In re Reddish — 45 A.D. 37

Majority

p. 37

In the Matter of the Application of Vincent Reddish for a Writ of Peremptory Mandamus. James H. Glavin, Supervisor of the Town of Waterford, Appellant; Vincent Reddish, Respondent.

Headnote

Local legislation by boards of supervisors—it is repealed by a subsequent general law of the State on the same subject — the Legislature may recall the power of local legislation — canvassers of. votes at town elections —form of mandamus to compel approval of an official bond.

The Legislature may at any time resume the exercise of its power of local legislation which it has conferred upon boards of supervisors pursuant to section 27 of article 3-of the New York State Constitution.

The rule that a general law does not repeal a special law unless the intent to repeal it is clearly manifest, does not apply where a local statute, passed hy a, board of supervisors pursuant to a general legislative enactment, comes into conflict with a subsequent general-law covering the same subject.

p. 38

The repeal by the Town Law (Laws of 1890, chap. 569) of chapter 482 of the Laws of 1875 does not affect the division of a town into election districts, pursuant to a statute of the board of supervisors enacted under subdivision 26 of section 1 of the last-mentioned act, as the provisions of^thé Town Law upon that subject, being substantially the same as those of the act of 1875, are, under section 242 of the Town Law, to be construed as a continuation of the former law.

A provision contained in a law of a board of supervisors, to the effect that the supervisor, justices of the peace and town clerk shall constitute the board of canvassers of the election, is repealed by chapter 456 of the Laws of 1893 which provides that the justice of the peace and town clerk of the town shall constitute such board of canvassers.

A person properly certified ¡by a duly constituted board of canvassers to have been elected, is not entitled to a peremptory writ of mandamus requiring his official bond to be approved; such approval should only be directed provided -the bond is in proper form and properly executed and the sureties thereon are sufficient:

Appeal by James H. Glavin, supervisor of the town of Waterford, from an order of the Supreme Court, made at the St. Lawrence Special Term and entered in the office of the clerk of' the county of Saratoga on the 3d day of August, 1899, directing that a peremptory writ of mandamus issue against said James H. Glavin, commanding him to approve the bond of Vincent Reddish as highway commissioner of the town of Waterford.

It appears that, under subdivision 26 of section 1 of chapter 482 of the Laws of 1875, the board of supervisors of Saratoga county, in the year 1889, passed a law dividing the town of Waterford into two election districts. Such law of. the board- of supervisors provides that after the canvass has been completed, and the result ascertained in each election district, a statement be made by the inspectors of the number of votes cast for each candidate voted for in such election district; that one of their number shall deliver such statement to the town clerk of the town, who shall deliver such statement to the town board at its meeting, and further provides that “ The Supervisor, Justices of the Peace and Town Clerk of said town shall meet at the office of the town clerk at ten o’clock in the forenoon of the day next succeding any town meeting, and open said statements in public, and then and there proceed to complete said canvass by adding all the statements from all the districts together, and declare the result, and the persons having the greatest

p. 39

number, of votes shall be declared elected to the offices for which they have been voted for.”

The relator was a candidate for highway commissioner of the town of Wateríord, for the term of one year, at the election held in March, 18,99. .A controversy arose at the town meeting, or rather at the meeting of .the canvassing board to canvass the returns from the several districts, over the result of such election. The supervisor, town clerk and four justices of the peace met from time to time for the purpose of canvassing the vote. An injunction order appears' to have been granted prohibiting the canvass of the vote, and the board adjourned from time to time, until finally.the board, as so composed, met and attempted to canvass the vote and declare the result, but failed to do so by a tie vote, their number being equally divided. Thereupon the board, so composed, adjourned without day, and did not again meet.

Thereafter, the town clerk served notice upon the four justices of the peace to meet as.a town board to canvass such statements; two of the justices met with the town clerk and proceeded to canvass the vote, declared the result, and certified to the same. The supervisor was not present, neither was he notified to be present at such meeting. ■ -

The relator filed his constitutional oath oí office, prepared a bond and presented it to the respondent Glavin, who declined to approve the same, whereupon these proceedings were instituted.

John B. Holmes, for the appellant.

Thomas O’Connor and J. W. Houghton, for the respondent.

The point at issue in this case is, as to whether the supervisor ot the town of Waterford is a part of the canvassing board, to canvass the statements of votes cast in the different election districts of such town. If he is legally a member of such board, then a majority of •such board was not present when such vote was finally canvassed. If he was not a member, then all four justices having been notified to be present, and two being present, they, with the town clerk, constituted a majority of the board, and could legally canvass the statements of votes at the preceding election. (Laws of 1892, chap. 677, § 19.)

p. 40

It will be observed that the law of the board of 'supervisors which divided the town of Waterford into election districts provides that the supervisor shall be one of the board of canvassers.

