4 E.D. Smith 430 | New York Court of Common Pleas | 1855
By the Court.
The plaintiff was appointed clerk of the Second District Police Court, at a meeting of the board of aldermen, held pursuant to the provisions of the act of the legislature of 10th April, 1855, to fill the vacancy created by the resignation of William S. Davison.
This meeting was called under a previous resolution, passed by the board of aldermen on the 4th of June, 1855, directing notice to be given by the clerk of the board to the mayor, that the board of aldermen would meet in convention on the 13th June, at 3 P. M., for the purpose of electing police clerks to fill existing vacancies, and that the mayor was .invited to be present.
This resolution was adopted by a majority of the whole board, and at such meeting the plaintiff was appointed, the mayor not being present. The plaintiff then applied to the mayor to be sworn into office; the mayor refused to administer the oath, and on the 18th June, 1855, the oath of office
Various objections were taken upon the trial to the regularity of the proceedings in the call of the meeting, of the proceedings at which the appointment was made as to the construction of the statute authorizing the holding of the convention for this purpose, and as to the authority of the board to make the appointment at that time, upon the ground that no vacancy existed.
It is also contended that this was a city office, and that the oath of office should have been administered by the mayor; or, if it was a county office, that the salary was a county charge, and was to be paid by the supervisors, and not by the defendants.
The first objection taken by the appellants is, that the mayor was not legally notified of the calling of the convention to elect police clerks, because the resolution served on him did not show upon its face that it was passed by a majority of the board of aldermen. The fact of its being passed by a majority was not denied, but was distinctly proven.
The statute (Laws of 1855, ch. 293) provides that the convention shall meet when directed by the board of aldermqo, or a majority of its members. The board, or a majority of the members, may call the convention together. The action of the board can only be known by a resolution adopted by them, and when duly certified by them officer, is evidence thereof. It nowhere appears in the act that a majority of the whole board is necessary to the validity of a resolution when passed by the board. The signature of the officer of the board, under them direction, was all the evidence of its passage necessary to the mayor, and the presumption would follow that it was passed by the requisite number of votes, whether that was by a majority of the whole board or of the members present.
In such case, all that is necessary to dispense with his presence, is a notice from the board of aldermen, inviting his attendance. Such notice may be given by the service of a copy of the resolutions, signed by the clerk, or by a notice that such resolutions had been passed. The former course was adopted in this case, and I think all the notice the law required was given to the mayor, so as to authorize the board of aldermen to act without his presence.
The second objection is, that the resolution alleged to have been passed on the 13th June, does not show upon its face that it was passed by a majority of all the members.
The answer to this objection is made in what has been before said, viz., that the statute contains no such provision as is implied in the objection. The act says, “if the mayor, &c., shall neglect to appear, it shall be lawful for the members of the board of aldermen, or a majority thereof, to proceed and appoint the clerks in the same manner, &e., as if the mayor was present.”
The only provision on this subject in this act is, that the whole board, or a majority of them, shall be present before they can proceed to make the appointment. If it were necessary to a decision of the case to pass upon the question, whether a majority of the whole board was necessary to the validity of the appointment, I think there would be no difficulty in showing that a majority of those attending the convention would be sufficient to make a valid appointment, • unless the board should, for their own government, adopt a contrary rule.
To make the acts of such a convention valid, where the statute authorizing its meeting only requires a majority of
The evidence of the resolution, making the appointment, consists of the minutes of the proceedings of the convention. In those minutes it appears that twelve members were present. This constituted a majority of the board, and was all that was necessary to sustain a resolution adopted by a majority of the convention then present. But this is not all. The same minute also shows that the resolution was passed by the affirmative votes of twelve members, constituting a majority of the whole convention. It is said that this should appear in the resolution itself. It does appear in connection with the resolution, and as a part of the evidence of its passage, and it could appear in no other way. How many would vote for it could only be known after the resolution was prepared and voted Upon, and the record of the votes for and against can only be made after the vote is taken.
