
    
      Ex parte Quackenbush.
    The statute (2 R. S. 341, § 43, 2d ed.) authorizing special elections to supply vacancies in certain town offices, does not extend to the office of justice of the peace.
    The constitution withholds from the legislature the power of providing for the election of justices of the peace, except at an annual town election.
    
    The relator obtained judgment before J. L. Stevens, who was elected to the office of justice of the peace of the town of Cicero, Onondaga county, at a special town meeting called by the town clerk to supply a vacancy in the said office occasioned by the resignation of Mr. Walkup. The meeting was called within eight days after the resignation, and held on the 29th April, 1841, several weeks after the annual town election. Stevens took the oath of office, and acted as justice for several months, when he was advised that his election was invalid, after which time he declined further to act as justice, and refused to issue an execution upon the judgment rendered by him in favor of the relator.
    
      :G. Lawrence, for the relator,
    moved for a mandamus to compel Stevens to issue execution. He referred to the act of May 4th, 1839, (Sess. Laws of 1839, p. 545,) now incorporated into the revised statutes, (1 R. S. 337, § 11, 2d ed.) which provides, that justices shall be elected at the times and in the manner prescribed for electing supervisors. Supervisors are, in general, to be elected at the annual town meeting; (1 R. S. 336, § 2, 2d ed.;) and in case of their refusal to serve, death, resignation, &c., the vacancy is to be supplied by a special town meeting, called as the one was which elected Stevens. (1 R. S. 341, § 43, 2d ed.) If justices are to be elected at the times and in the manner of electing supervisors, there is scarcely room for doubting the validity of Stevens’ election. This must result from a fair construction and application of the statutes referred to.
    But it will be said, the constitution requires justices to be elected at an “ annual election(1 R. S. 50, 2d ed.;) and hence, if the legislature have provided for special elections to be held at other times, that provision is so far void, as contravening the fundamental law. This view proceeds upon an erroneous interpretation of the constitution. The latter is silent as to the mode of filling vacancies. It declares that justices shall be elected by ballot, &c., “ in such manner as the legislature shall direct.” We submit, that a fair construction of the constitution will leave the legislature full control over the subject of supplying vacancies; and that ¡they may authorize special elections for such purpose.
    This view has evidently prevailed in most if not all of the legislation which has taken place under the constitutional provision in question. In 1827, an act was passed directing that justices should be elected at the time and in the mode provided for the election of members of the assembly, &c. (See 1 R. S. 127, § 1, 1st ed.) It was subsequently enacted that when a new town should be erected, an election for justices should be held at the next general election, unless a special election should be directed by law. (1 R. S. 101, § 43, 2d ed.) This act contains a strong recognition of the power now claimed for the legislature, viz. to authorize special elections to supply vacancies; and by the act of May 4th, 1839, already referred to, that power was not only recognized, but directly exerted. The legislature, moreover, have exerted this power by authorizing special elections to be held in particular towns. One instance is, the act of April 18th, 1839, (Sess. Laws of 1839, p. 263, 4,) providing for a special election of justices in certain towns of Onondaga county. Such has been the legislative construction of the constitution, and such we contend should be its judicial construction.
    
      D. Pratt, contra.
    The act of May 4th, 1839, was simply intended to carry into effect the clause amending the constitution, by prescribing the manner of election, viz. by ballot; and the phrase “ at the times” was not intended to give the legislature any power except what is expressly conferred by the constitution, which requires that justices shall be elected at the annual town election. The section of the statute which authorizes the calling of special town meetings to fill vacancies in certain offices, (1 R. S. 341, § 43, 2d ed.) particularly enumerates the officers who may be chosen at such special election; and justices of the peace are not among the number. The legislature may fix the time of holding annual town meetings, and, when fixed, the constitution requires that justices must be elected at such annual meetings. It is doubtful, to say the least, whether the legislature have the right to pass an act authorizing a special town meeting to fill a vacancy in the office of justice. But whether this be so or not, is perfectly immaterial, as it is enough for our purpose that there is no authority, under any existing law, for calling special town meetings to fill vacancies in the office in question. The election of Stevens was therefore void, and the motion for a mandamus should be denied.
   By the Court,

Cowen, J.

I have considered the question presented, and am of opinion that the language of the clause amending the constitution withholds power from the legislature to provide for the election of justices of the peace except at the times of the annual town elections, as these shall be fixed by law. The words 11 in such manner,” &c. have no reference to time, but only to the mode of balloting, &c. Nor do I think the statutes cited by Mr. Lawrence were intended to authorize the calling of special town meetings to elect justices.

Motion denied.  