167 N.Y. 292 | NY | 1901
The charter of the city of Buffalo provides for a department of public works of which the board of public works shall be the head. This board consists of three commissioners of public works, one of whom is to be elected by the electors and the other two of whom are to be appointed by the mayor. Under section 271 of said charter "a vacancy in the office of an elected commissioner shall be filled by appointment by the mayor, until the first day of January, after the next municipal election, at which election a commissioner shall be elected to fill the unexpired term of the elected commissioner whose office became vacant." By section 370 of said charter it is provided that "the municipal and ward elections shall be held on the Tuesday succeeding the first Monday of November in each odd numbered year." Under these charter provisions a municipal election was held in the city of Buffalo in November, 1897, at which Martin Maher was elected to the office of commissioner of public works for the full term of four years, or until December 31st, 1901. Maher died in August, 1900, leaving a vacancy in the office. On September 24th, 1900, the mayor appointed the defendant Scheu to the office made vacant by the death of Maher, the appointment to take effect at once "and to continue until the first day of January after the municipal election, to wit: until January 1st, 1902." At the general election held on the 6th of November, 1900, candidates for three municipal offices were voted for to fill vacancies. Among them was the relator Ward who had been nominated by the Republican party for the office of elective commissioner of public works, to fill the vacancy caused by the death of Maher. The Democratic party, proceeding upon the theory that Scheu had been appointed for Maher's full term, that is, until January 1st, 1902, made no nominations for that office, and Ward having received nearly all the votes cast for said office at said election, he was declared elected. After the election Ward took *295
the oath of office, filed his official bond and then demanded possession of the office to which he claimed to have been elected. Scheu refused to surrender the office, and this action was brought. At the trial the relator was successful. Upon appeal the Appellate Division reversed the judgment of the trial court and held defendant's appointment good for the whole of the year 1901. If the case were controlled entirely by the charter provisions above referred to there could be no doubt that the defendant was legally appointed, and that his appointment holds good until January 1st, 1902. Section 271 of the charter plainly specifies that an appointment to fill a vacancy in the office of an elective commissioner of public works shall continue until the first day of January after the next municipal election, and section 370 of the charter fixes the time for municipal elections in November of each odd numbered year. Defendant was appointed in September, 1900, and according to the charter the next municipal election is to be held in November, 1901. It is, therefore, plain to a demonstration that if these sections of the charter are not in conflict with some other controlling provision of law the defendant was legally appointed for a term which does not expire until December 31st, 1901. The relator contends that these sections of the charter must be read in connection with sec. 5, art. 10, and sec. 3, art. 12, of the State Constitution, and when so read their language must either be so construed as to conform to the Constitution or, if that is impossible, be held unconstitutional. This broad proposition is beyond dispute. The difficulty in this case lies in the relator's attempt to apply it to his reading and construction of the Constitution. Section 5, article 10 of the Constitution says "the legislature shall provide for filling vacancies in office, and in case of elective officers, no person appointed to fill a vacancy shall hold his office by virtue of such appointment longer than the commencement of the political year next succeeding the first annual election after the happening of the vacancy." The relator contends that under this provision of the Constitution the defendant could not be appointed for a period which should extend beyond the *296
first day of January, 1901, that being "the beginning of the political year next succeeding the first annual election after the happening of the vacancy." This provision of the Constitution was taken without change from the Constitution of 1846. It was before this court for construction in People ex rel. Hatfield
v. Comstock (
These conclusions require an affirmance of the order of the Appellate Division, with costs to the defendant, and it is so ordered.
PARKER, Ch. J., GRAY, BARTLETT, HAIGHT, MARTIN and VANN, JJ., concur.
Order affirmed.