Opinion of the Court, per RUGER, Ch. J. of the Laws of 1829, which is the only act fixing the time for the election of justices of the peace; and that the constitutional provision does not, by its unaided force, operate to fix such time and manner. We think, however, even if it should he held that the repealing clause of chapter 564, Laws of 1881, effected a repeal of the former provisions of law regulating the time and manner of electing supervisors and other town officers, it would not necessarily affect the provisions of chapter 356 of the Laws of 1829, which fixed the time for the election of justices of the peace as of the time and manner prescribed by chapter 11, part 1st of the Revised Statutes, for the election of town officers. The act of 1829 does not purport to require justices of the peace to be elected at the same time as supervisors and other town officers, but simply provides that they shall be elected at the annual town meetings, which had theretofore been designated as the day upon which such town officers were to be elected. Granting that the act of 1881 has effectually changed the day for the election of town officers, it does not at all follow that the provisions of the act of 1829, which named the time at which justices of the peace should be elected, have been affected thereby. The act of 1829 has full operation as designating a day for the election of justices of the peace, although the day for the election of certain other officers has been changed by the act of 1881. In other words, the act of 1829 had the effect of including justices of the peace as among the town officers provided to be elected at a town meeting, by chapter 11 of first part of Revised Statutes and a subsequent statute which provided that all other town officers than justices of the peace should be elected at another time or place, would not affect the provision for the election of justices, but would leave it as an unrepealed portion of the statute. An attempt to repeal such a provision by an unconstitutional exercise of legislative power would have the same effect as Opinion of the Court, per RUGER, Ch. J. though no effort had been made to repeal that portion of the statute. It would follow from these views that the attempted election of a justice of the peace at the general election in 1882 was ineffectual to confer the title to such office upon the person receiving a majority of votes at such election. It also follows that the legitimate time and place for electing such officers was the regular town meeting held for the town in question in April, 1883. The relator having received a majority of the ballots cast for the office of justice of the peace at such town meeting, regularly held therein, and such ballots having been regularly returned by the inspectors of election of the several election districts of the town, to the town clerk, thereby acquired the right to demand a canvass, and it was the plain legal duty of the acting justices of the town to canvass such returns, and make their certificate of election. The justices of the peace for the towns in Kings county have been duly constituted a board of canvassers, to determine the result of their town meetings. This duty continues during their respective terms of office, and arises whenever occasion requires its exercise. They are required by law to meet at the office of the town clerk on the day following the town meeting, to perform that duty. It appeared upon the occasion in question that they met at the time and place appointed, but entirely neglected to canvass the votes for the office of justices of the peace. In this, we think, they omitted a duty which was imperatively enjoined upon them by the statute, and to the benefit of the performance of which the relator was clearly entitled. While they were required to meet for the performance of this duty on a particular day, there is no limit of time mentioned within which the duty must be performed. It would be competent for them to adjourn such meeting, or even if they had adjourned sine die, to assemble again and perform an undischarged duty. They continue a board of canvassers until their whole duty is discharged, and by their adjournment, before it was performed, Opinion of the Court, per RUGER, Ch. J. the relator lost no right, and they, as the board, no power to perform their official duty. There is no reason why they should not be required to return and complete the duty with which they are charged. It would be a reproach to the laws to hold that an election to office by the people could be defeated by the neglect or refusal of the canvassers to perform the official duty of canvassing votes cast at an election. It is one of the peculiar functions of the writ of mandamus to meet and remedy the evils which would result from such a neglect of official duty. (People v. New York, 10 Wend. 395.) While cases may be found, holding that mandamus will not lie to compel the performance of an official duty, to which the party applying for the writ is not legally entitled, or where the time has expired within which the officer is authorized to act, as in People, ex rel. Van Demark, v. Commissioners of Excise of Saratoga Co. (7 Abb. Pr. 34), or to compel a public officer to take up and act again upon a subject upon which he has already acted, and assumed to discharge his official obligation, as in People v. Supervisors of Greene (12 Barb. 217), we have found none denying the right to award the writ where a legal right to require the performance of the official duty exists in the party demanding its performance, and it is still possible of execution, in cases where it has been wholly omitted by the officer charged with its performance. It was said in People v. New York (supra, 398), that "the principle which seems to lie at the foundation of applications for this writ and the use of it is that whenever a legal right exists, the party is entitled to a legal remedy, and when all others fail, the aid of this may be invoked." In other cases it was said that one who has a legal right to the performance of some act by a public officer, and has no other legal remedy for the injury occasioned to him, by a refusal to perform on the part of the officer, he is entitled to a writ of mandamus against such officer. (People v. Hawkins, 46 N. Y. 10; People v. Supervisors of Greene, 12 Barb. 217.) Opinion of the Court, per RUGER, Ch. J. It was held in People v. Supervisors of Chenango County (8 N. Y. 318), when the supervisors had neglected to perform a duty required of them at their annual meeting, that they might be compelled by mandamus to return and act upon the omitted duty. They cannot by their own neglect nullify a statute imposing official duties upon them. The consequences of a different doctrine, in a country like this, where the right to administer the duties of government is predicated altogether upon the exercise of the elective franchise by its people, are too serious to permit any doubt to be raised as to the power of the courts to compel the performance of official duties on the part of the officers charged with the duty of canvassing the returns and declaring the result of its elections. The point raised that Watson, one of the defendants, has been improperly joined with the other justices of the town of New Lots, by reason of his holding under the general election held in the year 1882, is not well founded. Watson is now an acting justice of the peace of that town, claiming to exercise the functions of the office by lawful authority. It may be that one of the results following the determination of this appeal will be his removal from that office; but that will not be the direct result of our adjudication. The title to his office is not triable in this proceeding, and cannot therefore be here adjudicated. The writ here finds him in the possession of the office, assuming to perform its duties, and is therefore rightfully directed to him among others. (People v. Lane, 55 N. Y. 217.) The order appealed from should, therefore, be affirmed, with costs. All concur. Statement of case. 95 135 In the Matter of the Application of EMILY P. WOOLSEY. * * The provision of the State Constitution (§ 18, art. 3) prohibiting the pass- The validity of a statute providing for the laying out or improvement of Accordingly held, that the act of 1878 (Chap. 410, Laws of 1878), appointing Also held, that the parties who received the awards thereby waived any (Argued January 29, 1884; decided February 26, 1884.) APPEAL from order of the General Term of the Supreme Court, in the second judicial department, made May 26, 1883, which reversed an order of Special Term denying a motion. to vacate an order appointing commissioners of estimate and assessment in the matter of opening, widening and improve 134 407 95 135 155 28 |