Smith v. Farley

the motion for judgment on the pleadings fairly presents the question involved.

Appellant contends that the elections were illegal, for the reason that one effect of the resolution of the board of supervisors was to extend the term of office of the members of that board from the time their terms would have expired following the election in the fall until the election the following spring, and he cites the case of People ex rel Smith v. Weeks, 176 N. Y. 194 , 68 N. E. 251 , in support of that contention. That case has its origin in an application for a writ of peremptory mandamus to compel town clerks of the county of Nassau to file certificates of nomination of various town officers for an election to be held in the fall, pursuant to resolution of the board of supervisors changing the time of such election from spring to fall. It was there held that an election thus contemplated would be invalid by reason of the fact that the resolution extended the terms of office of the officers whose certificates of nomination were sought to be filed. While it is doubtful whether the conclusion there reached would be controlling here upon the question of the illegality of the submission to popular vote of the local option questions, yet we do not find it essential to pass upon that question, in view of the conclusion reached respecting the construction to be placed upon the statute directly involved.

It is also urged by the appellant that the above-quoted provision of the Town Law prohibits the holding of a town meeting in an even-numbered year, he claiming, first, that such is the fair interpretation of the quoted portion of the statute; and, second, that such statute is to be construed in connection with prior statutory enactments upon the same and kindred subjects, and that when so construed a plain legislative policy is evinced to prohibit the holding of town meetings in the even-numbered years.

[3] As to the first contention, the reading of the enactment discloses its fallacy. By that statute the board of supervisors is given a discretion to appoint the time of town meetings at one of two times. The two clauses relating to the time to be selected are joined by the disjunctive “or,” which, in its ordinary use, would preclude the carrying over into the first clause of the provision found in the last clause with reference to the odd-numbered years. While it is true that such a literal construction of the word “or” will not be adopted, if its adoption tends to defeat the plain intent of the Legislature, yet, in the absence of such an effect, the disjunctive meaning is to be applied in all cases. Koch v. Fox, 71 App. Div. 288 , 292, 75 N. Y. Supp. 913 . Here it seems especially clear that the word is used in its disjunctive sense, as it is used in connection with the word “either,” and we are referred to no instance where, when so used, it is given its conjunctive meaning.

It would appear, then, that the statute makes separate and distinct provision for the holding of the town meeting in the spring from that for holding it in the fall, and that, unless other reasons compel a different conclusion, nothing stands in the way of a spring town meeting held in an-even-numbered year.

[4] In support of his contention that the policy of the state prohibits the holding of town meetings in the evén-numbered years, appellant

calls attention to various statutory enactments. It appears that prior to 1897 town meetings were held in even-numbered years, and by chapter 481 of the Laws of 1897 a general scheme was enacted for the future holding of town meetings. The term of office of all town officers elected at the town meeting of 1898 was declared to be one year, and it was further provided that at a town meeting to be held in the year 1899, in the spring, town officers should be elected, whose terms should be as in the act specified, all of which terms were made either two or four years. From this appellant argues that the provisions of this statute, carried out, compel all town meetings to be held in the odd-numbered years, and that such is the effect of that statute, when considered alone, must be conceded, inasmuch as the scheme was put into operation in an odd-numbered year, and the terms of office were so fixed as to compel the continued election of such officers in odd-numbered years.

There is not, however, and never has been, any express statutory prohibition against the holding of a town meeting in the spring of an even-numbered year, and there is but a single reason- apparent why any such policy should or could prove advantageous. That reason has been popularly understood to be the desirability of holding local elections at a different time than that of the presidential or gubernatorial elections. Expression has been given to that policy, in so far as city elections are concerned, by article 12, § 3, of the state Constitution. But full effect is given that policy by so construing section 40 of the Town Law as to permit spring town meetings to be held in even-numbered years, as such could not conflict with either presidential or gubernatorial elections.

There apparently exists no reason, either of public policy or statute, for according to section 40 of the Town Law any other meaning or construction than its plain reading imports, and such interpretation not only does not prohibit spring town meetings in even-numbered years, bur expressly permits such to be held.

It follows that plaintiff’s motion for judgment was properly denied, and that the order appealed from should be affirmed, with costs. All concur.

KRUSE and ROBSON, JJ., concur in the result.