People ex rel. Bradley v. Board of Supervisors — 52 N.Y. St. Rep. 797

Majority

p. 797

The People ex rel. Henry Bradley v. The Board of Supervisors of Essex County et al.

(Supreme Court, General Term, Third Department,

Filed May 9, 1893.)

Headnote

1 Supervisors—Board has no power to determine contests.

Subdivision 1, of § 7, of chap. 482, Laws 1875, giving power to boards of supervisors to act upon the election and qualifications of its members, was repealed bv chap. 686, Laws 1892, and there is no longer authority for such action by the board.

2. Same.

Relator and one Sullivan were candidates for the office of supervisor. Certain paster ballots cast for relator were rejected on the canvass, but the legality thereof was determined by the court of appeals, which ordered them counted. Relator was declared elected, qualified and upon refusal of his demand for the books and papers made application to the court, which directed their delivery to him. Thereafter the board of supervisors, acting upon an alleged contest, excluded relator and seated Sullivan. Held, that the board had no power to do so, even if the act of 1875 had not been repealed.

Certiorari to review the action of the board of supervisors in assuming to pass on the election and qualification of the relator and in seating his opponent, one Sullivan. It appeared that at the town meeting in 1892 the relator received a majority of the votes cast for supervisor of his town, all the ballots cast for him bein g paster ballots,” which were not allowed to him on the canvass because he had not been put in nomination as a candidate at a

p. 798

primary meeting; that all such ballots were rejected and his opponent, Sullivan, declared elected; that a writ of mandamus was issued thereafter requiring the town canvassers to re-assemble, allow for relator the paster ballots, declare the result and issue a certificate accordingly; that such writ was sustained by the general term and court of appeals, 64 Hun, 356 ; 45 St. Rep., 533 ; 133 N. Y., 493 ; 45 St. Rep., 866 ; that the canvassers re-convened and declared relator elected, gave him a certificate and he filed his oath of office and an undertaking and demanded of Sullivan the books and papers, and on his refusal procured an order to compel their delivery to him. At the meeting of the board of supervisors both the relator and Sullivan appeared and claimed the seat. A committee was appointed, which took evidence and reported in favor of seating Sullivan, and such report was adopted and Sullivan permitted to take the seat.

Foley & Wing (Daniel F. Wing, of counsel), for relator; Robert Dornburgh, for resp’t.

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 have 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 due hearing of the parties interested, the court awarded him the custody of said books, etc., as the acting supervisor 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 subd. 1 of § 7 of chapter 482 of the Laws of 1875, 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 Law's 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 board of supervisors on the Í5th 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 fifty dollars costs and disbursements to the relator.

Putnam and Herrick, JJ., concur.