In re Lowman

95 A.D. 32

Opinion

Houghton, J.:

Prior to the year 1903 the municipal elections of the city of Elmira had been held in March. In that year, by chapter 8 of the Laws of 1903, taking effect on the twenty-seventh day of February, the charter was amended by abolishing the March elections and directing that they thereafter be held on general election day in Hovember. The old as well as the amended charter provided that the common council, consisting of the mayor and aldermen (§ 20,

* as amd. by Laws of 1903, chap. 8), should appoint a city chamberlain, whose term of office should be three years, and.the amended charter directed that the first appointment should be made on the first Monday of January, 1904, and every third year thereafter. At the time the amendment went into effect a city chamberlain was in office, whose term of three years expired March eighth following. The amendment attempted to extend the term of this official beyond that period and to the first Monday of January, 1904. The common council, however, ignored the extension and appointed the appellant Haase to the office, reciting that he was appointed to succeed the former incumbent, whose term of office had expired. The incumbent refused to deliver the books and papers, and this court held in Matter of Haase (88 App. Div. 242) that the attempted extension was in violation of section 2 of article 10 of the Constitution. Hew officials were elected in Hovember last, and on the first Monday of January, 1904, they appointed the respondent Lowman eity chamberlain for the term of three years, and this proceeding is taken under section 2471a of the Code of Civil Procedure to compel appellant Haase to deliver to him the books and papers appertaining to the office. Ho point is made that this proceeding is not the proper mode of presenting the question whether the appellant Haase, on the 23d day of March, 1903, was appointed for the term of three years, or for a term expiring on the first Monday of January, 1904.

The justice making the order held that the appointment was for ' the "latter period and not for the full term, and that the subsequent appointee was entitled to the books and papers appertaining to the office, and directed their delivery. We think this was proper and that his order should be affirmed.

The primary object of the amendment was to change the municipal elections from March to November. For the purpose of bridging the hiatus which would exist in the case of those officials whose terms of office expired in March, 1903, the Legislature attempted to extend their terms of office. In- this it failed because it had no. right so to do. But the amendment expressly provided when new officials should be elected, and when those officials should appoint incumbents to the various appointive offices, and that time was fixed as the first Monday of January following the election. The action of the common council on the 23d day of March, 1903, in appointing-the appellant city chamberlain must be assumed to have been taken for the purpose of filling the office until there could be a regular-appointment on the first Monday of January following. The office being a legislative one could be abolished by the Legislature, or the term could be abridged. (Koch v. Mayor, 152 N. Y. 72.) Except for the action of the common council in March, 1903, under the provisions of section 5 of the Public Officers Law, the former-incumbent would have held over after the expiration of his term and until the appointment of his successor on the first Monday of January, 1904, and until said successor had qualified.

In Matter of Haase (supra) we held, in effect, that only that part-of the act of 1903 which attempted to extend the term of office was-unconstitutional, and that the remaining provisions were valid.

The appellant was appointed to the office under a law which, as amended, provided that a new common council should be elected in the following November, whose duty it would be in conjunction with the mayor, who was á member thereof, to appoint a city chamberlain on the succeeding first Monday of January, He must,, therefore, we think, be deemed to have been appointed to fill the vacancy caused by law from March, 1903, to the first Monday of January, 1904. Viewed in this manner the legislative enactment^ eliminating the unconstitutional portion, is capable of execution.. If the term for which appellant was appointed be said to be three years, then each appointment must hereafter be made m March instead of January as commanded by the act. - This could be obviated in no other way than by permitting an incumbent to hold over until the following January. Such a construction -‘would be unreasonable and do violence to the main object of the statute, which was the changing of the time of elections and consequently the time of tilling the appointive offices.

The order should be affirmed, with ten dollars costs and printing disbursements.

All concurred, except Smith, J., not voting.

Order affirmed, with costs.

Laws of 1894, chap. 615.— [Rep.