These remarks apply to the next objection, that the proceedings do not show, upon the face of them, the jurisdiction of the convention. If the minutes of the body are the evidence of their acts, then it does appear upon the face of their proceedings both that a majority was present, and that a majority voted in favor of the resolution making the appointment. The original minutes were produced, and proven as such; and from them the above stated facts appeared. Tiat such evidence was proper, and the only legitimate proof as between these parties, I have no doubt. (See Denning v. Roome, 6 Wend. 651; Owings v. Speed, 5 Wheat. 524.) It is also objected that the office of police clerk is a city office, and that the oath of office could only be administered by the Mayor, and should be filed in the Mayor’s office. It is in testimony that application was made to the Mayor to administer this oath, and that he refused ; and if this objection is
The charter of 1849, sec. 23, provides, that every person appointed to office under the city government shall take an oath, &e., before the mayor, which oath shall be filed in the Mayor’s office. (Sess. Laws 1849, p. 284.)
Conceding that this officer is appointed to office under the city government, I am of the opinion that this is not a condition to the validity of the appointment or of the acts of the officer. It is merely directory; and if from any cause the oath cannot be so administered before the mayor, the oath may be taken before some other officer. The same question was raised and discussed in Ex parte Heath and others, 3 Hill, 43, where the objection to the right of an alderman and assistant was made, that they had not been sworn before the proper officer. The charter of 1830 contained the provision, that the mayor should attend the meeting of the boards for organizing, by whom the oath of office shall be administered to the members. The mayor did attend on that occasion, and, although present, the recorder administered the oath.
The court in that case say, the section relied on strikes us as merely cumulative, or rather directory, to the mayor to attend for the convenience of the members. It contains no clause repealing, pro tanto, the 1 R. S. 109, 2d ed., concerning the oath of office. Independently of the act amending the charter, therefore, if any alderman be willing to dispense with such attendance, he may, we think, by the general law, 1 R. S. 118 to 120, (109,110 of 2d ed.,) be sworn in by the recorder or other person deriving authority to administer oaths from that statute. That statute applies to all officers whose duties are local, and all officers appointed or elected for any county or city, and of course includes clerks of police appointed for the city of New York.
But I do not think these clerks are now to be considered as city officers within the provision of that section of the
In fact, this very question has been decided by the general term of the Supreme Court of this district, in the People v. Edmonds, 19 Barb. S. C. R. 468, in relation to the justices. Mr. Justice Clerks, in that case says, that this officer renders his services to the county, as contradistinguished from the city in its municipal capacity. And again, “even if the office were purely municipal and dependent on the charter, still, if the services were rendered to the county, the board of supervisors had authority to grant compensation for those services.”
And upon an appeal from the decision of Justice Clerks, to the general term of the Supreme Court, Mr. Justice Morris, in affirming his decision, says, police justices of the city and county of New York are county officers. The services rendered by them are rendered for the county‘and are chargeable to the county as contingencies.
The duties of the clerks are of the same nature as that of the justices, so far as relates to the mode of rendering service ; and there can be no doubt if the justice is a county officer, that the clerk must also be included in the same description.
In such a case it was not necessary that his oath of office should be administered by the mayor; any judge had the authority, and in this case it was rightly exercised by Mr. Justice Morris.
This would be so if the statute did not make provision for his payment in another way. The act of 1851, ch. 514, § 6, provides that the salary, to be fixed by the board of supervisors, shall be paid out of the city treasury. This imposed on the defendants the obligation of payment, and they were liable for any neglect or refusal to discharge this duty. The question was decided in The People ex rel. Lynch v. The Mayor, &c., of New York, 25 Wend. 680. In that ease the same duty was imposed on the defendant in the same language as to the salaries of the judges of the sessions. Chief Justice Nelson says: Here is a legal duty, enjoined by competent authority, which the corporation are bound to discharge. It is as binding upon them as if entered into under their corporate seal. An action on the case or assumpsit will lie for a neglect of corporate duty.
