Davenport v. Mayor of New York

67 N.Y. 456, 1876 N.Y. LEXIS 417

• Court: New York Court of Appeals
• Decided: December 12, 1876
• Status: Published

Opinion

Rapallo, J.

We are clearly of opinion that the office of chief supervisor of elections is additional to that of Circuit Court commissioner, and not incident or appurtenant to the latter office. It was created by act of congress passed Febuary 28, 1871, which provides that the Circuit Court of the United States of each circuit shall appoint from among the Circuit Court commissioners of each district, one of them, who for the duties required of him under that act, shall be known as chief supervisor of elections of the district. Many if not all of these duties are entirely different from those appurtenant to the office of commissioner, although in certain cases the chief supervisor may act at the same time both in that capacity and as commissioner. Commissioners as such, are not authorized to perform the duties of chief supervisor, but only the one who may be appointed in each district. When acting as chief supervisor he does so by virtue of his appointment as such, and not by virtue of his office of commissioner, and he receives specified fees as supervisor to which he would not be entitled as commissioner. The act declares what compensation shall be paid to each chief supervisor for his services “ as such officer ” in excess of all fees as commissioner. The provisions of the act respecting the duties and fees of the office show that it is one of trust and emolument. It is therefore within the provisions of the charter which declares that the acceptance of such an office under the government of the United States is a relinquishment of any office held under the city (Laws 1813,' p. 519, § 114), and is not within the exception in that section in favor of commissioners. It is not necessary to add any thing further to the reasoning of the court at General Term, with which we concur.

The judgment should be affirmed.

All concur.

Judgment affirmed.