People ex rel. Devery v. Coler

71 A.D. 584, 76 N.Y.S. 205

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1902
• Docket: No. 1
• Status: Published

Opinions

Ingraham, J.;

The relator applied for a mandamus requiring the respondent to pay him his salary as chief of police of the city of New York upon an affidavit in which he alleged that he entered the police depart.ment of the city of New York as a patrolman on or about the 19th day of June, 1878, and has served continuously in said police department since that date; that on the 30th day of June, 1898, he was duly appointed chief of police of the city, of New York, since .which time he has performed and been willing at all time to perform his duties as such chief of police ; that on or about. the 22d day of February, 1901, there was an act passed by the Legislature of the .State of New York which in terms abolished the office of chief of police of the said city of New York, which he then held; that the relator protested in writing against, such removal, filing his protest with Michael C. Murphy, who was the commissioner of police appointed under the said act, the ground of protest being that the said act was contrary to the Constitution of the United States and the Constitution of the State of New York, and was, therefore, of no effect; that he had-demanded from the comptroller his salary for the month of February, 1901; and that the said comptroller neglected and refused to adjust the same or make payment therefor.

Although there are several insuperable obstacles in the way of the relator which would prevent any relief in this proceeding, as there have been several appeals ■ in other proceedings argued with this appeal in which the question of the constitutionality of this act must be passed upon, we will dispose of it on this appeal. The relator claims that this act violates several provisions of the Constitution of the State of New York and one provision of the Constitution of the United States. The. act in question is chapter 33 of the Laws of 1901.

Section 1 provides that the terms of office of the police commissioners of the city of blew York constituting the police board should ■cease and determine within ten days after, the passage of the act, and provision is made for the appointment by the mayor of the city of blew York of a single police commissioner.

Section 2 of the act provides that the said commissioner shall, unless sooner removed, hold office for the term of five years and until his successor shall be appointed and has qualified; that the said commissioner may, whenever, in the. judgment of the mayor of said city or the Governor, the' public interests shall so require, be removed from office by either, and shall be ineligible for reappointment thereto ; that the successors in office of the said commissioner shall also be appointed by the mayor of the city within ten days after any vacancy shall occur and shall be removed by either the mayor or Governor whenever the public interests so require.

Section 3 abolishes the office of chief of police and directs that the powers, duties and functions exercised by and imposed on said chief of police shall be granted to, concentrated upon and vested in the said police Commissioner.

Section' 4 provides that the said commissioner shall have the power to appoint and at pleasure remove two deputies, to be known as first deputy commissioner and second deputy commissioner. (

Section 5 abolishes.the bureau of elections.

Section 6 constitutes the comptroller the fiscal officer of the police department and vests him with all the powers and functions theretofore exercised by the treasurer of the police board.

The intent of the Legislature is apparent. By it the terms of office of the police commissioners of the city of New York were ended, and provision was made for the appointment of a single commissioner in whom was vested all the powers of the police commissioners. The office of chief of police was abolished, and the powers and duties exercised by him were vested in the police commissioner.

The relator first claims that this act is in conflict with section 2 of article 10 of the Constitution, which provides 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 such cities, towns and villages, or of some division thereof, or' appointed by such authorities thereof as the Legislature shall designate for that purpose; ” that it is because of the provision of section 2 of the act, which authorizes the Governor to remove the officer appointed by the mayor as police commissioner, that the whole act is void as in violation of this provision of the Constitution; that vesting in the Governor a power of removal of the police commissioner, as said by counsel for the relator, “ practically nullifies the mayor’s power of appointment.” The right to appoint to a public •office is the right to designate the individual who is to fill that office, and it is this power of selecting the individual who is to fill the office that the Constitution requires shall be exercised by such authorities of the city as the Legislature shall designate. There is no express provision that restricts the power of the Legislature as to removals of municipal officers, nor anything that prevents the Legislature from abolishing an office filled by an appointee of the city authorities. It is settled beyond dispute that the Legislature has power to abolish an office, or to terminate the term of a city officer who holds his office under legislative sanction. If the Legislature had the power to remove from office a police commissioner appointed by the mayor of the city of New York, I cannot see that it is a violation of this provision of the Constitution to authorize the Governor to exercise that power. It certainly is no greater restriction upon the power of appointment for the Governor to remove an officer appointed by the mayor of a city than it is for the Legislature by a direct enactment to remove such an officer. The Constitution has no relation to the term of office, to the duties •of the officers appointed, or to the manner of their removal. It restricts the power of the Legislature in providing for the appointment of local officers, so that the authority who is to appoint must be an officer of the municipality of which the appointee is an officer; and it seems to me if this police commissioner is a local officer that a provision authorizing the mayor to appoint is not rendered invalid by a power given to the Governor to remove. The mayor, and the mayor alone, appoints to this office, and the express provision of the Constitution is thus complied with.

