People ex rel. Bradley v. Board of Supervisors

Majority

p. 654

(69 Hun, 406.)

PEOPLE ex rel. BRADLEY v. BOARD OF SUP’RS OF ESSEX COUNTY.

(Supreme Court, General Term, Third Department.

May 9, 1893.)

Headnote

1. County Officers—Power of County Board to Determine Contest:

Laws 1875, c. 482, § 7, subd. 1, authorizing county boards of supervisors to determine, “unless the same shall have been determined by a court of competent jurisdiction thereof,” all cases of contested membership in their respective boards, confers no authority on a board of supervisors to determine a contest between relator and an incumbent of the office of town supervisor, where the votes by which relator was declared elected were determined by the court of appeals to be legal, and pursuant to such decision the disputed votes were counted, and relator was declared elected, and where relator, having filed his bond and taken the oath of office, on application to the court, after hearing the parties interested, the court awarded him the custody of the books of the office as acting supervisor.

3., Same—Repeal of Statute.

Since Act May 18, 1892, in all things repealed Laws 1875, c. 482, such board had no authority to act on November 15, 1892, under said chapter, even if it conferred the powers assumed.

Application by Henry Bradley for a writ of certiorari to review the proceedings of the board of supervisiors of Essex county, where

p. 655

by said board assumed to pass upon the election and qualification of relator to the office of supervisor of the town of Minerva, in said' county.

Writ granted, and action of said board reversed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

Foley & Wing, (John Foley, of counsel,) for relator.

Robert Dornburgh, for respondent.

The questions in this matter have been before the courts in various forms, and have all been determined in favor of the relator. The legality of the votes by which he was declared elected has been determined by the court of appeals, and pursuant to the decision of that court the disputed ballots were ordered counted, and upon such count the relator has been declared elected supervisor of the town of Minerva, Essex county. The record on this certiorari shows that after receiving his certificate of election he duly qualified, filed his bond and oath of office, and demanded of his predecessor the possession of the books and papers pertaining to his office, which was refused. That upon application to the court after the hearing due of the parties interested, the court awarded him the custody of said books, etc., as the acting supervis- or of said town. We are clearly of the opinion that the question which settled the right of the relator to this office was substantially passed upon by the court of appeals, and that the board of supervisors had no power under the provisions of subdivision 1, § 7, c. 482, Laws 1875,^[1] if that law had not been repealed, to determine any contest between the relator and Sullivan who was seated by the action of the board. But chapter 482 of the Laws of 1875 was on the 18th of May, 1892, in all things repealed, and could not, therefore, furnish any legal authority for the action of the hoard of supervisiors on the 15th day of November, 1892, when the board assumed to exclude the relator and seat Sullivan as a supervisor of that town. We are therefore of the opinion that the action of the board of supervisors in seating Sullivan and excluding the relator was illegal, and should be set aside, and reversed, with $5(1 costs and disbursements to the relator.

Let an order be entered accordingly. All concur.

1 Laws 1875, c. 482, § 7, subd. 1, authorizes county boards oí supervisors “to determine, unless the same shall have been determined by a court oí competent jurisdiction thereof, upon the returns of the proper certifying officers, and upon such other testimony furnished to them as would be competent in a court of law, all cases of contested membership in their respective boards, and, when so determined in any cases, the decision shall be conclusive as to the right of the parties to the contest.”