151 N.Y.S. 261 | N.Y. App. Div. | 1914
At the general election held on November 4, 1913, Daniel B. Coleman was elected an alderman of the fifty-second alder-manic district of the city of New York for a term of two years, to commence on January 1, 1914, and to expire on December 31, 1915. He subsequently qualified and entered upon the discharge of his official duties. On June 25, 1914, he died. On June 30,1914, the board of aldermen of the city of New York elected William W. Colne as alderman of said district for the unexpired portion of Coleman’s term. The fifty-second alder-manic district of the city of New York is coterminous with the eleventh assembly district of Kings county, and comprises thirty election districts. At the general election held on November 3, 1914, in eleven out of said thirty election districts certain votes were cast for Karl S. Deitz, the relator, to fill the vacancy arising from Coleman’s death. Although it does not clearly appear from the moving papers, it seems to have been assumed upon the argument, and we think that we may assume, that the electors desiring to vote for such candidate wrote upon
Three questions were discussed upon the argument of this appeal: First, was there a vacancy in the office of alderman for said aldermanic district, which might be filled at the general election held on November 3, 1914 ? Second, if so, were the ballots cast for relator proper ballots, so that they should have been canvassed and counted ? Third, is the relator in a position where he may invoke the issuance of a peremptory writ of mandamus as applied for herein ?
By section 18 of the Greater New York charter (Laws of 1901, chap. 466, as amd. by Laws of 1912, chap. 131) it is provided that “Any vacancy which may occur among the members elected to the board of aldermen shall be filled by election by a majority of all the members elected thereto, of a person who must be of the same political party as the member whose place has become vacant; and the person so elected to fill any such vacancy shall serve for the unexpired portion of the term.” If this is a valid statute there was no vacancy to be filled at the general election in the year 1914, and the votes cast for relator were necessarily void. The
We are of the opinion, therefore, that section 1586 of the Greater Hew York charter was adopted simply as a precautionary measure, and it may be that it has no present vitality and relates to no existing power or duty. (Billings v. Mayor, 68 N. Y. 413.) When the county towns in the county of Kings were consolidated with the former city of Brooklyn and separate county government by the county of Kings was abolished (Laws of 1895, chap. 954), there was for a time a severe struggle between the administrative officers of said city and the common council with respect to the powers and duties of the latter, so far as they related to those things which had formerly been under the control of the board of supervisors in said county, and with regard to the status of the former appointees of such board. (People ex rel. McGinniss v. Palmer, 6 App. Div. 19; revd. on dissenting opinion of Cullen, J., 150 N. Y. 570; People ex rel. Farrell v. Sutton, 9 App. Div. 250; People ex rel. Fuller v. Coler, 33 id. 619; affd., 158 N. Y. 667.) In each instance the contention of the municipal authorities that the board of aldermen had no separate ■ and independent powers with regard, for instance, to the making of contracts for supplies to the county jail, or for various buildings formerly under the control of the board of supervisors, was upheld, and for a long period all of such contracts have been made through .administrative municipal officers. Such practical construction of the. Constitution and the-statute, is not
We conclude, therefore, that the office of alderman in the city of New York is a statutory and not a constitutional office. The conclusion which we have reached upon this question makes it unnecessary for us to consider either of the other questions argued upon this appeal. We think that the order
Jenks, P. J., Thomas, Stapleton and Putnam, JJ., concurred.
Order reversed, and motion for peremptory writ of mandamus denied, as matter of law and not in the exercise of discretion.