
    The People, Pl’ffs, v. Frank H. Hull et al., Def’ts.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed June 23, 1892.)
    
    1. Supervisors—Alteration of wards—Buffalo.
    By the charter of 1891, the number of wards in the city of Buffalo was increased and the boundaries altered, and it was provided that there should be one supervisor for each ward, and that each supervisor in office should be the supervisor for the ward in which he resides for the remainder of his term, provided it should be the whole or a part- of that in whicn he was elected. The old. second and two districts of the old third ward made the new third, and the rest of the old third and one district of the old first made the new fourth ward. M. and S were, respectively, the supervisors of the old second and third wards, and both resided in the new third. Held, that the charer contemplated that there should be but one supervisor from each ward, and that M. having been elected from a ward which was wholly included in the new third, was entitled to represent that ward, and that S. could not represent the fourth ward as he did not reside within its limits.
    2. Same—Decision of board not final.
    The decision of the board of supervisors on this question is not conclusive.
    Case submitted under § 1279 of the Code of Civil Procedure, to determine who are supervisors of the third and fourth wards of the city of Buffalo.
    Prior to the adoption of the new charter for the city of Buffalo, . March 27, 1891, chapter 105 of the Laws of 1891, the city was divided into thirteen wards. One to twelve, inclusive, had two supervisors each; ward 18 had one; they held office for two years. By the new charter the city was divided into twenty-five wards. By the new division the old second and two election districts of the old third made the new third ward; the remaining districts of the old third and one district of the old first comprised the new fourth ward.
    The defendant Thomas H. Munsell was a resident of and duly elected a supervisor of the old second ward at the annual election in 1890, for the term of two years.
    He had always resided in the same place in said ward at which he resided when elected.
    He duly qualified, and has since been an acting supervisor. The defendant, Christian Smith, was a resident of and duly elected a supervisor of the old third ward at the annual election for 1890, for the term of two years; he has always resided and still resides in the same place at which he resided when so elected; his place of residence being in one of the election districts of the old third ward added, as aforesaid, to form the new third ward.
    Munsell and Smith qualified as supervisors and performed the duties of their office for the year 1891, and are still acting supervisors.
    " On the first day of October, 1891, there was no supervisor re. siding within the boundaries of the new fourth ward; ascertain. ing that fact, the city clerk, in giving the required notice of offices to be filled at the annual election in 1891, included the supervisor for said new fourth ward.
    The defendant Frank H. Hull and one William Wey and were respectively put in nomination by the two principal political parties as opposing candidates for the office of supervisor for said ward. Hull received 959 votes and Wey and 854. The returns of said election were duly filed and canvassed; a certificate of his election was delivered to Hull; he qualified as supervisor.
    Hull was a resident and- elector of the fourth ward, and still resides therein; if the office was required to be filled at said election it is conceded that Hull was duly elected and entitled thereto. That since January 1, 1892, and prior to the 17th day of May, 1892, there were no official duties for either of the defendants to-perform as supervisor.
    After the annual election of 1891, the clerk of the board prepared a roll of the members thereof for the year 1892, enrolling Munsell and Smith as supervisors for the new third ward and. Hull as supervisor for the fourth ward.
    A special session of the board was called on the 17th day of May, 1892. Notice thereof was given to all the supervisors, including the defendants.
    The clerk, before the board convened, struck Hull’s name,from the roll of membership and inserted in place thereof the name of Smith, and struck Smith’s name from the roll of membership as-the supervisor from the third ward, and thereupon the session of the board of supervisors was called to order and the question of the right of the respective defendants to represent, as supervisors,, the new third and fourth wards was considered by the board, and by a majority vote thereof it was decided that the defendant Thomas H. Munsell was entitled to the seat of supervisor for the new third ward, and that Christian Smith was entitled to the seat as supervisor for the new fourth ward.
    
      Simon W. Rosendale, attorney-general, for pl’ffs ; Fayette Kelly, for def’ts Smith and Munsell; Frank C. Laughlin, for def’t Hull.
   Per Curiam.

—All of the provisions of the charter of 1891 ... material to the questions presented for adjudication, with an ex-: ception hereafter mentioned, took effect on the first day of Janu-1 ary, 1892.

So much of § 365 of the charter as bears upon the question ,-q before us is as follows:

“ The electors of each ward shall elect one supervisor. * * *" 5 The term of office of the supervisor shall be two years. * * * The supervisors in office at the time this act takes effect shall'v serve out their respective terms as hereinafter provided. * * *" Bach supervisor elected at the annual election of 1890, and who shall be in office on the first Monday of January, 1892, shall be the supervisor of the ward, created by this act, in which he resides on the first day of October, 1891, for the remainder of the term for which he was elected, if such ward shall be the whole or a part of the ward in which he was elected.

