Majority
p. 129THE PEOPLE (ex rel. MARTIN) against McCULLOUGH. Supreme Court, Second District; Special Term, October, 1871.
Headnote
Quo Warranto.—Title to Oeeioe.An action in the nature of quo wwrranto, to determine the title to a public office, will not lie before the commencement of the term of office.
The court can only give judgment of ouster; and this can only be done when an existing usurpation is shown.
Demurrer to complaint.
This action was brought by the People on the relation of Thomas J. Martin, and by the said Martin, as a plaintiff, against David B. McCullough and Frederick Kassner. The complaint alleged that at an election for officers, held in Middletown, Richmond county, Feb>
p. 130I. The defendant, Kassner, should have been a plaintiff, as it was his office that McCullough claimed, and not the plaintiff’s. • II. An action to try the title to the two offices (the long term and the vacancy) could not be prosecuted
ruary 14, 1871, there were to be elected a justice of the peace for said term, for the full term of four years, commencing January 1, 1873, to succeed the defendant McCullough, then a justice of the peace, and a justice of the peace to fill a vacancy caused by the death of an incumbent, whose term of office should commence at once.
That, at said election, the plaintiff, Martin, was voted for, for the vacancy, as also was one Whittemore, . and that the defendants, McCullough and Kassner, were voted for for the full term; that Kassner received the most votes, McCullough the next highest number, and Martin the next.
That, notwithstanding such votes, the canvassers declared McCullough and Kassner to be elected, thus excluding the plaintiff Martin from his office.
The complaint then alleged that McCullough ■ claimed to be elected to the full term, and also that he claimed that Kassner should fill the vacancy, and prayed judgment that Kassner be declared elected for the full term, and the plaintiff, Martin, for the short term.
The action was commenced August 17, 1871. The defendant, McCulloch, demurred to the complaint, and specified three grounds of demurrer:
1. That the complaint did not state facts sufficient to constitute.a cause of action.
3. That two causes of action had been improperly joined.
3. That there was .a defect of parties.
S. F. Rawson, in support of the demurrer.
p. 131together, as the causes of action were separate and independent; citing 29 Barb., 391 ; 2 Abb. Pr., 402 ; 12 How. Pr., 549 -17. III. As the term of office which the defendant McCullough claimed did not commence, as shown by the complaint, until three months yet to come, there had accrued to the People no cause of action (5 T. R., 87; 16 Wend., 655 ). Tompkins Westervelt, for the attorney-general, insisted that the action was not premature; that the court could adjust the claims of the parties so that all might have their offices when the time arrived;— claimed that the action was well brought under section 440 of the” Code of Procedure. Mr. Rawson, in reply, urged that a mere claim to an office without user could not be tried; but if it could be, it was sufficient in this case to say that “ several persons,” in the language of the Code (section 440), did not “claim the same office.” That McCullough claimed the long term, Martin the vacancy, and it did not appear from the complaint, what, if anything, Kassner did claim.
It appears that the canvassers declared Mr. McCullough to be elected to the office of justice of the peace, and also Mr. Kassner; that McCullough was an incumbent, and Kassner received the most votes, both ■ being voted for for the full term of four years, commencing January 1, 1872: and that Martin, running for the short term, received more votes than his opponent. While I agree with the counsel for the people that this was error on the part of the canvassers, all the facts as alleged being admitted by the demurrer, yet my opinion on.that point will be of no effect, for that question is not before me.
p. 132
The defendant McCullough oan not claim an office until the time has arrived to assume its duties. This court can only give a judgment of ouster, and that can only be done when a usurpation of the office is proved. A mere claim to exercise an office at some future time, is not sufficient. The action is premature as against McCullough. If, on the first of January next, he does intrude into the office, the action may be " brought to try his title to it. A mere claim to have the right to enter upon the office, cannot be tried. A man cannot claim an office until he is entitled to enjoy it. This time will not arrive until January next.
Demurrer sustained.