Wildy v. Washburn , 16 Johns. 49 ( 1819 )

Spencer, J. delivered the opinion of the Court.

This certiorari is brought to obtain a reversal or vacatur of the appointment of Washburn ; and this Court Rays, in Wood v. Peake, (8 Johns. Rep. 71.) that the appointment of a constable by' three justices is a judicial act; that it remains valid until it be set aside or quashed, in the regular course, uPon certiorari. The certiorari, however, cannot, in a case like this, be prosecuted in the name of an individual; it must be at the suit of the people, on the relation of an individual.

Wherever the rights of an individual are infringed by the acts of persons cloalhed with authority to act, and who exercise that authority illegally, and to the injury of an individual, the person injured may have redress by certiorari, as in the case of Lawton v. The Commissioners of Highways of Cambridge. (2 Caines’ Rep. 179.)

I incline, however, to the opinion, that under the 5th section of the act relative to the duties and privileges of towns, (2 N. R. L. 127.) the appointment of Washburn is valid. The act provides for several occurences: 1. If there is a neglect in any town to choose the officers authorized to be chosen; 2. If those chosen refuse to serve ; 3. Or die; 4. Or remove out of the town; 5. Or become incapable of serving. If the town shall not, within fifteen days •next after such refusal, death, removal, or incapacity happens, choose another in the room of such person, according . to law, in every such case, it shall be lawful for any three justices of the peace in the same county to nominate, and •by warrant, under their hands and seals, to appoint all and every such officers as the freeholders and inhabitants of the town ought to have chosen, as aforesaid.

The right, of the town to choose the officer, otherwise than at the anniversary election, is, by the terms of the act, confined to those occurrences which happen to the officers chosen, and not to a case where there is an original neglect; •that is, a neglect at the annual town meeting. Now, suppose the case of a decision by the freeholders and inhabitants to choose a certain number of constables, deeming them necessary and convenient, and a total omission to elect a single constable ; if the power did not reside somewhere to remedy this omission, the evils might be great, even during the fifteen days. In the present case they had decided to elect three constables, but elected two only. The circumstance that there was an equality of votes as to two candidates, did not dispense with the necessity of calling on the electors to vote again. It must, therefore, be deemed a neglect in the electors, that they did not elect the third . constable. The power of the magistrates, in my construetion of the act, is more ample Ilian that of the electors, in case they shall neglect to exercise their rights in the first

instance. There can be no reason for giving the electors a second opportunity to make their choice, if they will not use the first occasion to do it; and there is the strongest reason in so construing the act, as to prevent a failure in the executive officers of a town. Considering, however, this case as not properly before us, it is inexpedient to make any order in it.