People ex rel. Morris v. Adams

9 Wend. 333

Opinion

By the Court,

Sutherland, J.

The facts found by the special verdict do not, in my opinion, show a sufficient determination of the electors of the town of Butternuts, previous to the year 1832, to limit the number of their constables to four. The statute, when it says that the electors of each town shall have power, at their annual town meeting, to determine what number of constables shall be chosen in such town for the then ensuing year, means a determination by a formal vote or resolution of the electors, in the same manner that they express their will on other subjects. Indeed, their will can be legally expressed in no other form. The special verdict finds distinctly that eight individuals wore voted for as constables, and that the defendant, Adams, was the fifth highest; and there having been no legal limitation of the number at the town meeting, 1 do not think we should be justified in indulging conjectures founded on collateral and perhaps accidental circumstances as to the actual intention of the electors.

The canvass, as first made and entered in the minutes, I do not think was conclusive upon the town or the parties interested in the question. It was not so considered in 1830; for then one set of ballots had four and another three names as constables. The presiding officers, in the first instance, inserted the names of four only in their certificate of the result. The name of the fifth, however, was afterwards returned, and he qualified and served.

The law in this case has pointed out the mode in which the number of constables may' be limited. It is plain and simple; and if that mode is not pursued, and five (the greatest number allowed by law) are voted for, who are competent to serve, they arc all, in my opinion, entitled to discharge the duties and receive the emoluments of the office.

The defendant is therefore entitled to judgment upon the verdict.