People ex rel. Bradley v. Stevens

51 How. Pr. 103

• Court: New York Court of Appeals
• Decided: September 15, 1869
• Status: Published

Opinion

James, J.

— This is a proceeding in the nature of a quo warranto, to determine the title to the office of president of the Groton aqueduct board.

The facts show that April 12th, 1860, the defendant was duly appointed president of the Croton aqueduct board, for the term of five years; that on the 3d of April, 1863, an act was passed extending the terms of the officers of that board four years" from the appointment of the (then) assistant commissioner, and until their successors were appointed and qualified; that one Darragh was, on said third day of April, the said assistant commissioner, and had been appointed on the 3d day of December, 1862; consequently the term of the officers of that board, holding in virtue of the act of April 3d, 1863, expired on the 3d day of December, l'866.

An act of the legislature was passed May 4th, 1866, entitled An act to enable the board of supervisors of the county of New York, to raise money by tax for the use of the corporation of the city of Hew York, and in relation to the expenditure thereof, which contained the following provision:

“ The engineer and assistant commissioner of the Groton aqueduct department, .now in office, shall continue in office for the term of three years from and after the passage of this act, and any vacancy in their number shall be' filled by the members of the board remaining in office.”

Before the passage of this act the power of‘appointing the officers of this board was in the mayor of Hew York, “ with the advice and consent of the board of aldermen” (See amended- chapter of New York, passed April 14th, 1857). On the 7th day of December, 1866, the relator, John J. Bradley, was appointed by the mayor and aldermen of Hew York president of the Croton aqueduct board, in place of defendant, it being claimed that the act of May 4th, 1866, was unconstitutional and void. On the 18th day of December, 1866, said Bradley took the oath of office, and duly qualified as such president.

On the 8th day of April, 1867, an act was passed, entitled “ An act in relation to the Croton aqueduct department in the city of Hew York,” which enacted that the term of office of the persons now severally discharging the duties and exercising the powers of president-commissioner, assistant commissioner and chief-engineer-commissioner of the Croton aqueduct department, is hereby fixed for the term of five years from January 1st, 1867, and every vacancy in said office shall be filled for the residue of said term by the remaining commissioners.”

At this date the defendant was discharging the duties and exercising the powers of president of said board; and he still continues so to do. This proceeding was not commenced until the 28th day of May, 1868.

It seems to me that portions of the act of 1866, known as the tax levy of the city of Hew York for that year, are within section 16, article 3 of the constitution of this state, and void. Said section declares that “ no private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be embraced in the title.” The act in question was a local act. It related solely to city matters; it operated only upon city officers, city funds, and city taxation; in fact, all its substantial operations were within the city limits. It is true the supply of water is brought by aqueduct from Putnam county, through Westchester county i but this is an incident'to the means of supply for the use of the city, not for the use and benefit of all outside of the city, whom the board might choose to supply. Special authority to supply Sing Sing prison with water did not change the local character of the act, or increase its powers to act outside the city limits, except in the particulars specified (People agt. O’Brien, 38 N. Y., 193 ; The Sun Mutual lnsurance Company agt. The Mayor of New York, 4 Selden, 240).

Being a local bill the act could embrace but one subject, and that to be specified in its title. It is clear that this tax levy bill embraced more than one subject. It provided for the levying of taxes; the continuance of certain persons in office, and filling vacancies in the same. This latter subject was not embraced in the title; a person reading the title would never suspect that any other power than raising money by tax was embraced therein.

It follows from this, if there is nothing else in the case, that the defendant’s term of office expired in December, 1866, and that the relator, Bradley, by virtue of his appointment, was de jure the president of the Croton board from the day he qualified after his appointment.

But it is claimed that this result was defeated by the act of 1867. That statute enacted that “ the term of office of the persons now severally discharging the duties and exercising the powers of president, &c., is fixed for the term of five years from the 1st day of January, 1867, &e.”

If this act is valid, the defendant being the person then discharging the duties of president and exercising its powers, &c., was the person lawfully entitled to the office when this action was commenced. .

There is no force in the argument that the relator was de jure president when said act was passed, because the act did not apply to the dejwre president, but to the person, whoever he might be, who was then discharging the duties and exercising the powers of president, and that was the defendant. If valid, the effect of the act was a repeal of the previous statutes in respect to the appointment of president, and a legislative appointment of that officer.

This statute of 1867, it is argued, is in conflict with section 2, article 10, of th'e constitution, and therefore null and void. That section declares that “ all city, town and village officers, whose election or appointment is not provided for by this constitution, shall be elected by the electors of, &c., or appointed by such authorities thereof as the legislature shall designate for that purpose.”

The Croton water-works being local, the members of its board are properly city officers, and as such are by the constitution required to be elected by the electors of the city, or appointed by such city authorities as the legislature shall direct. As the defendant does not claim title to the office through either source, he certainly cannot be permitted to retain it, as the act under which he makes claim legislates the person into office instead of providing for his election or appointment, unless the office is to be regarded as one created since the adoption of the present constitution; offices created since that time the legislature can provide for filling in any manner deemed most expedient, or may make the appointment itself (People agt. Draper, 15 N. Y., 538; People agt. Batchelor, 22 N. Y., 128; 32 N. Y., 365, 583). It therefore becomes necessary to trace the history of the several acts in relation to these Croton works.

The act authorizing their construction was passed, and the works completed previous to the adoption of the present constitution in 1846. An act was passed in 1842, entitled “ An act for the preservation of the Croton water-works of the city of New York,” which read as follows :

“ Section 1. The mayor, aldermen, and commonalty of the city of New York are hereby authorized to pass such by-laws and ordinances as to them shall seem meet for the preservation and protection of all or any of- the works connected with the supplying of the city of New York with pure and wholesome water, under and by virtue of the act to provide for supplying the city, &c., passed May 2d, 1834, and the acts amending the same; provided such by-laws and ordinances are not inconsistent with any laws of this state or the constitution thereof, subject at any time to be repealed or modified by the legislature, and also to organize a department with full power for the management of such works and the distribution of the said water.”

