The difficulty I find in this case is that while the statute declares there shall be a vacancy in the office of a water commissioner who fails to perform his duties for three months, the statute names no authority to declare such vacancy. Perhaps it could be made by the common council appointing a successor. (People ex rel. Ward v. Drake, 43 App. Div. 325.)
Where the statute specifies the existence of an unchallengeable fact as evidence of vacancy the statute is quite self-executing. (Cronin v. Stoddard, 97 N. Y. 274.) Where the fact is doubtful or in dispute the statute does not execute.. If it fails" to provide for a means by which the dispute can be terminated the courts cannot supply it. There is an omission in the statute. (People ex rel. Webster v. Van Tassel, 64 Hun, 444.)
It is quite apparent that there are other duties to be performed as member of the water board of Elmira besides attending the board meetings. The record discloses that there was a purchasing committee, and a committee to take up the matter of a power contract. We do not, therefore, have to assume that the board had committees and that such committees had duties to perform and we may assume that, as member of the board, petitioner was a member of its committees.
If the petitioner performed any such duties during the three months there was no refusal and no neglect to perform the duties of his office.
From the foregoing it is apparent that the common council being authorized to fill the vacancy, when it did so declared a vacancy. If it might declare in that manner the vacancy (43 App. Div. supra), is not the petitioner's removal upon the ground of vacancy a determination of vacancy?
I agree with the reasoning of Mr. Justice Van Kirk that the common council was not authorized to remove the petitioner and for such reason think the petitioner was aggrieved. He had appeared before the common council on charges. It had jurisdiction of him and of his accuser. If the common council had no *19jurisdiction of the charge it had no authority to make the determination. While the determination stands the petitioner remains removed from his office. Nothing but its reversal can restore him to his official status.
The case of People ex rel. Oyster Bay v. Woodruff (64 App. Div. 239) is not in point. It was there held that the Commissioners of the Land Office could not adjudicate the title of land as against the State which was not a party to the proceeding. There was there no question for judicial determination. In the case at bar there was and being such it is properly subject to review. (People ex rel. Moenig v. Commissioners of Land Office, 186 App. Div. 141.)
I think the certiorari order should be sustained, and the determination of the common council annulled, with fifty dollars costs and disbursements.
Certiorari order dismissed, with fifty dollars costs and disbursements.