Even if this view is not correct it would not follow that the whole act is void. The act was passed to reorganize the police department of the city of New York. It provided for the appointment by the mayor of a police commissioner, fixed the term for which he should hold that office, provided for the appointment of -his deputies, and prescribed their duties, and the substance of this act was re-enacted in the amendments to the charter passed in the same year, and which became a law on April 22,1901 (Laws of 1901, chap. 466, § 270). Eliminating the provision of the act which gives the Governor the power of removal, the object of the Legislature is preserved. The act is complete in all its parts. The mayor would have power to appoint and remove. The power thus given can be exercised without any relation to the additional power which is sought to be given to the Governor to remove a police commissioner When in his opinion the public interests so require, and the elimination of the provision giving the Governor the power to remove would not at-all affect the other provisions of the act which are complete in themselves. “ It is a universal rule that where a part of a statute is unconstitutional, that fact does not authorize the courts to declare the remainder void, unless the provisions are so connected together in subject-matter, meaning or purpose, that it cannot be presumed •the Legislature would have passed the one without the other.- *' * * And this rule applies as well where the forms observed are sufficient for some of the purposes of the act, and not for others; as where a part of the act is constitutionally invalid for any other reason.” (People ex rel. City of Rochester v. Briggs, 50 N. Y. 565, 566.)

In considering an act which abolished the board of assistant alder7 men after January 1, 1875, and declared the board of aldermen to be thereafter the common council, it was held that this Was a proper exercise of legislative power and that the fact that the act also com tained a provision for the election of aldermen, prescribing a method for their election, which was unconstitutional, did not make the'provision'abolishing'the board of assistant aldermen unconstitutional. (Demarest v. Mayor, 74 N. Y. 161.) As said in Duryee v. Mayor (96 id. 477): “ It is only when the various enactments of a legislative body are plainly dependent Upon each other, and so inseparably connected in matter and design that they cannot be divided without defeating the object of the statute, that the invalidity of one provision will entail that of those remaining. If effect can consistently with the general legislative intent be given to such parts of a statute as are not in conflict with paramount authority and are within the authority of the body enacting them it is the duty of a court, while rejecting its unconstitutional and unauthorized parts, to enforce the remaining provisions of a law which are within the legislative power of its authors. When part only of a statute or a section is unconstitutional, that part only is void, unless the other provisions are so dependent and connected with that which is void that it cannot be presumed that the Legislature would have enacted the one without the other.”

Here, leaving out the provision authorizing the Governor to remove the police commissioner, the act accomplishes the object of the Legislature in abolishing four police commissioners and substituting in their place a single commissioner, abolishing the position of chief of police, providing for the appointment of two deputy commissioners, and for the removal of the commissioner by the mayor of Hew York; and, although power is also given to the Governor to remove, the power of removal is not at all connected with the general scope of the act changing the governing power of the police department from four commissioners to one and abolishing the office of chief of police. If we should assume, therefore, that the contention of the appellant, that the power given to the Governor to remove is a violation of the Constitution, is correct, effect could be given, consistent with the general legislative intent, to the remainder of the act, and it would be the duty of the court to reject the unconstitutional provision and to enforce the remaining provisions of the law which were within the legislative power.

It is also claimed that the act in question is in conflict with section 16 of article 3 of the Constitution, which provides that no private or local bill shall embrace more than one subject, and that shall be expressed in the title. We think this title is sufficient, that the bill has but one subject, viz., to reorganize the police department of the city of Hew York, and that the subject is embraced in the title. (People ex rel. City of Rochester v. Briggs, 50 N. Y. 553.)

It is also claimed that this bill violates section 6 of article 1 of the Constitution, which provides that no person shall be deprived of property without due process of law; and also subdivision 1 of section 10 of article 1 of the Constitution of the United States, which provides that no State shall pass any law impairing the obligation of contracts; and this, based upon the provision of the charter for a police pension fund,- by which any member of the police' force, upon the expiration of twenty-five years’ service, shall'be entitled to retire upon an annual compensation to continue during his life. The relator became a patrolman on June 19, 1878. His right to a pension depended upon his connection with the police force for twenty-five years, and as that period had not elapséd when this act was passed he was not then entitled to a pension. There was no. contract between the relator and the city or the State by which he was to be continued in office for twenty-five years, so as to enable him to have a pension at the expiration of that period. Subdivision 10 of section 353 of the charter (Laws of 1897, chap; 378.) provides that two per centum of the monthly pay, salary or compensation of each member of the police force shall be deducted monthly by the treasurer of the police board from the salary of each member of the force, and such sum shall be paid to the treasurer of the police pension fund. From this fund,' which is made up, in addition to this contribution by the members of the force, from money derived from other sources which are specified in the section, are to be paid the pensions awarded to police officers as provided for by the subsequent sections of the charter; and the city is required by taxation to-make up any deficiency in this fund. Yothing ip .these sections .entitles an officer to a pension unless he comes within the provision of the act. The effect of this provision is to reduce the. salaries of the officers by applying two per cent thereof to pay to those to whom pensions have been granted the pensions that- they are to receive. It gives to those who are not by law entitled to such pensions no right to participate in future contributions to. the fund. Until the relator had been twenty-five years upon the force, he could have no-interest in the fund -which was raised from year to year and the principal of which was applied to police pensions. Yor was there any contract by which he was to receive any salary or any pension from any particular time which was violated by his removal from office,

A further discussion of the question is unnecessary. To ■ hold that the Legislature had no power to abolish the office' of chief of police, or- of commissioners of police, would impose a new limitation upon the power of the Legislature—a power which it has always exercised without question, or when quéstioned always upheld, which is not in express terms restricted by the Constitution, and would violate the principle that has been uniformly applied, that the power of the Legislature is absolute, except as limited by the Constitution.

We find nothing in this provision of the act removing the relator from office which violates any provision of the Constitution, and for that reason the order appealed from should be affirmed, with costs.

Hatch and Laughlin, JJ., concurred.