#### The People of the State of New York ex rel. Winfield S. Overton, Respondent, *v.*The Board of Trustees of the Village of Whitestone, Appellant.

*Public officers*— mandatory *ckities*— milage *of Whitestone*— vacancy *in, the office of trustee*— *special election.*

Every citizen has a right to compel the performance, by public officers, of the duty imposed on them of executing the law.

Where a public body is' clothed by statute with power to do an act which the public interests require should be done, the execution of the power may be insisted on as a duty, though the statute conferring the power appears to be only permissive in terms.

'The provision of the charter of the village of Whitestone (Laws of 1869, chap. 199, tit. 2, § 8) that “ in case of any vacancy in the oifice of trustees, * * * it shall be in the power of those remaining trustees, or a majority of them, to call a special election,” is mandatory and requires the remaining trustees to call a special election whenever a vacancy in the' board occurs. A voter and taxpayer of the village has a right to compel, by mandamus, the performance by the village trustees of the duty imposed upon them of executing the above statutory requirement.

Appeal by the defendant, the Board of Trustees of the Village •of "Whitestone, from an order of the Supreme Court, made at the Kings County Special Term, on the return of an order to show cause, and entered in the office of the clerk of Queens county on the 29th day of April, 1893, directing the issuance of a peremptory writ of mandamus commanding the board of trustees to call a special election of the voters of the village of Whitestone to fill a vacancy in the board.

The charter of the village of Whitestone (Laws of 1869, chap. 199, tit. 2, § 8) contains the following provision, *“*and in case of any vacancy in the office of trustees or police justice, by death, resignation or otherwise, it shall be in the power of those remaining trustees, or a majority of them, to call a special election, at such time, place, •and in such manner as they, or a majority of them, may prescribe,” etc.

By chapter 133 of the Laws of 1885, supplementary to the village charter, the board of trustees of the village is made to consist of seven members.

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      *B&nya/mi/n W. Downing,*for the appellant.

*Alfred Mitchell,*for the respondent.

Pratt, J.:

This is a special proceeding against village trustees to compel them, by mandamus, to call a special election to fill a vacancy.

The relator is a voter and taxpayer of the village of "Whitestone, Queens county, and the defendant is the acting governing body of said village, and consists of a board of seven trustees who were in office on and prior to January 18, 1893, when one of them, August M. G-raue, then resigned his said office, and the vacancy thereby created existed when this proceeding began.

This proceeding was commenced by the granting, on the *expa/rte*application of relator’s counsel, upon the affidavits of himself and the-relator, on April 18, 1893, of an order requiring defendant to show cause, why a peremptory mandamus should not issue commanding it, to forthwith call a special election to fill said vacancy. Defendant, appeared by counsel, and opposed said motion, admitting the foregoing facts, but contending that the power given was discretionary,, and that they wished to save the expense of election.

It is well settled in this State that every citizen has a right to-compel the performance by public officers of the duty imposed on them of executing the law. *(People ex rel. Boltzer*v. *Daley,*37 Hun, 461, and cases there cited.)

There being no disputed facts, a pure question of law was raised making it the duty of the judge below either to deny the application or grant a peremptory mandamus.

The question is whether the law which provides that there shall be seven trustees of the village is permissive or mandatory. Reason and authority seem to indicate very strongly that it is mandatory. If it is discretionary, as members of the board of trustees drop out,, whether to call an election or not, they might thus be reduced to one man and the representative character of the government destroyed. The power is conferred to call a special election in such a case and we think it is mandatory.

"Where a public body is clothed by statute with power to do an act which the public interests require to be done, the execution of the power may be insisted on as a duty though the statute confer-*190ing the power appears to be only permissive in terms. *(Hutson*v. *Mayor of New York,*9 N. Y. 163, following 3 Hill, 612; *People ex rel. Raymond*v. Connolloy, 4 Abb. [N. S.] 376; *People*v. Supervisors, 51 N. Y. 401.)

The order must be affirmed, with costs and disbursements.

Barnard, P. J., and Dykman, J., concurred.

Order granting writ of mandamus affirmed, with costs and disbursements.