120 N.Y.S. 550 | N.Y. Sup. Ct. | 1909
The plaintiff brings this action as a taxpayer of the village of Mechanicville to restrain expenditures by an alleged board of health of that village, on the ground that such board is illegally constituted aid assumes to act without authority of law.
A board of health of the village of Mechanicville had heen appointed pursuant to the requirements of chapter 661 of the Laws of 1893; and, 'when chapter 49 of the Laws of 1909 went into effect, on the seventeenth day of February, the members of the board were Messrs. Cassidy, Bas.sett and Lenhardt.
According to the provisions of the special charter of the village of Mechanicville, the annual election of trustees takes place on the .first Wednesday of March, which in the present year fell on the third day of that month. The old board of trustees held its first meeting after such election on the eighth day of March last and voted to increase the number of members of the board of health from three, as it had formerly been, to five members, and appointed as such new members Messrs. Clarke and Snell, and appointed William L. Palmatier to succeed Lenhardt, whose term of office was alleged to have expired. Snell resigned and, on the fifteenth day of March, Caron was appointed in his place. On the
It, therefore, transpires that eight men claim to be members of the board of health of the village of Meehanicville and Cassidy, Lenhardt, Pinnigan and Hickey have met and appointed health inspectors and incurred liability against the village which the plaintiff says they have no right to do.
The plaintiff contends that the board of health consists of five members only and that they are Bassett, Cassidy, Palmatier, Clarke and Caron. The defendants admit that ■the increase of the board to seven members was ineffectual, but insist that it consists of Bassett, Cassidy, Lenhardt, Pinnigan and Hickey, and that the four men who assume to act have the right so to do.
The legality of the appointments of the members of the board of health depends upon whether the old or outgoing board had the right of appointment or whether that right was vested in the new or incoming board of trustees. If the outgoing board of trustees, at its first meeting after the annual election on March third, had the right to increase the number of members of the board of health and make appointments, and if Lenhai'dt’s term had expired so that an appointment in his place was properly made, then what may be termed the Bassett board, including Cassidy who concededly held over, is the legal board of health of the village. On the other hand, if the outgoing had no power to appoint or increase the number, and such power was vested only in the incoming or new board, then its appointees, which may be termed the Cassidy board, including Bassett who held over, constitute the legal board of health.
Section 20 of chapter 49 of the Laws of 1909 is a re-enactment, word for word, so far as village boards of health are concerned, of section 20 of chapter 661 of the Laws of 1893, as amended from time to time, and is surprisingly indefinite in view of the fact that it is fresh from the hands of the
I do not think there is any doubt that the Legislature intended that, after the organization of the boards of health under the act of 1893, the term of office of the subsequent members should be three years. The history of public health legislation shows this. Villages throughout the State which had not already established boards of health were directed by chapter 270 of the Laws of 1885 so to do. The language of that act is as follows: “And it shall be the duty of the trustees of every incorporated village in this state to appoint, once in each year, a board of health of such village, to consist of not less than three nor more than seven members (who are not village trustees), who shall hold office for one year or until their successors shall have been appointed.” The act of 1893 provided -as follows: “In villages the board (of health) shall consist of not less than three nor -more than seven persons, not trustees of' the village, who shall he appointed by the board of trustees at the first meeting of the board of trustees of such village after the next annual election of the village; the members of said board of health shall at their first meeting divide themselves by lot into three classes, whose terms of office shall expire respectively in one, two and three years from the annual election held prior to their -appointment; and in the case of an increase in the members of such board, as hereinafter provided, there shall be a like apportionment by lot, of the added members, in respect to their terms of office, at the first meeting of said board after such increase occurs, whereby the whole number of terms expiring annually shall be as nearly equal as possible.” The act of 1893 became a law oa May ninth of that year. It did not direct the immediate reorganization of the boards of health throughout the State, but did prescribe that, immediately following the next annual election in each village in the State, not necessarily
This interpretation of the law is not disputed, and appointments were made after this manner, and Lenhardt was appointed for three years in 1906. As to him and his successor, the question turns on when his term expired. He was appointed March 20-, 1906; and the defendants claim his term did not expire until that date in 1909 and, hence, that there was no vacancy when the board of trustees assumed to appoint Palmatier as his successor on the eighth day of March.
It will be observed that the law of 1893, which reorganized boards of health throughout the State, provided that the terms of office of members of the boards directed to be appointed after the next succeeding annual election should be for one, two and three years from the date of such annual election. Assuming that the annual election in the village of Mechanicville in the year 1894 fell on the third day of March, and that three members of the board of health were appointed, the term of office of the man who drew the one-year term would have expired on the 3rd day of March, 1895, and his successor would have begun his term of office on the day of the expiration of the term of his predecessor.
It is only where the statute fails to prescribe the time when the term of office shall begin that it begins on the election or appointment. 29 Oyc. 1398. The statute of 1893 expressly states that the terms of the first members of the
It seems to me that the outgoing hoard had power, not only to fill the vacancy caused by the expiration of Lenhardt’s term, but to increase the number of members of the board of health and appoint incumbents thereto. The term “ first meeting ” after the “ annual election ” seems to have been used in the statute of 1893 for the purpose of designating the time when the new order of things with respect to hoards of health in villages should be instituted, rather than as siiecifying that new hoards of health should be appointed in villages throughout the State by newly elected
My conclusion is that Lenhardt’s term had expired on the 8th day of March, 1909, and that the old board of trustees had the right to appoint his successor and to increase
The only remaining question is whether, in a taxpayer’s action such as the present one, the invalidity of the appointment of certain persons who assume to act as members of the board of health and cast the village of Meehanicville in liability -and thus waste the funds of the village can be determined.
The defendants cite Greene v. Knox, 175 N. Y. 432, as a conclusive authority that a proceeding in quo warranto is necessary and that the question of the validity of title to office cannot be determined in the present action. That was a taxpayer’s action to restrain the payment of salaries of police captains, and the question arose upon demurrer to the complaint. The complaint alleged that the appointments of the police captains were regular in form but that such appointments were invalid by reason of certain extrinsic facts. The decision turned upon the proposition that the validity of their appointments depended upon the establishing as true of these disputable extraneous facts. After discussing to what extent title to office might be inquired into in a taxpayer’s action to restrain waste of public funds, Werner, J. says: “ We do not feel disposed to go further at present than to say that, in a case where the title to office depends, not upon admitted facts or indisputable records, or the plain letter or fair construction of a statute, but upon disputable and extraneous facts, the question cannot be tried in a taxpayer’s action brought to restrain payment of salaries, but must be tried in quo warranto, and until so tried the payment of salaries cannot be enjoined.”
In the present case there are no extraneous facts and no disputed facts. It is purely a question of law whether the old board of trustees had the right to make appointments and whether Lenhardt’s term of office had expired. If the old board had such right and his term had expired, then
If I am right in my interpretation of the statute, it follows that Lenhardt, Finmgan and Hickey were never legally appointed, and that they have no right to assume to act as the board of health of the village of Mechanicville.
A taxpayer may bring an action to prevent an “ illegal act” (Peck v. Belknap, 130 N. Y. 294; Consolidated Laws, chap. 24, § 51; Laws 1909, chap. 29), and it necessarily follows that he may also bring an action to restrain waste because an individual assumes to act illegally in an official capacity.
If I am right in my conclusion, Lenhardt, Hickey, and Finnigan should he restrained from assuming to act as members of the board of health of the village of Mechanic-ville, and an order to that effect is granted.
Ordered accordingly.