In re Eliott — 6 N.Y. St. Rep. 8

Majority

p. 8

Matter of the application of Henry M. Eliott for a writ of mandamus to William H. Thomas, Jr., et al.

(Supreme Court, General Term, Second Department,

Filed December 14, 1886.)

Headnote

Constitutional law—Justice of the peace—Appointment to fill, vacancy—Laws 1875, chap. 166, constitutional.

That part of chapter 166, Laws 1875, which provides that a person ap

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pointed to fill the vacancy of a justice of the peace whose term of office would have expired on the 31st day of the December next succeeding such appointment, shall hold office until said 31st day of December, is constitutional.

Appeal from an order of the supreme court special term of Kings county denying a writ of mandamus.

Voorhees Overbaugh was a justice of the peace of the town of Flatlands until June 23d, 1885, when he resigned his said office. His term would not have expired until December 31, 1886. The town authorities appointed Albert H. Van Dyke to fill the vacancy.

At the following annual town meeting, held April 6, 1886, it was necessary, according to the claim of the relator, to elect to fill both the short term caused by the resignation of Overbaugh, and for a full term to commence on January 1, 1887.

At said town meeting an election was held for justice of the peace; there were cast 121 votes for John M. Wilson and 97 for Henry M. Eliott, the relator, and they having received the highest number of votes cast were each elected a justice of the peace.

The respondents, the election officers of the town, refused to certify the relator’s election, and contended that but one justice was elected, and certified to Wilson’s election.

The relator insists that he also was elected, that the constitution required the mentioned vacancy to be filled by election, and that the ballots cast for him having designated him for the full term he is entitled thereto, no such designation being upon Wilson’s ballots. It was then the duty of the respondents, as the election officers, to determine that the relator had been elected for the full term as such justice; this they refused to do. At a special term the relator’s application to compel the respondents to certify to his election was denied, and he appealed.

John H. Kemble, for relator, app’lt; William J. Gaynor, for res’pt.

The term of Overbaugh, who resigned, was to expire December 31st, 1886.

By the act of 1875, the term of Van Dyke, appointed to the vacancy February 16th, 1886, did not expire until December 31st, 1886.

There was therefore no vacancy to he filled at the election in April, 1886. The office to be voted for, was for the long term beginning January 1st, 1887. To that office Wilson was elected and not the relator.

The relator is in error in claiming that by force of the constitution an election must in all cases be had to fill a

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vacancy occurring before the expiration of a full term. To determine how that shall be is within the power of the legislature. The constitution merely provides that when the legislature directs an election to fill a vacancy occurring before the expiration of a full term, the person elected shall hold for the residue of the unexpired term.

That provision is not infringed.

In the absence of any constitutional prohibition the legislature exercises the sovereign will of the people.

There is no inhibition upon the legislature declaring in a certain instance that there is no vacancy.

The act of 1875 did not fall within any constitutional provision, and was valid.

Order affirmed with costs.

Barnard and Dykman, JJ., concur.