Summary
In People ex rel. Miller v Mynderse, 140 App. Div. 789 (3d Dept, 1910), affd 201 N.Y. 524 (1911), the statute under review provided that a person "shall not hold two village offices at the same time".
Summary of this case from Informal Opinion NoOpinion
November 16, 1910.
Charles P. Sanders, for the appellant.
Edward R. O'Malley, Attorney-General [ William Dewey Loucks of counsel], for the respondent.
Section 42 of the Village Law is entitled "Eligibility to office," and provides that the president and certain other village officers must have at the time of the election certain property qualifications; that any resident elector is eligible to any other village office; that a resident woman, twenty-one years of age and a citizen, is eligible to the office of village clerk or deputy clerk. It then provides: "A person shall not hold two village offices at the same time except the offices of collector and police constable or water and light commissioner, and except that village trustees may also be water commissioners." All the provisions of the section preceding the one above quoted clearly relate to eligibility of the person; that is, his capacity to be chosen to the office. ( People v. Purdy, 154 N.Y. 439.)
But the clause quoted does not in terms purport to relate to the capacity of being chosen, and does not refer to the choosing, but in terms is clearly to prevent the same person from holding two offices at the same time. It relates in terms and spirit to the situation of the officer, not on election day but on the day when he enters into the performance of his duties. If on that day he is holding another office, qualifying for the second office presents an apparent violation of the statute and probably ipso facto vacates the position formerly held by him, or prevents him from legally qualifying for the new position until he has abandoned the old.
Section 53 of the Village Law, entitled "Canvass of annual election," provides: "The person eligible and receiving the highest number of votes for an office shall be elected thereto." This provision does not add to the difficulty, as it relates, under the Purdy case, to persons who have the capacity to be chosen. Under section 42 a person who is eligible to the office of trustee is also eligible to that of president. The relator had all the necessary qualifications, but this statute provided, for the public good, that although eligible to hold either office he should not be permitted at the same time to hold two village offices. His resignation as trustee took place before his term as president began. There is, therefore, no law excluding him from the office to which he has been elected. The judgment is, therefore, affirmed, with costs.
All concurred, except SMITH, P.J., dissenting, in memorandum.
I am unable to distinguish this case from the case of People v. Purdy, cited in the prevailing opinion. That part of the statute which provides that a person shall not hold two village offices at the same time states a cause of ineligibility to office within the reasoning of the Purdy case. If the relator had refused to resign as trustee the election would have proven abortive. A public statute should never be unnecessarily so construed as to lead to this possible result. If there be any distinction claimed in this case by reason of the special wording of the latter part of section 42, that distinction would seem to be entirely removed by the provision of section 53, which reads: "The person eligible and receiving the highest number of votes for an office shall be elected thereto." These two provisions of the statute must be read together, and if so read, the relator was ineligible to the office at the time he was elected, and the judgment should be reversed.
Judgment affirmed, with costs.