O'BRIEN, J.

The relator and the defendant each claimed to be entitled to hold the office of commissioner of highways of the town of Warwick, in the county of Orange. The courts below have decided that the relator was entitled to hold the office, and that the defendant was not. The town has had but one commissioner of highways since the year 1857. At the annual town meeting in March, 1893, the defendant was elected to the office for one year. At the annual town meeting in March, 1894, the defendant and the relator were candidates for the office, but no choice was made, the vote being a tie. The defendant continued to perform the duties of the office, holding over under the statute. At the annual town meeting in March, 1895, the relator was again a candidate, without opposition, and received all the votes cast for the office. He qualified and entered upon the duties of the office so far as he could, but it is alleged, and found, that the defendant intruded into it and ousted the relator. The controversy depends upon the tenure of the defendant, as an officer, holding over after the expiration of the term of one year in March, 1894. It is admitted that he could hold the office under the statute until the election of the relator in March, 1895. But the defendant insists that by chapter 344 of the Laws of 1893, passed after his election, the term of the office was extended to two years, and that since the election of 1894 resulted in no choice, he could hold over for a full term of two years, that is to say until March, 1896, and that, consequently, there was no vacancy in the office in March, 1895, when the votes were cast for the relator, and, therefore, he was never elected to the office. The real question, therefore, is whether the electors of the town had the power to make choice of a new commissioner at the town meeting in March, 1895. If they had, the result of the election has displaced the defendant and conferred the office upon the relator.

We think that the defendant's contention cannot be sustained for the following reasons:

1. The act of 1893, above referred to, did not absolutely extend the term to two years. It empowered the electors of the town, at their annual town meeting, to determine by resolution whether they should thereafter elect one or three commissioners. If they determined to elect only one, and the town was one having but one commissioner, thereafter only one should be elected at each alternate town meeting who should hold his office for two years.

The statute did not operate upon the town of Warwick, until some action had been taken by the electors, and since no such action was had in that town, the defendant's term of office, as it existed at the time of his election, was not changed. It still remained an office to be filled at each annual town meeting, and it was competent for the electors to make a choice in March, 1895.

2. Legislation of this character cannot apply to the term of a town officer already elected. It operates only upon future elections. An act of the legislature extending the term of a town officer, then in office, is virtually an appointment to the office for the extended time. The legislature has no power to appoint a town officer. The Constitution requires that they shall be either elected by the electors, or appointed by some local authority. ( People ex rel. Le Roy v. Foley, 148 N.Y. 677; Rathbone v. Wirth, 150 N.Y. 459.) The defendant had been elected for a term of one year. He was in office under that term when the act was passed. Since it could have no application to him under the Constitution, it should have been construed as applicable only to officers thereafter elected.

The legislature had the power, either with or without the intervention of the electors of the town, to enlarge the duration of the term of office of commissioners of highways, but the change must always precede the election. A town officer chosen by the electors of the town for one year, who has entered upon his term, cannot be kept in office for a longer period by subsequent legislation. His right to the office depends upon the law existing when he was elected.

3. But by section five of article one of the Public Officers' Law (Ch. 681, Laws 1892), while the defendant was expressly authorized to hold over and continue to discharge the duties of the office until his successor was chosen, it was also provided that, after the expiration of the term, the office should be deemed vacant for the purpose of choosing his successor, so that whether the term was one or two years, the office was vacant in March, 1895, for all the purposes of an election, and it was competent for the electors to vote for and elect the relator to the office as they did. The term for which the defendant had been elected had expired, and though he was still in lawful possession of the office, holding over, the statute contemplates the right on the part of the electors to make choice of his successor. In every light in which the case is examined it will be seen, therefore, that there was power to elect a commissioner at the annual town meeting in 1895. That the relator was, in fact, elected to the office at that time is not disputed, and the defendant's right to hold over any longer ceased.

The case was properly decided in the courts below, and the judgment should be affirmed.

All concur.

Judgment affirmed.