26 Wend. 634 | N.Y. Sup. Ct. | 1841
After advisement, the following opinions were delivered:
Two questions are presented in this case: 1st. Was the relator legally removed from the office of treasurer of the county of Chautauque 'i and 2d. Was the plaintiff in error duly appointed to that office 1
County treasurers now are, and ever have been, with the exception of the four years from 1836 to 1840, appointed by the boards of supervisors alone, and removable at their pleasure. During those four years the judges of the courts of common pleas were by law associated with the supervisors, in the appointment and removal of county treasurers. The alleged removal of the relator from office, took place in the fall of 1838, when the new law had been in operation between seventeen and eighteen months. Now, unless the relator had been appointed to office during that time, he must have been appointed by the supervisors alone, and was consequently liable to be removed by them alone, the statute declaring that he <£ held during the pleasure of the board appointing him.” 1 R. S. 114, § 13. If the new law could have taken effect at all upon the treasurers in office, at the time it was enacted, the most it could do was to give to the judges a concurrent jurisdiction with the supervisors in the removal of those officers. The old law was not repealed, except so far as the new one was inconsistent with it. Authorizing a new board to make removals does not of itself revoke or annul the authority of the old; they may be concurrent and both stand. Parallel lines do not interfere. There is nothing in the case which shews when or by whom Upham was appointed. He was in office on the second Tuesday of November, 1838. If he had been appointed within seventeen or eighteen months, it must have been by the new joint board, and in
I will, however, take another view of the case, and assume that Upham had been appointed to office under the new law. If thus appointed, it follows that he must have been removed under the same law, or his removal was not valid; and whether valid or not, depends upon the proper construction of that law. The words of the act are, “ the county treasurer may be removed from office by the joint ballot of the judges of the county courts and board of supervisors of the respective counties of this state, at the annual meeting of the said supervisors: a majority of the said judges and supervisors present and voting shall be necessary to make a removal of such treasurer. Statutes of 1836, p. 700. 3 R. S. 367, § 2. The removal is to be by joint ballot, and not by concurrent resolution. These things are essentially different: the first is the act of a single body formed from two bodies convened together, and when convened forming but one body. It is an essential ingredient of a joint meeting, that when convened the bodies out of which it is formed, whether two or more, are merged and become one. Another ingredient is, that every individual composing it stands upon an equal footing with every other individual, and the presence of one individual is not more essential than that of another. It is only necessary that a quorum should be present, and what number shall constitute a quorum depends upon the law or
The supreme court seem to think that their construction is supported by certain English adjudications founded upon charters of petty corporations, in which the loyal subjects of the British crown discover a government within a government; and amuse themselves by drawing analogies between their constitution and that of their own boasted empire. In the mayor, they think they see their sovereign, in the aldermen the house of lords, and in the commonalty the house of commons, and they are pleased to think that as a valid law requires the concurrence of the crown and both houses of parliament, so these branches of the little empire must all be present and act, or else these doings are void: I do not object to such fancies. Let those who please, indulge themselves in that way; but with all due respect to the supreme court, it seems to me to require a more active imagination to discover an analogy between the joint meeting in question, and those English corporations, than it did to find a similarity between the latter and the English government. If it were necessary to cross the Atlantic for assistance to construe this statute, much more
I do not deem it necessary to look farther for foreign authority. The terms of the law under which this removal was made, appear to me too plain to be misconstrued by an unbiassed mind. The law itself is now wiped from the statute book. During its short existence, I am not aware that it was the subject of judicial investigation except in the case under review. Proceedings by bodies very similarly constituted, have often been examined by our courts, and it will be found that the positions above taken have been uniformly sustained, as often as they have been presented, down to the present case. In addition to the case above quoted, 10 Wendell, 612, I shall cite but one more, viz: ex parte Rogers, 7 Cowen 526. That was an application for a mandate to compel the canal commis
The course of proceedings of this court, is another illustration of the same rule of construction. The court is formed of four integral parts, to wit: the president of the senate, the senators, chancellor, and the justices of the supreme court, or a major part of them, yet when conven
The second question is, whether Whiteside was duly appointed. It is objected that the appointment was not made at the proper time, the law requiring nominations to
The result of the examination which I have been able to give this cause is, that the judgment of the supreme court ought to be reversed.
Senator Skinner said that he understood the learned senator, who had just sat down, to advance the doctrine that the law of 1836, associating the judges of county courts with the supervisors in the appointment of county treasurers, should be intended to apply only to such persons as should be appointed county treasurers subsequent to the passage of that act, and that it could not affect those then in office, and consequently that the supervisors, alone, had the power to remove a county treasurer appointed previous to the passage of the act. He said he dissented entirely from the views and arguments presented by the learned senator. In his judgment, the act of 1836 applied to all cases of appointment and removal of county treasurers, whether appointed prior or subsequent to the passage of the act; and that the supervisors, alone, had no power or authority, by the provisions of that act, either to remove or appoint a county treasurer in any case whatever.
•He said that he agreed that the single, simple question presented by this case was, whether by the act of 1836, the board of supervisors, alone, without the co-operation and concurrence of the judges of the county courts, had
The Chancellor, it is understood, declined to deliver an opinion in this case, on the ground of one of the judges of the county court being his brother.
On the question being put, Shall this judgment be reversed ? The members of the court divided as follows:
In the affirmative'. The President of the Senate, and Senators Dickinson, Furman, Hawkins, Hopkins, Hull, Humphrey, Hunt, Lee, H. A. Livingston, Peck, Platt, Rhoades, and Works—14.
In the negative: Senators Clark, Denniston, Ely, Hunter, Johnson, Paige, Scott, Skinner, and Strong —9.
Whereupon the judgment of the supreme court was Reversed.