141 N.Y.S. 641 | N.Y. Sup. Ct. | 1913
The village of Solvay, Onondaga county, is a municipal corporation organized under the Village Law of the state. There is only one election district in the village. At the village election held on March 18, 1913, there ■ were two candidates for the office of village president, the relator, Francis L. Worth, and the defendant, William P. Kanar. The defendant received at such election -512 votes and the
The defendant is a physician, forty-nine years of age, and has resided in the village of Solvay for twenty years. About twelve years ago he purchased, on a contract, a house and lot in said village known as No. 517 Milton avenue. In 1909 a deed of the property was taken in the name of his wife. During that time the property was assessed to the defendant and he paid the taxes thereon and made all repairs and improvements thereon. In 1911 the defendant purchased a lot of between one and two acres known as 40 Orchard road in said village and took the title in the name of his wife. He paid the purchase price for the land and built a house and barn on the lot; and he occupied the house and an office in connection therewith and on the building was his physician’s sign. This property was assessed to the defendant on the assessment-roll of the village for the year 1912, the last preceding assessment-roll prior to the election in question. On March 8, 1913, ten days prior to the election in question, the defendant’s wife deeded to him a lot off from said parcel of land at 404 Orchard road, said lot being 100 feet
Section 42 of the Village Law reads as follows: “A president * * * must, at the time of his election, be owner of property assessed to him on the last preceding assessment-roll. ’ ’ The position of the relator is that the defendant is not eligible to hold the office of president of said village because he was not the owner of the property assessed to him on the last preceding assessment-roll at the time it was so assessed. The relator contends that the words “ assessed to him ” should be construed to mean “ owned by him ” at the time said assessment-roll was completed. It is conceded that the property was assessed to him upon the last preceding assessment-roll, and it is conceded that at the time of the election he was in fact the owner of part of the property so assessed to him upon the last preceding assessment-roll.
Under the literal reading of section 42 the defendant was qualified to hold the office, and, if the will of the voters of the village of Solvay is to be disregarded and their expressed choice ignored, it must be by a construction of this section not justified by the wording of the section itself. Courts should not lightly interfere and set aside the election of a person who has been fairly elected by the voters. The will of the majority as expressed by the ballot should be controlling and binding unless there is some clear and positive reason why their will should be ignored and the person elected declared to be ineligible.
In eases where a statute limits the eligibility of persons to hold office by requiring property qualifications the statute should not be extended by judicial con-' struction beyond the clear meaning of the language
The purpose of section 42 of the Village Law is to secure for the position of president of villages persons who are interested and by reason of their interest may be expected to be careful and economical in administering the affairs of the village. In the case of Jewell v. Mohr, 136 N. Y. Supp. 273, Justice Wheeler wrote as follows: “ the object and purpose of the Village Law, § 42, is simply to insure that those elected as trustees of a village shall be property owners and taxpayers of the village, to the end that they may have the proper interest in the village welfare and prosperity.” In that case Justice Wheeler stated in the opinion that where the candidate was actually the owner of property he was not disqualified because of the fact that the assessors of the village had failed to change the assessment from the name of the former owner of the property, although they had been instructed to do so by the candidate.
The action of the board of trustees at their meeting on March 20,1913, in declaring the defendant ineligible
My conclusion is that the defendant, William P. Kanar, was at the time of the election eligible to the office of president of the village; that he received a majority of the votes east for such office at the village election and was duly elected, and is entitled to hold such office.
Judgment for defendant.