The People of the State of New York ex rel. Clarence E. Dare, Respondent, v. Riley P. Howell, as Supervisor, and Others, Respondents, Impleaded with Everett M. Price and Others, as Justices of the Peace, Constituting Members of the Town Board of the Town of Brookhaven, Suffolk County, New York, Appellants

The People of the State of New York ex rel. Clarence E. Dare, Respondent, v. Riley P. Howell, as Supervisor, and Others, Respondents, Impleaded with Everett M. Price and Others, as Justices of the Peace, Constituting Members of the Town Board of the Town of Brookhaven, Suffolk County, New York, Appellants. Second Department, September 29, 1916. Town—right of voters to make superintendent of highways elective rather than appointive officer — Highway Law construed — constitutional law—act validating town election—mandamus — town officers may be required to recognize duly elected superintendent of highways and hold meeting — superintendent entitled to writ. Section 41 of the Highway Law, authorizing the electors of a town by vote to make the position of superintendent of highways an appointive rather than an elective office, does not mean that such office becomes permanently appointive when such proposition has been approved by the electors, and hence at a subsequent election they may again malee the position elective. Chapter 48 of the Laws of 1916, validating the action of the voters of the town of Brookhaven rescinding a prior resolution making the office of superintendent of highways appointive, and again making it an elective office, is constitutional and valid, not being an attempt to substitute an election by the Legislature for one by the qualified town electors. As a meeting of the town board with the elected superintendent of highways for the purpose of dividing the road funds, under section 105 of the Highway Law, is obligatory, the court has power to direct the town board to perform that duty by a peremptory writ of mandamus and to recognize a lawfully elected superintendent of highways. There being a public record of the election of the superintendent of highways, he holds the office de facto and de jure, and is entitled to invoke the writ of mandamus against the town officials. Appeal by Everett M. Price and four other members of the town board of the town of Brookhaven, Suffolk county, from an order of the Supreme Court, made at the Nassau Special Term and entered in the office of the clerk of the county of Suffolk on the 29th day of April, 1916, directing that a peremptory writ of mandamus issue, commanding said town board to convene and meet with Clarence E. Dare, as town superintendent of highways, and to enter into an agreement with him pursuant to the terms of section 105 of the Highway Law (Consol. Laws, chap. 25 [Laws of 1909, chap. 30], as amd. by Laws of 1915, chap. 322). This involved a question of disputed title to the office of superintendent of highways in the town of Brookhaven. The Highway Law (§ 40) provided for electing a town superintendent of highways at the biennial town meeting held next after the statute took effect, unless the town ‘ ‘ shall have adopted as provided in section forty-one a resolution that thereafter the town superintendent shall be appointed by the town board.” Section 41 provided for a vote by ballot by the electors of the town at a special or biennial town meeting on the change to appointing a town superintendent in such town. “If such proposition be adopted, the town board of the town shall, upon the expiration of the term of office of the elected town superintendent, appoint a town superintendent therefor, who shall take and hold office for the term hereinafter prescribed.” There was submitted to the electors of Brookhaven at the biennial town meeting, held April 1, 1909, a resolution that the town superintendent of highways of the town of Brook-haven be thereafter appointed by the town board, which was carried. In the year 1911 Mr. I. Willetts Gardner was so appointed by the town board as town superintendent of highways, who qualified and, on November 1, 1911, entered upon the duties of that office. He was again so appointed and duly qualified for the two-year term ensuing, ending on October 31, 1915. In accordance with a petition for the election of a town superintendent of highways, a resolution was submitted to the people at the biennial election of April, 1913, “That the Town Superintendent of Highways of the Town of Brookhaven he hereafter elected by the people in place of being appointed by the Town Board.” This was passed by a vote of 1,726 to 568. In March, 1915, the opposing political parties made nominations for the office of town superintendent of highways. At the biennial town election held April 6, 1915, Clarence E. Dare, relator, received 2,005 votes, James H. Hopkins 1,706, and William H. Hedges 47. The relator was accordingly declared elected, and received the certificate of