In September, 1842, under authority of this act, the mayor, &e., in common council convened, passed the following ordinancés:

1st. Established a department, to be called the Croton aqueduct department, and declared -that the Croton lake, dam, aqueduct &c., &c., should therefrom be known as the Croton aqueduct works.

2d. Fixed the executive duties upon the aqueduct department, which was to consist of a board of five commissioners of five citizens to be appointed by the common council, one to be designated as president, who was also the treasurer; said board was intrusted with the care and supervision of the works.

4th. A chief engineer, superintendent of works, water purveyor, and a register of rents should be appointed by the common. council, to hold their office during the pleasure of the council, &c., to be under the control of the Croton aqueduct board, &c.

6th. The president to keep account of lettings and receive rents, &c., &c.

The Croton aqueduct department continued under these ordinances until 1849. In that year the charter of the city of New York was amended (Laws of 1849, p. 282), the fifteenth section of which act created a new executive department, called “ the Groton aqueduct board,” with three officers, viz., president, engineer and assistant commissioner, to form such board. Afterwards, and in the same year, another act was passed, entitled “An act to create the Croton aqueduct department in the city of New York” (Laws of 1849, p. 537).

These acts together completely remodeled the Croton aqueduct department. The office of water commissioner was abolished; the board created in its stead was reduced to three members, and with the same and additional duties imposed upon it; and subsequent legislation has imposed upon it further new and additional duties.

I am therefore of the opinion that the Croton aqueduct board, and the officers composing it, were in substance and effect new officers created by the acts of 1849, within the intent and meaning of the authorities above cited. Before the acts of 1849 the Croton aqueduct department was composed of five commissioners, one of whom was to be designated as president, with a chief engineer, superintendent, purveyor and register. This the said act swept away, and created an executive board, denominated “ the Croton aqueduct board,” to consist only of a president, engineer and assistant commissioner ; a new board with new officers to constitute it.

The creation of such offices was within the legislative power; and being so created since the adoption of the present constitution, the legislature was not restrained in directing how they should be filled; and might even make the appointment itself, as it assumed to do in this case.

It therefore follows that the judgment of the supreme court should be reversed.

Mason, J.

— The claim made in this case, that the act of May 4th, 1866, transferring the power of filling vacancies in the principal offices of the Croton aqueduct board from the mayor and aldermen of the city of 3STew York to the members of the Croton aqueduct board itself, is invalid, as being in conflict with the second section of the tenth article of the constitution of the state, cannot be sustained.

Assuming that the president .of this board is to be regarded as a municipal officer of the city, there is nothing in the act of May 4th, 1866, at all in conflict with the second section of article 10. The only restriction imposed by this 'Second section of article 10, so far as the question arising in the present cáse is concerned, is, that city officers, whose election or appointment is not provided by the constitution, .shall be elected by the electors of the city or some division thereof, or be appointed by such authorities thereof as the legislature shall designate for that purpose (Art. 10).

They are appointed by such officers or authorities of the corporation as the legislature shall prescribe, when under this act of May 4th 1866, they are appointed by the Croton aqueduct board.

The legislature have the undoubted right to say that they shall be so appointed, and all vacancies filled, either by the mayor or the board of aldermen, or any other distinct branch or authority of the city government.

We assume in this case, of course, that the relator is right . in asserting that the Croton aqueduct board is an executive deparment of one branch of the city government (Sec. 24, amended charter, 1857; Laws 1857, p. 881). This, it must be conceded, is so under this, amended charter of 1857.

There is another reason equally satisfactory and conclusive to my mind why this act of May fourth, transferring the power to fill vacancies from the mayor and aldermen to the Croton aqueduct board, is not objectionable, as being .obnoxious to this constitutional restriction upon the exercise of the legislative power. This clause itt the constitution has received judicial construction in this court. The case of the People. agt. Draper (15 New York, i?., 532), decides that this constitutional restriction relates only to such officers as existed at the time the constitution of 1846 took effect, and that the legislature is at liberty to provide for the- election or appointment in any manner it may deem suitable for all officers, local or general, whose offices might be created by law after the constitution of 1846 went into effect.

This is the plain and obvious reading of the section taken as a whole, as was explicitly held by this court again in the case of the People agt. Pickney and others (32 New York R., 377.)

Mow the Groton aqueduct board was first created by the act of April 11, 1849 (Laws of 1849, chap. 383).

The five commissioners appointed under the act of February 26, 1833, were a mere commission to examine and report to the legislature and common council of the city as to the best plan of supplying the city with a sufficient supply of pure and wholesome water, and they were only to continue by the express terms of the act for one year.

The act of May 2, 1834, provided for the appointment by the governor, with the consent of the senate, of five water commissioners, and the whole extent of their duties were that of a mere construction commission, without any limit as to the time or term they should continue; but the fair construction to be put upon the whole legislation in regard to them is, that they were to be continued until the work of supplying the city with water was completed.

It is conceded on all hands that the work of introducing the Croton water into the city of Mew York was completed before the adoption of the constitution of 1846, and as early, I think, as 1842.

It is claimed, however, by the relator’s counsel, that the mayor, aldermen and commonalty of the city created this Croton aqueduct board, or a Groton aqueduct department, with similar powers, under «the act of April 11th, 1842, and before the constitution of 1846 went into effect (Chap. 225 of the Laws of 1842).

That act authorized the mayor, aldermen and commonalty of the city to pass such by-laws and ordinaces as to them should seem proper for the preservation and protection of all or any of the works connected with the supplying of the city of blew York with pure and wholesome water, under and by virtue of the act of May 2d, 1834, and the acts amending the same; and they were authorized to organize a department with full powers for the management of such works and the distribution of the said water.

