
    In the Matter of the Application of Daniel Noble. John H. Sutphin, Clerk of the County of Queens, Appellant; Daniel Noble, Respondent.
    
      County of Nassau — section 5 óf chapter 588, Laws of 1898; providing for a hoard of supervisors of that county, is constitutional — such hoard may meet as a hoard of canvassers prior to January 1, 1899 — the remedy to prevent names being put on ballots is by mandamus, not by order.
    
    The county of Nassau, created by chapter 588 of the Laws of 1898, containing ■the towns of Oyster Bay, North Hempstead and Hempstead, was intended to be constituted as a new county for the purposes of the general election held in November, 1898.
    The provisions of section 5 of that act, directing that the hoard of supervisors of that county shall be composed of members who have been duly elected supervisors of the several towns which make up the new county, in the manner and for the period provided by law, are not unconstitutional. Although the hoard of supervisors is a.county organization, its members are properly classed as town officers.
    
      It seems, that the supervisors of such towns would constitute the hoard of supervisors of the new county, even were there no express enactment to that effect in the statute establishing the county.
    Such hoard of supervisors of the new county came into existence prior to the 1st day of January, 1899, so far as related to the duties of the board in the canvassing of the votes cast at the general election in November, 1898, for which purpose the board had power to meet as a board of canvassers, as prescribed in the Election Law, in a place within the territory of the new county, as public as would have been the' office of the county clerk had there been a county clerk of that county in existence, and it had power to select a secretary in the absence of such county clerk.
    An order simply directing a county clerk to omit from the official ballots for certain towns of the new county the names of candidates nominated for county offices of another county is not warranted by section 88 of the Election Law (Chap. 909 of the Laws of 1896), but such order should provide for the issuance of a peremptory writ of mandamus.
    Appeal by John H. Sutphin, clerk of'the county of Queens, from" an order of the Supreme Court, made at the Kings County Special Term, bearing date the 22d day. of October, 1898, and entered in the office of the clerk of the county of Queens, directing the said clerk, in preparing the ballots to be voted at the next general election in the towns of Oyster Bay-, Rortli Hempstead and Hempstead (being that part of tlie county of Queens constituting, or to constitute, the new county of Nassau), to omit from such ballots the names of all candidates nominated for county offices of the said county of -Queens.
    W. S. Cogswell [F. H. Van Vechteh and A. N. Weller with him on the brief], for the appellant.
    
      Henry M. Monfort, for the respondent.
    
      Albert B. Boardman, amicus curiae.
    
   Willard Bartlett, J.:

The respondent Daniel Noble is the Candidate of the Democratic party for surrogate of the county of Queens. By chapter 588 of the Laws of 1898 the Legislature provided for the erection of a new county, to be called the county of Nassau, from tlm territory comprised within the limits of the .towns of Oyster Bay, North Hemp-stead and Hempstead, in Queens county. -The act in express terms directs that at the general election of 1898 there shall be elected for said county of Nassau a county judge, a'district', attorney,- a. sheriff, a county clerk, a county treasurer and a county superintendent of the poor, and candidates for these offices have been regularly put in nomination. Mr. Noble learned from the county clerk of Queens county that, notwithstanding this legislation in respect to-Nassau county, it was the intention of that officer-in making up and printing the ballots for use at the coming general election-in the three townships which constitute, or are -to constitute, that county, “ to include the names not only of all candidates nominated for. county officers .of said new county of Nassau, but also the names of all candidates nominated for county officers* of the county of Queens” He therer upon a¡3plied at Special Term for an order or writ of peremptory mandamus directing the clerk to omit the names of the Queens county candidates for county offices from the official ballots to be prepared for -voters in .the Nassau county territory. His application Was successful, resulting in the order from which the present appeal is taken.

The act to erect the county of Nassau became a law on April 2.7, 1898. The last section provides as follows: “ This act shall -take effect On the. first day of January, eighteen- hundred- and - ninety-nine, except as to such parts as are otherwise provided for, and as to such parts it shall take effect at the time or times in this act specified, and except also as to section four, and subdivision two of section fifteen, which shall take-effect immediately.”

Subdivision 2 of section 15 relates to the county buildings of Rassau -county, and provides that the question of their location shall be voted upon by the electors of the towns of Oyster Bay, Rorth Hempstead and Hempstead at the general election this year. By section Í of the act, which also took effect immediately upon its approval by the Governor, it is provided: “All the county officers for the county of Rassau hereby erected, which are authorized by' law, shall be elected at the general election of this state in eighteen hundred and ninety-eight.” The final provision of the statute, above quoted, also gave effect at once to the direction to which I have already referred, found in section 3, that a county judge, district attorney, sheriff, county clerk, county treasurer and county superintendent of the poor for Rassau county shall be elected this year. Reading these various parts of the statute together, we entertain no doubt that the learned judge at Special Term is correct in his conclusion that their effect was at once to set up the towns of Oyster Bay, Rorth Hempstead and Hempstead as a new county for the purpose of the approaching general election.

If this is so,'it follows that in voting for county officers the electors in the territory of these three townships can be allowed to vote only for candidates to fill the county offices of the county of Nassau. It is unreasonable to suppose that the Legislature intended to empower an elector in the new county. not only to take part in choosing the local officers of the county where he lives, but also to participate in the selection of such officers in another county of which he will be a non-resident after January 1, 1899. The language of the act, taken as a whole, negatives any such intention, and is rightly interpreted by Mr. Justice Gaynor, when lie says r “The electors of the new county by becoming such ipso facto cease to be electors of Queens county.”

