5 Daly 254 | New York Court of Common Pleas | 1874
The relator was deputy cleric of the Court of Special Sessions of the Peace for the city and county of ¡New York in the fall of 1872, when he was elected a member of the Assembly for the year 1873, and accepted that office, and served in the same for the months of January, February, ¡March and April of that year, and without having otherwise
The affirmative of both propositions is claimed, on the part of the comptroller, as well on the ground of the incompatibility of the offices, and the resignation of that of deputy clerk, by accepting that of member of Assembly, as well as of the omission to perform any of the duties appertaining to that of deputy clerk.
This office of deputy clerk was first created by chapter 282 of the Laws of 1858, in which the police justices were authorized to appoint both a clerk and deputy clerk of the Court of Special Sessions of the Peace; and by it, as well as by subsequent statutes (chap. 283 of 1870 and chap. 373 of 1872), the power of appointment was vested in other officers or board than the clerk, to whom, at common law, it would have appertained. “A deputy is he who exercises the office in another
The Constitution of our own State (Art. 3, § 7) prohibits any member of the Legislature recei/oing any civil appointment within this State or to the Senate of the United States, or from the Governor, Governor and Senate, or from the Legislature, during the term for which he shall have been elected. And Article 3 (§ 8) also prohibits any person, being a member of Congress, or holding any judicial or military office under the United States, from holding a seat in the Legislature; and if any person shall, after his election to the Legislature, be elected a member of Congress, or appointed to any office, civil or military, under the Government of the United States, his accept
The provisions of our Constitution and laws, above referred to, affecting the office of a member of Assembly, are to a great extent in harmony with the acts of Parliament relating to members of that body. The statute 12 Wm. Ill, c. 2, prohibited any member who had any office or place of profit under the king or pension from the crown from serving as a member of Parliament; this was repealed by 4 Anne, c. 8; but 6 Anne, c. 7, § 25, enacted that no member of Parliament should hold any office in the government and sit in the house at the same time by virtue of his former election, “ for by acceptance of an office his election is void; ” but he might be elected again on a new writ sued out, and sit in the house. By 1 Geo. I, c. 56, no person having a pension from the crown for years could be elected a member; and by 15 Geo. II, c. 22, various officers of state were rendered incapable of being members. None of the judges who were assistants to the House of Lords in the decision of questions of law were eligible, but persons holding places in other courts were (Jac. Law Dic. “ Parliament; ” Cun. Law Dic. “ Parliament; ” 1 Bl. Com. 175).
A sheriff for another shire might sit in Parliament (Jac. Law Dic. supra), as was well maintained in the case of Lord Coke, who was nominated by Charles 1 to the office of sheriff of Buckinghamshire, under the idea that he would thereby, from the incompatibility of the offices, be precluded from election to Parliament. He, however, was elected from Norfolk, and although he faithfully executed the duties as sheriff, his right to his seat in Parliament was successfully maintained (4 Ld. Camp. Lives of the Chief Justices, 332-3 ; 2 Cobb Par. Hist. 41, 44).
The common and statutory laws of Great Britain existing in 1775 were adopted in our first Constitution of 1777 (1 R. S. 32), so far as applicable to the state and condition of our country. A subsequent change was entirely within the scope of
The power of the Legislature, of which the relator was a member, to pass laws affecting his local office did not create any incompatibility of office. All citizens, in office or otherwise, are equally subject to the action of that body ; and whatever may be the personal interest of the legislator in the subject of legislation, he is not (aside from matters of delicacy or personal honor) precluded from taking part in its deliberations or acting upon the subject. In the present case, the judge from whose decision this appeal is taken has instanced the attendance of numerous judges and officials, including the chancellor, as delegates in the conventions that framed the Constitutions of 1821 and 1846, acting and deliberating on the very existence of the offices they held, their own powers, and all other incidents of their offices, without imputation of incompatibility, and far less of any legal or moral impropriety.
Such high expositions of the practice and law upon this subject can scarcely leave a doubt that the office of the relatoras a member of the Assembly was in law compatible with that of deputy clerk; that his temporary absence from the city at Albany, during the session of the Legislature, did not in itself constitute a resignation of his local position ; that for any neglect of duty his removal could only have been effected by the action of the board of police justices, at whose will and pleasure he held the office; and that, in the absence of their action, he continued to hold his office of deputy clerk, with all its emoluments.
Upon these considerations, I am for affirmance of the order awarding a peremptory mandamus, with costs.
Daly, Ch. J., and Larremore, J., concurred.
Order affirmed.