
    PEOPLE ex rel. FURMAN against CLUTE.
    
      Supreme Court, Special Term, Fourth District;
    
    
      March, 1872.
    Contested Election.—Charter of Schenectady.— Miscitation of Revised Statute.—Disqualifications for Public Office.—Ballot for Disqualified Person Disregarded.
    Under the Laws of 1839 (ch. 352, .p. 538), and the Laws of 1853 (ch. 80, p. 115), one who is a supervisor at the time of an election for a superintendent of the poor, is disqualified for the latter office; and cannot be elected. His subsequent resignation does not remove the disability.
    
      By the charter of Schenectady, .the supervisor of a ward in that city is subject to the same disqualification as supervisors of towns. .
    A provision of the Session Laws forbidding any supervisor to be appointed a superintendent of the poor, was inserted in editions of the Revised Statutes later than the first, and numbered as if a part of the Revised Statutes.—Held, than an act amending it, referring to it by such numbering, was effectual, although the legislature had never recognized the provision as a part of the Revised Statutes.*
    A statute disqualifying a class of persons from being appointed to an office, may be construed to disqualify them from being elected to it, after the office is made elective instead of appointive.
    Acts disqualifying certain public officers from being chosen to fill other designated offices, are not unconstitutional.
    In ordinary public elections in this State, votes cast for a candidate who, the electors have notice, is absolutely ineligible, are disregarded ; and if he had the highest number of votes, the candidate having the next highest number is elected. If the electors had no notice of the disqualification, a new election must be had.
    In a popular election, the voters at large are not presumed to know a disqualification of their candidate resulting from his holding another and local office; and even if the constituency of such local office could be presumed to have notice, their votes cannot be separated and rejected on that account. If all the electors voting for the ineligible candidate did not have actual or presumptive notice of the disqualification, the election is wholly void, and a new election must be had.
    * Several grosser miscitations occur in amendatory acts; and the case in the text seems to be an authority for applying the amendment according to its subject matter, in preference to the number and section.
    Action to oust defendant from the office of superintendent of the poor.
    This action was brought by the People on the relation of Henry A. Furman (the relator being also joined as co-plaintiff), against Harrison Olute, to oust the defendant from the office of superintendent of the poor of the county of Schenectady, and to install the relator in his place.
    The relator and the defendant were opposing candidates for the office of superintendent of the poor, at the general election in November,' 1871. The defendant received the greater number of votes ; the totals being as follows:
    For Clute,................. 2448
    
      “ Furman,.............. 2228
    Total,................. 4676
    At that election, the fifth ward of the city of Schenectady constituted one election district, and the vote therein was as follows :
    For Clute,.................. 296
    “ Furman,....____: .....275
    Total,.............■.....571
    At the charter election of the city of Schenectady in April, 1871, Clute had been selected supervisor for the fifth ward, and by the electors of that ward. He accepted the office and discharged its duties until December 14, 1871, when he resigned.
    
      Clute received the certificate, filed his bond and took the oath, and January 1, 1872, entered into the office.
    
      Furman also filed his bond, took the oath, and claimed the office; but being unsuccessful in getting it, this action was brought.
    
      E. W. Paige and R. J. Thomson, for plaintiff.
    I. By Laws of 1853, ch. 80, it is enacted that “no supervisor of any town, or county treasurer, shall be elected or appointed to hold the office of superintendent of the poor.’-’ By Laws of 1862, ch. 385 (charter of the city of Schenectady), it is enacted (tit. 4, § 8), that “the.....supervisors.....provided to be elected or appointed under this act, shall be..... subject to all the provisions of law now applicable to those officers respectively, in the several towns of the State, except as limited by this act or as shall be inconsistent therewith.” Clute's election was therefore void (Shear v. Robinson, 16 Shep., 541; Newman v. Justices, 6 Humph., 41; Searcy v. Grow, 15 Cal., 117; Waldo v. Wallace, 12 Ind., 570).
    II. Furman was elected. The rule is, that where electors vote for an ineligible candidate with knowledge of his ineligibility, their votes are void ; and the candidate having the next highest number of votes is elected (Queen v. Boscawen [1735] ; King v. Withers [1735], and Taylor v. Mayor of Bath [1742] [3 Luders, 324], cited in King v. Monday, Cowp., 530-537; Oldknow v. Wainwright [1760], 2 Burr., 1017; Wilkes’ Case, see P. S. to Letter 19 of Woodfall's Junius; King v. Hawkins [1808], 10 East, 211-216; affirmed 2 Dow,, 124; King v. Parry [1811], 14 East, 550; Claridge v. Evelyn [1821], 5 B. & A., 86; Gosling v. Veley [1859], 7 Q. B., 437; Corbett & Dan. Election Cas., p. 8, note, pp. 186, 187; Grant on Corp., 207, 208; Hatcheson v. Tilden, 4 Har. & McH., 279; Gulick v. New, 14 Ind., 97; Carson v. McPhetridge, 15 Id., 331; People v. Carriqne, 2 Hill, 93-97; Hammond v. Hernck, 1 Cont. Elect. in Cong., 287; State v. Swearingin, 12 Geo., 23; Opinion of Justices, 38 Me., 597; State v. Smith, 14 Wis., 498). The electors of the fifth ward had notice that •Clute was disqualified (Gosling v. Veley, 7 Q. B., 439; Hatcheson v. Tilden, 4 Har. & McH., 279; Gulick v. New, 14 Ind., 93; Carson v. McPhetridge, 15 Id., 331; 9 Cl. & Fin., 251; 11 A. & E., 223; Grant on Corp., 207; 2 Show., 300; Biddle v. Willard, 10 Ind., 68; Corbett & Dan. Flection Cas., 186, 187; Rex v. Foxcroft, 2 Burr., 1017-1021; King v. Hawkins, 10 East, 211). Furman was elected by simple force of the statute (Sir W. Blackstone in P. S. to Letter 19 Wood-fall's Junius).
    
