People Ex Rel. Deitz v. . Hogan

108 N.E. 459, 214 N.Y. 216, 1915 N.Y. LEXIS 1226

• Court: New York Court of Appeals
• Decided: February 25, 1915
• Status: Published

Opinions

Willard Bartlett, Ch. J.

In January, 1914, a vacancy occurred in the office of alderman for the fifty-first aldermanic district of the city of New York by reason of the resignation of the incumbent whose term would have expired on December 31, 1915.

In J une, 1914, a vacancy occurred in the office of aider-man for the fifty-second aldermanic district by reason of the death of the incumbent whose term would likewise have expired on the last day of the following year.

The board of aldermen, acting under section 18 of the Greater New York charter (Laws of 1901, ch. 466), elected August Ferrand alderman for the fifty-first district, and William W. Colne alderman for the fifty-second district, each tó serve for the unexpired portion of the term of his predecessor, to wit, until December 31, 1915.

The power of the hoard of aldermen thus to fill these vacancies does not seem to have been publicly questioned prior to the general election in 1914. At that election, however, as appears from the undenied averments in the petitions in these proceedings, votes were cast in the fifty-first district for ■ the relator Philip Brady as alderman, and in the fifty-second district for the relator Karl S. Deitz as alderman, such votes being all that were cast in these districts for the office of alderman. Each of these special proceedings was instituted to compel the board of canvassers to canvass these votes which had been declared void by the election inspectors and not counted. The relators were successful at the Special Term, where they obtained orders granting peremptory writs of mandamus requiring a canvass of the votes thus cast for them; but these orders have been reversed by the Appellate Division, and the orders of reversal are now brought here for review.

The provision of the Greater New York charter in question is as follows: “Any vacancy which may occur among the members elected to the hoard of aldermen shall be filled by election by a majority of all the members elected thereto, of a person who must be of the same political party as the member whose place has become vacant; and the person so elected to fill any such vacancy shall serve for the unexpired portion of the term. ” (Laws of 1901, ch. 466, § 18.)

The right of the hoard of aldermen to elect Messrs. Ferrand and Colne to serve for the whole of the unexpired terms of their respective predecessors depends upon the constitutional validity of the clause which I have emphasized.

It is contended in behalf of the appellants that their right could extend no further than to fill the vacancies by choosing successors who should serve only until December 31, 1914.

This proposition is based upon section 5 of article X of the Constitution which reads as follows: “The legislature shall provide for filling vacancies in office, and in case of elective officers, no person appointed to fill a vacancy shall hold his office by virtue of such appointment longer than the commencement of the political year next succeeding the first annual election after the happening of the vacancy. ” If this provision applies to aider-men in the city of New York, Messrs. Ferrand and Colne ceased to be aldermen at the beginning of the political year 1915, and aldermen should have been elected to succeed them at the general election in 1914. It is the claim of the relators that they themselves were so elected.

The respondents retort that section 5 of article X of the Constitution applies only to constitutional officers and that the New York aldermen are not such officers.

This brings us to the chief question discussed upon the appeal. Is a member of the board of aldermen of the city of New York a constitutional officer ?

We think he is — and for reasons which can be briefly stated.

In the city of New York the power of apportioning the counties thereof into assembly districts is vested in “ the common council, or if there be none, the body exercising the powers of a common council.” (Const. art. Ill, § 5.) That the board of aldermen is the body exercising the powers of a common council cannot be doubted. The G-reater New York charter provides: “The legislative power of the City of New York, except as otherwise herein provided, shall be vested in one house to be known and styled as the ‘Board of Aldermen of the City of New York.5” (Laws of 1901, ch. 466, §17.) In the absence of boards of supervisors — and there are no such boards in the counties making up the city of New York — there must be a “body exercising the powers of a common council ” to perform the mandate of the Constitution in respect to legislative apportionment. This function is one of supreme importance in the government of the state. Its importance is emphasized by the introduction into the Constitution itself of a provision for the judicial review thereof, requiring that “any court before which a cause may be pending involving an apportionment, shall give precedence thereto over all other causes and proceedings, and if said court be not in session it shall convene promptly for the disposition of the same.” (Const, art. Ill, § o.) The board of aldermen of the city of New York, thus being the body upon which the Constitution has devolved this most responsible duty, so far as assembly districts are concerned, is a constitutional body, so long as it remains vested with this power of apportionment, and the aldermen who constitute the board are necessarily constitutional officers. The fact that they may cease to be such if the legislature should transfer the powers of a common council from them to some other body does not affect the question before us. The aldermen are constitutional officers now and were constitutional officers when the vacancies occurred in the fifty-first and fifty-second aldermanic districts.

