
    Matter of the Application of Lorenzo D. Collins and John H. Kemp. Matter of the Application of James H. Godfrey and Henry L. Engel. Matter of the Application of Lorenzo D. Collins and Frank P. Groat.
    (Supreme Court, Albany Special Term,
    April, 1896.)
    1. Office — Vacancy.
    A newly-created office which- is not filled-by the tribunal which created it becomes vacant on the instant of its creation for the purpose of an appointment- of election.
    2. Towns — Election of supervisor and town clerk in newly-erected.
    Where a town is divided and a new town erected therefrom during the term of office of the supervisor and town clerk of the original town, there is a vacancy in those offices in the new town until the first town meeting^ at which they are to be filled only for the remainder of the unexpired term, and not for a full term.
    Certioraris to review the determination of the town clerk of the town of Colonie.
    Arthur L. Andrews, for republican and union candidates.
    Norton Chase and Frederick E. Wadhams, for democratic candidates.
    George L. & George W. Sted-man, for town clerk.
   Chester, J.

These are applications to review the determina-

tion of the town clerk of the town of Colonie, in refusing to print the names of candidates for supervisor and town, clerk on the ballots to be furnished at the ensuing annual town meeting of such town. • ■ -

It appears that three certificates have been filed with him; one certifying, the nomination by the democratic party of James H. Godfrey, as a candidate for supervisor, and of Henry L. Engel,' as a candidate for town clerk; one by the republican party, certifying Lorenzo D. Collins, as a candidate for supervisor, and John H. Kemp, as a candidate for town clerk; and one by twenty-five citizens, ¿certifying Lorenzo D. Collins and Frank P. Groat, as independent nominations, known as union nominations, for the offices of supervisor and town clerk respectively. Three cases are submitted, but as they present exactly the same questions, they will be considered as one. The clerk has.decided that the certificates above mentioned are defective in that they .contain names of candidates fer the offices of supervisor and town clerk, and that said offices are not to be filled at the coming town meeting because the term of the present incumbents of the offices will not expire until 1897. For these reasons he has decided to refuse to print the names so certified upon the ballots which he is required to print and furnish.

The question here is as to the correctness of the town clerk’s decision.

' The town of Colonie was organized pursuant to chapter 975 of the Laws of 1895, passed June 7 of that year, and by section 10-of the act it took effect immediately.

Section 1 of that act provided that all that part of the present town of Watervliet not included within the limits of the village of West Troy, and of the village of Green Island,, is separated from that part of the said town included within such villages and erected into a separate town to be hereafter known as the town of Colonie. ,

Section 2 provided that all the rest of said town, consisting of the villagés of West Troy and' Green Island, .'shall be the town of Watervliet. 6

Section 3 provided that the first town meeting of the town-hereby erected shall be held at the “ town house at • LathamsCorners, on the 2d day of April, 1895, providing this act shall become á law six days prior to that date, and if such shall not be the case, then on the third Monday after this act shall become a law, and thereafter the same shall be held on the same day that other towns hold their annual meeting in Albany county.

Section 4 provided that there shall be elected at the said first' town-meeting, by ballot,'one supervisor, one town clerk and the other town officers named in the section.

None of the terms of office of any of- these town officers are fixed by section .4. The terms of office of the assessors are provided for by section 5; of the commissioners of excise by section 6; of the commissioners of highways and of the overseers of'Hhe poor by section 7. -

Nothing is said in the act as to the term of office of. the supervisor or of the-'town clerk; but the actprovides in section 9. that '“The town hereby erected shall be governed in all respects by ■chapter twenty of the general laws of the state, known as the Town Law, except as hereinbefore' provided.” ‘ , .

The Town Law, in section.12, provides for the election of all town ■officers, except supervisor and town clerk, at the annual town meeting, by ballot, and also provides for. the election by ballot, at each .■ alternate town meeting, of one supervisor and one town clerk, except in thé county of Kings. This section also provides that “ if there shall be any vacancies in the office of supervisor, town'clerk, ■etc., * "" * of any town, at the time of holding its annual town meeting, persons shall then also be chosen to fill, such vacancies, who shall hold their offices for the residue of the unexpired ■term for which they are respectively elected.”

Section 13 of the Town Law provides that supervisors and town clerks shall hold their respective offices for.two years.

