283 N.Y. 388 | NY | 1940
The Council of the City of New York, elected at the general election in 1939 by proportional representation as provided in chapter 43 of the charter of the city (effective January 1, 1938), consisted of twenty-one members, seven of whom were elected from the borough of Brooklyn. The term of office of the members so elected was from January 1, 1940, to December 31, 1941. On March 4, 1940, John Cashmore, one of the members elected from Brooklyn, resigned as a Councilman and a vacancy was thus created. On March 12, 1940, the members of the Council, acting under the provisions of section 24 of the charter, chose Edward Vogel to fill the vacancy, and the resolution adopted by the Council provided that he should serve for the unexpired term of Cashmore.
This proceeding was instituted by a resident and voter of the borough of Brooklyn, to require the City Clerk to certify that the vacancy in the Council caused by the resignation of John Cashmore must be filled at the general election to be held November 5, 1940, and to require the Board of Elections to conduct such election by the system of proportional representation as provided in chapter 43 of the charter. Edward Vogel has intervened herein. The proceeding calls for answers to two questions, one, must the vacancy caused by the resignation of John Cashmore in the Council be filled at the next general election, and, two, if it must be, how shall the election be conducted?
The first question is easy of answer. By section 8 of article XIII of the Constitution of the State it is provided: "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." (See, also, Public Officers Law [Cons. Laws, *391
ch. 47], § 38.) In Matter of Burke v. Cohen (
The petitioner contends that the vacancy must be filled by an election conducted in accordance with the terms of chapter 43 of the city charter, that is, by the system of proportional representation. The respondents, however, submit that the vacancy is to be filled by an election conducted under the provisions of the Election Law (Cons. Laws, ch. 17). We had occasion to examine chapter 43 of the charter when its constitutionality was attacked in Johnson v. City of New York (
It is significant that the chapter contains no provision for the filling of vacancies. As we have indicated, the general provisions of the charter are inappropriate for that purpose. We conclude that the law of the State relating to elections continues applicable to such a case. Nothing in the Election Law inappropriate to such election has been pointed out and we have found nothing. Of course an election by a majority vote to fill this vacancy may result in unbalancing to some degree majority and minority representation, but that is inevitable if an election by the People to fill the single vacancy is required, and that it is required we have already shown by the quotation from the Constitution.
We reach the conclusion, therefore, that the vacancy in the Council arising from the resignation of John Cashmore must be filled at the next annual election which occurs on November 5, 1940, and that the election is to be held pursuant to the provisions of the Election Law.
The order should be affirmed, without costs.
LEHMAN, Ch. J., LOUGHRAN, FINCH, RIPPEY, LEWIS and CONWAY, JJ., concur.
Order affirmed. *393