As against this construction of the statute, however, it is argued in behalf of the appellant ■ that the entire enactment is invalid because its provisions in respect to the board of- supervisors of Rassau county violate the requirement of the State Constitution that there shall be in the several counties “ a board of supervisors,.to be composed :of such members, and elected in such manner, and for such period, as is or may be provided by law.?- (Const, art. Ill, §28.)

• It is the 5th section of the act to which this destructive effect is attributed. That section reads as follows: “ The supervisors of the-said towns of Oyster Bay, North Hempstead and Hempstead, elected at the annual town meetings held in eighteen hundred and ninety-eight, shall constitute, and are hereby declared to constitute the-board, of supervisors of the said county of Nassau, with all the powers and privileges appertaining to such board, and shall hold their first annual meeting-on the third day of January, eighteen hundred and. ninety-nine, at the place where the public buildings; for the said county of Nassau shall be located.”

It was held below that, even if section 5 of the. Nassau County Act were unconstitutional, the remainder of the act would not fall with it. But we think that the section is constitutional. It gives a board of supervisors to the new county. That board is composed of members who have been duly elected supervisors of the several towns which make up the new " county, in the manner and for the-period provided bylaw. This fulfills the mandate of the Constitiv tion. Although the board of supervisors is a county organization, its members are not elected by the body of electors of the county, but are chosen by the electors of their several towns respectively, and. individually they are classed as town officers. (Town. Law, art. -í, § 12.) “The supervisors of the cities and towns in each county, when lawfully convened, shall be the board of supérvisors of the county.” (County Law, § 10.) It might well be held that by force of this general provision .of law the supervisors of Oyster Bay, North Hempstead and Hempstead would constitute the board of-supervisors of the county of Nassau, even without any express' ' enactment to that effect in the statute establishing'the county. But in any event, the Nassau; County Act leaves the three towns . precisely in the same position, so far as their supervisors are concerned, as other rural townships throughout the-State. Each town has its duly elected supervisor, who represents it as a member of the board of supervisors of the county in which the town is. situated. It seems to me that it would be difficult to contrive legislation more truly in accordance with the spirit of the constitutional provision relating to the establishment and election of boards of supervisors in the several counties of the State. The act does not undertake to appoint, a board which the Constitution says must be elected, any more than does the County Law when it declares that the supervisors of the cities and towns in each county when lawfully convened shall be the board of supervisors of that county. It merely prescribes what town supervisors shall constitute the county board of supervisors, all of them being officers elected in their respective towns to act, not only in town affairs, but as members of the board of supervisors of the county to which the town belongs.

While holding that the Nassau County Act is constitutional, we do not decide that the board of supervisors of the new county comes into existence for all the purposes of that, body prior to the 1st day of January, 1899. That it comes into existence for some purposes, however, seems reasonably clear. The manifest intent of the Legislature, as disclosed by the provisions relating to the election of county officers of the new county, was to enable the electors of the three townships comprised therein effectively to choose such county officers at the general election in 1898. To accomplish this result, it is necessary that the votes cast for such officers shall be. duly canvassed. There is nothing in the statute directing that they be canvassed by the authorities in Queens county ; and the fair implication from the provisions for the election of county officers for Nassau county this year (which took immediate effect) is that the election and canvassing machinery essential or appropriate to render the election effective is to be established in the new county now. To this end. the hoard of supervisors of the new county should meet as a board of canvassers as prescribed in the Election Law and proceed to canvass the votes in accordance with the requirements of that • statute. (Election Law, § 130 et. seq.) It is true that, at the time fixed for such canvass, the supervisors cannot meet at the office of the county clerk, for Nassau county will not yet have any county clerk; and for the same reason the county clerk or his deputy cannot act as the secretary of the board of canvassers. In the absence of any clerk’s office, it will, doubtless, be sufficient if the canvass be made at an equally public place within . the territory of the new county. As to the- secretary, the supervisors themselves may choose one. (People ex rel. Daley, v. Rice, 129 N. Y. 449, 456.) “If the county clerk do not appear, and-if his deputy be also, absent,” said Beckham,. J.., in the case cited, I have no doubt of the power of the board to appoint a secretary in their place to perform the duties which, appertain to that office: * * * In . such cases the power to appoint exists as an inherent power of the ■board to canvass and certify its work.”

While the court .at Special Term disposed of the application as a. motion for a-peremptory writ of mandamus, no such writ appears to have been granted, but an order was entered simply directing the county clerk to omit from the official- ballots for the towns of Oyster Bay, North Hempstead and Hempstead the names of all candidates . ' nominated for county officers of Queens ■ county. ■ Wé infer from the brief of respondent’s counsel that he supposed this' form of ■order to be warranted by section 8.8 of the Election Law. It seems to us, however, that the .provisions of that section have nd applicar tion to a casé like the present, but relate only to actual errors or omissions already made in the preparation of the ballots before, the, proceeding is commenced. In affirming the conclusions of the court below," therefore, we must modify the form of the order so that it shall provide for .the issuance, of a peremptory writ of mandamus.

. All concurred. .

Order modified so as to direct that a peremptory writ of mandamus issue to the appellant, commanding him, in preparing the ballots to be voted at the ¡next general election in- the towns of Oyster ■ Bay, North Hempstead and Hempstead, to omit therefrom the names - -of all candidates for county offices of the county of Queens,, and the designations of such offices; and as thus modified, order affirmed, without costs. ' 
      
       $ic.
     
      
       Laws of 1890, chap. 569.—[Rep.
     
      
       Laws of 1892, chap. 686.—:[Rep.
     
      
       Laws of 1896,' chap. 909.— [Rep.
     