“At the annual election of 1891 a supervisor shall be elected in each of the wards created by this act in which a supervisor does not hold over as above provided.

“At each annual election thereafter the supervisor shall be elected by the electors of each ward, where the term of its supervisor will expire on the first monday of January following.”

Section 506 provides that all elective officers in office when the-act takes effect shall serve out the terms for which they were respectively elected.

It is clear that in construing the provisions of the charter a literal effect cannot be given to all of its provisions, for they are in conflict

There is, as we have seen, a general provision that all elective officers shall serve out the terms for which they were elected, and by § 365, the supervisors in office when the act takes effect shall serve out their respective terms, as hereinafter provided.

Section 365 provides that the supervisor whose -term of office did not expire on the first day of January, 1892, should be the supervisor of the ward created by this act in which he resides on the first day of October,. 1891.

Both Munsell and Smith were at that time residents of the new third ward.

It is clear that a ward is entitled to but one supervisor.

The board of supervisors has been for many years composed óf twenty-five members from the city of Buffalo, and twenty-five members from the towns of the county.

This equality of representation has long continued, and it admits of no doubt that the new charter contemplates a continuance of this equality of representation.

Munsell and Smith cannot both represent the third ward, for that would make fifty-one supervisors in the board.

As between Munsell and Smith, the former is entitled to the office of supervisor of the third ward.o

The whole of the territory included in the old second ward, by the electors of which, Munsell was elected, is now embraced in the-new third ward, with the additional territory taken from the old ward designated by that number.

Munsell represents the second ward by another number, whilst as regards Smith, only a small part of the territory he was elected tp represent is embraced in the new third.

As between the two, therefore, it .would seem reasonable thatMunsell should be held to be the supervisor of the new third ward; and unless Smith can represent a ward in which he does not reside, he has been legislated out of office.

That was within the power of the legislature.

Acts having that effect have been passed, and held to be valid. People v. Morrell, 21 Wend., 563; Matter of Gertrum, v. Board of Supervisors, 109 N. Y., 170; 15 St. Rep., 69.

One of the purposes of the charter was to provide for the election of-successors to those supervisors whose terms should expire^ in January, 1892, by limitation, such election to take place in-those newly created wards, which would otherwise have no representation in the board when that time should arrive, and further provides for the election in a ward within which no supervisor resided on the 1st of October, 1891.

In construing this act we must assume, in the absence of provisions showing that to be the clear intent of the legislature, that it was not intended to make a radical change in the theory and scheme of the elective offices of the state.

The general statutes of the state provide that a supervisor shall reside in the town which he represents.

By 1st Revised Statutes, 8th ed., m. p. 122, § 34, every office becomes vacant on the incumbent ceasing to be an inhabitant of the state; or if the office be local, of the district, county, town or city for which he shall have been chosen or appointed, or within which the duties of his office are required to be discharged.

The wards of the city and towns of the state, for the purposes of the question here presented, are the same.

We know of no exception to the rule that an elective officer must be an elector and resident of the district which he represents.

The position of Smith as a representative in the board of supervisors of a ward in which he is not an elector or resident would under our system of government be novel and unique.

Had he desired to represent the fourth ward the course for him to have pursued is clearly indicated in § 365.

He should have moved into a part of the new fourth taken from the old third.

Such removal would not have affected his right to represent the old third for the remainder of 1891, for the division of the city into new wards did not take effect until- January, 1892.

His attention was timely called to this question, and he declined' to change his domicil, entertaining, it seems, the opinion that he could continue to represent the new third ward. .

Obviously, the situation here presented did not occur to the minds of those who drew the charter.

The effects and consequences of a construction of a statute are to be considered, and where from a literal interpretation an effect would follow obviously contrary to the whole intent and spirit of the statute, the intent and not the literal meaning must be regarded.

We do not think the question here presented is free from doubt, and -it is not surprising that the board of supervisors, acting upon the advice of their competent counsel, should have taken a differ: ent view of the question, but our conclusion that Hull is entitled to the office and emoluments of supervisor of the fourth ward is, we think, in consonance with the provisions of the charter.

It is suggested by the counsel for Munsell and Smith that the decision of the question by the board of supervisors is conclusive, as they are made by the statute judges of the qualifications of their members.

We do not accede to this contention.

The statute has not conferred upon them the power to decide the question here presented.

The plaintiff is entitled to judgment that only one of the defendants is legally entitled to the office of and to act as supervisor for one ward in the city of Buffalo; that the defendant, Frank H. Hull, is entitled to the office of supervisor of the fourth ward and to the emoluments thereof, and that the defendant, Thomas H. Munsell, is entitled to the office of supervisor of the third ward and the emoluments thereof.

Dwight, P. J., Macomber and Lewis, JJ., concur.  