■ By chapter 456 of the^Laws of 1893, which is an amendment to-what is known as the Town Law (Laws of 1890, chap. 569), it is provided that upon the application of twenty-five electors the electors-of apy town may determine by ballot, at the annual or special town meeting, that town meetings shall thereafter be held in the several election districts of their town; and provides that at the town elections,'held in towns where they elect by election districts, the statements of the result of the votes in each election district shall be delivered to the “ justices of the peace and town clerk of the town, who shall convene and receive the same at the office of the town, clerk, on the day next following the town meeting, at ten o’clock in the forenoon. ' Such justices and clerk shall then and there recanvass such votes from the statements of the inspectors of the several separate or joint election districts so delivered to them.”

It will be observed that the provisions of the Town Law, as to the composition of the canvassing board, are inconsistent with the provisions of the law of the board of supervisors of Saratoga county, as to the town of Waterford, upon the same subject.

The contention upon the one part is, that the Town Law, being a later and inconsistent statute, repeals the law passed by the board of supervisors. On the other hand, it is contended that a general law does not repeal a special or local law, unless the intention to so repeal is clearly manifested in such general law. (See chap. 686, Laws of 1892, p. 1798.)

The repeal of the law of 1875 (Chap. 482),;under and by virtue of which the board of supervisors provided for the holding of town elections in the town of Waterford by election districts, does not affect such division of the town into election districts, or the holding of town elections by election districts, because the provisions of the law of 1875 and the Town Law are substantially the same in that respect. The provisions of the Town "Law, in that respect, are to be construed as a continuation of the former law. (Laws of 1890, chap. 569, § 242.)

The Town Law provided for dividing the towns into election districts and holding town elections by election districts, as did the law

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of 1875. The board of supervisors having divided such town into election districts, and provided for the holding of town elections by-election'districts, it is unnecessary to make a division and determination to that effect under the Town Law, because it is already done, and the law does not require a vain thing.

The two laws are not inconsistent in these respects, but they are inconsistent as to the composition of the canvassing board.

The Town Law was intended as a general law, applicable to each and every town of the State, and must be so applied, unless there is some legal, valid reason why it should not be.

The powers of legislation granted to boards of supervisors do not empower them to pass laws inconsistent with the laws of the State. When they have passed laws upon which no State legislation existed, and the State Legislature thereafter passes laws upon the same subject, inconsistent with those passed by boards of supervisors, the State law supersedes those passed by the boards of supervisors upon the same subject.

The Legislature may, by general laws, confer upon boards of supervisors powers of local legislation. (Const. N. Y. art. 3, § 27.)

But when it does so it is not a surrender of its own power over the same subject. Its power only lies dormant; it may resume it at any time, and take direct control of the subjects theretofore committed to the boards of supervisors. (People ex rel. Morrill v. Supervisors, 112 N. Y. 585 , 588.)

This it may do in specific terms, or by general laws inconsistent with those passed by the supervisors upon the same subject.

" I am aware of the general rule that a general law does not repeal a special law, unless the intent to repeal it is clearly manifest. But I do not think that rule is applicable when general statutes of the State come into conflict with local statutes passed by boards of supervisors. The reason of the general rule cited is, that it is presumed that there was some special or local reason why that special subject or locality should be taken out of the operation of the general law. Or if there was no general law upon the subject, or applicable to that locality, that then there was some reason why a special, instead of a general law, should be passed, and that such reasons continue to exist, unless the ■ Legislature clearly manifests that they do not in their subsequently enacted general law.

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The same reasons would undoubtedly apply to general laws passed by boards of supervisors when in conflict with special laws of their own adoption. But it seems to me manifest that such reasoning cannot apply to local laws passed by boards of supervisors and general laws passed upon the same subject by the Legislature of the State; it follows, therefore, that that portion of the law of the board of supervisors constituting the board of canvassers for the town of Waterford was repealed by the State law upon the same subject, and that the supervisor of .the town is not a member of the board of canvassers, and that the town clerk and justices of the peace had authority to canvass the result of the election in question, and that upon the production of a certificate of the result, it was the duty of the supervisor to pass upon the sufficiency of the bond presented to him by the relator.

The mandamus in this case, however, I think, was too broad ; it directed the respondent to approve of the bond as presented. That left him no discretion to pass upon the sufficiency of the sureties upon such bond. The mandamus should be modified, so as to pro- . vide that the respondent approve of the relator’s bond, provided the same be in proper form and properly executed, and the sureties thereto sufficient, and, as so modified, the order should be affirmed, Without costs of this appeal to either party.

All concurred.

Order modified as per opinion, and as so modified affirmed, without costs.

Cases cited

People ex. rel. Morrill v. Board of Supervisors 112 N. Y. 585 N.Y. 1889-03-05 at 588 p. 41