1 N.E. 235 | NY | 1885
This controversy relates to the title to the office of police commissioner of the city of New York, claimed by the relator Joel W. Mason, under an appointment made by the mayor and confirmed by the board of aldermen May 25, 1880, and also by the defendant, John McClave, under a similar appointment and confirmation made November 24, 1884. The defendant was appointed in place of the relator on the assumption that the relator's term of office expired on the 1st day of May, 1884. It is conceded that both appointments were regular in form, but the controversy arises upon the contention of the relator that his appointment on the 25th day of May, 1880, was by construction of law for the term of six years, which did not expire until May, 1886, and that consequently there was no vacancy at the time of the appointment of the defendant in November, 1884, and that his appointment was unauthorized and void. The defendant upon his appointment took possession of the office, and was recognized as police commissioner by the other commissioners, and has since been acting as such commissioner to the exclusion of the relator. The appointment of the relator was not in terms an appointment for six years. His certificate of appointment is dated May 25, 1880, and certifies that he had on that day been appointed police commissioner in place of De Witt C. Wheeler, whose term of office expired May 1, 1878, in accordance with chapter 335 of the Laws of 1873, being "An act to reorganize the local government of the city of New York." It appears from the agreed facts that Wheeler was appointed police commissioner December 31, 1875, in place of George W. Matsell, removed, for the unexpired portion of a term of five years which commenced May 1, 1873, and that he held over after the expiration of that term, from May 1, 1878, until September 25, 1880, a period of two years and twenty-five days, until the appointment of the relator, no new appointment meanwhile *86 having been made. The question presented is purely one of statutory construction.
The present board of police commissioners in the city of New York was created under the authority of chapter 335 of the Laws of 1873, known as the city charter, as amended (in a part not material to the present inquiry) by chapter 300 of the Laws of 1874. It is by reference to the act of 1873 that the present controversy is to be solved. It is insisted by the counsel for the relator that every police commissioner of the city of New York, duly appointed as the successor to a commissioner whose term of office has fully expired, has by the express prescription of the act a definite and individual term of office of six years, which cannot be cut down or abridged by the omission of the mayor to appoint, or of the board of aldermen to confirm, a new commissioner at the time when a new appointment might lawfully be made. On the other hand it is insisted by the counsel for the defendant that, by the true construction of the act, the term of a commissioner appointed to succeed a commissioner whose term has expired, is to be reckoned, for the purpose of ascertaining its duration, from the 1st day of May in the year of the expiration of the prior term, and that the new appointee is entitled to hold his office only until the expiration of six years from that date, however long the interval may have been between the expiration of the prior term and the date of his appointment. The question is left in great perplexity by the lack of precision in the wording of the act, and the difficulty of reconciling apparently conflicting provisions. The two sections of the act of 1873, on which the determination of the controversy primarily depends, are sections 25 and 39. The first is found in the article relating to the executive powers, and the second in that relating to the police department. Section 25 vests in the mayor the power to nominate, and with the consent of the board of aldermen to appoint heads of departments and all commissioners, including commissioners of police (with certain exceptions not material here), but provides that the then president of the department of police, and certain other heads of departments named, shall hold their *87 offices until the expiration of their respective terms of office for which they were appointed, unless removed for cause. The section then provides as follows: "Every head of department and person in this section named, except as herein otherwise provided, shall hold his office for the term of six years, and in each case until a person is appointed in his place. The terms of office of all such heads of departments, and persons other than those first appointed, shall commence on the first day of May, but the heads of departments, consisting of boards of commissioners first appointed after the passage of this act, shall, except as herein otherwise expressly provided, be appointed for two, four and six years, respectively, and except that the commissioners of police first appointed as aforesaid shall hold their offices for one, two, three and five years, respectively. The persons first appointed shall take office on the expiration of the terms of office of the present incumbents, as hereinafter provided, and shall hold their offices until the first day of May in the year in which it is herein provided that their respective terms shall expire. All nominations to any office or offices which, by this act, the mayor is authorized or empowered to nominate a person or persons to in place of any present incumbent or incumbents, shall be made to the board of aldermen within twenty days after the passage of this act, and any such nomination or nominations to fill any vacancy which shall hereafter occur by reason of the expiration of the term of office of any officer, or from any other cause, and which shall not be created by any thing in this act providing for the termination of the term of office of any officer or person now in office, shall be made to the board of aldermen, within ten days from the day of the date of any such vacancy; and any person who shall be appointed to fill any such vacancy shall hold his office for the unexpired term of his predecessor." The thirty-ninth section is as follows: "The police department shall have for its head a board to consist of five persons, to be known as police commissioners of the city of New York, who, except those first appointed, shall hold their offices for six years, unless sooner removed as herein provided; but those first appointed *88 shall be appointed and hold office for one, two, three and five years, respectively." Section 117 declares that the terms of office of the police commissioners and other officers authorized to be appointed by the mayor and board of aldermen, except as otherwise expressly provided in the act, shall cease, terminate and expire on the 1st day of May, 1873, unless an appointment of a successor shall be sooner made as provided in the act. The act was passed April 30, 1873, and, except as to certain provisions not material to mention, took effect on the day of its passage.
