Per Curiam. All of the provisions of the charter of 1891, material to the questions presented for adjudication, with an exception hereafter mentioned, took effect on the 1st day of January, 1892.
So much of section 365 of the charter as bears upon the question before us is as follows: “The electors of each ward shall elect one supervisor. * * * The term of office of the super visor shall be two years. * * * The supervisors in office at the time this act takes effect shall serve out their respective terms hereinafter provided. * * * Bach supervisor elected at the annual election of 1890, and who shall be in office on the first Monday of January, 1892, shall be the supervisor of the ward created by this act, in which he resides on the 1st day of October, 1891, for the remainder of the term for which he was elected, if such ward shall be the whole or a part of the ward in which he was elected.
At the annual election of 1891, a supervisor shall be elected in each of the wards created by this act, in which a supervisor does not hold over as above provided. At each annual election thereafter the supervisor shall be elected by the electors of each ward, where the term of its supervisor will expire on the first Monday of January following.” Section 506 provides that all elective 538 officers in office when the act takes effect shall serve out the terms for which they were, respectively, elected.
It is clear that in construing the provisions of the charter a literal effect cannot be given to all of its provisions, for they are in conflict. There is, as we have seen, a general provision that all elective officers shall serve out the terms for which they were elected, and by section 365 the supervisors in office when the act takes effect shall serve out their respective terms as hereinafter provided.
Section 365 provides that the supervisor whose term of office did not expire on the 1st day of January, 1892, should be the supervisor of the ward created by this act in which he resides on the 1st day of October, 1891. Both Munsell and Smith were at the time residents of the new Third ward. It is clear that a ward is entitled to one supervisor. The board of supervisors has been for many years composed of 25 members from the city of Buffalo, and 25 members from the towns of the county.
This equality of representation has long continued, and it admits of no doubt that the. new charter contemplates a continuance of this equality of representation. Munsell and Smith cannot both represent the Third ward, for that would make 51 supervisors in the board. As between Mun-sell and- Smith, the former is entitled to the office of supervisor of the Third ward.
The whole of the territory included in the old Second ward, by the electors of which Munsell was elected, is now embraced in the new Third ward, with the additional territory taken from the old ward designated by that number. Munsell represents the Second ward by another number, while, as regards Smith, only a small part of the territory he was elected to represent is embraced in the new Third.
As between the two, therefore, it would seem reasonable that Munsell should be held to be the supervisor of the new Third ward, and- unless Smith can represent a ward in which he does not reside, he has been legislated out of office. That was within the power of the legislature. Acts having that effect have been passed and held to be valid. People v. Morrell, 21 Wend. 563; Gertum v. Board, 109N. Y. 170, 16 N. E.. Rep. 328.
One of the purposes of the charter was to provide for the election of successors to those supervisors whose terms should expire in January, 1892, by limitation, such election to take place in those newly-created wards which would otherwise have no representative in the board when that time should arrive, and it further provides for the election in a ward within which no supervisor resided on the 1st of October, 1891.
In construing this act, we must assume, in the absence of provisions showing that to be the clear intent of the legislature, that it was not intended to make a radical change in the theory and scheme of the elective offices of the state. The General Statutes of the state provide that a supervisor shall reside in the town which he represents. By Bev. St.
(8th Ed.) p. 402, § 34, every office becomes vacant on the incumbent ceasing to be an inhabitant of the state, or, if the office be local, of the district, county, town, or city for which he shall have been chosen or appointed, or within which the duties of his office are required to be discharged. The wards of the city and towns of the state, for the purposes of the question here presented, are the same.
We know of no exception to the rule that an elective officer must be an elector and resident of the district which he represents. The position of Smith as a representative in the board of supervisors of a ward in which he is riot an elector or resident would, under our system of government, be novel and unique. Had he desired to represent the Fourth ward, the course for him to have pursued is clearly indicated in section 365. He should have moved into part of the new Fourth, taken from the old Third.
Such removal would not have affected his right to- represent the old Third for the remainder of 1891, for the division of the city into new wards did not take effect until January, 1892. His attention was timely called to this question, and he declined to change his domicile, entertaining, it seems, the opinion that he could continue to represent the new Third ward. Obviously the situation here presented did not occur to the 539 minds of those who drew the charter.
The effects and consequences of a construction of a statute are to be considered, and where from a literal interpretation an effect would follow obviously contrary to the whole intent and spirit of the statute, the intent, and not the literal meaning, must be regarded.
We do not think the question here presented is free from doubt, and it is not surprising that the board of supervisors, acting upon the advice of their very competent counsel, should have taken a different view of the question; but our conclusion that Hull is entitled to the office and emoluments of supervisor of the Fourth ward is,, we think, in consonance with the provisions of the charter.
It is suggested by the counsel for Munsell and Smith that the decision of the question by the board of supervisors is conclusive, as they are made by the statute judges of the qualifications of their members. We do not accede to this contention. The statute has not conferred upon them the power to decide the question here presented.
The plaintiff is entitled to judgment that only one of the defendants is legally entitled to the office of and to act as supervisor for one ward in the city of Buffalo; that the defendant Frank H. Hull is entitled to the office of supervisor of the Fourth ward, and to the emoluments thereof; and that the defendant Thomas H. Munsell is entitled to the office of supervisor of the Third ward and the emoluments thereof.
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