TJuder this act the mayor, aldermen and commonalty of the city organized a department called “ the Croton aqueduct department,” and provided for' the appointment of a board of five commissioners, one of whom should be president j this board was to be appointed by the common council, and hold their offices during the pleasure of the said common council.

The whole control and general care and supervision of the Croton aqueduct and its appurtenances was confided to the board; the limited power of completing the aqueduct from the Croton river to the distributing reservoir was reserved to the original water commissioners.

This board was created by the corporation of the city itself, was but a mere instrumentality or agency of the municipality, and the officers thus created and appointed were not officers within this restrictive clause of the constitution.

The officers within this second section of the tenth article, they must be created directly by the constitution, or by the statute. This is expressly held in the case of the People agt. Conover (17 N. Y. R., 64). I have not been able to find, nor have we been referred, to any statute creating this Croton aqueduct board, until the act of April 11th, 1849, above referred to; and it follows from what has been said, that these offices were created since the constitution of 1846 went into effect, and that they do not consequently fall under this restrictive clause.

The next and most important, and certainly the most difficult question in this case, is, whether this act of the legislature of May 4th, 1866, which transfers from the mayor and aldermen of the city of Hew York to the members of the Croton aqueduct board the power of filling vacancies in office in said board, is in conflict with section 16, article 3, of the constitution of the state.

The respondent claims and asserts that it is in conflict with this sixteenth section of the third article of the constition, which provides that: “ Ho private or local bill which may be passed by the legislature shall embrace more than one subject, and that shall be expressed in the title.” This act of May 4th, 1866, is entitled “ An act to enable the board of supervisors of the county of Hew York to raise money for the use of the corporation of the city of Hew York, and in relation to the expenditure thereof.”

If this is to be regarded as a private or local bill it is obnoxious to both these constitutional restrictions, for it is joined with the tax levy of the city, and the subject of the bill is not expressed in the title.

I entertain no doubt that an act of the legislature to enable the board of supervisors of the county of Hew York to raise money by tax for the use of the corporation of the city of Hew York containing provisions for expenditures thereof, is a local bill within this sixteenth section of the third article of the constitution.

It was assumed in the case of The Sun Mutual Insurance Company agt. The Mayor, &c., of the city New York (4 Seld. R., 240), that such a bill was local.

It is expressly declared in the opinion of judge Davies, in the case of the People agt. Hills (35 N. Y. R., 453), that such a bill is local within the meaning of this sixteenth section of the third article of the constitution. It does not follow, however, because this bill, familiarly known as the tax levy of the city, is local, and falls within this constitutional prohibition, that this portion of the act, which transfers the appointing power to fill vacancies in the Croton board from the mayor and aldermen to the board itself, is also invalid.

This is held in the case of The People agt. McCann (16 N. Y. R., 58), where it is said that the character of an act is to be determined by its provisions and not by its title, and that general provisions are not rendered void by reason of these being contained in the same act with other provisions of merely local application, though the title of the act refers to the latter provisions only; and the case holds that no constitutional objection arose out of the consideration that the provision of the act in question was not referred to in the title of the act. The case of Williams agt. The People (24 N. Y. R., 405-407), holds the same.

The question presented in the case at bar is therefore to be determined entirely independent of the tax levy; and the same as if this act was passed by itself, but without any subject whatever expressed in its title. If this is to be regarded as a local bill, it is in conflict with this sixteenth section, of the third article of the constitution, and cannot be sustained.

•This act has reference to the exercise of the power of appointment to office, and there is nothing in the power of appointment to office that is necessarily local. The first commissioners, both under the act of 1833 and 1834, were appointed by the governor, by and with the advice and consent of the senate (Laws 1833, chap. 36, sec. 1; Laws 1834, chap. 256, sec. 1). And yet the subject-matter of a bill which simply provides for the appointment of the officers of a municipal corporation is certainly local in one sense.

It is local in its application. It applies only to the municipality referred to in the act, and I think is a local bill within the intent and meaning of this sixteenth section of the third article of the constitution.

If we are right in this, it follows that the act under consideration is obnoxious to this sixteenth section of the third article in two respects, as embracing more than one subject, and because the subject of the enactment is not expressed in the title of the act. This must be so unless it shall be held that these commissioners are not, in the sense of the constitution, strictly officers of the corporation, or, in other words, city officers.

It becomes necessary, therefore, to inquire whether, the officers composing this Croton aqueduct board are to be . regarded strictly officers of the municipal corporation of the city.

This, I think, will be made quite apparent if we look at the history of the enterprise which has resulted in the constitution and organization of this board. The act of February 26, 1833, provided for the appointment of five commissioners for the city of Mew York, who should be citizens and inhabitants of the said city, whose duty it should be to examine and consider all matters relative to supplying the said city with a sufficient supply of pure and wholesome water for the use of its inhabitants, &c., and to report to the next legislature, and also to the common council of the city, and that all reasonable expenses incurred should be paid by the city. These commissioners were to continue but for one year.

The act of May 2, 1834, also provided for the appointment of five commissioners for the same purpose, to be known as the water commissioners of the city of Mew York, and they must be- citizens and inhabitants of the city.

They were required to adopt a plan for supplying the city with pure and wholesome water, with estimates of the expense, &c., and report to the common council; and if the plan should be approved by the common council, then the common council were to submit" the same to the electors of the city at the next annual election for charter officers, and if the electors decided in favor thereof, then the common council were authorized to instruct the said water commissioners to proceed in the work.

This was all done, and this act authorized the common council to issue stock to the amount of $2,500,000, and to sell and dispose of the shares, and the moneys were to be applied and expended- for the purpose of supplying the said city with pure and wholesome water, and the work and expenditure to be under the control of the water commissioners.

