People v. Sandman

The evidence offered by defendant of rescission in 1873 of the resolution then adopted, was immaterial if within the issue. For if that resolution had not been adopted, only one could have been legally elected in each of the following years, and the term of office would have been only one year, of course then creating a vacancy in the spring of 1876, which could have been legally filled by the election of defendant.

But the issue of such rescission was not in the case; the fact was *168otherwise admitted by the answer, so that the court ruled'correctly in sustaining the objection. The reasons for refusing the application to amend do not appear. It is said in such a case we are bound to presume that the application was properly refused. (Burnet v. Bookstaver, 10 Hun, 485.) It was matter for special motion, and its refusal at Circuit, an entirely new defense being involved, is not a subject for exception available on appeal from the judgment.

It is claimed by defendant that there is no proper allegation of classification of these commissioners elected in 1873. Be that as it may, it is certainly admitted that in 1874 Patterson was elected for the full term of three years and is still such commissioner. That fully raises the point claimed by plaintiff to be fatal to defendant’s claim

The resolution of 1875, as alleged in the complaint, was not to affect the then present town meeting. All this allegation was denied by the answer, and the evidence showed the resolution to be unlimited and is so found. Whether under such a resolution the election in 1875 was valid is of no importance here, nor is it of any importance whether the legal conclusion in plaintiff’s complaint based upon the limited resolution is right or not. Neither reaches the question of defendant’s rights.

Had the resolution been limited, it may be that the town could have rescinded it before any election was had under it. That point, however, is not here.

The defendant’s rights depend upon (1) whether the resolution of 1876 was properly passed, and (2) if so, whether the town had the power to so act. Upon this last proposition the court held against the defendant. But defendant’s counsel claims the Revised Statutes were amended in 1865 and 1866, so as to materially change the effect of the act of 1849, and that these amendments were not considered by the court below. The Revised Statutes (part. 1, chap. 11, title 2, § 3) simply provided for the choosing at the annual town meeting in each town “ three commissioners of highways;’’ chapter 180, of 1845, section 2, gave the electors power to determine by resolution whether there should be chosen one or three, and if three were determined upon, their terms of office were to he one, two and three years, to be classified by lot, and *169thereafter one to be elected each year for the term of three years, and-provision was also made for filling vacancies. In 1847, by chapter 455, the act of 1845 was amended by adding, in substance, that towns, by resolution, might return to one, and that, “ when such resolution shall, have been adopted no other commissioner shall be elected or appointed, until the term or terms of those in office at the time of adopting such resolution shall expire or become vacant; and they shall have power to act until their terms shall severally become vacant or expire, as fully as if the three continued in office.” In 1865, by chapter 522, section 6, the section of the Revised Statutes above referred to was amended by making it read “ one or three commissioners of highways,” and in 1866, by chapter 30, section 1, by making it read “ one, two or three commissioners of highways.” These in no way refer to the act of 1847, and are not inconsistent with it, so far as one or three is concerned, and there is no claim here that the town ever resolved to have two. The Revised Statutes, as amended, left the manner of fixing one or three to be determined by the law then in force. Such law was, in fact, necessary to their proper operation. I cannot see how the acts of 1865, 1866 affect the present question. I do not understand that the construction of the act of 1847 is otherwise questioned. There is certainly much reason in the position that that law after the benefit of its provisions were invoked and entered upon, prevented further action on the part of the town until the terms of those then in office should expire. "Were this not the construction various complications might arise, annoying as well as detrimental to public interests.

However, on looking at the provisions of chapter 173, Laws of 1874, section 1,1 am of the opinion, that the resolution of 1876, under which defendant claims, was not properly passed. By that statute, the time for transacting such business as requires the vote of the people is fixed at noon, and then to continue without adjournment till finished, excepting the balloting for town officers and the duties connected therewith, that is with the balloting.

This resolution had nothing to do with the balloting, but was clearly business requiring the vote of the people. The exception only referred to the casting and taking of ballots and canvassing. Nor is the statute directory simply. It establishes a rule, valuable, *170impórtant and to be relied upon, and for the essential benefit of the electors.

To call it directory would substantially repeal it. Its plain object would certainly be frustrated. The resolution in question was passed at the opening of the polls and before any votes were cast, and it is not questioned but that it was before noon.

It follows that the judgment should be affirmed, with costs.

Judgment affirmed, with costs.