I am constrained to differ with my associates as to the meaning of section 5 of the Public Officers Law. That section provides that “ Every officer, except a judicial officer, a notary public, a commissioner of deeds and an officer whose term is fixed by the Constitution, having duly entered on the duties of his office, shall, unless the office shall terminate or be abolished, hold o.ver'and continue to dis-' charge the duties of his office, after the expiration of the term for which he shall have been chosen, until his successor shall be chosen and qualified; but after the expiration of such term the office shall be deemed vacant for the purpose of choosing his successor.”
I think the statement in the section, that “ after the expiration of such term the office shall be deemed vacant .for the purpose of choosing his successor,” is not a limitation upon the power of the officer holding over, conferred by the preceding provision, which *669requires such an officer to continue to discharge the duties of his office after the expiration of his term until his successor is chosen and qualified. Its only purpose, as I view it, is to allow the proper authority to fill an office declared to be vacant, but which in fact is not vacant, for the officer whose term' has expired is properly in office and is required to exercise the functions of the office until his successor has been chosen or appointed and qualified.
Many of the officers included by this section have no duties in making appointments to office. But where such an officer is a member of a board upon which devolves the duty of appointing his sue? cessor I see no impropriety in his discharging that duty. At all events the statute, which requires him to discharge the duties of his office until his successor is chosen and qualified, makes no such exception, and I see no reason for reading it in.
The suggestion that it would he permitting a person to elect himself to office I think is without force. If he or any other member of the town board by his own vote had appointed himself to the office a very different, question would be presented.
The supervisor was a member of the town board and the petitioner, having received but three votes out of the six, was not duly elected to the office of supervisor. Three members of the board could not make an appointment.
I think the order should be reversed,
Order affirmed, with ten dollars costs and disbursements.