People ex rel. Engs v. Board of Education

1 Denio 647

• Court: Court for the Trial of Impeachments and Correction of Errors
• Decided: September 15, 1845
• Status: Published

Opinion

By the Court, Beardsley, J.

No person is eligible to a town office but an elector of the town for which he is chosen. (1 R. S. 345, § 11.) And no one can be an elector who is not at the same time a resident of the town. (Id. 339, § 1; id. 126, § 1.) Town offices are local, and if the incumbent of such an office ceases to be an inhabitant of the town, his office is thereby vacated. (Id. 122, § 34.) If a vacancy occurs in the office of supervisor, assessor, commissioner of highways or overseer of the poor, it is to be filled by the electors of the town at a special meeting called for that purpose. (Id. 348, § 34.). But vacancies in all other town offices, which includes the office of commissioner of common schools, (id. 340, § 3,) may be supplied by the justices of the peace of the town. (Id. 348, § 36; id. 347, § 31.)

But although removal from a town vacates a town office, it does not follow that the same rule holds as to the office of school commissioner for the several wards of the city of New-York. That question depends upon the provisions of the statutes applicable to this particular subject.

In 1842, an act was passed “ to extend to the city and county of New-York, the provisions of the general act in relation to common schools.” (Laws 1842, p. 184.) This act, although very imperfect in its details, lies at the foundation of the system of common schools since established in that city. It provides for the election in each ward of two commissioners of schools, to be chosen annually, “by.the persons qualified to vote for charter officers in the said wards,” and which commissioners, in addition to the ordinary duties of their office, are to constitute the board of education for the city of New-York. (§ 1. See also Laws of 1843, p. 290, § 1, and Laws 1844, p. 490, §§ 1,2.) These sections show who were to be electors of the ward commissioners ; but neither of the acts referred to declares in terms what qualifications are required to render a person eligible to the office of commissioner. The act of 1842, however, does provide, and this provision has not been repealed or modified, that “for all the purposes of this act, each of the several wards into which the said city and county of New-York now is or may be hereafter divided, shall be considered as a separate town:” and certain parts of the revised statutes which relate to common schools, (1 R. S. 470 to 488, art. 3, 4, 5, 6,) were declared to be applicable to the several wards of said city and county, “ so far as the same are consistent with this act.” (§§ 3,4.)

For all the purposes of said act each ward was therefore to be considered as a town. One of these purposes was the choice of commissioners of common schools; and in a town no one is eligible to that office but an elector and resident of the town. This principle is made applicable to the office of ward commissioner, so that no one can be chosen to that office who is not at the time a resident of the ward. A change of residence, we have seen, vacates the office of town commissioner, and as the wards, for all the purposes of said act, are to be considered as towns, the office of ward commissioner is vacated by a removal from the ward. But the general statute on this subject applies to such a case. It declares that every local office shall become vacant by the incumbent ceasing to be an inhabitant “of the district, county, town or city for which” he was chosen. (1 R. S. 122, § 34.) It is true this section does not use the word ward, to designate a locality for which the officer may have been chosen, but it has the' word tovjn, which for this purpose may well be taken to indicate a ward of the city of New-York. This section in words, applies to “ every office,” and it is manifest that it was designed to be without a single exception in the state.

The chief powers of these school commissioners are to be exercised in their respective wards, although very important duties devolve upon them as members of the board of education. In general their proper duties as commissioners are very similar to those of town commissioners; yet they are variously modified by the several acts before referred to. These duties require an intimate knowledge of the wants of the ward, and a devotion to its interests which is hardly to be looked for from one who is not a resident within its limits. I will not say that the reasons for requiring such residence are as cogent when applied to a ward of the city of New-York, as to a country town ; yet the difference, if any exists,- is too slight to rest a solid distinction upon. It does not appear to what place the relator has removed. He may, and I think it was said on the argument, he did reside in another ward of the city. But if that does not vacate his office, I do not see that moving to another county, or even leaving the state, would produce that result.

The act of 1844 (p. 503, § 48,) provides for filling vacancies in the office of ward commissioners of schools, when occasioned by death, resignation, neglect or refusal to qualify or give the prescribed security. Upon this it is argued that no vacancy can occur in this office but such as is referred to in this section; and as removal is not named in the section as creating a vacancy, it cannot have that effect. I by no means think this conclusion must follow from that enactment. The section seems not to have been drawn with a view to declare what particular causes should work a vacancy in the office. Nor was that necessary, for these were to be found in the revised statutes already referred to. (1 R. S. 122, § 34.) But this section of the act of 1844 was intended to provide for filling the office when vacant, and such vacancies as most frequently occur are certainly provided for by the enactment as it is, although, through inadvertence it may be presumed, and without looking at the general statute applicable to this and all other offices, partial provision only was made for filling vacancies which may occur. Instances of similar legislation are too frequent to excite surprise, and they cannot, although incongruous and awkward, be allowed to set aside the plain words of a general statute applicable to the particular case in hand.

I think the relator vacated his office by removing from the ward.

Judgment for defendants.