Majority
p. 816In the Matter of the Application of Henry Bradley, Resp’t, to Compel the Delivery of Books, etc., by William H. Sullivan, App’lt.[1] (Court of Appeals, Filed March 13, 1894.)
Headnote
1. Office—Delivery of books.All that the petitioner is required to establish, under § 51 of . R. S. 125, is his election and that he has duly qualified.
:2. Same—Validity of election.
In such a proceeding, questions as to the validity of the election cannot be determined.
3. Same—Acceptance of office.
Under §51, chap. 569" of 1890, where the oath is taken and filed by one elected as supervisor, it is an acceptance of the office and his predecessor thereupon ceases to hold it, and has no further standing as a member of the town board.
4. Same—Approval of undertakins.
It is for the other members to pass upon the undertaking of the new member.
5. Same—Objections.
In such a case, objections that illegal votes had been counted for the appellant and that he had not been elected by a majority of the legal ballots and that his predecessor had not been notified and was not present at the. meeting of the town hoard when the applicant’s undertaking had been approved, are untenable.
Appeal from an order of the general term of the supreme court in the third judicial department, made December 8, 1892, which .affirmed an order made at special term.
This was an application under the statute (1 E. S. 125, § 51) by Henry Bradley, who had received a certificate of his election to the office of supervisor of the town of Minerva, Essex county, and had filed his undertaking, which had been approved by the town board, to compel William H. Sullivan, his predecessor in that office, to deliver over the moneys, books, papers, etc., belonging to that office.
Sullivan objected that Bradley was not elected by the greatest number of legal ballots and had not duly qualified. His objection to the election was based on allegations charging the ballots cast thereat to have been marked in various ways and his objection to the qualification was that he was not present at, nor had notice of, the meeting of the town board at which Bradley’s official undertaking was approved. The court at special term, Ordered Sullivan to make delivery as demanded and the order was affirmed at the general term. An appeal was then taken by Sullivan to this court. '
Robert Dornburgh for app’lt; John A. Foley for resp’t.
With respect to the objctions raised by Sullivan to the legality of the petitioner’s election to office, it suffices to say that it appeared upon the proofs that he received a majority of the votes cast at the election in question and had received a ■certificate of his election from the board of canvassers. That was not only a sufficient showing, but more than was necessary to be
p. 817
shown, provided he had officially qualified as required by law, to warrant the order in question. In People ex rel. Bradley et al. v. Shaw, 133 N. Y. 493 ; 45 St. Rep. 866 , we had occasion to review objections made to the counting of the ballots cast at the election now questioned, upon the ground that they were marked, and we held that it was the duty of the inspectors to have counted the ballots' in declaring the result of the election and we sustained an order directing a peremptory writ of mandamus to issue, commanding the board of canvassers to re-assemble and to declare the result of the town meeting and to issue a certificate of election to the candidates having the greatest number of votes cast for them. It appears that the writ was obeyed and, thus," petitioner received his certificate. This is not a proceeding to try petitioner’s title to the office. It is simply a summary proceeding authorized by the statute (1 R. S. 124, § 50); by which he seeks to obtain the town moneys and the books and papers accompanying the office, and all the petitioner was required to establish was the fact of his election, as evidenced by the proper certificate, and that he had duly qualified. The incumbent of the office, whose term had expired, cannot go into questions underlying the petitioner’s election and which he may allege as invalidating it. For such purpose, the proceeding must be direct. The objection that the petitioner has not qualified is untenable. It is conceded that he had taken and filed his oath of office; but his predecessor in office claims, under his construction of the statutes, that it was necessary that the undertaking of the supervisor elect should be approved at a meeting of the town board at which he was present, or of which he had notice. He argues that he remained a member of the board until the undertaking of his predecessor was approved. We cannot so read the provisions of chapter 569, Laws of 1890. By § 51, every person elected to a town office, within ten days after notification of his election, is required to take his oath “ before he enters on the duties of bis office ” and the filing of it, within eight days, the statute provides, “ shall be deemed an acceptance of the office; ” and an omission to take and file such oath, within the time required by law, it is further provided, “ shall be deemed a refusal to serve and the office may be filled as in case of vacancy.” By section 60 every supervisor “ shall, within thirty days after entering upon his office,” deliver his undertaking to the town clerk, which shall be presented to the town board for approval, and until approved none of the moneys, books .etc., of the town shall be delivered over to the supervisor elect. It is very clear that the law contemplates two steps by the candidate elected to office. The first to be taken is the filing of his oath of office. When that has been done the office is deemed to have been accepted and that is equivalent to saying that the officer elect has entered upon his duties. It is after so entering upon his office, and within a specified time thereafter, that he is required to execute and submit his undertaking. That he is regarded as in office, when he has filed his oath, is perfectly clear from the provision that neglect to file the oath within the prescribed time
p. 818
causes a vacancy. When he has evidenced in the required manner his acceptance of the office to which* elected, his predecessor is out and has no further standing as a member of the town board. It is for the other members to pass upon the undertaking of the new member, as a condition precedent to his right to take over the town moneys, books etc., into his custody.
The order should be affirmed, with costs.
All concur.
Order affirmed.
Cases cited
- People ex rel. Bradley v. Shaw 133 N. Y. 493 p. 817