129 N.Y.S. 280 | N.Y. App. Div. | 1911
Lead Opinion
The petitioner applied to this court at Special Term for a peremptory, writ of mandamus to compel the respondent to appoint him to the office of commissioner of elections in the city of New York, and this application has been denied. The petitioner appeals to this court, and the question here presented is whether, under the provisions of section 194 of. the Election Law (Consol. Laws, chap. 17; Laws of 1909, chap. 22), the respondent was bound to appoint the petitioner, the latter having been recommended by the chairman of the Democratic county committee of Kings county, as provided in that section.
While it will not be questioned that it is within the power of the Legislature, in creating a new State office, to confer a power of appointment on some individual or association other than a public officer or body (Sturgis v. Spofford, 45 N. Y. 446, 450), such a course is exceptional, and nothing will be presumed in that direction. The appointment of public officials is generally looked upon as involving the executive power; it
Section 190 of the Election Law provides that “There shall be a board of elections! in every city'of the first, class in this State which does, or shall, contain within its boundaries one or more counties. The saill board shall consist of four persons to be known and designated as commissioners of elections.” Section 191 of the same act provides that “All such commissioners of elections shall be appointed by the mayor of the city, and shall hold office for a term of two years, except ‘as hereinafter provided.. Each of the said commissipners of elections shall be at the time of his appointment a resident and a qualified voter of such city. "x" * * | A commissioner of elections may be removed from office byj the governor for cause in the sanie manner as a sheriff. Any vacancy in the office of commissioner of elections shall be filled by the mayor of the city within five
Clearly, up to this point there is no limitation upon the power of the mayor to appoint, except that the appointees shall be resident voters of the city, and “not more than two of whom shall belong to the same political party or be of the same political opinion on State or national politics,” section 196 of the act declaring it to be the “intention of this article, and said intention is hereby declared, to secure in the appointment of the members of the board of elections established by this article, equal representation of the two political parties which at the general election next preceding such appointment cast the highest and the next highest number of votes for governor, and of which the committees arid chairmen of committees have been duly elected as such under and in pursuance of the provisions of article three of this chapter relating to primary elections.” Here we have a clear exposition of the purposes of the statute; it is to provide for a bi-partisan election board in the city of New York, and the mayor is given full authority to appoint such a board; nothing whatever is said about any one sharing in this responsibility, by advice or consent, or by way of nomination. The real question, then, is whether these provisions of the statute are modified, so as to practically take this appointing power, so fully declared, from the mayor, and vest it in the chairmen of the two dominant political parties in the city of
“At least five days before the first day of January'in each odd-numbered year, the respective chairmen of the county committees within the counties of New York arid Kings of each of the two political parties which at the general election last pre- ' ceding the date of such certificate cast the highest and the next highest number of votes for governor, shall each respectively make and file or cause ‘to be filed with the mayor of the city of New York, a certificate in substantially the following form, each of which four certificates shall certify the name of a person who is a resident and qualified voter of the city of New York and who is recommended as a fit and proper person to be appointed a commissioner of elections for the term of two years beginning with the first day of January next ensuing:
“ To Honorable.......:., .
“ Mayor of the City of New York.
“I, ........, chairman of the county committee of the ........ party, for the county of ........, do hereby, in accordance with the provisions of section two hundred and four of the Election Law, certify that in my opinion and in the opinion of the said committee,........, a resident and qualified elector of .the borough of........, city of New York, is a fit and proper person to;be appointed a commissioner of elections, and I do hereby recommend him for appointment to said office. In witness whereof, I have made and executed this certificate, this .... day of......, 19...” This section then provides that the certificate shall be duly acknowledged.
