Summary
In Matter of Bradley, 141 N.Y. 527, Gray, J., writing for the court, at page 530, says: "All the petitioner was required to establish was the fact of his election, as evidenced by the proper certificate, and that he had duly qualified.
Summary of this case from Matter of SmithOpinion
Argued March 6, 1894
Decided March 13, 1894
Robert Dornburgh for appellant. John Foley for respondent.
With respect to the objections raised by Sullivan to the legality of the petitioner's election to office, it suffices to say that it appeared, upon the proofs, that he received a majority of the votes cast at the election in question and had received a certificate of his election from the board of canvassers. That was not only a sufficient showing; but more than was necessary to be shown, provided he had officially qualified as required by law, to warrant the order in question. In People ex rel. Bradley et al. v. Shaw ( 133 N.Y. 493) we had occasion to review objections made to the counting of the ballots cast at the election now questioned, upon the ground that they were marked, and we held that it was the duty of the inspectors to have counted the ballots in declaring the result of the election and we sustained an order directing a peremptory writ of mandamus to issue, commanding the board of canvassers to re-assemble and to declare the result of the town meeting and to issue a certificate of election to the candidates having the greatest number of ballots cast for them. It appears that the writ was obeyed and, thus, petitioner received his certificate. This is not a proceeding to try the petitioner's title to the office. It is simply a summary proceeding authorized by the statute (1 R.S. 124, § 50); by which he seeks to obtain the town moneys and the books and papers accompanying the office, and all the petitioner was required to establish was the fact of his election, as evidenced by the proper certificate, and that he had duly qualified. The incumbent of the office, whose term had expired, cannot go into questions underlying the petitioner's election and which he may allege as invalidating it. For such purpose, the proceeding must be direct. The objection that the petitioner has not qualified is untenable. It is conceded that he had taken and filed his oath of office; but his predecessor in office claims, under his construction of the statutes, that it was necessary that the undertaking of the supervisor elect should be approved at a meeting of the town board at which he was present, or of which he had notice. He argues that he remained a member of the board until the undertaking of his successor was approved. We cannot so read the provisions of chapter 569, Laws of 1890. By section 51, every person elected to a town office, within ten days after notification of his election, is required to take his oath "before he enters on the duties of his office" and the filing of it, within eight days, the statute provides, "shall be deemed an acceptance of the office;" and an omission to take and file such oath, within the time required by law, it is further provided, "shall be deemed a refusal to serve and the office may be filled as in case of vacancy." By section 60 every supervisor "shall, within thirty days after entering upon his office," deliver his undertaking to the town clerk, which shall be presented to the town board for approval, and until approved none of the moneys, books etc. of the town shall be delivered over to the supervisor elect. It is very clear that the law contemplates two steps by the candidate elected to office. The first to be taken is the filing of his oath of office. When that has been done, the office is deemed to have been accepted and that is equivalent to saying that the officer elect has entered upon its duties. It is after so entering upon his office, and within a specified time thereafter, that he is required to execute and submit his undertaking. That he is regarded as in office, when he has filed his oath, is perfectly clear from the provision that neglect to file the oath within the prescribed time causes a vacancy. When he has evidenced in the required manner his acceptance of the office to which elected, his predecessor is out and has no further standing as a member of the town board. It is for the other members to pass upon the undertaking of the new member, as a condition precedent to his right to take over the town moneys, books etc. into his custody.
The order should be affirmed, with costs.
All concur.
Order affirmed.