33 Barb. 287 | N.Y. Sup. Ct. | 1861
By the Court,
The intention of the statute is plain that the vacancies specified in § 34 (1 R. S. 348,) should be filled by the electors, or at least that the clerk should give them an opportunity to fill them. His neglect to give the notice is not the neglect of the electors. It may be questionable whether the justices can take advantage of the neglect of the clerk, to fill a vacancy which the electors have had no opportunity to supply. I do not think the statute intended to provide for any such default, although the language may compel the court to treat it as such. But if there was a technical neglect of the electors to supply the vacancy within fifteen days, as contemplated by § 35, I do not think the appointment is good.
The statute requires the appointment to be by warrant under the hands and seals of three justices. (1 R. S. 347, § 31.) If the warrant was under the hands and seals of two instead of three justices, it would not be a good execution of the power of appointment. It is not the case of a delegation of authority to three or more to do a corporate act; but the
Allen, Mullin and Morgan, Justices.]
It is held that a man cannot sell property to himself, nor can he sue himself. It is an absurdity, and no better reason is given for it. If or can A. be the grantor and the grantee in the same deed. Such a deed is a nullity. If a man cannot be his own grantee in a deed of real estate, and if he cannot be the seller and buyer of his own property, how can he be the grantor and the grantee of a franchise ? Doubtless he -may participate in the corporate action of a public body which results in an election or appointment of himself to office ; but this is quite a different thing. A corporation may dispose of its property to one of the corporators, but it will hardly be contended that when a deed is required to be executed by a particular person, in order to convey the property, it can run to himself.
The governor may confer an appointment in'certain cases. Would it be tolerated that he could execute a commission to. himself under such an authority ? The same answer would be given in all such cases, that it is simply an absurdity.
These three justices are the depositories of a public trust, and it is a principle of universal application, as well as of = public decency, that neither of them should be permitted to discharge it for his own benefit or to promote his private interest.
I am of the opinion that a judgment should be entered for the defendant, as he holds over in the event of a failure to elect or appoint his successor.
Judgment accordingly.