There are some ambiguities in this section. Is each chairman of a county committee Of a dominant party to make four certificates? The section does not say so; it says that the “respective chairmen * * * • of the two political parties * * ' *
That this is the correct construction of the statute, and that the .mayor is not limited to persons certified,' is clearly evidenced by the provisions of section 195 of the Election Law, which provides that in the event of a vacancy the chairman of the party committee in which the vacancy occurs, and in the district in which the vacancy shall exist, “ shall make and file or cause to be filed with the mayor of the city of New York, a certificate in substantially the form and executed and acknowl-' edged as above provided, certifying and recommending the name of a person, who is a resident and qualified voter of said city, as a fit and proper person to be appointed a commissioner of elections for the unexpired term of the commissioner creating such vacancy. At least two days’ time, after a vacancy has been created, for the making and filing of the certificate above provided for, shall be afforded by the mayor, before making any appointment to fill such vacancy, to the person upon whom the duty is imposed hereunder to make said certificate and file the same or cause the same to be filed.” No suggestion is made that the mayor must appoint such person; he must merely permit of a delay of two days for the filing of such certificate, the purpose being always to have one proper person pointed out by an authoritative representative of the party
The suggestion that this question is governed in any degree by the provisions of section 6 of article 2 of the Constitution seems to us without merit. The history of that provision and its language clearly indicates that its design was to provide for those local election boards which were familiar to all the people and were common to every voting district, and it has no relation whatever to boards of election created for the purpose of performing in large cities the duties, with some additions, which are generally imposed upon county clerks and similar officers. The language of the section is limited to “all laws creating, regulating or affecting boards of officers charged with the duty of registering voters, or of distributing ballots at the polls to voters, or of receiving, recording or counting votes at elections,” and "clearly none of these duties are cast upon the board of elections of the city of New York. These are the duties imposed by statute upon inspectors of election, poll clerics and ballot clerks (Election Law, §§ 353, 354.; Id. § 355, as amd. by Laws of 1910, chap. 428; Id. § 356), while the duties of the board of elections of the city of New York are to execute “ the laws relating to all elections held within their respective cities, except as otherwise provided by law.” The duties of election
The order appealed frojm should be affirmed; with ten. dollars costs and disbursements.1
Hirsohberg and Rich, JJ., concurred; Burr, J., concurred in result in separate memorandum, with whom Jenks, P. J., concurred. . ! .
Concurrence Opinion
I concur in the result in this case. I think that the mayor is not a mere ministerial] officer to register the will of a County committee, and to appoint as one of the commissioners of election any person designated by such committee, even although' such person may be eminently qualified for the position. Under the limitations hereinafter suggested, he is entitled to exercise his. own judgment in rfespect thereto. For that reason the relator cannot succeed in! this proceeding.
I do not'wish to be understood as assenting for one moment to, the- proposition contained. in . the opinion of Mr. Justice Woodward that “themjayor is given full authority to appoint such a board; ” (the boaijd of election commissioners) without “ any one sharing in this responsibility, by advice' or consent, or by way of nomination ”. To so hold seems to me to set. at ms of the statute. The scheme therein - lain and' simple. . In effect it is not unlike the provisions ofj many- other .statutes' which require that an appointment shall be made by one individual or body of. individuals, subject to] the approval of another individual or body of individuals. The fact that the approval precedes instead of succeeds the action of the appointing power makes no difference in the principle. The county committee in effect signifies to the mayor that it will approve of his appointment of a designated person. He may not choose to. make such appointment. Upon being advised of the fact, the committee must continue to propose the name's of individuals who will be naught the clear provisio: contained is perfectly p
There is no force in the suggestion that this may lead to. a vacancy in the office. Self-interest would require the county committee to use its best endeavors to propose an acceptable person. It is impossible to conceive of a situation where the mayor of a great city could not, with full sense of his own responsibility as the appointing power, find from some of the persons thus designated one who possessed the requisite qualifications for the office as he viewed them. While after the expiration of a designated term the office may be deemed vacant for the purpose of appointing a successor to the former incumbent, until such successor is duly appointed and has qualified, such incumbent would hold over and he entitled to discharge the duties of the office, and receive the salary incident thereto. (Public Officers Law [Consol. Laws, chap. 47; Laws of 1909, chap. 51], § 5; People ex rel. Lovett v. Randall, 151 N. Y. 497; De Lacey v. City of Brooklyn, 12 N. Y. Supp. 540.)
Jerks, P. J., concurred.
Order affirmed, with ten dollars costs and disbursements.