    
      J. S. Landon, for defendant.
    I. Clute’s election was valid. Chapter 80 Laws of 1853, reads as follows: “Section 2, of chapter 20, of title 1, of the first part of the Revised Statutes, fourth edition, is hereby amended so as to read as follows : £§ 2. No supervisor . . . of any town shall be elected ... to hold the office of superintendent of the poor.’ ” The Revised Statutes were not thereby amended, for the reason that no such Revised Statutes existed. The law sought to be amended forms no part of the Revised Statutes, and never did. Laws of 1829, chapter 352, which provided that no supervisor shall be appointed superintendent of the poor, never formed part of the Revised Statutes, and was not amended because not referred to. The act of 1853 shows an intention to amend a pre-existing law, not to evade a new law. “The Revised Statutes” (4 ed.), is a private compilation of two gentlemen ; their interpolations of other matter into the text of the Revised Statutes could not give interpolation legislative sanction. The amendment of 1853, therefore, falls, because there is nothing for it to amend (Hubbard v. Johnstone, 3 Taunt., 177). The defendant was not ineligible, for the reason that he was not a supervisor of a town, but of a ward of a city. The act of 1853, being a disabling act, must be construed strictly; and the defendant not falling within the letter of the act, does not fall within the act itself (1 Blacks. Com., 92; Potter's Dwarris, 246). The maxim “ expressio unius est exdusio alterius," applies. The charter of Schenectady is manifestly only intended to define the duties of supervisors of the city. It is equivalent to saying, that i7i the performance of their duties, the city supervisors shall be subject to all provisions of law applicable to supervisors of towns. It is, at least, a matter of reasonable doubt, and the defendant is entitled to the benefit of that doubt (Chase v. N. Y. Central R. R., 26 N. Y., 523; Potter's Lwarris, 245, note, 251, 255). Laws of 1853, ch. 80, and Laws of 1829, ch. 352, are unconstitutional. One legislature has no right to impose a qualification for office, because by so doing, it restricts the right of the elector to select and vote for a candidate from the whole body of electors, which is guaranteed by the constitution Art. 2, § 1 (Barker v. People, 3 Cow., 686). Limitations upon eligibility to office are prescribed by the constitution itself (Art. 4, § 2; Art. 5, § 2; Art. 6, § 15; Art. 3, § 7). What the constitution permits, the legislature cannot deny. The power of the legislature to interfere with suffrage, is derived from the constitution, and is limited to the cases given in Ark 2, §§ 2 and 4. It is clear that it was the intention to place the light of suffrage above and beyond legislative interference. The right of suffrage lies at the foundation of the government, and the constitution did not confer it but secured it. But if the legislature may deny eligibility to one, it may to many, and thus the elector would, in effect, be deprived of the right ‘£ to vote for all officers elective by the people.” For of what value is the constitutional right to vote, if the legislature may so restrict and hedge it about, as in effect to deny to the elector freedom of choice ?
    
      Paige, in reply.
    
