In re Noble , 53 N.Y.S. 922 ( 1898 )

Gaynor J.:

By the act chapter 588 of the Laws of 1898 that part of the territory of Queens county which is outside of the new ■city of New York, viz., the territory of the towns of Oyster Bay, Hempstead and North Hempstead, is set off and made a new •county called Nassau. The act by its terms is to take effect on ■January 1st, 1899; but section 4 provides that all of the county ■officers of the new county shall be elected at the general election of 1898. This sets it up as a county for the purpose of such election. The electors of the new county cannot therefore vote for Queens county officials also at such election. The electors of the new county by becoming such ipso facto cease to be electors of Queens county. The act does not say in so many words that they shall not vote for Queens county officials, but by force of the provision that they shall vote in Nassau county they cease to have the right to vote in Queens county, just as the electors of Queens county by the fact of being such electors have no right to vote in Nassau county. Besides, being made electors of Nassau county, the Legislature could not permit them to vote not only for a surrogate or a county judge of Nassau county, but also for a surrogate or a county judge of Queens county, for the constitution requires these officials to be elected by the electors of the county (Art. 6, secs. 14 and 15). A construction of the act attributing that intention to the Legislature cannot therefore be adopted as it is capable of another construction.

If there were any doubt of the constitutionality of the act as a whole, the question now decided would be postponed until after the election, but conceded! y there is not. H section 5 be unconstitutional for appointing the present supervisors of the three towns to constitute the board of supervisors of the new county, whereas the constitution requires that the members of such board shall be elected (Art. 3, sec. 26), the rest of the act does not fall with it. That there are ho canvassers of the election returns provided for by the act does not matter. None are needed to make an election valid. The returns of the election officers are of themselves -competent to confer title to office.

The motion is granted.