The views before expressed dispose of the objection raised to the sufficiency of the resolution submitted to the mayor by the plaintiff, when he appHed to have the oath of office administered to him. It was not necessary that the oath should be administered by the mayor, and, therefore, the objection is unavailable.
The remaining objection is, that there was no vacancy to be filled at the time of the appointment of the plaintiff, and that he is not, therefore, the legally appointed clerk of this district.
The act of 1848, ch. 153, provided for the appointment of a clerk for each of the police courts, by the common council, and was so amended, in 1851, ch. 147, as to require appointments to be made by the mayor and board of aldermen, on or before the 31st December, 1851, of a police court clerk for each district, who should enter upon the duties of his office at the expiration of the terms of office of the clerks first appointed under the act of 1848, and should hold his office for four years.
The act of 1855, which changed the mode of appointment to the mayor and board of aldermen, in joint convention, did not affect any appointments made before the passage of the act.
The evidence shows that Chancellor was officiating as clerk of this district, as well as two other persons, at times—Murray and Quackenbush.
That Chancellor was there when Justice Pearcy went into office—about the middle of January last—previous to which, Davison, who had been a clerk, had been elected and sworn into office as a police justice.
Chancellor also testified that he had been acting as clerk from the first of January to the time of trial; that he had received his salary to the first of July last, and that' Justice Brennan recognized him as a clerk.
The plaintiff’s counsel then offered to show the nomination to and rejection by the board of aldermen of Chancellor for that office, which was excluded by the justice. Upon what ground such evidence was excluded, I am at a loss to conceive. It was certainly material to the plaintiff’s case to show that the person acting, or claiming to act as clerk, had no right to the office, or if he ever had such right, that it had terminated. The evidence offered was the only evidence by which that fact could be ascertained; and its admission might have established the plaintiff’s right to the office to which he had been appointed.
This was more especially proper, when the defence insisted that Chancellor, being clerk defacto, there was no vacancy to fill.
The proof that his nomination had been rejected by the board of aldermen, might have been sufficient to show that such vacancy then existed.
We are left, then, to the decision of the question, whether Chancellor was, at the time of the appointment of Canniff, (the plaintiff,) holding the office of clerk of the police of the
The evidence does not in any way show that Chancellor was appointed in the place of Davison, who had resigned. On the contrary, the evidence shows that other clerks" and two or three justices were all at this district court, all claiming to act, and each justice recognizing a clerk to suit himself.
There is no evidence before the court that the vacancy occasioned by the resignation of Davison had ever been filled. It is shown to have taken place, and it is also shown that this appointment was made in Ms place. The evidence as to the appointment of Chancellor might have shown that he was so appointed. It has, however, been excluded by the defendants’ counsel; and, in the absence of the proof to the contrary, the presumption is that the vacancy still continued down to the period when the same was filled by the appointment of the plaintiff.
The suggestion is made that the act of 1855 ratified the appointment of Chancellor, even if he was acting merely dé facto and not dé forre, and confirmed him in office for four years. Such a construction of the statute cannot be sustained. While it says the term of office of the present police court clerks shall be the same as that of the district court clerks; it also provides that nothing therein contained shall be so construed as to affect any appointments theretofore made under the acts of 1848 and 1851.
The word affect means to act upon, to produce an effect or change upon, as defined by Webster. The application of tMs meaning to the word would show the construction to be, that the act should not produce any change in or act upon the appointments theretofore made, or should not apply to them, leaving it to be decided whether such appointments were valid or not; and if valid, not to interfere with the incumbents. Whether any such appointment was ever made in the
My conclusion is, that the plaintiff was legally appointed clerk of the police court, and was entitled to the salary due on the 1st of July last.
Judgment affirmed.