People ex rel. Overton v. Board of Trustees of Whitestone

24 N.Y.S. 532, 71 Hun 188, 78 N.Y. Sup. Ct. 188, 54 N.Y. St. Rep. 95

• Court: New York Supreme Court
• Decided: July 28, 1893
• Status: Published

Opinion

PRATT, J.

This is a special proceeding against village trustees to compel them by mandamus to call a special election to fill a vacancy. The relator is a voter and taxpayer of the village of Whitestone, Queens county, and the defendant is the acting governing body of said village, and consists of a board of seven trustees, who were in office on and prior to January 18, 1893, when one of them, August M. G-raue, resigned his said office, and the vacancy thereby created existed when this proceeding began. This proceeding was commenced by the granting, on the ex parte application of relator’s counsel, upon the affidavits of himself and the relator, on April 18, 1893, of an order requiring defendant to show cause why a peremptory mandamus should not issue commanding it to' forthwith call a special election to fill said vacancy.^ Defendants appeared hy counsel, and opposed said motion, admitting the foregoing facts, hut contending that the power given was discretionary, and that they wished to save the expense of election.

It is well settled in this state that every citizen has_ a right to compel the performance by public officers of the duty imposed on them of executing the law. People v. Daley, 37 Hun, 461, and cases there cited. There being no disputed facts, a pure question of law was raised, making it the duty of the judge below either to deny the application or grant a peremptory mandamus. The question is whether the law¹ which provides that there shall be seven trustees of the village is permissive or mandatory. Reason and authority seem to indicate very strongly that it is mandatory. If it is discretionary, as members of the board of trustees drop out, whether to call an election or not, they might thus be reduced to one man, and the representative character of the government destroyed. The power is conferred to call a special election in such a case, and we think it is mandatory. Where a public body is clothed by statute with power to do an act which the public interests require to be done, the execution of the power may be insisted on as a duty, though the statute conferring the power appears to be only permissive in terms. Hutson v. Mayor, etc., 9 N. Y. 163, following Mayor, etc., v. Furzé, 3 Hill, 612; People v. Connolly, 4 Abb. Pr. (N. S.) 376; People v. Board of Supervisors, 51 N. Y. 401.

Order affirmed, with costs and disbursements. All concur.

1 The charter of the village of Whitestone (Laws 1869, c. 199, tit. 2, § 1) provides that there shall be seven trustees of the village. Section 8 provides that, in case of a vacancy in the office of trustees or police justice, it shall be in the power of the remaining trustees, or a majority of them, to call a special election to fill the vacancy, at such time and place and in such manner as they, or a majority of them, may prescribe.