election, and thereafter qualified as such. However, the town hoard failed to recognize the relator’s election, hut instead attempted to reappoint Mr. Gardner as town superintendent of highways for the term ending October 31, 1917, six members of the town board so voting, and four members declining to vote on the ground that there was no vacancy in that office. The same division of the town hoard has continued as to appointment of the deputy superintendent of highways, also as to approving the list of highway foremen submitted by Mr. Gardner. On March fifteenth last, by Laws of 1916, chapter 48, the Legislature declared that the action of the voters of the town of Brookhaven in town meetings in such town in April, 1913, and April, 1915, “for the election of town officers, including the proposition to elect, and the election of a town superintendent of highways, at either or both such town meetings, is hereby legalized, ratified and confirmed notwithstanding any defect or irregularity in any such action or proceeding or the omission of any legal requirement, or the lack of any statutory authority to do or perform any of the acts done or performed, and the superintendent of highways elected by a majority of the voters of such town at the town meeting called for and held on the first Tuesday after the first Monday in April, nineteen hundred and fifteen, is hereby declared to be the legal superintendent of highways of such town, charged with all the duties and responsibilities and entitled to all the privileges, pay, salary and emoluments of such office, as provided by law.” Notwithstanding' this curative statute, the town hoard at its meeting of March 28, 1916, did not recognize relator as such superintendent. The relator presented a form of agreement under the Highway Law, section 105, to such town board, who declined to enter into the same, by a tie vote, those opposing having publicly explained their negative votes as cast for the purpose of testing the constitutionality of this act of March fifteenth. The relator petitioned for a writ of mandamus on March 29, 1916, which petition the appellants answered April sixth following, and the matter was heard on April seventh at Special Term, and resulted in the order for mandamus. From this order certain members of the town board have taken this appeal. John JR. Vunh, for the appellants. Joseph T. Losee, for the relator, respondent. George H. Furman, for the defendants, respondents. Since amd. by Laws of 1916, chap. 47.—[Rep. [MAJORITY — Putnam, J.:] Putnam, J.: The term “thereafter” in Highway Law, section 40, in the proposition that the office of superintendent be appointive, does not necessarily refer to unlimited time. It indicates the direction in time to which the context refers. (Dobbins v. Cragin, 50 N. J. Eq. 640, 648.) Taken in connection with the final clause of section 43 of the Town Law (Consol. Laws, chap. 62 [Laws of 1909, chap. 63], § 43, as amd. by Laws of 1909, chap. 422), it may fairly mean that such action should “ remain in force until the same shall be altered or repealed- at some subsequent town meeting.” Furthermore, section 41 of the High, way Law declared that such appointed superintendent “shall take and hold office for the term hereinafter prescribed,” which term by section 42 of the Highway Law is declared to be two years. No express provision appears for continuing such appointive terms. The Legislature gave the town the right to have an appointed superintendent during a two years’ term; but such authority we think did not keep and perpetuate the office as an appointive one beyond the voting power of the electors of the town to return to the elective system. Such a vote to appoint should not be deemed a renunciation of the constitutional power thereafter to fill such office by the electors of the town at a biennial election. (Const, art. 10, § 2.) We also think that the curative act of March 15, 1916, was valid and constitutional, since it confirmed and ratified an election by the town authorities. It did not attempt to substitute an election by the Legislature for one by the qualified town electors. The other objections to its constitutionality are without merit. As the meeting finder the Highway Law, section 105, is obligatory, so that the road funds may be properly divided by concurrence of the superintendent with the town board, the court by mandamus could properly direct that the town board perform its imperative duty to recognize relator, as the lawfully elected superintendent of highways, and to take the joint action required. (26 Cyc. 250.) Relator having the- public record of his election, was both de facto and de jure in office, and entitled to this remedy against Mr. Gardner and the officials of the town. I advise to affirm, with ten dollars costs and disbursements. Jerks, P. J., Thomas, Carr and Rich, JJ., concurred. Order affirmed, with ten dollars costs and disbursements.