#### The People of the State of New York ex rel. Francis L. Worth, Relator, *v.*William P. Kanar, Defendant.

(Supreme Court, Onondaga Trial Term,

May, 1913.)

Village Law, § 42 — action to oust defendant from office of president of incorporated village — judgments.

Where, on the trial of an action to oust defendant from the office of president of an incorporated village, after the board of trustees had adopted a resolution that he was ineligible under section 42 of the Village Law which provides that “A president 1 * * must at the time of his election be owner of property assessed to Mm on the last preceding assessment-roll,” it is conceded that property was assessed to defendant upon the last assessment-roll, and that at the time of his election as president he was in fact the owner of the part of the property so assessed to him upon the last assessment-roll;

Held, the action of the board of trustees in declaring his ineligibility to hold the office was without legal justification and of no force or effect, and he is entitled to judgment in Ms favor.

Action to oust the defendant from the office of president of the village of Solvay, Onondaga county.

William Ryan, for relator.

White, Cheney, Shinaman & O’Neill, for defendant.

Hubbs, J.

The village of Solvay, Onondaga county, is a municipal corporation organized under the Village Law of the state. There is only one election district in the village. At the village election held on March 18, 1913, there ■ were two candidates for the office of village president, the relator, Francis L. Worth, and the defendant, William P. Kanar. The defendant received at such election -512 votes and the *553relator 406 votes. The defendant filed an oath of office with the clerk of the village and is acting as president of the village. On March 20, 1913, the board of trustees of said village adopted a resolution declaring that the defendant was ineligible to hold the office of president of the village under section 42 of the Village Law, that the relator was eligible to hold the office of president and declaring him elected. This action is brought to oust the defendant from the office of president and for a judgment awarding the office to the relator. The case is submitted upon an agreed statement of facts, and .the only ground upon which the relator relies for relief is that the defendant did not possess at the time of the election the qualifications required by section 42 of the Village Law.

The defendant is a physician, forty-nine years of age, and has resided in the village of Solvay for twenty years. About twelve years ago he purchased, on a contract, a house and lot in said village known as No. 517 Milton avenue. In 1909 a deed of the property was taken in the name of his wife. During that time the property was assessed to the defendant and he paid the taxes thereon and made all repairs and improvements thereon. In 1911 the defendant purchased a lot of between one and two acres known as 40 Orchard road in said village and took the title in the name of his wife. He paid the purchase price for the land and built a house and barn on the lot; and he occupied the house and an office in connection therewith and on the building was his physician’s sign. This property was assessed to the defendant on the assessment-roll of the village for the year 1912, the last preceding assessment-roll prior to the election in question. On March 8, 1913, ten days prior to the election in question, the defendant’s wife deeded to him a lot off from said parcel of land at 404 Orchard road, said lot being 100 feet *554wide and 225 feet deep. The deed was delivered to him on the day which it bears date, and the land conveyed by the deed was a part of the land assessed to the defendant on the assessment-roll of 1912.

Section 42 of the Village Law reads as follows: “A president * * * must, at the time of his election, be owner of property assessed to him on the last preceding assessment-roll. ’ ’ The position of the relator is that the defendant is not eligible to hold the office of president of said village because he was not the owner of the property assessed to him on the last preceding assessment-roll at the time it was so assessed. The relator contends that the words *“*assessed to him ” should be construed to mean *“*owned by him ” at the time said assessment-roll was completed. It is conceded that the property was assessed to him upon the last preceding assessment-roll, and it is conceded that at the time of the election he was in fact the owner of part of the property so assessed to him upon the last preceding assessment-roll.

Under the literal reading of section 42 the defendant was qualified to hold the office, and, if the will of the voters of the village of Solvay is to be disregarded and their expressed choice ignored, it must be by a construction of this section not justified by the wording of the section itself. Courts should not lightly interfere and set aside the election of a person who has been fairly elected by the voters. The will of the majority as expressed by the ballot should be controlling and binding unless there is some clear and positive reason why their will should be ignored and the person elected declared to be ineligible.

In eases where a statute limits the eligibility of persons to hold office by requiring property qualifications the statute should not be extended by judicial con-' struction beyond the clear meaning of the language *555used. In such cases the courts will hold that the legislature embodied in the statute all of the qualifications required. In the case of People ex rel. Gerst v. Davis, 43 Misc. Rep. 397, Justice Cochrane, writing in reference to section 42 of the Village Law as it stood at that time, says: “It thus appearing that a candidate for village trustee is subjected to a stricter and severer rule of eligibility than under the former statute, it would be improper to extend.the rule still further by a forced construction of the statute and by reading into the statute a meaning which the language thereof does not naturally import. The ordinary and natural interpretation of the statute in question makes it more difficult for a person to be eligible to the office of village trustee than under the former statute, and there is no necessity to make it even more difficult by a construction of the present statute which would be unnatural and would do injustice to the phraseology thereof.’’

The purpose of section 42 of the Village Law is to secure for the position of president of villages persons who are interested and by reason of their interest may be expected to be careful and economical in administering the affairs of the village. In the case of Jewell v. Mohr, 136 N. Y. Supp. 273, Justice Wheeler wrote as follows: “ the object and purpose of the Village Law, § 42, is simply to insure that those elected as trustees of a village shall be property owners and taxpayers of the village, to the end that they may have the proper interest in the village welfare and prosperity.” In that case Justice Wheeler stated in the opinion that where the candidate was actually the owner of property he was not disqualified because of the fact that the assessors of the village had failed to change the assessment from the name of the former owner of the property, although they had been instructed to do so by the candidate.

*556The property in question was legally assessed in the year 1912 although the defendant in whose name it was assessed was not the legal owner at the time of the completion of the assessment-roll. He was, however, in occupation of the property; he was the reputed owner in possession. Laws of 1911, chap. 315, §§ 9, 20, 21. The tax levied on the property in question was a valid lien and the property could have been sold to enforce the collection of the tax. Section 42 of the Village Law also contains the following provision: *“*and must also be the owner during the term of his office of property assessed to him on the assessment-roll of said village. ’ ’ It is urged by the defendant that if the words *“*assessed to him ” implied ownership of the property at the time of the assessment as contended by the relator there would have been no necessity of the last quoted provision providing for both ownership of the property and assessment of the property to the office holder during his term of office. The author of Bender’s Village Laws in his note to section 42, at page 25, says: “ The property qualification provided hereby of course enables a candidate for office to become the owner of assessed property for the mere purpose of establishing his eligibility, but the provision requiring that such ownership shall continue ‘ during his term ’ would seem to protect against serious abuse of the .privilege. ” Beal estate owned by a nonresident of a village is properly assessed to the tenant or occupant. Such tenant or occupant by acquiring the legal title to such real estate before the election would be eligible under section 42 of the Village Law to hold the office of president. The legislature in framing section 42 might very well have had such a situation in view.

The action of the board of trustees at their meeting on March 20,1913, in declaring the defendant ineligible *557to hold the office of president was clearly without legal justification and of no force or effect. People ex rel. Gerst v. Davis, 43 Misc. Rep. 397.

My conclusion is that the defendant, William P. Kanar, was at the time of the election eligible to the office of president of the village; that he received a majority of the votes east for such office at the village election and was duly elected, and is entitled to hold such office.

Judgment for defendant.