People ex rel. Upham v. Whiteside

23 Wend. 9 | N.Y. Sup. Ct. | 1840

Nelson, Ch. J.

By the Court, By the revised statutes, vol. 1, p. 114, § 13, county treasurers were to be appointed by the board of supervisors, and they held their offices during the pleasure of the board. The subsequent act, Statutes of 1836, p. 709, provided, that whenever a vacancy happened in the office of county treasurer, it should be filled in the manner provided by law for the appointment of commissioners of deeds. That act will be found in 1 R. S. 109, § 29. The same act of 1836, also provided, § 2, that the county treasurer may be removed by the joint ballot of the judges of the county courts and boards of supervisors, at an annual meeting of the latter; and that a majority of the judges and supervisors present, and voting, shall be necessary to do the act.

It is conceded the relator was lawfully in office on the 14th November, 1838, when the attempt was made to remove him, and the only material question arising upon the special verdict is, whether he has been removed by the competent authority.

The power is conferred upon the judges and board of supervisors in joint ballot. A majority of the latter body may constitute a board, 1 R. S. 367, § 5, but of the former, there may be a doubt if all should not be present. 2 id. § 27. Individually, I am not disposed to regard this latter section as conclusive on the question, and the common law as [ *16 ] understood at this day in England, I think is otherwise. *See Blacket v. Blizare, 9 Barn, & Cres. 85 and 648. 7 Cowen, 526, note, and cases there cited. 9 Wendell, 17. Willes, 215. By that section a power of a public na-ture conferred upon three or more persons, may be executed by a majority present and acting. Our cases, or rather dicta, seem to have followed a suggestion in Grindley v. Barker, 1 Bos. & Pull. 229, which gives countenance to the idea that all must be present, and then a majority may act. The revisers obviously had this rule in their mind in drafting the section — -the object of which was, as they avow, to conform the rule governing the execution of an authority for a private purpose, to the one supposed to exist respecting an authority of a general and public nature. They did not intend to alter the latter rule, but, I think, they mistook it as understood in England at the time,"and it has never been otherwise determined in this state. I do not intend, however, to discuss the point here, as the question does not arise on the removal of Upham, the only one I shall examine: it does on the appointment of Whiteside.

Was the relator removed by competent authority ? The judges, it is certain, did not participate in the act; on the contrary, they expressly resolved otherwise at their chambers, and so advised the supervisors. When the latter attempted to force them into a vote in spite of their resolution, they left the room, and refused to ballot; the supervisors alone acted in the matter. It is, I think, impossible to sanction such an execution of the power ; it would be legalizing a mere mockery of the statute.

The motives of the respective boards we do not enquire into ; the question of authority cannot depend upon what they may have been. Nor have we any evidence before us by which we are enabled to determine which was right. The removal was not for cause, as provided for in the act of 1886, § 3, 4, but, at pleasure, and must be at the pleasure of both bodies: the coucurrence of the one body by meeting in joint ballot is as essential as that of the other. Could the judges have made a removal after the supervisors had refused to act, and left them ? No one, I think, will pretend they could; and yet the argument is equally as strong in favour of such an execution of the power, as in the case before us.

*In the analogous case of powers conferred upon corporations [ *17 ] aggregate, consisting of several distinct parts, called integral parts, and where the concurrence of each is essential, even if one of the parts is improperly absent, the acts of the remaining body are nugatory. 1 Maule & Sel. 141. 8 East, 389. 7 Cowen, 630, note. This is a much strom ger application of the rule than in the case before us, because here it cannot be said that the judges acted - improperly, as they had the same right to determine as to the necessity or expediency of the removal, as their associate body ; the statute having conferred upon each, equal concurrent powers in this respect.

If any thing further was necessary to confirm the above view of the statute, we might refer to the last clause of the 2d § of the act of 1836, which requires that a majority of the judges and supervisors present and voting, shall be essential to the removal. The act is doubly explicit. It not only confers the power upon the two bodies in joint ballot, but a majority of each must be present and voting. Here the judges were not present, nor did they vote.

The argument for the defendant goes the length of maintaining against the terms and whole scope of the act, that each integral part of the body upon whom the power is conferred, may execute it. The supervisors have alone acted; if effectually, so may the judges under like circumstances. Such an extraordinary result would seem to require no argument to refute the premises from which it must be drawn.

If the removal was made without authority, the relator is still the lawful incumbent, and the attempt to appoint the defendant of course failed.

For the above reasons, I am of opinion the plaintiffs are entitled to judgment.

Judgment for plaintiffs.