Ex parte Humphrey and others, superintendents of the poor of the county of Monroe, 10 Wend. 612

By the Court, Savage, Ch. J. I am of opinion that the individuals elected by joint ballot were legally appointed superintendents of the poor. It must be admitted that the conduct of the majority of the board of supervisors was fraudulent. The law made it their duty to nominate. They pretended that they could not agree ; and that it was mere pretence, appears from the case submitted to us. I therefore assume the fact that the supervisors refused to nominate.

The judges did nominate, and there being no nomination by the supervisors of the persons nominated by the judges, the event had happened which made a joint ballot necessary. This is denied by the counsel for the superintendents who claim to hold over, because, he insists, a nomination is necessary by the supervisors as well as by the judges. This is a mode of ascertaining whether the two boards agree in the appointment of the same persons.

If neither board should nominate, there could be no appointment; if both nominate and agree, the appointment is ipso facto made; if they disagree, then a joint ballot decides the matter. In this case, all the persons necessary to an appointment were present; there was no want of jurisdiction ; it is a mere question of regularity; the statute is directory to each board. There was one nomination made, and the two boards did not agree ; a joint ballot was therefore proper. It cannot be in the power of one board thus to violate their duty and be screened from punishment.

Had they refused to meet according to law, they might have been indicted; they therefore met professedly to perform their duty, but in reality to violate the duty which they were sworn to perform. Shall they be permitted to do this 1 Had they openly refused to nominate, such refusal, I think, in charity to the supervisors, should be considered a disagreement to the nomination of the judges. So if they, in point of fact, had been unable to nominate, the result should be the same.

The present inability was either voluntary or involuntary, and in either case should be considered a disagreement in nominations, rendering a joint ballot necessary and proper.