Opinion
July 8, 1913.
Jerome S. Seacord, for the appellants.
Dennis J. Kilkenny, for the respondent.
The order appealed from denied an application for a peremptory writ of mandamus to require the submission of a liquor tax question at a biennial town meeting in the town of Unadilla in February, 1913. Upon the 8th day of December, 1911, the supervisors of the county passed a resolution changing the time of the holding of the biennial town meeting from spring until fall, and the request of the petitioners was denied by the town clerk of the town of Unadilla for this reason. The Special Term has sustained the refusal of the town clerk and has held that the time for the holding of the town meeting had been lawfully changed from spring until fall.
The contention of the relators upon this appeal is that the supervisors were not authorized to make the change of the time of the holding of the town meeting, and in support of their contention the appellants rely upon the case of People ex rel. Smith v. Weeks ( 176 N.Y. 198). In that case the board of supervisors of Nassau county in April, 1901, passed a resolution providing that the biennial town meetings in the year 1903 and thereafter should be the first Tuesday after the first Monday in November. The court held this resolution to be unconstitutional because it operated to extend the time of the supervisors who were then in office from the spring of 1903 until the 1st of January, 1904, and that it violated section 26 of article 3 of the Constitution which provides that members of boards of supervisors shall be elected in such manner and for such period as is or may be provided by law. By chapter 391 of the Laws of 1901 (amdg. Town Law [Gen. Laws, chap. 20; Laws of 1890, chap. 569], §§ 10, 13) authority was given to the board of supervisors to change the time of the holding of the biennial town meeting from spring until fall, and specific provision is therein made that town officers elected at the time of such change should hold office until their successors be elected and qualified, or until the first of January after the fall election. This amendment, however, was not in force at the time of the passage of the resolution considered in the case of People ex rel. Smith v. Weeks. Attention was called to that fact by the presiding judge, who wrote the opinion, and it was there intimated that if such act had been in force the resolution would have been authorized and effective. The Constitution does not prescribe that members of the board of supervisors should be elected for a definite period, but only for such period as is or may be provided by law, and if, as in the case at bar, the law authorizes the board of supervisors to change the time of the holding of the town meeting from spring until fall and expressly provides that those in office shall continue to hold office until their successors be elected at the fall town meeting and shall have qualified, while the period for which the supervisor is elected is an alternative period and one which may be extended by the supervisors themselves, nevertheless they are elected for a period prescribed by law strictly within constitutional authority. An elector when voting for the supervisor votes for him with presumed knowledge of his authority as allowed in the statute to extend his term, and I can conceive of no valid objection to such an interpretation of the constitutional mandate. This interpretation should if possible prevail because the extension of the term of the members of the board of supervisors is incidental only to the authority of the board of supervisors to change the time of the holding of the town meeting. Further, no greater extension of the term of the office was made than was reasonably necessary to the change of time of holding town meetings. It would be an unreasonable limitation to hold that a board of supervisors could only change the time of holding a town meeting to take effect possibly four years later after their terms had expired.
Nor is the decision in the Weeks case necessarily antagonistic to this conclusion. The right there claimed to change the time of the holding of the town meeting and to extend the terms of office was under chapter 374 of the Laws of 1900 (amdg. Town Law, § 10) and under chapter 191 of the Laws of 1901 (amdg. Town Law, § 13). That statute is confused and it is not therein made clear that the extension of the terms of office of the existing supervisors was expressly authorized. It is true that the Public Officers Law (Gen. Laws, chap. 7; Laws of 1892, chap. 681) then existed, and under section 5 thereof an officer elected was to continue in office until his successor had been elected and qualified. (See, also, Public Officers Law [Consol. Laws, chap. 47; Laws of 1909, chap. 51], § 5.) It is clear, however, that in passing that section the Legislature did not have in contemplation a case where the time of the election should be postponed, so as to provide for the election of a successor after a term of office had expired. It may well have been considered, therefore, that there had been no such explicit provision for the holding over of the town officers in office at the time of the change as to satisfy the requirement of the Constitution that a member of the board of supervisors should be elected for a period prescribed by law. In view, therefore, of the explicit provision made in chapter 391 of the Laws of 1901, and of the fact that the extension of the term of the office therein involved is only such that is reasonably incidental to the main purpose to be accomplished by the statute, I am of the opinion that the time of the holding of the town meeting was properly changed and that the order appealed from should be affirmed, with costs.
All concurred.
Order affirmed, with costs.