People ex rel. Hovey v. Ames

By the court, Mullin, Justice. There can be no doubt of the constitutional power of the legislature to provide for the election óf county superintendents of the poor, to provide that a vacancy may be filled either by election or by appointment by the board of supervisors, and to vest in such board the power to declare whether their respective counties should have one or three superintendents. In pursuance of the power conferred by the constitution,- the legislature provided (Laws of 1841, ch. 498) that the boards of supervisors might limit the .number of superintendents to one, and that when no resolution to that effect was passed, the number should be three. Section 2 provides for the election of such superintendent or superintendents at the general election in November, 1848, in the same manner as other county officers. Section 4 provides that vacancies in,such office shall be filled by appointment by the board of supervisors. ■ In Oswego county three superintendents had been elected prior to 1855. On the 30th November of that year, the board of supervisors passed a resolution declaring that thereafter there should be but one superintendent of the poor, and that none should thereafter be elected until the general election in 1858, unless a vacancy occurred. This resolution did not operate to reduce the number until January, 1851. At that date only two were in office, and'on the 1st January, 1858, only"one was in office. That one was Loren Goulding, and his term of office expired the 31st December of that ye ser. In November, 1851, the board of supervisors, at their annual meeting, passed a resolution .declaring that the num [557] her of superintendents thereafter elected should be three, and that one be elected in each assembly district. In pursuance of this resolution, at the general election in November, 1858, three persons were elected superintendents, and entered on the duties of their office on the- 1st January, 1859. The question now arises whether the supervisors had power to recall their first determination, reducing the number to one, and to declare that thereafter .three should be elected. There is not a word in the act of 1847 which confers the power to reduce the number of superintendents, which can be construed into a recognition of the authority óf the board to inerease the number after they have reduced it. In 1854 the legislature provided (Laws of 1854, ch. 188, § 1) that when any board should resolve that but one superintendent should be elected, the person elected at the next general election should be the superintendent for three years from the 1st of January next after his election; and one should be elected triennially thereafter. By the 2d section of the same chapter', it is provided that when there are more than one superintendent in office at the time of the passage of a resolution reducing the number, such resolution shall not affect those then in office, but the places of those having one or two years to serve should not be filled. The board of supervisors are acting under delegated powers; they are confined to those powers, actually conferred ; they take nothing by implication; and hence when a power is given to them to reduce the number of the incumbents of an office, it does not authorize' them to increase, the number. It seems to me that when the board has passed a resolution to reduce the number, their power over the subject is wholly at an end. [558] If I am right, then the resolution of November, 1857, is a nullity, and but one superintendent could thereafter be elected. Inasmuch as but one could be voted for at the election in November, 1858, and as three-were declared elected, and entered on the duties of the office, no one was elected, or declared elected, to succeed Loren Goulding, whose term expired, the 31st December of that year. When but one person can.be elected to an office, and three persons are named on the same ballot, such ballot is void. So when three persons are declared elected to an office which but ’ one can fill, there is no way of determining which one of them was elected, hence neither is entitled to the office. Although Goulding’s term of office by election expired on the 31st December, 1859, yet no person has been legally elected to succeed him. By § 40, 1 R. S., 5th ed., 413, a vacancy exists in an office when either of the following events occur before the expiration of the term of such office : 1. By death of incumbent; 2. His resignation; 3. His removal from office; 4. His removal from the' county; 5. His conviction of an infamous crime; 6. His refusal or neglect to take oath of office or give bonds; 7. The decision of a competent tribunal declaring his election or appointment void. There was no vacancy, within this section, for the board of supervisors to fill. -The term of office expired by its own limitation, and no one was elected to fill the office as successor to the retiring officer. Goulding therefore either held over, or the office became vacant. I find nothing in the statute authorizing this officer to hold over, and of course the legal.title to the office ended with the term to which he was elected. None of the persons elected in the fall of 1858 acquired any legal right to the office, and it only remains to inquire [559] whether anything has occurred which gives a right to either the relator or defendant to the office. If neither Ames, Goulding nor Sayles acquired any title to the office by the election of 1858, no vacancy could be created by the death of Sayles. He was in without color of right, and his death could not create a better right to the office than he had himself during his life. So also Ames’ resignation could not create a vacancy which could be filled by either election or appointment. No vacancy having occurred in said office which the supervisors could fill, and as the term of office of Goulding expired on the 31st December, 1858, the people alone could select the successor. ' This was not done in 1858 in a legal manner; but in 1859, it appears by the case, at the general election votes were cast for superintendent of the poor, and Burton E. Sperry had the greatest number of votes, and it appears by the case that he has acted since the 1st January, 1860. He is, in my opinion, the only superintendent of the poor of the county of Oswego. Because, 1st. He has been legally elected to that office. 2d. No vacancy has ever existed since the passage of the resolution by the board of supervisors in 1855, which that board could fill. The court ordered judgment for the people, ousting the defendant, Ames, and declaring the relator, Hovey, not entitled to the office, without costs to either party.