      I. Laws of 1853, ch. 80, is a valid act. The “Revised Statutes” (4 ed.), was composed of nothing but laws in force; an amendment of it was, therefore, an amendment of a law ; and it has been adopted and ratified by repeated amendments of this kind. Laws of 1853, ch. 80, is a valid law, enacted by the constitutional authorities. It amends the Revised Statutes, and it is immaterial what the amended section contains, so as there is no doubt how it is to be read in the future. If there had been no section 22, Laws of 1853, ch. 80, has created one. Laws of 1853, ch. 80, is constitutional and valid. The legislature possesses all the power of the British Parliament, except as restricted by the constitution, either by express prohibítion, or necessary implication (People v. Count, 2 Park. Cr., 412-414; Wynehamer v. People, 13 N. Y. [3 Kern.], 378, 391, 410-11, 428-30, 452-3, 467; People v. Draper, 15 N. Y., 446, 545; Leggett v. Hunter, 19 Id., 445; People v. Morrell, 21 Wend., 563; Butler v. Palmer, 1 Hill, 324; Bloodgood v. Mo. & Hud. R. R., 18 Wend., 9; People v. N. Y. Cent. R. R., 34 Barb., 137,138). To negative a law by necessary implication, there must be such a positive repugnancy between the provisions of the law and the constitution that they cannot stand together, or be consistently reconciled (People v. Draper, 15 N. Y., 532-544; Sturgis v. Spofford, 45 Id., 446-450; McCool v. Smith, 1 Black, 459; Wood v. United States, 16 Pet., 342; 10 Barr, 448; Hartford v. United States, 8 Cranch, 109; Brown v. County Com., 21 Penn., 32; Street v. Commonwealth, 6 Watts & Serg., 209; Bowen v. Lease, 5 Hill, 221; Williams v. Potter, 2 Barb. 316; People v. Deming, 1 Hilt., 271; Potter's Dwarris, 654). Laws of 1853, ch. 80, is not so repugnant. Art 2, § 1, does not confer absolute freedom of choice upon the electors, but the right “to vote’’simply. So long as there are two persons left to choose between, the right “ to vote” is not restricted (Barker v. People, 20 Johns., 461.) Chancellor Sardford’s opinion, in Barker v. People (3 Cow., 703), is not authority. It is obiter, and is destroyed by the decision in the case. This power has been frequently exercised (1 Rev. Stat., p. 116, § I; see People v. Dean, 3 Wend., 438; 1 Rev. Stat., p. 116, § 1; pp. 101, 102, §§ 9, 15); and all city and village charters require some of their officers to be residents ; also Rev. Stat of Maine, 170, § 6; Gen. Stat. of Mass., p. 70, §§ 2, 9). Laws of 1853, ch. 80, is directly authorized by Art. 10, § 2, as construed by the courts (People v. Shepard, 36 N. Y., 285 ; People v. Pinckney, 32 Id., 377; People v. Draper, 15 Id., 446-554; Devoy v. Mayor, 36 Id., 449). A case must be presented beyond a reasonable doubt (Fletcher v. 
      Peck, 6 Cranoh, 87; Exp, McCollum, 1 Cow., 550 ; He well v. People, 7 N. Y. [3 Sold.], 9-109; 24 Barb., 446 ; 5 Abb. Pr., 107; McComber v. Mayor, 17 Id., 35).
   James, J.

This action is brought to remove Clute from the office of superintendent of the poor of Schenectady, and to put Furman in possession.

It is claimed that under and by virtue of the Acts of 1829 (Laws of 1829, ch. 352), and 1853 {Laws of 1853,. ch. 80), and the city charter (Laws of 1862, ch. 385, tit. 4, § 8),. Clute, by reason of his being supervisor of the fifth ward of said city, was ineligible to the office of superintendent; and that, being ineligible, the • votes cast for him were illegal and not to be counted, and that the relator having the highest number of votes cast, was entitled to the office and its emoluments.

Clute’s ineligibility must be determined from his status at the time of the election, so that his subsequent resignation of the office of supervisor will not avail.

The statute creating this disqualification, prohibits the election of a supervisor as superintendent, &c.

The supervisor of wards in the city of Schenectady, in the statute by which such office is created, are placed subject to the same disabilities as supervisors of towns (Act of' 1862, ch. 385, tit. 4, § 8).

The office of county superintendent of the poor was created by the act of 1824.

The substance of that act was, in 1828, incorporated into the Revised Statutes and made a part thereof, to take effect January 1, 1830. Superintendents were then appointed, and their compensations provided for by the boards of supervisors.

It was soon perceived that there was great impropriety in permitting the same person to hold these two offices; so that in 1829, the legislature provided by chapter 352, that no supervisor of any town, or county treasurer, should be appointed superintendent of the poor of any county. But this act, though passed before the Revised Statutes took effect, was never by legislative enactment, declared a part of the Revised Statutes. It has been inserted in the several editions of such laws up to and including the fourth edition, where it is placed and numbered as section 22 in title 1, chapter 20, part 1.

