People ex rel. Dare v. Howell

174 A.D. 118, 160 N.Y.S. 959, 1916 N.Y. App. Div. LEXIS 7697

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 29, 1916
• Status: Published

Opinion

Putnam, J.:

The term “thereafter” in Highway Law, section 40, in the proposition that the office of superintendent be appointive, does not necessarily refer to unlimited time. It indicates the direction in time to which the context refers. (Dobbins v. Cragin, 50 N. J. Eq. 640, 648.) Taken in connection with the final clause of section 43 of the Town Law (Consol. Laws, chap. 62 [Laws of 1909, chap. 63], § 43, as amd. by Laws of 1909, chap. 422), it may fairly mean that such action should “ remain in force until the same shall be altered or repealed- at some subsequent town meeting.” Furthermore, section 41 of the High, way Law declared that such appointed superintendent “shall take and hold office for the term hereinafter prescribed,” which term by section 42 of the Highway Law is declared to be two years. No express provision appears for continuing such appointive terms. The Legislature gave the town the right to have an appointed superintendent during a two years’ term; but such authority we think did not keep and perpetuate the office as an appointive one beyond the voting power of the electors of the town to return to the elective system. Such a vote to appoint should not be deemed a renunciation of the constitutional power thereafter to fill such office by the electors of the town at a biennial election. (Const, art. 10, § 2.) We also think that the curative act of March 15, 1916, was valid and constitutional, since it confirmed and ratified an election by the town authorities. It did not attempt to substitute an election by the Legislature for one by the qualified town electors. The other objections to its constitutionality are without merit.

As the meeting finder the Highway Law, section 105, is obligatory, so that the road funds may be properly divided by concurrence of the superintendent with the town board, the court by mandamus could properly direct that the town board perform its imperative duty to recognize relator, as the lawfully elected superintendent of highways, and to take the joint action required. (26 Cyc. 250.) Relator having the- public record of his election, was both de facto and de jure in office, and entitled to this remedy against Mr. Gardner and the officials of the town.

I advise to affirm, with ten dollars costs and disbursements.

Jerks, P. J., Thomas, Carr and Rich, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.