The relator's counsel rests his case upon the thirty-ninth section, and insists that by the necessary force and meaning of that section a police commissioner appointed as successor to a commissioner whose term had fully expired, holds his office for six years from the time of his appointment. If this was the only section of the act relating to the duration of terms, the claim would be unanswerable. It is to be observed that the prescription in the thirty-ninth section of the term of six years is general, and applies to every appointment of police commissioners after the first appointments. If this section is alone regarded, the term of six years is given not only to a police commissioner appointed, as was the relator, to succeed one whose term had fully expired, but to every appointee, whether appointed to fill a vacancy created by the expiration of a term, or one created by the death, resignation, or removal of an incumbent during his term of office. The section makes no discrimination between these different classes of appointees in respect to their terms of office, and if any distinction exists, and one class hold their offices for six years, and the other for the unexpired term of their predecessors only, it must be found in other provisions of the act. The counsel for the relator is compelled to concede that a commissioner appointed to fill a vacancy caused by the death, resignation, or removal of an incumbent, holds only for the unexpired term of his predecessor. Section 39 makes no such exception, and the concession of counsel, which it was impossible to avoid, is an abandonment *89 of any claim that that section determines in every case the period for which an appointee may hold his office.
In determining the question now before us, the court is to be guided by the established rules of interpretation of written instruments. It is not compelled — indeed, it is not permitted, to give absolute and unqualified effect to a single section or clause of a statute, however direct, plain and unambiguous, considered by itself alone, the language may be, if there are other provisions inconsistent with a literal and unrestricted interpretation of such clause or section, unless the repugnancy is irreconcilable, in which case it is the duty of the court to preserve the paramount intention, so far as it is consistent with the rules of law, although this may lead to the rejection of some subordinate and secondary provision. (Taggart v. Murray,
A casual reference to the twenty-fifth section discloses one plain and marked exception to the general words in the thirty-ninth section, prescribing a six-years term, an exception to which we have already referred, and which is created by the clause in the twenty-fifth section following the clause prescribing the time within which nominations by the mayor shall be made to fill vacancies. The clause is, "and any person who shall be appointed to fill any such vacancy shall hold his office for the unexpired term of his predecessor." This clause places it beyond doubt that an appointee to fill a vacancy caused by the death, resignation or removal of an incumbent during his term, holds only for the remainder of such term or period, which of course may be much less than six years. The counsel for the defendant insists that this clause applies as well to vacancies occasioned by the expiration of the full term of an incumbent, as to vacancies occurring intermediate such term. But we think this construction is inadmissible, and we accept upon this point the argument of the counsel for the relator. The preceding paragraph prescribes the time within which nominations by the mayor shall be made, first (in substance), that nominations in place of present incumbents, including those officers whose terms are by the one hundred and seventeenth section, made to cease and determine on the 1st of May, 1873, shall be made within twenty days after the passage of the act, and second, that a nomination to fill any vacancy thereafter occurring "by reason of the expiration of the term of office of any officer, or from any other cause," shall be made within ten days of the date of any "such vacancy." Then follows the clause before quoted — "and any person who shall be appointed to fill any such vacancy, shall hold his office for the unexpired term of his predecessor." We think the necessary sense of the clause requires that it should be held to refer to the vacancies other than those arising from the expiration of terms. It is absurd to say that a person appointed to fill a vacancy caused by the expiration of a term, shall hold his *91 office for the unexpired term of his predecessor, when the predecessor could have no unexpired term. The incongruity of such a construction is avoided by referring the word "vacancy" in the last clause to its last antecedent subject, viz.: vacancies occurring from causes other than the expiration of a term. The referring of a relative to such antecedents only as will give a clause a sensible and reasonable construction, is justified by reason and authority. (Cushing v. Worrick, 9 Gray, 382; Rex v. Wright, 1 A. E. 434; Potter's Dwarris, 209, 210 and cases cited.) While the construction claimed by the defendant, if permissible, would be decisive of the case in his favor and avoid the necessity of further consideration, it involves the interpolation into the clause of words which change the natural sense of the words used, to do which would amount to judicial legislation, and we cannot yield to it our assent. But there are other provisions in the twenty-fifth section, which considered in connection with the policy of the act, give countenance and support to the defendant's title. The exception to the prescription of a six-years term provided by the thirty-ninth section already noticed, is not the only exception created by the twenty-fifth section. It will be noticed that that section expressly declares that the terms of office of all heads of departments, and persons other than those first appointed, shall commence on the 1st day of May. This provision is as peremptory as the provision in the thirty-ninth section, that police commissioners shall hold their offices