People ex rel. Goring v. President

• Decision Date: 05 February 1895
• Citation: 144 N.Y. 616,39 N.E. 641
• Parties: PEOPLE ex rel. GORING v. PRESIDENT, ETC., OF VILLAGE OF WAPPINGER'S FALLS.
• Court: New York Court of Appeals Court of Appeals

144 N.Y. 616

39 N.E. 641

PEOPLE ex rel. GORING

v.PRESIDENT, ETC., OF VILLAGE OF WAPPINGER'S FALLS.

Court of Appeals of New York.

Feb. 5, 1895.

Appeal from supreme court, general term, Second department.

Application by Edward M. Goring for a writ of mandamus to the president and trustees of the village of Wappinger's Falls to compel them to recognize relator as police justice of said village, and to fix his salary. From an order of the general term (31 N. Y. Supp. 758) affirming an order granting the application, defendants appeal. Affirmed.

Frederic Barnard, for appellants.

Bernard J. Tinney, for respondent.

GRAY, J.

In January, 1890, the board of trustees of the village of Wappinger's Falls, acting under the authority conferred by section 17 of chapter 291 of the Laws of 1870, being the general act for the incorporation of villages, passed a resolution that a police justice should be elected at the next village election to occur on the third Tuesday of March, 1890, and every four years thereafter. A police justice was, accordingly, elected in March, 1890, for the full term of four years. After holding his office for only a short time, he resigned, and the vacancy remained unfilled for the balance of the term for which he had been elected. At the annual election held on the third Tuesday of March, 1894, the respondent, Goring, received 44 votes for the office of police justice, being the whole number of votes cast for that office. The trustees of the village have, however, refused to recognize the election of the respondent, or to make proper provision for the administration of the office, and because of their action or inaction he made application for a peremptory writ of mandamus, which should command and require them to provide necessary room, blanks, books, etc., and to determine the annual salary. The trustees opposed the granting of the writ, upon the ground that no notice of the election of a police justice was given in the spring of 1894, and that the official ballots of neither party contained the name of the office, or of any candidate to be voted therefor. The court, at special term, granted the application, and upon appeal the general term affirmed the order of the special term, except that it struck out so much of the order as directed the trustees of the village to fix the salary of the office, holding that that matter was one within their discretion.

The only question upon this appeal is as to the correctness of the order below in granting the peremptory writ, which, in effect, commanded the appellants to recognize the relator as a police justice. The position of the appellants is that, because the village trustees, in giving notice for the election of village officers, did not specify the office of police justice, and because the official ballots printed by the village clerk did not contain the name of the office of police justice, no votes could be received or counted for that office. This position is rested upon certain language in the election law of 1892 (chapter 680). Section 104 provides that ‘the name of any person for whom the voter desires to vote for any office named on the official ballot may be written on the official ballot which the voter proposes to...