People ex rel. Overton v. Board of Trustees of Whitestone

Majority

p. 95

The People ex rel. Winfield S. Overton, Resp’t, v. The Board of Trustees of the Village of Whitestone, App’lt.

(Supreme Court, General Term, Second Department,

Filed July 28, 1893.)

Headnote

Villages—Vacancies in board of trustees—Mandamus.

The provision of a village charter that there shall be a certain number of trustees is mandatory, and it is not discretionary with the board, as members of it drop out, whether they shall call a special election to fill the vacancy ; but they may be compelled to do so by mandamus on the application of any citizen of the village.

Appeal from a writ of peremptory mandamus to compel the trustees of the village of Whitestone to call a special meeting to elect a trustee to fill a vacancy caused by the resignation of one of their members.

B. W. Downing, for app’lt; Alfred Mitchell, for resp’t.

This is a special proceeding against village trustees to compel them by mandamus to call a special election to fill a vacancy.

The relator is a voter and tax-payer of the village of White-stone, Queens county, and the defendant is the acting governing body of said village, and consists of a board of seven trustees who were in office on and prior to January 18, 1893, when one

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-of them, August M. Graue, then resigned his said office, and the vacancy thereby created existed when this proceeding began.

This proceeding was commenced by the granting, on the ex parte application of relator’s counsel upon the affidavits of himself and the relator, on April 18, 1893, of an order requiring defendant to show cause why a peremptory mandamus should not issue commanding it to forthwith call a special election to fill said vacancy. Defendant appeared by counsel, and opposed said motion, admitting the foregoing facts, hut contending that the power given was discretionary, and that they wished to save the expense of election.

It is well settled in this state that every citizen has a right to compel the performance by public officers of the duty imposed on them of executing the law. People ex rel. Boltzer v. Daley, 37 Hun, 461 , and cases there cited.

There being no disputed facts, a pure question of law was raised making it the duty of the judge below either to deny the application or grant a peremptory mandamus.

The question is whether the law which provides that there shall be seven trustees of the village is permissive or mandatory. Season and authority seem to indicate very strongly that it is mandatory. If it is discretionary, as members of the board of trustees drop out, whether to call an election or not, they might thus be reduced to one man and the representative character of the government destroyed. The power is conferred to call a special election in such a case and we think it is mandatory.

Where a public body is clothed by statute with power to do an act which the public interests require to be done, the execution of the power may be insisted on as a duty though the statute conferring the power appears to be only permissive in terms. Hutson et al v. Mayor of New York, 9 N. Y., 163 , following 3 Hill, 612 ; People ex rel Raymond v. Connolly, 4 Abb., N. S., 376; People v. Supervisors, 51 N. Y., 401 .

Order affirmed, with costs and disbursements.

Barnard, P. J., and Pratt, J., concur.