Opinion
September Term, 1899.
Lewis E. Griffith and Olin A. Martin, for the appellants.
Charles T. Faulkner, for the respondent.
It has been repeatedly held that proceedings to compel the delivery of books and papers of public officers will not be used to determine title to office.
It has also been held that where a person produced a certificate of election from the proper election officers, and had taken the constitutional oath of office, and given the necessary bond, where one was required, he was entitled to the books and papers pertaining to such office.
In making the order for the delivery of the books and papers in this case, the county judge has come perilously near, if he has not quite decided, the title of the contending parties to the offices they claim.
The petitioning persons show title to office under appointments made by the county judge of the county.
Section 20 of chapter 661, Laws of 1893, known as the Public Health Law, provides that "If the proper authorities shall not fill any vacancies occurring in any local board within thirty days after the happening of such vacancy, the county judge of the county shall appoint a competent person to fill the vacancy for the unexpired term, which appointment shall be immediately filed in the office of the county clerk."
The contesting parties claim to hold office by virtue of appointments made by the board of trustees of the village, pursuant to the same section and law, and the taking and filing their constitutional oaths of office with the village clerk.
It will thus be seen that the title to office of the contending parties is pretty squarely up; we might possibly dispose of this appeal upon that phase of the question alone, but it is evident that that will leave the real controversy open and undecided.
It is contended that the vacancies that the petitioners were appointed to fill by the order of the county judge were caused by the members selected by the board of village trustees filing their oaths of office in the village clerk's office; if that was the proper place to file them, then no vacancies existed, and the county judge was unauthorized to make any appointments.
Section 2 of chapter 681 of the Laws of 1892, known as the Public Officers Law, divides public officers into two classes, State officers and local officers, and having defined who State officers are, it defines the term local officers as including "Every other officer who is elected by the electors of a portion only of the state, every officer of a political subdivision or municipal corporation of the state, and every officer limited in the execution of his official functions to a portion only of the state. The office of a state officer is a state office. The office of a local officer is a local office."
Section 10 provides that "The oath of office of every state officer shall be filed in the office of the secretary of state; of every officer of a municipal corporation with the clerk thereof; and of every other officer, in the office of the clerk of the county in which he shall reside, if no place be otherwise provided by law for the filing thereof. Every oath of office shall be filed within fifteen days after the officer shall have been chosen."
A village is a municipal corporation. (Laws of 1892, chap. 687, § 3.)
Under the definition of who are State officers, the members of village boards of health are not included, and it is, therefore, a local office; the question is as to whether it is a municipal office, whether a member of such a board is an officer of a municipal corporation. He is not a State officer; he is not a county officer.
While a board of health enforces State laws, it does so only within the political subdivision of the State for which it is appointed. But without pursuing this line of discussion, or referring to cases relative thereto, I think the statutes of the State settle the question as to the kind of an officer a member of a village board of health is.
Section 43 of chapter 414 of the Laws of 1897, known as the Village Law, gives a list of village officers. The first line of the section reads: "List of village officers; mode of choosing; official year; terms of office." It then enumerates the various offices and officers each village shall possess — a portion of the section reads as follows: "There shall be a board of health in each village, consisting of not less than three nor more than seven persons, appointed by the board of trustees of such village, in the manner provided by article two of the public health law."
Section 62 of the same chapter provides as follows: "The clerk of the village shall, within three days after the election or appointment of a village officer, except the first election or appointment after the incorporation of the village, notify each person elected or appointed of his election or appointment and of the date thereof, and that he is required to file his oath of office with such clerk, before entering upon the duties thereof, and if an official undertaking be required of him, by or in pursuance of law, that he is also required to file the same with such clerk, and that upon his failure so to do he will be deemed to have declined the office."
It will thus be seen that the statutes of the State expressly define the office of members of boards of health, and expressly provide that their oaths of office be filed with the village clerk; that being so, it follows that no vacancies existed in the old board by reason of the appointees to such board not having filed their oaths in the proper place, and consequently the county judge had no authority to appoint persons to fill such assumed vacancies.
The fact that the village of Lansingburgh is incorporated under a special law makes no difference; the definition of village officers contained in the General Village Law must be taken as the definition of all like village officers whether the villages are incorporated under general or special laws.
Boards of health are appointed under the same law, perform the same duties, and are subjected to the same liabilities and responsibilities, whether the village for which they are appointed is incorporated under a general act or a special one. In addition, section 340 of the General Village Law provides as follows: "A village incorporated under and subject to a special law, and each officer thereof, possesses all the powers and is subject to all the liabilities and responsibilities conferred or imposed upon a village incorporated under this chapter, or upon an officer thereof, not inconsistent with such special law."
There is nothing in the special law under which the village of Lansingburgh was incorporated that is inconsistent with the duties imposed upon the village clerk by the general law to notify officers of their election or appointment, and requiring them to file their oaths of office in the village clerk's office.
The word responsibilities in section 340 includes, I think, duties. It was, therefore, a duty of the village clerk of Lansingburgh to notify the appointees to the board of health of their appointment and require them to file their oaths of office with him, and it was their duty to so file them.
The order appealed from should, therefore, be reversed and the application denied, with ten dollars costs and disbursements.
All concurred.
Order reversed and application denied, with ten dollars costs and disbursements.