Under this act the appointment of the defendant by the Governor was made. It is contended by the plaintiffs' counsel that the legislature could not authorize an appointment in such a case by any other than the local authorities; and section 2 of article 10 of the constitution is referred to in support of the position. That section is as follows: "All county officers whose election or appointment is not provided for by this constitution shall be elected by the electors of the respective counties, or appointed by the boards of supervisors or other county authorities, as the legislature shall direct. All city, town and village officers whose election or appointment is not provided for by this constitution, shall be elected by the electors of such cities, towns and villages, or of some division thereof, or appointed by such authorities thereof as the legislature shall designate for that purpose. All other officers whose election or appointment is not provided for by this constitution, and all officers whose offices may hereafter be created by law, shall be elected by the people or appointed as the legislature may direct." That section applies only to elections or appointments for full terms, and not for filling vacancies. This is manifest not merely from the phraseology of the section, which is appropriate only to an election or appointment for a full term, but from the fact that the subject of filling vacancies is provided for by the 5th section above recited. The latter provision would be a mere repetition if section 2 embraced cases of vacancies. Besides, it may perhaps be said that as section *Page 380 2 does not include officers whose election or appointment is otherwise provided for in the constitution, it does not extend to officers to fill vacancies, the election or appointment of whom is provided for by the 5th section. The last named section imposes no restriction upon the legislative power in regard to the mode in which the vacancy shall be supplied. Regarding the act of 1849 as valid, it conferred full authority upon the governor to appoint for the vacancy, as was done by him, unless there was some other provision of law for filling the same. The counsel for the plaintiffs insists that full provisions for the case is made by section 36 (1 R.S., p. 348,) which declares that "vacancies in all town offices, except the office of supervisor, assessor, commissioner of highways, overseer of the poor, collector or overseer of highways shall be supplied by the justices of the town" in the manner provided by a previous section, that is, by three justices of the peace by warrant under their hands and seals. That section relates only to town officers, and unless a justice of the peace is a town officer, it is wholly inapplicable. At the time the section became a law, the offices particularly contemplated by the legislature for its application were doubtless those to which the title, of which the section formed a part, had reference, and which are not expressly excepted. The section is in the title entitled, "of the election and qualification of town officers, and the terms of their offices," which did not include justices of the peace. Justices were then elected at the annual general elections, under provisions in the chapter entitled "Of elections other than for militia and town officers." The mode of filling vacancies in that office was prescribed by sections 8 and 9 of that chapter, which was at the general election next succeeding the happening thereof, and if not then supplied, at a special election to be held. But beyond this consideration as to the offices intended by the legislature by the section in question, the fact that the office of justice of the peace belonged to the class of offices other than militia *Page 381 and town offices, affords very strong, if not conclusive evidence, that the office was then regarded by the legislature a county, and not a town office. In 1829 a law was passed for the election of justices of the peace at the annual town meetings, as is provided by the present constitution, instead of the general election in the fall, but their election was to be certified, as is the case now, to the clerk of the county, and it was provided, as it is by the present law, that they should enter on their duties on the 1st of January following, as in the case of all officers elected by the people, except to supply vacancies, other than officers of towns. Then, as now, the oath of office was to be taken before the clerk of the county. These provisions as to the commencement of the term of office, and for having the evidence — of who held the office — with the county clerk, indicate that the office has ever since been regarded by the legislature as a county office. Again, justices of the peace are classed among the "public officers of the state other than militia and town officers" in the chapter of the Revised Statutes relating to the election and appointment of such officers, their qualifications and the tenure of their offices. (1 R.S., 95.) Added to these evidences is the fact that the jurisdiction of justices for many purposes extends throughout the county where they reside; and that, even in respect to their residence and the trial of civil suits, a statutory limitation has been supposed by the legislature to be necessary to prevent their residing and exercising that portion of their powers where they might choose in the county. (1 R.S., 102, § 12; Guernsey v. Lovell, 9Wend., 319.) In judicial proceedings they are usually designated as justices in and for the county, instead of naming the town as their locality. I am therefore satisfied that they are not town officers within the meaning of the section referred to, of the Revised Statutes, for filling vacancies in town offices, and that the section has no application to this case. *Page 382
It is clear to my mind that the phrase "offices of this state," in the act of 1849, embraces the office of justice of the peace. That language, in its ordinary interpretation, includes local offices under the constitution, those limited to particular localities, as well as offices for the entire state, the powers and duties of which extend throughout the state. And the provision in the act, that nothing contained in it shall authorize the governor to fill a vacancy in the office of county judge and surrogate in certain cases, shows that the words mentioned were used by the legislature in such a sense, All offices under the constitution, are offices of the state, without regard to any other consideration. The office of justice of the peace is also an office filled at an annual election, and the regular term of which commences with the political year next succeeding the election. A town meeting annually is as much an annual election as the general state election held in the fall for the whole state; and no other provision existing by law for filling a vacancy in the office of justice of the peace, there would seem to be no ground for doubt that the law of 1849 is applicable to that office.
The defendant was entitled to hold the office until the end of the year 1856; the act of 1830, so far as it declares that a justice appointed to a vacancy shall forthwith enter upon the duties of the office, being inconsistent with the act of 1849 and therefore repealed by it.
I see no objection under the constitution to the provision in the act of 1849, entitling a person appointed to fill a vacancy in the office of justice of the peace, to hold until the commencement of the political year next succeeding the first annual election at which the vacancy could be filled. Section five of article ten of the constitution, confers express power to provide by law for filling the vacancy for that period. And the exercise of that power is in no respect inconsistent with the provision in section seventeen of article six of the constitution, that "in case of an election to *Page 383 fill a vacancy occurring before the expiration of the full term," in the office of justice of the peace, "they shall hold for the residue of the unexpired term." Construing the two sections, as should be done, together, the latter provision means the residue of the unexpired term after the commencement of the political year next succeeding the election. It is no answer to this view that the full term may expire at that time; in such a case an election to fill the vacancy would be useless and should not be held. It follows that the judgment should be affirmed.
SELDEN and HARRIS, Js., concurred in this opinion.
Judgment reversed.