
    The People of the State of New York ex rel. Judson L. Hyde and Others, as Qualified Voters and Taxpayers of the Town of Massena, New York, Appellants, v. Herbert J. Potter, Town Clerk of the Town of Massena, New York, Respondent.
    
      Vacancies in town offices — how filed— repeal of chapter 252 of the Laws of 1890 — Statutory Construction Act, when not retroactive.
    
    Chapter 252 of the Laws of 1890, which amended section 34 of article 3 of title 3 of chapter 11 of part 1 of the Revised Statutes, relating to the manner of filling vacancies in town offices, was repealed by the Town Law (Laws of 1890, chap. 569, which was passed subsequently at the same session of the Legislature, and which, in the schedule of laws repealed annexed thereto, specified all of title 3 of chapter 11 of part 1, hut did not specify chapter 252 of the Laws of 1890.
    In view of the fact that section 240 of the Town Law provides that “such repeal (i. e., of the laws enumerated in the schedule) * * * shall include all laws amendatory of the laws hereby repealed,” the inclusion of chapter 252 of the Laws of 1890 in' the schedule of laws repealed was not essential to effect a repeal of that act.
    The passage, two years later, of the Statutory Construction Law (Laws of 1892, chap. 677), section 33 of which provides that an amendatory law passed at the same session of the Legislature as that at which any chapter of the revision of the General Laws was enacted “shall not he deemed repealed, unless specifically designated in the repealing schedule of such chapter,” did not operate to revivify chapter 252 of the Laws of 1890.
    Appeal by the relators, Judson L. Hyde and others, as qualified voters and taxpayers of the town of Massena, New York, from an order of the Supreme Court, made at the St. Lawrence Special Term and entered in the office of the clerk of the county of St. Lawrence on the 27th day of April, 1903, denying the relators’ motion for a peremptory writ of mandamus.
    At the biennial town meeting of the town of Massena, held on the 10th day of February, 1903, one Samuel S. Danforth was duly elected supervisor, but failed to qualify as such. On the twenty-fourth day of February thereafter, upwards of twenty-five legal voters of that town filed a petition with the respondent, who was the town clerk, demanding that he call a special town meeting for the purpose of electing a person to fill the vacancy in such office. He refused to comply with the demand. The relators then applied to the Special Term for a peremptory writ of mandamus, to compel him to call such meeting. In answer. to such application. -the respondent filed an affidavit showing that at a meeting of the town board held on the 13th day of March, 1903, for the purpose of filling the vacancy in the office of supervisor, caused by the failure of Danforth to qualify, one John C. Grapser was appointed to fill such vacancy, and that he had qualified, by filing his oath of office and the undertaking required by law. From an order denying the application for such peremptory writ the relators appeal.
    
      Barney S. O’Neill and Ledyard P. Hale, for the appellants.
    
      John C. Crapser, for the respondent.
   Chester, J.:

It seems to me clear that Laws -of 1890 (Chap. 252), under which the relators claim that the vacancy in the office of supervisor should be filled at a special town meeting, has been repealed. That chapter amended section 34 of article 3 of title 3„iqf chapter 11 of part 1 of the Revised Statutes, entitled, Of Vacancies in town offices and the mode 'of supplying them,” and provided for a special town meeting to be called by the town clerk on the petition of not less than tyienty-five. legal voters of. the town to. fill vacancies in the office of supervisor and other town offices. It was passed May 1, 1890, and at the same session of the Legislature which thereafter passed that part of the revision of the general laws known as the Town Law (Laws of. 1890, chap. 569). In the schedule of laws repealed, annexed to the Town Law, all of title 3 of chapter 11 of part 1 of the Revised Statutes is specified. This included, therefore, among the laws repealed said section- 34, which had been amended by said chapter 252. It is true that such chapter 252 is .not mentioned in the schedule of laws repealed, nor was that essential to effect its repeal in view of the fact that section 240 of the Town Law provides that “ such repeal (i. e., of the law enumerated in the schedule) * * * shall include all laws amendatory of the laws hereby repealed.”

But it is urged that the construction required by section 33 of the Statutory Construction Law (Laws of 1892, chap. 677) saves such chapter 252 from repeal. While that section provides that an amendatory law passed at the same session of the Legislature at which any chapter of the revision of the general laws was enacted shall not he deemed repealed unless specifically designated in the repealing schedule of such chapter,” yet the Statutory Construction Law was not enacted until two years after the Town Law, and, if I am correct in my conclusion that there was an express repeal of such chapter 252 by the Town Law, the passage, two years later, of the Statutory Construction Law could not have the effect of giving life to the repealed statute.

The Town Law (Laws of 1890, chap. 569, as amd. by Laws of 1897, chap. 481) now provides in section 65 that when a vacancy shall occur or exist in any town office, the town board or a majority of them may, by an instrument under their, hands and seals, appoint a suitable person to fill the vacancy, and the person appointed, except justices of the peace, shall hold the office until the next biennial "town meeting.” It was under the authority of this provision that the respondent refused to call a special town meeting, and that the town board made an appointment to fill the vacancy. The relators insist, however, that this provision is unconstitutional, as it assumes to authorize the appointment in this case of a supervisor for practically the full term of two years, and thus deprives the electors, for that period, of their right to choose such officer by election, contrary to the provisions of article 3, section 26, and article 10, section 5, of the Constitution.

But the only question now presented for determination is as to the right to compel the town clerk to call a special town meeting, and we are not now concerned with the constitutional question as to the term of office of the person appointed by the town board to fill the vacancy. That must wait until a question arises requiring its decision.

The order appealed from should be affirmed, with ten dollars costs and disbursements.

All concurred ; Houghton, J., not sitting.

Order affirmed, with ten dollars costs and disbursements.  