Under this act, and various' subsequent acts of the legislature, authoi’izing the common council to raise money by the issuing of millions of stock, the Croton aqueduct was completed, and the city was supplied with water.

This whole enterprise was one on the part of and in behalf of the city, and for the benefit of the inhabitants thereof. The whole expense was borne by the city. The city having completed the work, and furnished to its inhabitants an abundant supply of pure and wholesome water, it became necessary to provide some executive department of the city government to look after and keep in repair this great work; and the legislature, by the act of April 11, 1849, created the Croton aqueduct department of the city government (Laws 1849, chap. 383), and created a board of officers, consisting of a president, &c., who should have the general superintendence and direction of all the. leasings and concerns of the said departmént; and, by the amended charter of the city in 1857, it is provided that there shall continue to be an executive department, under the denomination of the “ Croton aqueduct board,” which shall have the charge of the Croton aqueduct and all its structures and property connected therewith, &c., and the underground drainage of the same, and the public sewers of said city, and permits for street vaults, and of paving and repairing streets, and digging and constructing wells, and the collection of revenues arising from the sale of Croton water, with such other powers and duties as may be prescribed by law (Laws 1857, p. 881, sec. 24).

The chief officers are the president, engineer and assistant commissioners; and these officers constitute the board, and shall hold their offices for five years. •

The act then provided for the creation of certain bureaus in the department, with officers to fill them ; none of which are important to consider in the case.

The whole of the structures connected with the Croton aqueduct, and the lands acquired under the acts of the legislature in the construction of this work, all belong to the city, and have been paid for by the city; and the Croton aqueduct board, as constituted under the amended charter of 1857, are declared to be an executive department of the city government.

The officers created are paid by the city, and every official act which they perform is strictly in behalf of the city; and I am not able to perceive why the officers of this board are not to be regarded officers of the city.

The fact that the city has erected a large reservoir in Westchester county and another in Putnam county, and have made important structures in these counties to convey the water from them to the city, and that this board of officers have the charge of all these, and have important and responsible duties to perform in these counties, and outside of the city and county of Mew York, cannot, it seems to me, change the character of these officers.

They are still city officers, acting for and in behalf of the corporation of the city; they are not in any sense officers of the county of Mew York, Putnam, Westchester, or of any new district or civil division of the state, as were the officers appointed under the act of April 15th, 1857, creating a new metropolitan police district, which was brought under review in this court in the case of The People agt. Draper (15 N. Y. R., 522).

The act in question, which transfers from the mayor and aldermen of the city to the members of the Croton board itself the power to fill vacancies in the said board, is essentially an amendment of section 19 of the amended charter of the city (Laws 1857, chap. 446, page 878, sec. 19), which provides that, the heads of the departments of the city government shall be appointed by the mayor, with the advice and consent of the board of aldermen.

It was held by this court in the case of The People agt. Hill (35 N. Y. R., 449), that an act to amend the charter of the city of Rochester was local; and because the act in that case did not express in the title of the bill the subject- • matter of the act it was held invalid.

We also held, in the case of The- People agt. O’Brien (6 Trans. Appeals, 90) that an act in relation to the term of office of the counoilmen of the city was local in its character, and came within the prohibition of section 16 of the third article of the constitution (see, also, The People agt. McCann, 16 N. Y. R., 60; Williams agt. The People, 24 N. Y. R., 405).

That this is a local bill cannot, I think, admit of serious question. These officers are the head of one of the executive departments of the city government; the fact that they are required to perform in behalf of the city many and responsible duties in the counties of Westchester and Putnam, does not make them any the less- the officers of the municipal corporation, so long as those acts are performed in behalf of the city.

It follows from what has already been said, that this provision, contained in the tax levy of 1866, transferring to the members of the Croton aqueduct board the power to fill vacancies in said board, is in conflict with section 16 of article third of the constitution, and void. ■

The power of appointment still remaining with the mayor and board of aldermen, the relator was properly and legally appointed, and is entitled to the office, unless he is divested of it by the act of April 8th, 1867, entitled “ An act in relation to the Croton aqueduct department in the city of New York” (Laws of 1867, chap. 285).

The first section of this act provides that the term of office of the persons now severally discharging the duties and exercising the power of president-commissioner, assistant commissioner and chief-engineer-commissioner of the Croton aqueduct department is hereby fixed for the term of five year’s from the 1st day of January, 1867, &c.

The appellant was, in fact, discharging the duties and exercising the powers of president at the time of the passage of said act, and was defacto president, and not de jure.

The relator had been appointed and qualified, and was de jwre president of the said board; and it is claimed that this act of the legislature, if designed to do so, could not divest him of the office and transfer it to the defendant, whose term of office had expired.

The defendant claims to hold the office in virtue of the act of April 8,1867, which, it is insisted, merely extended the term of the office, which this court have held in the case of The People agt. Bachelor (22 N. Y. R., 128), the legislature might lawfully do.

That case would sustain the defendant’s claim to this office were he holding and discharging the duties of the office de jure ; but a different question is presented in this case, for the relator, as we have seen, was lawfully appointed, and had taken the oath of office, and duly qualified before the passage of this law extending the term of office.

This admitted the relator into office, and gave to him the lawful right to the same (Rex agt. Ellis, 9 East R., 252, note; Rex agt. Dublin, 1 Strange R., 538; Rex agt. Bosworth, id., 113; The People agt. Stevens, 5 Hill’s R., 616, 625).

The defendant at the same time was, in fact, discharging the duties and exercising the powers of president, and refused to yield the functions of the office to the relator.

He was de facto president, and was discharging the duties of the office, but not rightfully as against the relator, who was entitled to the office.

This, I think, was understood by the framers of this act of April 8,1867, as the language of the act seems studiously adopted to meet the very case.

