drawing a salary of two dollars per day while serving on the town board as town clerk, at the same time that he was drawing an equal amount for performing his duties as a justice of the peace in the same body, and while conserving his own interest as a member or members of the auditing board. There are other matters in which the duties of the two offices are incompatible in a measure, but none of them in which considerations of public policy so obviously demand that the two offices should-be separated.
In People v. Carrique (2 Hill, 93) it was held that the appoint- ■ ment of a person to a second office, incompatible with the first, is not absolutely void ; but on his subsequently accepting the appointment and qualifying, the first office is ipso facto vacated. This was a case in which the question arose over the appointment of a justice of the peace to the office of justice of the Justices’ Court of the city of Hudson, and the case went, no farther than the general assertion of the proposition stated, and gives .little- aid .in the solution of the question involved here.
Dillon on Municipal Corporations (4th ed. § 227) says : “ W hether offices are incompatible depends upon the charter or statute, and the nature of the duties to be performed. The same man cannot be judge and minister in - the same court, and hence the offices are not compatible. Where the recorder is an adviser to the mayor, the
The order appealed from should be reversed, and the peremptory writ of mandamus should issue.
All concurred, except Goodrich, P. J., who read for affirmance.
Dissenting Opinion
I dissent from the opinion of Mr. Justice Woodward for three reasons: First. There is no statute declaring Smith’s office of justice of the peace “ vacant ” because, while such justice, he accepted the office of town clerk. Therefore, I think mandamus does not lie
'Second. I do not think the offices are incompatible, because th& justice of the peace and the town clerk are members of the town board, and that board audits the compensation of both officers. This is also the case as to the compensation of the town clerk or a justice, when either holds that office alone. The town board of' which such officer is a member must audit the account of such officer, he being one of its members, as directed by sections 160 and 162 of the Town Law (Laws of 1890, chap. 569). So, also, section 58 recognizes the right of a justice of the peace to hold the office of' supervisor, and as the supervisor is a member of the town board he is not forbidden to act as- a member of such board in auditing his. own accounts as a justice of the peace.
Third. I should be influenced by the suggestion that the policy of the law forbids the holding of two offices by one person, if it were not that there is no such statutory provision applicable to the-offices of justice of the peace and the town clerk, and that the contrary right of a justice of the.peace to hold another office, viz., that of a supervisor, is expressly recognized by section 58 of the Town. Law.
I think the order should be affirmed.
Order reversed, with ten dollars costs and disbursements, and. motion granted, with ten dollars costs.