In re Eliott

6 N.Y. St. Rep. 8

• Court: New York Supreme Court
• Decided: December 14, 1886
• Status: Published

Opinion

Pratt, J.

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 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.