The language is, the term of office of the persons now severally discharging the duties and exercising the powers of president-commissioner, &c., is hereby fixed for the term of five years from the 1st day of January, 1867.” The evident' intention of this act was to cut off all right of the relator to this office, and continue the defendant in the office for five years longer. The act is broad enough to accomplish it, and the relator has lost his claim to the office, if it were lawful for the legislature to make such an enactment.

The question is an important one, and has not, so far as I can ascertain, been expressly decided. The sovereign lawmaking power resides in the legislature, with no other restrictions upon it than those imposed by the constitution of the K". GL, and that of the state.

The courts of justice have a right, and are in duty bound, to bring every statute to the test of the constitution, both of the United States and of the state, as they are the supreme and paramount law to which all legislation must conform. .

There is in this act the clearly expressed intention of the legislature to divest the relator of the office to which he had been legally appointed, and to continue the defendant, whose term had expired, in the office for five years longer ; and the question is therefore presented whether such an act can be justified under the constitution.

It cannot be doubted that, as this office was created by statute, the legislature 'could abolish the office at any time, and deprive the incumbent of all right to the office, without regard to the term of office or the future salary of the incumbent (Connor agt. The Mayor, Aldermen and Commonalty of the City of New York, 3 Sand. S. C. R., 355, and cases there cited). Chief-justice Marshall, said, in 'the Dartmouth College Case (4 Wheat. R., 627), that public officers are not within the inhibition of the constitution of the United States against laws impairing the obligations of contracts ; that the inhibition does not extend to officers within a state, for state purposes; that the legislature must necessarily control such offices, and may change and modify the laws concerning them as circumstances may require ; that grants of political power to be employed in the administration of the government, are to be regulated by the legislature of each state, according to its own judgment, unrestrained by any limitation of its power imposed by the constitution, or the constitution of the United States.

In the same case judge Stout said, the state legislature have power to enlarge, repeal, or limit the authority of public officers, in their official capacity, in all cases when the constitution of the state does not prohibit it; and this, among others, for the very good reason that there is no express or implied contract that they shall always during their continuance in office exercise such authority.

They are to exercise them only during the good pleasure of the legislature; and he compared the duty of public offices, created by statute, to a naked power, which is revokable at pleasure.

It is held in the case of Connor agt. The Mayor, &c., of the City of New York (2 Sandford S. C. R., 355) that an office created by law may be repealed by law, without regard to the term or future salary of the incumbent.

That there is no contract, express or implied, between a public officer and the government whose agent he is.

Nor have public officers any proprietary interest in their offices, or any property in the prospective compensation attached thereto, whether it be in the shape of salary or fees. ,

The case was affirmed on appeal in this court, and the headnote of the case states very accurately what is decided in the case, to wit, that public offices in this state are not incorporeal hereditaments, nor have they the character or qualities of grants.

That the prospective salary or other emoluments of a public office are not property in any sense, &c. The act in question, then, which takes away from the relator this office, is not obnoxious to section 6 of article 2 of the constitution of the state, which provides that “ no person shall he deprived of property without due process of law.”

Uor is it in conflict with section 10 of article 2 of the constitution of the United States, which provides that “ no state shall pass any law impairing the obligation of contracts.”

See, also, the case of The People agt. Devlin (33 N. Y. R., 273), where it is held that there is no contract, express or implied, between the officer and state, that he shall continue to receive the emoluments of the office as they existed at the time he took the office.

A law creating an office may be repealed before the term of office has expired under the provisions of the law, and the repeal determines the office and the compensation (The People agt. The Auditor, 1 J. Com. R., 537).

It is said in the prevailing opinion of the court in the case of The People agt. Batchelor (22 N. Y. R., 137), that what the legislature may do, it may undo, unless prohibited by some provision of the constitution.

That there is nothing in the constitution which, either expressly or by implication, restrains the legislature from 1 altering or changing the term of any office which it has once fixed.

I shall assume the law to be settled by the decision of our own courts in this state, that is, to all public offices created by statute, the incumbent of the office has no proprietary interest in the office, property, no claim to prospective fees or salary, which he can assert as against the power and authority of the legislature, which asserts the right to deprive him of them. That such officer has no vested rights which he can assert as against the legislative authority which seeks to deprive him of them. These offices having been created since the constitution of 1846 went into effect, the legislature is entirely untrammeled as to the means it shall employ both in regard to appointments to office in this board, and as to removals and the filling of vacancies. It can make and unmake the law as it pleases. The power of the legislature in this respect is absolute and uncontrolable as any law flowing from a sovereign power can be. The legislature can provide by law for conferring the absolute power of removal upon any particular agency it may see fit, or it may exercise the power itself. It can confer the appointing power upon any such agency, or it may exercise it itself.

The argument of respondent’s counsel upon this branch of the case is put to the court with evident hesitancy and doubt, and well it might be, as it is opposed to a very familiar principle of elementary law, to wit, that the legislature can confer the power upon another to do what it cannot do itself. We can only test the validity of this act by the limits imposed upon the legislative power; we are not permitted to decide between the moral fitness of the legislative act and the political or legislative authority.

We cannot declare an act of the legislature void because it conflicts with our opinion of policy,-expediency or justice. The remedy for unwise or oppressive legislation, within constitutional bounds, must be by appeal to the justice and patriotism of the representatives of the people.

The courts can afford no relief in such cases. No right exists in the courts to interfere in such eases where the legislature have deliberately passed an act, and clothed it with all the solemnities and authority of a law; no court has a right to pronounce against its validity unless it can clearly say that the legislature has transcended its constitutional limits in the enactment of the law. We cannot say this in regard to this act of April 8, 1867, which. continues the defendant in office, and depriving the relator of the same. This leads to the reversal of the judgment of the supreme court, and the granting of a new trial.

