21 How. Pr. 42 | N.Y. Sup. Ct. | 1861
The electors of a town are empowered by law, at their annual town meeting to determine by resolution whether there shall be chosen one or three commissioners of highways. (Laws of 1841, ch. 455, § 1.) Prior
The defendant claims to have been elected to the office of commissioner of highways, at the annual town meeting, on the 6th March, 1860, and to be lawfully entitled to exercise or perform the duties or functions of the office. There were at that time two commissioners in office, one of whose terms expired in March, 1861, and the other in March, 1862. If, at the town meeting held on the 6th March, 1860, the resolution of the electors to return to one commissioner was adopted according to the form and requirements of the statute, the pretended election of the defendant would be void and of no effect. The defendant’s title, therefore, to the office depends wholly upon the question whether the electors regularly and legally exercised the power conferred
The minutes of the proceedings of the town meeting of the 6th March, 1860, subscribed by the clerk of such meeting- and by the officers presiding, and filed in the office of the town clerk as required by law, show the adoption of a resolution by the electors at such meeting, to have hut one commissioner of highways in the town after the terms of those in office shall have expired. In addition, the town clerk testifies that the resolution was read to the electors and the motion 'put by him by the direction of the board, from the piazza of the hotel, where the meeting was being held, and where the electors generally assembled; the result was made known, and signed by the board; and he kept the minutes of the proceedings of the meeting, and entered the resolution in the town book. It is not controverted that the resolution was submitted to and voted on by the. electors, or that it was carried in the affirmative, but the allegation is, that it was not put at the right time, or in the right place, or by the right person, and hence was entirely without force or effect. . I propose briefly to examine this position.
1st. As to the time. The law requires the resolution to be taken at an annual town meeting. This was done. But the resolution was adopted after the meeting had been opened, and the balloting had progressed for some time for town officers. This would not, however, invalidate the act of the electors, unless the statute in plain terms directed that such action should be had before the balloting began. There is no such direction in the statute, nor do I think it is to be necessarily implied from any of the provisions relating to town meetings or the. power of the electors thereat.
2. As to the place where the resolution was moved. The town meeting was being held at the house of one George E. Hulse. The ballots were taken in an upper room, whilst the resolutions were moved from the piazza of the hotel. The resolution was discussed and drawn up in the room where the balloting was progressing, and the crowd in the room proceeded with the clerk to the piazza where the main body of the electors Avere. The resolution was put, and declared to be carried, no one challenging the count or demanding a division. It is noAv urged that there A\7as no town meeting being hold at the place Avhen the resolution Avas moved; the meeting being inside of the building, whilst the motion Avas made on the outside. The refutation of a position so untenable is scarcely required. The electors had assembled and Avere holding a town meeting at the house of Hulse. The meeting had not been appointed to be held in any particular room of the house. It is true that
3. As to the person putting the motion, and the declaration of the result. The town clerk submitted the resolution to a vote of the electors, by and under the direction of the presiding officers of the meeting. In this, there was no such irregularity, as to vitiate the act. The presiding officers are undoubtedly the proper persons to submit any question arising at a town meeting to a vote of the electors, as they are charged Avith the duty of ascertaining and declaring the result of the vote. There is a substantial compliance with this requirement when the question is submitted by the clerk by the order and under the direction of the presiding officers. It cannot be necessary that all motions made at a town meeting should be actually put by the presiding officers or one of them; and that they should personally declare the result of the vote at the time it is taken. The clerk by their direction, may act as spokesman. The question is determined by a majority of the electors voting; and when the clerk or spokesman announces the motion to have been carried, and no elector calls for a division or moAres a reconsideration, and the result is entered on the minutes of the proceedings of the town meeting which are subsequently subscribed by the presiding officers, such officers have ascertained and declared the result of the vote Avithin the meaning of the statute. (1 R. S., 5th ed., 820, §29.)
There must be judgment that the defendant is guilty of intruding into and unlawfully holding and exercising the office of commissioner of highways of the town of Marl-' borough, in the county of Ulster; and that he be excluded from such office; and, also, that the plaintiffs recover costs-against him.