for six years. In the practical administration of the scheme of the act, it could rarely happen that a police commissioner would hold in actual enjoyment a full term of six years by virtue of his commission. So far as I can see, it would never happen unless the appointment was made on the very 1st day of May succeeding the expiration of the prior term, or unless it was made before the expiration of the prior term, in anticipation of the vacancy, which the act does not seem to contemplate, as it provides that a nomination to fill a vacancy shall be made "within ten days of the day of the date of any such vacancy." The nomination for a vacancy in ordinary cases *92 would be made after the vacancy has occurred, and after the first day of May. But the twenty-fifth section makes the term to commence on the 1st day of May, and it ends on the 30th day of April, six years from that time. A police commissioner appointed after the 1st day of May, in the year in which a prior term expires, would therefore hold the office in actual enjoyment, under his appointment, only for a period of five years and the fraction of a year. If he occupied the office for any longer period, it would be by virtue of the provision permitting an officer whose term has expired, to hold over until his successor shall have been appointed. But there would be nothing to prevent another appointment on the 1st day of May, of the year in which his term expired. If, therefore, the relator had been appointed at any time within a year after Wheeler's term expired, viz.: between May 1, 1878, and May 1, 1879, we think it reasonably clear that his term of office would have expired on the 1st of May, 1884, although he had been in the possession and actual enjoyment of the office for only five years and the fraction of a year. The case we have supposed, differs from the case before us, only in the fact that the relator's appointment as successor to Wheeler, was delayed for two years and over after the vacancy occurred. But does this change the result? Must not his term for the purpose of computation be deemed to have commenced when an appointment might have been made, viz.: May 1, 1878. It is true that the twenty-fifth section does not specify in words that the 1st day of May, on which a term is to commence, is the 1st day of May of the year in which the prior term expired. But in connection with the context, which makes it mandatory upon the mayor to make a nomination within ten days after the happening of a vacancy, that seems to be the true meaning of the provision.
The conclusion to which the argument thus far tends, is re-enforced by considerations drawn from the policy of the act. The act of 1873, provided a system of executive administration in respect to departments carried on by boards of several members, by which the majority of the several boards should always *93 be composed of members of experience in the particular departments with which they were connected. To this end the terms of office were made to commence and terminate on the 1st of May, and they were so arranged that the term of only one member should expire in any one year. To further secure the proper working of the system, it was made the duty of the mayor to make a nomination to fill a vacancy within ten days from its date. If an appointment was made to fill a vacancy in an unexpired term, it was expressly provided that the appointee should hold only for the remainder of such term. If the appointment was to fill a vacancy caused by the expiration of a term, the appointee was to hold for six years from the 1st of May, which, however, might not be an absolute term in enjoyment for six years, because such period might be abridged by delay on the part of the appointing power, but if the provisions of the act were carried out as intended and contemplated, and nominations were promptly made and confirmed, every commissioner appointed as successor to one whose term had fully expired, would practically hold for six years. By construing the word "term" in the twenty-fifth section, as designating consecutive periods of six years following each other in regular order, the one commencing when the other ends, and treating the incumbent appointed in any such period as the incumbent of the particular term or period of six years to which his appointment relates, whose office would expire with the expiration of the six-years term or period, the policy of the act would be preserved, or at least the chances of its being broken in upon by unforeseen contingencies would be very remote. The policy to which we have adverted is not a mere conjecture spelled out or inferred from doubtful phrases. It is plainly shown on the face of the act. It would be subverted by sustaining the contention of the relator. Nor upon the construction which we are inclined to give to the act, is the case of the relator a casusomissus. It is very unlikely that such a delay as happened in respect to this appointment was in the view of the legislature. But nevertheless the contingency was provided for, if by the true construction of the act every *94 new term of office for the purpose of computation is deemed to have commenced on the 1st day of May of the year in which the preceding term expired.
The Consolidation Act of 1882 removes all doubt upon the point here involved, in future cases. It was enacted "to declare the special and local laws affecting public interests in the city of New York." It provides in section 106, that "the terms of office of all such heads of departments and persons whensoever actually appointed, shall commence on the 1st day of May in the year in which the terms of office of their predecessors expire." The act of 1882 is, we think, entitled to some force as a legislative construction of the act of 1873. Upon the best reflection we can give to the difficult questions in this case, we have, though not without hesitation, reached the conclusion that the relator's term expired April 30, 1884, six years from the expiration of the term of his predecessor, and that the defendant is de jure police commissioner under his appointment.
The judgment should therefore be affirmed.
All concur.
Judgment affirmed.