People v. Brown Clerk of Oneida County

7 Wend. 493

• Court: New York Supreme Court
• Decided: February 9, 1832
• Status: Published

Opinion

By the Court,

Savage, Ch. J.

Where no rule is adopted by the judges of a county court as to the number of commissioners to be appointed in the several towns of a county, not more than two can be appointed. In November, 1831, when Barnum was re-appointed, there was no rule in force, the judges in that year having omitted to adopt one, and the rule of 1830, being inoperative, (the statute requiring the judges to make their determination annually,) but one commissioner could be appointed, as Tiffany, who received his appointment in 1830, was in office and would continue so till 1834. When, therefore, Barnum was re-appointed, as many commissioners were in office in Utica as the provisions of the law will permit, and there was no ommission to appoint, under the color of which Pease can hold over. It is unnecessary to say what would have been the effect of the omission to make any appointment of a commissioner in 1831, as to the rights of both Pease and Barnum to hold over, because a commissioner was appointed in that year. There are two commissioners regularly in office in the town of Utica, and there is no law or authority to appoint more until the judges of the county court authorize an increase, which they have not done, as the rule of 1830, in its terms, is to continue but one year, and the judges had no power to adopt a rule which should continue longer ; the rule expired by its own limitation, which produces the same result as if expressly rescinded. ■ The deed in question was not legally acknowledged, and the clerk properly refused to record it. The motion for a mandamus is denied.