This conclusion is not in conflict with the decision in Long v. Mayor, etc., of N. Y. (81 N. Y. 425) to the effect that prior to 1874 the office of alderman in the city of New York was not created or in any manner regulated by the Constitution. The constitutional amendment of that year expressly provided for the division of New York county into assembly districts by the board of aldermen of the city. The language was: “ and the board of supervisors in such counties as may be entitled under such apportionment to more than one member, except the city and county of New York, and in said city and county the board of aldermen of said city shall assemble at such time as the legislature, making such apportionment, shall prescribe, and divide their respective counties' into assembly districts.” (See Laws of 1874, page 926.) The imposition of this duty upon the aldermen made them constitutional officers so long as this provision of the fundamental law remained unchanged, that is, until the adoption of the present Constitution in 1894; and we have endeavored to show that they are still constitutional officers under the Constitution of 1894 because still empowered and required to exercise the same function. Ho such power was vested in the aldermen at the time to which the decision in the Long case relates, and consequently what the court said in reference to their status before the amendment of 1874 .is not applicable to their status since or now. Hor has the case of Demarest v. Mayor, etc., of N. Y. (74 H. Y. 161), upholding the validity of an act passed in 1873 abolishing the board of assistant aldermen, any more bearing on the present controversy; for at that time the existence of neither board rested upon any constitutional sanction.

Inasmuch as in order to apportion the assembly districts in Hew York city there has to be under the Constitution a common council or body exercising the powers of a common council, the members of such a body are necessarily constitutional officers because the Constitution by necessary implication requires such a body to exist. So long, then, as the board of aldermen exercises the powers of a common council so long will its members be constitutional officers.

In People ex rel. Hatfield v. Comstock (78 N. Y. 356) and People ex rel. Ward v. Scheu (167 N. Y. 292, 296) it was held that the provision of the Constitution (Art. X, § 5) requiring that “ in case of elective officers, no person appointed to fill a vacancy shall hold his office by virtue of such appointment longer than the commencement of the political year next succeeding the first annual election after the happening of the vacancy ” applied only to con stitutional offices as distinguished from those created by the legislature; and in the second of these cases it is said that constitutional offices are “ such offices as are created or made elective by the Constitution and not to such as are created and controlled by the legislature. ” We think that the constitutional offices to which this provision of the Constitution applies also embrace such as are required to be maintained in existence to fulfill the express mandate of the Constitution itself, and hence include the “body exercising the powers of a common council,” which must be preserved, under whatever title, to apportion the assembly districts in the city of New York. That body at the present time is the board of aldermen.

It is enough that they are thus elective constitutional officers, and not essential that they should be declared to be elective by the express terms of the Constitution itself, to bring them within the scope and operation of the provision of section 5 of article X relative to the duration of the term of appointees to fill vacancies. Common councils have always been elective bodies up to the present time in this state, and this fact was within the cognizance of the framers of the Constitution. We agree with the learned counsel for the appellants that “they never intended to vest the power of apportionment of members of the legislature in a body that might be appointed or chosen in any other way than by election, a thing that would be without precedent in the constitutional history of this country, federal or state.”

If the views which have thus far been expressed are correct it follows that the terms of Messrs. Ferrand and Colne, the gentlemen chosen by the board to fill the vacancies in the fifty-first and fifty-second aldermanic districts, expired at the beginning of the political year next succeeding the first annual election after the happening of the vacancies, to wit, on January 1, 1915; and an alderman should have been elected in each of those districts at the general election in 1914. Were the votes in controversy in these proceedings properly and effectively cast at that election so as to entitle the relators, as z a matter of legal right, to a peremptory writ of mandamus commanding that they shall be duly canvassed ? It is to be observed that the order of the Special Term directing the issuance of such writ directed that it issue “asa matter of legal right and not in the exercise of discretion,” and that the order of reversal by the Appellate Division directed that “the order so appealed from be, and the same is hereby reversed and motion for a peremptory writ of mandamus denied as matter of law and not in the exercise of discretion.” Both courts treated the question as one of strict legal right, the Special Term holding that the right existed, the Appellate Division that it did not. We are left entirely in the dark as to what the action of either tribunal would have been if it had felt at liberty to exercise its judicial discretion and grant or withhold the writ according to its view of what was just and proper under the circumstances. In that event, it may well be doubted whether the remedy would have been awarded in view of the somewhat startling consequences; for by means of a few votes for persons whose candidacy was a profound secret, to fill vacancies wholly unknown to the electorate generally to exist and of which no notice had ever been given to the public, these hidden candidates would thereby practically establish their title to recognition as aldermen of the city of New York, with a right to share in discharging the important constitutional duty which has been discussed, namely, the apportionment of assembly districts.