Grover, J.

— In The People agt. O’Brien (38 N. Y., 193), it was held by this court that the act authorizing the levy and collection of taxes within the city of New York was a local act within the meaning of section 16, article 3 of the constitution, and therefore could, only embrace one subject, and that must be expressed in the j^itle. It was accordingly held that a section inserted in such act extending the time of office of councilmen of the city was repugnant to that section of the constitution, and void. Applying the principle thus settled by this court to the present case, it necessarily follows that the provision inserted in the tax levy act of 1866, extending the term of office of the engineer and assistant commissioner of the Croton aqueduct board for three years, and empowering the remaining members of the board to fill any vacancies therein, is also repugnant to the constitution, and therefore void, unless it shall be held that the officers of the board are not city officers. The latter will scarcely be claimed. It is true that they have some duties to perform outside of the city limits in respect to the property of the city thus situated, but all such duties relate to the property of the city and its rights and interest in respect to the supplying of water to the city.

All the money expended by them, their compensation, and that of officers appointed by them, and persons employed by them, is paid by the city. This provision being void, the power of appointment vested in the mayor and aldermen of the city by the existing law was not thereby repealed. The relator’s appointment to the office of president of the Croton aqueduct board on the 17th of December, 1866, by the mayor, and aldermen, was therefore legal, and conferred upon him a .perfect right to the office with its emoluments.

The term of the appellant had expired at this time, and he was only authorized to act until his successor was appointed and qualified. The relator qualified upon the eighteenth of December, and endeavored to enter upon the discharge of the duties of his office, but was excluded therefrom by the appellant, who from thence continued to exercise the functions of the office, in violation of law, until the eighth of the succeeding April, at which time the legislature passed the act entitled An act in relation to the Croton aqueduct department of the city of New York, the first section of which is as follows : The terms of office of the persons now severally discharging the duties and exercising the powers of president-commissioner, assistant commissioner, chief engineer of the Croton aqueduct department, is hereby fixed for the term of five years from the 1st January, 1867, and every vacancy in said offices shall be filled for the residue of said term by the remaining commissioners.

All appointments after the expiration of said term shall be filled for the full period of five years. It is claimed by the counsel for the appellant that the effect of this act was to remove the relator from the office and appoint the appellant thereto for the unexpired term of five years.

This effect must be given to the act or the appellant can derive no benefit therefrom. This presents two questions: First, whether this is the true construction of the act; and, if so, secondly, whether the office in question is one to which an appointment and removal therefrom can constitutionally be made by legislative enactment.

It must be borne in mind that the appellant had at the time of the passage of the act no term whatever unexpired in the office, or any title or right thereto whatever, but was a mere usurper therein.

It must be assumed that the legislature were aware of this fact, to give any color of probability to the construction contended for. It must also be borne in mind that the construction contended for would 'give just as perfect a title to the office- to one who one week previous to the passage of the act had seized it by violence and thus retained it to the time of its passage as to the appellant, the latter in a legal sense being just as much a usurper as the former.

The inquiry naturally arises, if the legislature designed by the act in question to remove from office the lawful incumbent and appoint the usurper thereto, why they did not use apt and proper words to express such intent. A perusal of other acts passed at the same session will show that such omission was not from want of capacity.

The only answer that can be given is, that such an act would be so improper that its purpose and intent must be concealed from view, and hence language was used conveying only the idea that the terms of those rightly in office was extended by the act merely. This is the only possible idea that would enter the mind of any one not knowing that a usurper, without any color of right, was in the actual discharge of the duties of any one of the offices referred to. There is nothing contained in the act calculated to excite any suspicion that such was the fact.

There can be no assumption that the legislature was at all aware of any such fact, for if they were all can see that removing the rightful incumbent, who could not, in any respect have failed in the discharge of any duty, because he had down to that time been wholly excluded from the office by a usurper, and reward such usurper by appointing him to the office, would be an act unprecedented in legislation.

The language shows plainly that the legislature had no such design. The language is, that the term of office, &c., is hereby fixed for the term of five years. The appellant had no term of office, and consequently is not within the act. To argue that he comes within it because, by his own wrongful act, he was. discharging its duties at the time, is manifestly against the sense of the act when read and considered as a whole.

The use now sought to be made of the act shows that a base fraud was designed by those asking for its passage, but the necessity of concealing the design from the legislature compelled the use of language that failed to accomplish their object. Upon this ground the judgment should be affirmed.

But the second question involved is equally fatal to the claim of the appellant. The various statutes passed in relation to,supplying the city of New York with Croton water before the adoption of the constitution, show that it was so supplied prior to that time; that at that time the whole subject was just as much under the control of city officers as it is at the present time under those denominated the Croton aqueduct board. We have already seen that the latter are city officers. That the situation of a part of the property of the city, subject to their control, outside of its limits makes no difference in the character of their offices.

Eor can the fact that they have been authorized by the legislature to contract on behalf of the city for supplying the state prison at Sing Sing with Croton water effect any change in the character of the offices. It follows that the duties of the board having been performed by city officers at the time of the adoption of the constitution, these officers charged with their performance must, under section 2, article 10 of the constitution, be elected by the electors of the city, or appointed by some city authority (People agt. Draper, 15 N. Y., 533; People agt. Raymond, 37 N. Y., 428).

Devolving upon the board other duties previously performed by other city officers, such as the case of the drainage of the city and its sewers, makes no difference in this respect (See cases supra).

It follows that the legislature had no power to make an appointment to the office in question. That if the construction of the act contended for is the true one, the act, so far as it appoints the appellant to the office, is in conflict with section 2, article 10 of the constitution, and therefore void; extending the term of an officer by act of the legislature is a different matter, not involved in this case.