At. the" time of -the passage of the act creating the .town of '■Golonie, Terrence Cummings was supervisor and James H. Foley town clerk of the town of Watervliet, from which the new town was taken,' having been elected at the town meeting in April, 1894. Their terms of office will expire in April, 1896, upon the election and qualification of their successors. The present'incumbents of these.offices in the town of Oolonie, were elected at the first town meeting provided for in section 3 of the act erecting that town, which was held upon the 27th day of June, 1895.

The contention oh behalf of the nominees certified, as above, to • -the town clerk is, that the present incumbents of these offices in 'Oolonie were- elected to fill vacancies in their respective offices, and that it is essential, in order to procure uniformity in the expiration •of the terms of their offices With those of other like offices in the •■county, that an election should be held this year for a full term of two years. On the other hand, the town clerk .contends, as indicated by his refusal to print these names upon the ballots, that the " -present incumbents were elected for a full term of two years, and that their term of office does not expire until the annual town meeting of next year. ' .

It seems to me evident from the hasty examination1 that I have' ■been compelled to give to the questions presented^ that the town clerk is in error in the position he has taken.

• The act creating the new town took effect June 7, 1895. The first town meeting under it was held June 27, following: Were there vacancies in the offices of supervisor and town clerk between these dates and at the time of -such first town meeting? The mew town had been erected. The offices in question had been 'established but had not been filled by the legislature in the law creating the town or in any other manner. The new town had no 'supervisor or town clerk. The offices were."vacant” within the usual and accepted meaning of that term.

The word" “ vacancy ” aptly and fitly describes the condition of an office when it is first created and has been filled by no incumbent. 28 Am. & Eng. Enc. of Law, 2. And an office is vacant in the eye of 'the law whenever it is unoccupied by a legally qualified incumbent who has a lawful right to continue therein until the happening of some future event. 19 Am. & Eng. Enc. of Law, 431, and cases cited. A newly-created office which is not filled by the tribunal which created it becomes vacant on the instant of its creation. This principle seems to be well settled by numerous decisions. Id. and cases cited.

This is also made clear by the Public Officers Law, which provides that when a new office shall be created ' such office shall, for the purpose of an appointment or election, be vacant from the date of its creation, until it shall be filled by election or appointment. Chap. 681, Laws of 1892, § 20, subd. 7.

But it is claimed, here that the provision of section 12 of the Town Law above quoted, which provides that if there shall be . any vacancies in the offices of supervisor, town clerk, etc., of any town at the time of holding its annual town meeting, persons shall then be chosen-to fill such vacancies, who.shall hold their offices for the residue of the unexpired term for which they are respectively elected,” cannot apply to the case in question, for the reason that there was no unexpired term and that the officers in question had no predecessors. I think it is not an unreasonable view, as applied to the facts of this case, to hold that the supervisor and town clerk of the town of Watervliet were the predecessors of the present incumbents of these offices in the town of Oolonie. When the present supervisor and town clerk of Watervliet were elected they were elected for the entire town, which at the time of then’ election included the territory now constituting the town of Oolonie. Their .jurisdiction-covered the territory of the latter town. They were removed from their offices, so far as they related to the territory comprised within, the town of Colonie, by the act of. 1895, creating that town, or if they were not removed by the act/, they were prevented by it from exercising any further jurisdiction over the town of Colonie, or holding any official relation to it. Their functions as officials ceased by reason of the act, so far as the new town was concerned. Had it not been for the act creating the town, they would have been the officials for the territory comprised within'the new town until the expiration of their respective terms of office in 1896.

I think it is, therefore, reasonable to hold that- they were the predecessors in office of the present incumbents of these offices in the town of Colonie, and that it was for their unexpired term of. office, so far as it related to the territory comprised within that town, that the supervisor and town clerk of Colonie were elected at the first town meeting provided for in the act in question.

If I am correct in my conclusions, the supervisor and town clerk elected at such first town meeting were elected to fill vacancies, and were not elected for a full term, and the provision of section 13 of the Town Law, with reference to filling of vacancies, governs ■ their term of office.' Pursuant to that section, their term expires in- 1896, and their successors should, therefore, be elected at the coming town meeting.

I come to this conclusion' with less hesitation than I otherwise. would, for the reason that it seems to me it is the "evident intent of the statute to procure uniformity in the time of expiration of the term of office of all supervisors in the county, and that a holding that there should be.no election in- (Dolonie this year would result, in- the supervisor from that town being elected,at a different time from the supervisor of W'atervliet, and of each of the other towns' in the county.

It follows that the application shóuld' be granted in each case and the town clerk directed'to place the names of the several nominees for supervisor and town clerk above mentioned upon the official ballot.

Applications granted.  