The case of People ex rel. Goring v. Prest., etc., of Wappingers Falls (144 N. Y. 616) is relied upon as an authority entitling the relators to the writ as a matter of right. There the officials charged with the duty of preparing the ballot omitted to print thereon the name of the office of police justice of the village of Wappingers Falls which was vacant and under the statute was to be filled at the election in question. Notwithstanding the omission, forty-four persons voted for the relator for that office, their votes being all that were cast for police justice. It was held that he was duly elected and the board of trustees of the village were compelled by mandamus to recognize him in his official capacity. In that case the vacancy was evidently known to exist, certainly by a considerable number of voters of the village. Here, however, not only were the vacancies not known to exist, but to realize their existence it was necessary for the voters to know that a provision of the Greater New York charter was unconstitutional; that is to say, the provision permitting an alderman chosen by the board to fill a vacancy to serve throughout the unexpired term of his predecessor instead of limiting the duration of his term to the beginning of the next political year.

As long as that provision stood upon the statute book unquestioned the election officers were not justly subject to criticism for treating it as valid. The general assumption being that it was valid, on the part of the public as well as all officers charged with any duty concerning the election or notices thereof, we think it would be going too far to hold that there was an election to fill these vacancies on the 3d day of November, 1914, simply by reason of the fact that some votes were cast on that day for the relators in their respective aldermanic districts. While it is true that there ought to have been an election to fill such vacancies, and that the omission may leave the districts without representation in the board of aider-men for a year, nevertheless it would be upholding a fiction to treat the occurrences upon which the relators rely as an election for the offices which they ólaim. As was said by Judge Finch in People ex rel. Woods v. Crissey (91 N. Y. 616) an election implies opportunity to reject or choose another. The people had no such opportunity in the present case. Everyone who participated in the election, except the relators and their friends who voted for them, acted on the assumption that no aider-man would be or lawfully could be voted for to fill the vacancies in question, because of the further assumption that there were no vacancies then existing. We think that this fact, based upon the assumed validity of a statutory provision which had never theretofore been questioned, deprived the proceeding of the character of an election to fill such vacancies.

In so holding we do not mean to imply that a citizen who claimed the right to vote for alderman in one of these districts last year might not have asserted that claim effectively. He could have demanded of the election authorities that they give the proper notices that an alderman was to be elected to fill the vacancy, basing his demand upon the unconstitutionality of the charter provision which has been discussed; and if they declined he could have tested its validity in court in advance of election day, so that the people would have had a real opportunity to participate in the choice of the alderman, if the decision was in his favor, instead of only an imaginary one. Under the actual circumstances, the public had no knowledge whatever that anybody thought of electing aldermen in these districts at this time. Here there was no more an election for aldermen than there was in People ex rel. Wood v. Crissey (supra), and for reasons similar to those which influenced the action of this court in that case we do not think it right to recognize it.

It is proper to add, however, that although the votes for alderman were not entitled to be canvassed, we do not mean that a ballot was invalidated so far as other officers were concerned by reason of having the name of a candidate for alderman written thereon. It was merely noneffectual as a vote for alderman because there was in fact no election such as there ought to have been for alderman.

Our conclusions may be summarily stated as follows:

(1) The Hew York city aldermen are constitutional officers, elective when the Constitution was adopted and elective now — and so long as they are both constitutional and elective they fall within the purview of section 5 of article X, and no vacancy in the office can be filled for a longer period than the interval between the occurrence of the vacancy and the beginning of the next political year.

(2) There was no election to fill the vacancies in the office of alderman in the fifty-first and fifty-second alder-manic districts of the city of New York in 1914, and hence the votes cast for the relators respectively as candidates for such office should not be canvassed.