There is nothing in the point that the relator withdrew his protest against the payment of the salary to the appellant. This was no resignation of the office by the relator, and it is not argued by the appellant that the relator had any power to appoint him to. the office, or that he made any such appointment, or attempted any. The judgment appealed from should be affirmed.

Motion for a new trial.

At the September term, 1869, a decision of this court was made in this quo wa/rrcmto, reversing the judgment in the court below, and ordering a judgment for the defendant (appellant).

The plaintiffs move to have the decision and judgment of this court modified, by the ordering of a new trial, or for a rehearing.

To enable this application to be made, an order was granted by a judge of this court, on the day the decision was announced, which required the clerk to retain the remittitur, and stayed all proceedings, &c.

The action was instituted by the people and the relator to try the title to the office of president of the Croton aqueduct board.

The appellant’s (defendant’s) term having expired, the relator, John J. Bradley, was nominated to the office by the mayor, and confirmed by the board of aldermen in December, 1866, and he thereupon duly qualified.

Judge Mason says: “ The power of appointment still remaining with the mayor and board of aldermen, the relator was properly and legally appointed, and is entitled to the office, unless he is divested of it by the act of April 8, 1867, entitled ‘An act in relation to the Croton aqueduct department in the city of New York ’ ” (Laws, 1867 ch. 285).

Judge James expresses the same view. He says: 8‘ The relator, Bradley, by virtue of his appointment, was de ju/re the president of the Croton aqueduct board from the day he qualified after his appointment.”

Judge Gbover delivered an opinion in favor of affirming the judgment of the supreme court.

The question as to whether the relator was divested of his office by the act of April, 1867, is thus stated by judge Mason : “ The Croton water-works being local, the members of its board are properly city officers, and, as such, are, by the constitution, required to be elected by the electors of the city, or appointed by such city authorities as the legislature shall direct. As the defendant does not claim title to the office through either source, he certainly cannot be permitted to retain it, unless the act under which he makes claim legislates the person into office instead of providing for his election or appointment; unless the office is to be regarded as one created since the adoption of the present constitution. Offices created since that time the legislature can provide for filling in any manner deemed most expedient, or may make the appointment itself. * * * It therefore becomes necessary to trace the history of the several acts in relation to these Croton works.”

The judge at circuit did not find the fact whether this office did or did not exist prior to the constitution of 1846.

The opinions delivered by members of this court who advised a reversal of the judgment conclude that the office did not exist prior to 1846, and proceed upon that theory.

The relator claims that the office was duly created and then in existence in substance and effect, and that it can be established as an independent fact that the office was then in existence.

Judge Mason concludes his opinion as follows: “ This leads to a reversal, of the judgment of the supreme court, and the granting of a new trial.”

Judge James says: ££ It therefore follows that the judgment of the supreme court should be reversed.”

Judge Grover says: ££ The judgment appealed from should be affirmed.”

I. If the people can establish as a fact that under laws in existence prior to the adoption of the constitution of 1846, the office in question had been created and established, it will necessarily follow that the judgment should be in favor of the plaintiffs.

1. The general rule is, that " where a judgment is reversed a new trial should be awarded; and in most cases it is imperatively necessary for the attainment of justice” (Halsey agt. Flint, 15 Abb., 367, 372).

2. The complaint in this action sufficiently sets forth a title to the office, and the court, at nisi prim, rendered judgment in these plaintiffs’ favor on the proofs adduced. “ It is impossible for the appellate court to know that though it might deem the proof which had been given insufficient to sustain the judgment, the defect might not be supplied upon another trial” (Harris, J., Edmonston agt. McLoud, 16 N. Y., 543, 545).

Judge Habéis continues: “ But where the appellate court can see no possible state of proof applicable to the issues in the case, which will entitle the party to a recovery, it is not necessary or even proper that a new trial should be awarded. In my judgment this is such a case. The plaintiff cannot, by any proof adapted to his own allegations, entitle himself to a judgment in his favor” (See Astor agt. L'Amereux, 4 Seld., 107; Marquat agt. Marquat, 12 N. Y., 336).

3. If any doubt exists as to whether the fact sought to be established would affect or influence the judgment to be rendered, the new trial should be ordered.

II. The counsel for the people and relator believe that it can be established as matter of fact that the office in question was created in the year 1842.

1. On the 11th of April, 1842, the legislature passed an act entitled “ An act for the preservation of Croton waterworks in the city of New York,” of which the following is a copy:

<e The people of the state of New York, represented in senate and assembly, do enact as follows:

“ Section 1. The mayor, aldermen, and commonalty of the city of New York, are hereby authorized to pass such by-laws and ordinances as to them shall seem meet for the preservation and protection of all or any of the works connected with the supplying of the city of New York with pure and wholesome water, under and by virtue of the act to provide for supplying the city of New York with pure and wholesome water, passed May 2d, 1834, and the acts amending the same, provided that such by-laws and ordinances are not inconsistent with any laws of this state or with the constitution thereof, subject at any time to be repealed or modified by the legislature, and also to organize a department with full powers for the management of such works and the distribution of the said water.

Section 2. This act shall take effect immediately (Laws of 1842, p. 276).

2. It was not found as a fact that any action had ever been taken to organize a department under this act, non constat, so far as the case presented in the supreme court, but that the portion of the act relative to organizing a department had remained a dead letter on the statute book, or if action had been taken under it that it had not been repealed.

It was arguendo called to the attention of the court that at some period prior to 1849 an ordinance had been passed creating the 66 Croton aqueduct department,” which designated the offices of president, chief engineer, superintendent, water purveyor, register of rents, &c., and defined their respective powers and duties.

Judge Mason, in his opinion, refers to this ordinance in general terms. Of course the fact of the existence of the ordinance not having been proven at nisi prints, it, although referred to in the opinions, could not enter into the judgment of the court. The remarks or comments upon it on the part of the court (which, however, were invited by counsel) were obiter.

