47 N.Y.S. 495 | N.Y. App. Div. | 1897
In this litigation the first and paramount question to be deter-' mined is whether, at the annual election of this year, coroners are to be elected for the various boroughs comprising the city of Hew York as it will be constituted on the 1st day of January, 1898. By section 1570 of the charter of the new city (Chap. 378, Laws of 1897) it is provided: “ Four coroners shall hereafter be elected in the borough of Manhattan, two in the borough of The.Bronx, two in the borough of Brooklyn, three in the borough of Queens and two in the borough of Richmond. They shall be elected in the same manner and at the same general elections as are the sheriffs in the several counties in which such boroughs are situated, shall hold their respective offices for the term of four years, and shall be removable in the same manner as sheriffs.”
. By section 1571 it is’provided : “ The coroners in each borough shall have an office in said borough, and shall appoint a clerk who shall receive an annual salary to be fixed by the board of estimate and apportionment and the municipal assembly, and such and so many assistant clerks as shall be provided for in the annual estimate. They shall also appoint a stenographer in each borough, whose duty it shall be to take accurate and full stenographic minutes, and transcribe the same, of all proceedings' and testimony taken before a jury in any coroner’s court, held by any one of said coroners. Each of said coroners shall possess all the powers and perform all the duties vested in or imposed upon coroners by any existing laws relating to coroners in the city of Hew York- as heretofore known and bounded, or by any law of this State. The salaries or other compensation of said coroners shall be fixed by the board of estimate and apportionment and the municipal assembly.”
■ It was conceded on the argument that when the constitutional amendments took effect on January 1,1895, the office of coroner of a county ceased to be a constitutional office; and that since that time ' it has been within the power of the Legislature to abrogate the office and transfer its. duties to other officials. ■ -By the section of the charter last quoted, it is directed that .each of the coroners' shall- possess all the power and perform all the duties vested in or imposed upon coroners by -any law of the State or law relating to coroners in the city of FTew York. The charter must, therefore, be construed-as
I do not understand that the learned corporation counsel seriously disputes this proposition, but his main contention is that no borough coroners are to be elected this year. The argument in support of that claim is based on section 1611 of the charter: “For the purpose of determining the effect of this act upon other acts and the effect of other acts upon this act, this act shall, except as in this section is otherwise provided, be deemed to have been enacted on the 1st day of January, in the year eighteen hundred and ninety-eight. This act shall take effect on the first day of January, eighteen hundred and ninety-eight, provided, however, that where by the terms of this act an election is provided or required to be held or other act done or forbidden prior to January first, eighteen hundred and ninety-eight, then as to such election and such acts this act shall take effect from and after its passage, and shall be in force immediately, anything in this chapter or act to the contrary notwithstanding.” It is insisted that as the statute does not take effect until January 1, 1898, there is now no borough of Brooklyn, and that the case of borough coroners does not fall within the proviso, because by the terms of the act an election for such officers is not required to be held before the first of January next. We think this claim proceeds on too narrow and too literal a reading of the statute. When, in section 1570, it is provided that four coroners shall “ hereafter ” be elected, we are of opinion that “ hereafter ” must be referred to the time of the' enactment of the statute, not-merely to the time it should subsequently take effect. There is an inconsistency in the direction that the coroners are to be elected at the same general elections as the sheriffs in the several counties in which the boroughs are situate, and to hold their offices for the term
Further, if we construe the qualification “prior to January first, eighteen hundred and ninety-eight,” to refer only to the.“other act done or forbidden,” then the case falls exactly within the exception' or proviso of the section, for an election of borough coroners is provided and required to' be held. It would seem to be the natural intention of the lawmakers that the new city should, from the 1st
These views dispose of the question whether coroners can be elected this year in Kings county, the question involved in the second appeal, before us. But it may not be unprofitable to discuss that question as unaffected by the enactment of the city charter. The statute of 1896 (Chap. 424) extending the terms of the coroners and directing that their successors shall be chosen at the election in 1899, so far as it seeks to extend the terms of the corners in office is void as settled by the.recent decision in the case of the district attorney of this county.
Therefore, even as the law stands now, for the.year 1898 coroners of the county will be the appointees of the Governor, in express-violation of the constitutional provision that they- must eithér be elected or appointed by the county authorities. But this legislation, if valid, can readily be vastly improved upon. The Legislature might create a local office for a definite term; thereafter provide that no successor shall be appointed or elected for some long- period subsequent to the expiration of that term, and in the meanwhile, on the theory of a vacancy in the office, fill it in a manner' forbidden by the Constitution. I deny that the Legislature has any such power. The Legislature cannot, create a vacancy for the express purpose of evading the Constitution or defeating the will of the people. The People ex rel. Hatfield v. Comstock
The orders in both cases should be affirmed.
Hatch, J., ' concurred ; Goodrich, P. J., and Bradley, J., concurred in the result and in the opinion so far as it discusses the construction of the charter of the city of Hew York, but express' no opinion on the question last discussed in the opinion. Bartlett, J., not sitting.
Orders affirmed in both cases.
See People ex rel. Eldred v. Palmer, ante, p. 101. —[Rep.