In re Coulter

At the general election held in the town of Cortlandt in November, 1937, town officers were elected for terms expiring on December 31, 1939. When that election was held the village of Peekskill was part of the town of Cortlandt. • Thereafter the Legislature enacted chapter 194 of the Laws of 1938 entitled “ An Act to provide a charter for the city of Peekskill.” By its terms the statute was to become effective on January 1, 1940, but only if a proposition that the statute should be “ approved ” was adopted by a majority of the votes cast at the village election of the village of Peekskill to be held on April 12, 1938. A majority of the votes at the election were cast for approval of a proposition. The boundaries of the village of Peekskill were the same as the boundaries of the proposed city of Peekskill and in the statute it was provided that from and after January 1, 1940, the territory included within the boundaries of the said city “ shall not constitute or be a part of the town of Cortlandt.” (§ 5.) Accordingly at the election, held in 1939, for officers of the town of Cortlandt to take the place of the town officers whose terms expired on December 31, 1939, the names of candidates for town officers appeared on the voting machines only outside the territory of the proposed city and, on the voting machines within the territory of the proposed city, only the names of candidates for city officers appeared.

Even before that election, however, question had been raised whether the statute (L. 1938, ch. 194) was valid under the Constitution of the State and whether the proposition that the statute should be approved had been submitted in legal manner to the voters at the village election held in April, 1938; and the town of Cortlandt had brought an action to obtain a declaratory judgment determining that the statute was inoperative and void. In October,

The question then remained whether the candidates for town office who had obtained a plurality of the votes cast at the general election of November, 1939, were validly elected although, through mistake of law, their names had not been placed before the voters in the most populous part of the town. If those candidates were not validly elected, then each town officer holding office and performing the duties of his office at the end of the year was commanded by statute to “ hold over and continue to discharge the duties of his office, after the expiration of the term for which he shall have been chosen, until his successor shall be chosen and qualified.” (Public Officers Law, § 5; Cons. Laws, ch. 47.) The officer, holding over, would in such case be the only person who could lawfully perform the duties of the office and every official act performed by him in accordance with the authority vested in 'him by law would be as effective as if performed before the expiration of his term. The question whether those candidates for town office, whose names had appeared on the voting machines in the part of the town outside of the village of Peekskill and who had received a majority of the votes cast, were entitled to office could be authoritatively settled only by the courts and

The Board of Assessors of the town is appointed by the Town Board (Town Law, § 20; Cons. Laws, ch. 62) for a term of two years (§ 24). The term of the Board of Assessors appointed in January, 1938, expired in January, 1940, and the members of the old Town Board who continued to perform the duties of office, though their terms had expired, appointed a new Board of Assessors for a term of two years beginning in January, 1940. The Board of Assessors so appointed now claim that the appointment was made lawfully by a legally constituted Town Board and that they are entitled to hold office for the term for which they were appointed. To support that claim they argue that the Town Board making the appointment was acting in accordance with rights conferred by law, and not merely under a color of right, when it continued to hold office after the expiration of the term for which the members of the Board were elected and appointed the Town Board of Assessors for a full two-year term.

The controversy over the right to hold office between the members of the old Town Board and the candidates who claimed that they had been elected as successors to the old Board at the election held in November, 1939, was submitted to the Appellate Division, pursuant to sections 546 to 548 of the Civil Practice Act. That court held that the election was ineffective and that the members of the old

Before the decision of the Appellate Division in Lane v. Johnson (supra) was reviewed in this court, the Legislature had, however, changed, by new statute, the law as it existed when the Appellate Division had rendered its decision. This court, giving to the statute, as it was bound to do, the retrospective effect intended by the Legislature, reversed the decision of the Appellate Division, but it indicated that in the absence of the new statute, it might well have reached the same conclusion as the Appellate Division had reached. (Lane v. Johnson, 283 N. Y. 244 .)

The statute to which we were bound to give its intended retrospective effect (L. 1940, ch. 409) was intended, we pointed out, to cure “ the defects in the notice of the election of April, 1938, at which the proposition whether the 1 Act to incorporate the city of Peekskill ’ should be approved was submitted to the qualified voters ” and we said that “ Then, the statute incorporating the city, which until that time was ‘ inoperative ’ under the decision of this court rendered in November, 1939, would be given effect according to its terms as if the voters had given approval at a

It is argued on the one hand that although this court had pointed out in Town of Cortlandt v. Village of Peekskill (supra) that the statute incorporating the city of Peekskill never became effective and that the government of the village of Peekskill continued to function as before and would continue to function as before until a city government was established by a new statute, yet that thereafter the court, in Lane v. Johnson (supra), held that by,new statute the Legislature had given effect to the statute the court had previously declared was without effect, and the

The distinction between the effect of the official acts of public officers lawfully exercising their official powers and the acts of persons occupying public office without lawful right, but under a color of right, is not the product of legal fictions, but rather of public policy and public necessity. Here the Town Board continued in office in accordance with law, but the right of the Board to continue in office must, in accordance with the same law, end when successors were chosen who could replace them. We said in Lane v. Johnson (supra) that the Legislature “ had power to enact the curative statute and to give retroactive effect, in some matters, to a statute previously declared 1 inoperative.’ ” (Italics are new.) No statute can retroactively impound the water which has flowed over a dam, nor, in real sense, give retroactive existence to a newly created municipal corporation or government, and the Legislature in enacting the curative statute was not attempting the impossible, or creating legal fictions. It was attempting to solve in a manner it deemed practical a practical problem and to establish a city government for Peekskill as soon as possible under a charter previously formulated but which never went into effect, and to place in office both in the city of Peekskill and in the reconstituted town of Cortlandt the city and town officers previously chosen by the voters in the

We did point out in Lane v. Johnson (supra) that even though at the village election of April, 1938, the voters failed to indicate approval of “ An Act to provide a charter for the city of Peekskill ” in the manner required by the statute before the statute should become effective, yet the Legislature had power to decree thereafter that without requiring a new election “ it will incorporate the city of Peekskill as provided in the original statute of incorporation” (p. 255), and we did hold that the Legislature in chapter 409 of the Laws of 1940 had so decreed. To that statutory decree immediate effect was given as the Legislature commanded. Until the statute became effective the village government and the town government continued to function in all respects as they functioned at the time when the statute of 1938 which never became effective was passed. That is what we said and decided in Town of Cortlandt v. Village of Peekskill (supra). Prom the time the statute of 1940 became effective a new city government was established and the territory within tthe boundaries of the city

For these reasons it is plain that the validity of the official acts of the persons performing the duties of town and village offices does not depend upon fine spun distinctions. To all such acts the sanction of legality is attached; but in this case even though the appointment of the Board of Assessors by the Town Board, which continued to perform official duties after the term for which its members were elected had expired, must be treated as a valid official act, the question still remains whether town officers so appointed remain in office after the Legislature has changed the boundaries of the town and has decreed that the affairs of the town should thereafter be administered

For that reason the order should be affirmed, without costs.

Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Order affirmed.