#### PEOPLE ex rel. LOVETT v. RANDALL.

(Supreme Court, General Term, Second Department.

December 2, 1895.)

Towns—Commissioner oe Highways—Holding Over.

Laws 1890, e. 569, § 17, as amended by Laws 1893, c. 344, providing that the electors of each town may at the annual town meetings determine-whether there shall be elected one or three commissioners of highway, and that if" one only shall be determined on, and it shall be a town having but one commissioner of highways, his term of office thereafter shall-be two years, is not self-executing, and therefore does not affect the term-of the commissioner of highways in a town which has not by resolution determined that there shall be only one commissioner; and a commissioner who was elected before the passage of the act of 1893, and who-held over by reason of the failure to elect his successor after the act of 1893 took effect, is not entitled to hold over for the term of two years.

*203Appeal from circuit court, Orange county.

Quo warranto by Elihu Lovett against William A. Randall to determine title to the office of commissioner of highways of the town of Warwick, Orange county. There was a judgment in favor of plaintiff, and defendant appeals.

Affirmed.

Argued before BROWN, P. J., and DYKMAN and PRATT, JJ.

M. N. Kane, for appellant.

■ M. H. Hirschberg, for respondent.

DYKMAN, J.

This is an action to determine the title to the office of commissioner of highways of the town of Warwick in Orange county. Both parties claim the office under the following facts, which are undisputed: The town of Warwick has had but one commissioner of highways since 1857. At the town meeting held in the month of March, 1893, the appellant, William A. Randall, was elected commissioner of highways for one year. At the expiration of his term, he was a candidate for re-election, his opponent being the relator, Elihu Lovett. At that election, held in the month of March, 1894, no choice was made, the election resulting in a tie; and, by reason of the failure to elect a successor, Randall held over, and continued to discharge the duties of the office, as permitted by the public officers’ law. At the next town meeting, held in the month of March, Lovett was again regularly placed in nomination for the office, and no one was nominated against him. He was elected, and accepted the office in writing, and qualified, and gave the proper bond, and entered upon the discharge of the duties of his office.

The theory of the defendant is that chapter 344 of the Laws of 1893, . amending section 17 of chapter 569 of the Laws of 1890, operated to extend the term of the commissioners in the town from one year to two years, and that, upon the failure of the electors to elect his successor, he could hold over for the full term of two years, and that his term was not abridged by the election of the relator.

Section 17 is as follows:

> “Commissioners of Highways. The electors of each town may at their annual town meetings determine by resolution whether there shall be elected by their town one or three commissioners of highways. If only one shall be determined upon, and it shall be a town having but one commissioner of highways, one commissioner only shall thereafter be elected at each alternate annual town meeting who shall hold his office for two years.”

The electors of the. town of Warwick failed to determine by resolution whether there should be elected one or three commissioners of highways in that town after the passage of that statute, until March, 1895; and it is therefore very doubtful whether the term of that office has been extended to two years. The statute did not execute itself. It required action on the part of the electors of the town, and that essential prerequisite never received compliance. As we have said, the defendant was elected commissioner in March, 1893, for one year. The statute of 1893 did not become a law until April, 1893, and did not extend his term or affect his tenure in any way. According to this view, his term expired in March, 1894; and, as there was a failure to elect his successor, he held over, under section 5 of the *204public officers’ law for 1892, until his successor was duly chosen and qualified, in March, 1895.

There is another view which conducts us to the same result. Prior to the enactment of the public officers’ law in 1892,1 an office was not deemed vacant while there was a person authorized to perform its functions, and was acting in it. Even now there is no physical vacancy, and by section 5, already mentioned, both officers, with the exception of those named, hold over and continue to discharge the duties of their office after the expiration of the term for which they were chosen, until his successor shall be chosen, or after the expiration of such term of office it is vacant for the purpose of choosing his successor. Such successor must be chosen at the time of holding an annual town meeting, and the persons chosen to fill such vacancies hold their office for the residue of the unexpired term for which they are elected. Laws 1893, c. 344, § 12. The statute is plain, and easily understood, and .readily applied to this case. The defendant, having regularly entered upon the duties of his office, held over and continued to discharge the same until March, 1895, because no person was elected to succeed him. Then the office was deemed vacant for the purpose of choosing his successor, and the relator was duly elected and qualified, and so became entitled to the office.

The judgment should be affirmed, with costs.

PRATT, J., concurs. BROWN, P. J., does not vote.

1

Laws 1892, c. 681.