241 A.D. 177 | N.Y. App. Div. | 1934
Lead Opinion
This is a submission of a controversy pursuant to section 546 of the Civil Practice Act. It is a question in difference which might be the subject of an action. The facts are stipulated and we are asked to determine whether plaintiff or defendant is entitled to the office of county superintendent of highways of Schuyler county and when the term of office of the person so entitled expires.
The first appointment to the office of county superintendent of highways in Schuyler county after January 1, 1909, was made on January 5, 1909, when one James P. Frost was named. The board of supervisors was thereafter advised by the State Civil Service Commission that the position was in the competitive class under the Civil Service Law, a list of those eligible to the office was certified and on June 1, 1909, James P. Frost was appointed. He was reappointed on December 19, 1913, and again on November 26, 1917. The latter appointment by its terms was “ for the term of four years from November 26,1917.” The next appointment to this office was made on December 31,1921, when the board of supervisors appointed one Lewis E. Kenyon, whose term as sheriff of Schuyler county was expiring on that day. On December 31, 1925, Kenyon was reappointed and on December 31, 1929, was again named to succeed himself. On December 26, 1933, the plaintiff Smith was appointed “ for a term of four years,” and he proceeded to qualify by filing Ms oath of office on December 28, 1933, and Ms bond on December 29, 1933. The board of supervisors wMch made tMs appointment went out of office on December 31, 1933, and the new board, wMch came in on January 1, 1934, proceeded on January 2, 1934, to reappoint Lewis E. Kenyon.
Section 30 of the Highway Law provides: “ The board of supervisors of any county may appoint a county superintendent. * * * The term of office of each superintendent * * * shall be four years unless sooner removed.” These provisions have been in continuous effect since January 1, 1909. Both parties concede that a county superintendent of Mghways is a
No time is fixed by the statute’for the beginning or ending of the term of any incumbent of the office of county superintendent of highways. The duration of the term of office is fixed by statute at a period of four years, but nothing is said as to the date on which the term shall commence or terminate. Where no time is fixed for the beginning of the term, the term of an appointee begins on the date of his appointment and each successive incumbent of the office takes it for the term or period of time fixed by law, running from the date of his respective appointment. A new term does not commence until a new incumbent is appointed. “ It is only where
With these statutes and rules of law in mind, we may now examine the factual situation and make proper legal interpretation of it. The first permanent appointment of James P. Frost was made on June 1, 1909, and his term began on that day and expired on June 1, 1913. (General Constr. Law, §§ 20, 58.) He then held over until December 19, 1913, when he was reappointed for a new term which began on that date and expired on December 19, 1917. It is not necessary that we here determine whether his last appointment on November 26, 1917, which was made before the expiration of the term he was then holding, “ for the term of four years from November 26, 1917,” expired on November 26, 1921, or December 19, 1921, because the next appointment to this office was not made until December 31, 1921. Consequently Frost in either event held over beyond the expiration of bis term until the appointment of his successor. The appointment of Kenyon on December 31, 1921, expired on December 31, 1925. His appointment on the latter date was invalid because made by an outgoing board of supervisors before a vacancy existed. From January 1, 1926, to December 31, 1929, he held over and on December 31, 1929, was validly appointed for a term which expired on December 31, 1933. The last sentence of section 5 of the Public Officers Law does not apply to the situation at hand. Kenyon’s term had not expired and there was no vacancy in the office at the time of the attempted appointment of Smith on December 26, 1933. The vacancy did not occur until January 1, 1934. On that date a new board with appointing power had come into office and the board which had appointed Smith had gone out of office. Consequently, the appointment of Smith by the outgoing board, before a vacancy occurred, on December 26, 1933, was not valid.
The defendant is entitled to a judgment determining that he is entitled to the office of county superintendent of highways of the county of Schuyler by virtue of his appointment by the board of supervisors of the county made on January 2, 1934, for a term of
Hill, P. J., and Rhodes, J., concur; Heffebnan, J., dissents, with an opinion in which McNamee, J., concurs.
Dissenting Opinion
(dissenting). I cannot subscribe to the view of the majority in this case.
By section 30 of the Highway Law the board of supervisors of any county is authorized to appoint a county superintendent of highways and may remove him for malfeasance or misfeasance in office upon written charges and after an opportunity to be heard. The term of office of each superintendent is four years unless sooner removed.
The first legal appointment of such an official in Schuyler county was made on June 1, 1909, when one Frost was designated. That appointment was for four years and continued until May 31, 1913. On December 19, 1913, Frost was reappointed. He was again reappointed on the 26th of November, 1917. He continued to hold the position until January 10, 1922, when defendant Kenyon qualified, under an appointment made on the 31st day of December, 1921. On December 31, 1925, Kenyon was named to succeed himself. He was again named for the office on December 31, 1929. On December 26, 1933, plaintiff was appointed.
Both parties concede that a county superintendent of highways is a public officer and that the position is a public office. Section 5 of the Public Officers Law, so far as material here, provides: “ Every officer * * * having duly entered on the duties of his office, shall, * * * hold over and continue to discharge the duties of his office, after the expiration of the term for which he shall have been chosen, until his successor shall be chosen and qualified; * * * An appointment for a term shortened by reason of a predecessor holding over, shall be for the residue of the term only.”
It is conceded that Frost’s first term expired on May 31, 1913. As I construe the section of the Public Officers Law, quoted above, Frost held over from May 31, 1913, to December 19, 1913, the date of his second appointment. The second appointment could only be made for the residue of the term and would expire on May 31, 1917.. In other words, the first appointment began on the 1st of June, 1909, and expired on the 31st day of May, 1913. The dates of commencement and termination were then definitely established, not only of the first term, but of each term subsequently thereto. The beginning of the term of the first appointee determines the limits of the term of successive appointees.
Counsel for defendant argues that the last sentence of section 5 of the Public Officers Law to the effect that where one holds over the new appointee shall hold for the residue of the term only, does not apply in this case. In his opinion Mr. Justice Bliss adopts that suggestion. It seems to me that this view is falacious. No reason is suggested why this provision of the statute does not apply. As I interpret this statute, it clearly comprehends the office with which we are now dealing.
For these reasons I believe this controversy should be decided in favor of the plaintiff.
McNambe, J., concurs.
Judgment rendered in favor of the defendant against the plaintiff that the defendant is entitled to the office of county superintendent of highways of the county of Schuyler by virtue of his appointment by the board of supervisors of such county, made on January 2, 1934, for the term of four years beginning on that date and ending on January 2, 1938.