3. But it is submitted that judge Mason, in considering the effect of it, entirely misapprehended certain decisions of this court. He says: “ This board was created by the corporation of the city itself, was but a mere instrumentality or agency of the municipality, and the officers thus created and appointed were not officers within this restrictive clause of the constitution.”

4. In 1858 this court determined that a mere agency of a municipal corporation is not an office of the state. To be such the office must be created directly by the constitution or by statute (People ex rel. Devlin agt. Conover, 17 N. Y., 64).

This case was cited by judge Mason and misled him. It only decided that an officer created under the ordinance organizing the street department was not a state officer so as to give the power' of filling a vacancy therein to the governor.

5. We are not aware that it has ever been denied that the street commissioner of the city of Hew York, as organized under the act of 1849, was not a “ city officer,” and as such must be elected or appointed by the electors or local authorities. Judge Strong says : “ The office of street commissioner under the new act is substantially a reorganization of that office under the former law. The officer under that name continued in office and held the office as reorganized.

The opinions of judges Mason and James recognize the members of the Croton aqueduct board, as-organized under the city charter of 1849, as properly city officers.

6. It is submitted that the officer, under the act of 1842 establishing a department, and the ordinance thereunder, is created a city officer quite as effectually as the officers are created under the act and ordinance of 1849. This section was in harmony with the twenty-first section of the charter of 1830, which provided that the executive business of the corporation of the city of Hew York should thereafter be performed by distinct departments, which it should be the duty of the common council to organize and appoint for that purpose (Laws 1830, ch. 122).

Y. The duties imposed on the members of the board by the act of April ll, 1849, were, in substance and effect, the same as those conferred upon it by the act and ordinance of 1842. The department was reaffirmed by the charter of April 2, 1849, nine days before the passage of the act of April 11, 1849. “ It is not enough to take the case out of the provisions of the second section of the tenth article, that the names of officers' existing when the constitution was adopted are afterwards changed by an act of the legislature, or that their functions are colorably modified, The constitution regards substance, and not mere form (Denio, J., People agt. Draper, 15 N. Y., 532, 539; Devoy agt. The Mayor, 36 N. Y., 449, 450; People agt. Pinckney, 32 N. Y., 377, 382).

8. Where express authority is conferred upon a municipal corporation to create and appoint executive departments, the officers of such departments are necessarily city officers. Ho case has arisen until the present in which the courts have been called upon to determine otherwise. When a power to legislate upon matters of public concern is delegated to municipal corporations, their acts, within their proper limits, have the same force and effect as if such acts had emanated from the state legislature in the first instance (Clarke agt. City of Rochester, 20 N. Y., 605).

9. This rule applies as well to the creation of officers as to the discharge of any other political function. When the political duty is conferred it involves the creation of the necessary officers. The officers thus appointed are city officers. “An office is a public charge or employment, and the term seems to comprehend every charge or employment in which the public are interested ” (Chan. Sanford, Wood’s Case, 2 Cow., n). Every office is considered public the duties of which concern the public (5 Bac. Abr., 180; 2 Tom. Dic., “ Office; ” People agt. Bedell, 2 Hill, 199). Best, Ch. J., in Henley agt. The Mayor of Lyme (5 Bing., 91), said: “ In my opinion, every one who is appointed to discharge a public duty, and receives compensation, in whatever shape, whether from the crown or otherwise, is a public officer ” (See judge Hand’s opinion, People agt. Hayes, 7 How., Pr., 248, 250).

People agt. Bedell (2 Hill, 196, 199), was an indictment for not paying over moneys received by him for village taxes. The defendant had been appointed by the trustees of the village, and it was objected by him that the village charter did not authorize the appointment, and that if it did, he was not a public officer or person within the meaning of 2 Revised Statutes, 696, section 38. He was committed. The court, in substance, said, a collector is not mentioned in the section defining the officers of the corporation, and none of the subsequent sections provide in terms for the election or appointment of such an officer. Other sections mentioned a collector, referring to Ms duties, and the court decided that there might be such an office in the village; that “ the village of Geneva is a public corporation exercising certain powers of government within a limited district. The officers of the corporation are charged with the performance of public duties, and they are none the less public officers because their powers are confined within narrow territorial limits. * * * There can be no doubt that he is a public officer within the meaning of the statute under which he has been indicted. We are referred to 1 Revised Statutes, 195, title 1, which contains an enumeration and classification of public officers, but the defendant is none the less a public officer because the office of collector of the village of Geneva is not mentioned in that catalogue.

10. In People agt. Pinckney (32 N. Y., 389) judge Davis held that the members of the fire department were not public officers; that the department was a representative of a public charity, which was the chief object of its creation; that it was not a municipal or political body, and that neither it nor its officers occupied any greater official relation to the public than those of the numerous religious and charitable corporations of the state.

The case and point determined, therefore, can have no relation upon the present one.

III. An order should be granted so amending the decision as to direct a new trial, &c., as asked for by the order to show cause.

The court of appeals having reversed the judgment below, and having ordered judgment for the appellant, the relator obtained an order to show cause, from a judge of that court, on the day the decision was announced, requiring the clerk to return the remittitur with a stay of proceedings, and moved the court to have the decision and judgment modified, by the ordering of a new trial, or for a rehearing.

The opinion delivered by the judges of the court who advised a reversal of the judgment, concludes that the office of appellant did not exist prior to the constitution of 1846; and as the judge at circuit did not pass upon the fact whether it did or did not exist prior to that date, the relator claimed that the office was duly created, and then in existence in substance and effect, and that it could be established as an independent fact that the office was then in existence.

After argument, the court of appeals modified its judgment and ordered a new trial.

A new trial was had before Beady, J., who delivered an opinion in favor of relator, from which no appeal was taken»