In 1847, the legislature, by chapter 498, made the office of superintendent elective ; and, in 1853, chapter 80 was enacted, which declared that “section 22 of chapter 20, title 1, part 1 of the Revised Statutes, fourth edition,” was amended so as to read : “No supervisor of any town or county treasurer, shall be elected or appointed to hold the office of superintennent of the poor of any county.....in any county of this State; ” intending to amend the act of 1829, and designating a section containing that act, but denominating it as of the Revised Statutes.

Original section 22 of the Revised Statutes treated of matters in bastardy, whilst said section 22 of the fourth edition treated of a subject to which the proposed amendment had application ; in fact, the act of 1829.

The legislative intent, therefore, is too clear to be disregarded, and the act of 1853 must be held as operating to so amend the act of 1829, as to make the latter applicable in terms to persons elected, as well as appointed. The amendment is, however, of little consequence.

The disqualification was against the union of the two offices in the same person, without regard to the mode of selection ; and a change, from appointment to election, did not relieve the office from the statutory restriction.

It was also urged that the statutes of 1829 and 1853 were unconstitutional: First, because the right of the elector to select and vote for a candidate from among the body of citizen electors was restricted. Second, because the right of eligibility of office is denied to the defendant. Third, because no member of the State can be disfranchised or deprived of any of the rights and privileges secured to any citizen, unless by the law of the land or judgment of his peers.

There ie no force in any of these reasons, because not applicable to the case. The acts complained of restrict no elector in his vote; deprive no citizen of any right or privilege secured to him ; nor disfranchise any one. The offices of supervisors and superintendent were created by statute, and the legislature had the power to declare the holding of one incompatible with holding the other. The inhibition is not against the office.

1 am, therefore, of the opinion that both of said acts are constitutional; that a supervisor is disqualified from holding the office of superintendent of the poor, and that the defendant, by reason of his being a supervisor when voted for as superintendent, though receiving a majority of the votes cast, was not legally elected, and cannot, by virtue thereof, take and hold such office.

The next quession is, the right of the relator to the office.

It is shown that he had the next highest number of votes cast. The point turns upon the question whether the votes cast for Clute are, or are not, to be thrown away. In England, it is settled that votes cast for a candidate known to the elector to be ineligible, are thrown away, and that the candidate having the greatest number of the votes left, or cast for eligible persons, is duly elected. Most of the English cases arose in elections by organized or corporate bodies, and therefore it has been held, that votes cast for a disqualified person might be regarded as blanks, but counted, if necessary, for the purpose of showing a quorum present.

Ia this country, the election of disqualified persons is absolutely void; and in cases where a plurality elects, votes given for an ineligible candidate after notice to the electors of that fact, are thrown out, and the candidate having the next highest vote, elected; but not so where a majority of the votes are required to elect.

In this State a plurality elects; in this case, the candidate having the highest number of votes was ineligible, and cannot take the office ; therefore the only question is, did the electors have notice of such disqualification, or were the facts such that they were bound to take notice \ If either, the votes for the ineligible candidate are to be thrown out, and the relator to take the office ; otherwise the election was a failure, and the office is vacant.

In elections by corporate bodies, there is no diffi-. culty of showing notice if it was given; but in popular elections, embracing an extended territory, it will ever be difficult, if not impossible, to show notice, or to show facts which the electors were bound to know from which notice can be presumed. It will not do to say, a notice to a part is notice to all, or that knowledge in part is knowledge in all; it cannot be inferred that because a certain number of electors knew a candidate disqualified, that all who voted for him also knew it, nor can they be presumed to have had notice.

Such a rule would operate to disfranchise those honestly voting for such candidate.

In this case, it is not claimed that the body of the electors had notice of the respondent’s ineligibility, or that the facts were such they were bound to know. But it is insisted that the electors of the fifth ward were bound to know who was their supervisor; and that if the votes cast for the defendant in that ward are thrown out, the relator has a majority of the remainder and is elected. If the claim as to knowledge is conceded, the result insisted upon would not follow, for the reasons hereinbefore suggested. The votes of one locality cannot be separated from the other votes of the district. The whole vote must be taken together, and as such, stand or fall.

I am, therefore, of the opinion that, notwithstanding the respondent took no title to the office, and the relator had the greatest number of votes cast for an eligible candidate, yet, for want of notice to the electors of the respondent’s ineligibility, or the existence of such facts as the electors were bound to know respecting such ineligibility, from which notice might be presumed, the votes cast for the respondent cannot be thrown out, and hence the election was a failure, and the office vacant.

Judgment of ouster.  