*1 People A hearn. Y. Statement N. case.
in of the law the view the clear contention is phraseology must remit inadmissible and the courts those aggrieved thereby to relief action. by legislative
The order should he with costs. affirmed, Edward T. J., Ch.
Cullen, Willard Bartlett, Yann, Chase, JJ., concur; Haight, J., not Bartlett, IIiscock voting.
Order affirmed. People The of the State Respondent, of New York,
John F. Ahearn, Appellant. —of) (city president
New York borough governor removal of provisions chargesconstitutionality on of charter relating — — thereto reappointment construction thereof invalid removed officer board of aldermen. providing president The statutes borough the removal of a by the charges, opportunity after an to be in bis own he.ard defense, not provisions do conflict with the home rule of the Constitu- spirit provisions violate either the tion or letter or of those principles guarantee self-government, of local and are constitutional and valid. obligation The rests legislation on the courts both to assume that was not beget absurdities, intended to and to exhaust the limit legitimate affixing any consequences. before to it princi- construction such ples ordinarily interpretation governing of statutes command the a agreeable courts to favor construction which most to reason and justice, give to consider the entire statute and to every effect to clause thereof, part securing whole, thus a consistent and harmonious provision and to avoid construction whiсh would leave effect, would repeal statute without or which result virtual implication provision by one another. reasonable, only legally justifiable,
It is not but to believe that in enacting presi- filling vacancy relative to of borough the office n dent, cause, legisla which an incumbent had been removed removal, clearly ture had in mind the earlier one relative to and that appointment giving power intended authorize the proper persons, and did intend to include the and, person therefore, just found to be otherwise select removed. designated statutes are to he with While character construed strict- defendant, they subject ness favor of still to rules of construc- circumstances, surrounding tion which are under the reasonable [Oct, v. áheatoí. case,
Statement [Yol. *2 exempt application principle that wholly from of the they the are not end, to that the letter is somewhat the the means be fashioned accomplished. light purpose to be of the to be read somewhat statute, purpose provision Keeping in the for removal mind the the permanent lasting meaning ouster as should construed which he of the of the incumbent from the office the remainder term obligations he unable or filling, and whose has been found has been contemplating a unwilling It should not be discharge. construed suspension by might temporary a merely removal be turned into which vacancy the removal of the immediate the caused IIiscock, (Per J.) very person just the who had been removed. reasonably The the relative removal should be Constitution accomplished. object sought in to be The mani- construed view the purpose provide summary rvay removing was to from office fest official, governor unworthy for the remainder of his term an and the important representative people as the to exercise this selected opportunity power had a reasonable after the been afforded defendant power undoubtedly This to remove was to be heard in defense. prevent any term to inter- limited its exercise to the balance the borough with the the electors to elect a successor after ference expiration J.) Bartlett, (Per the E. T. thereof. The statute should receive that liberal construction which will effectuate purpose fairly legislative the to be attributable to the enactment. The office, power proceedings the to remove from the as the result under statute, coupled with fill the the conferred to removal, person’s right negatives reinstated the office the to be (Per Gray, J.) during he the term which had been elected. 30, People Ahearn, App. Div. affirmed. 29, 1909.) 1909; (Argued June decided October an order Appeal, permission, Appellate first Division of the Court judicial depart- Supreme which reversed a entered March ment, 13, 1909, judgment demurrer Term sustaining complaint Special demurrer. overruled such certified The action is one of warranto and quo herein sufficient to us state facts is, Does complaint of action.”
constitute cause other that in 1905 alleges amongst complaint, things, of Man- the defendant elected president borough 1, 1906, hattan for the term of four January beginning years at time and entered duly upon appointed qualified Áheaeil 1909.1 Points of
1ST counsel. Y. of the duties that in of said office; discharge July, 1907, made him and were filed with charges duly against which effect accused him of state, incom- governor in and maladministration of his of these petency copies served the defendant and he charges being being duly notified to and defend himself same, appear against did continued from time time ; hearing through until several weeks on December 9, 1907, made order to his satisfaction that that, appearing charges were true and that the interest it, defend- public required *3 ant be from his ; removed office that on 19, December 1907, the board of aldermen of the of New York city representing of Manhattan the defendant borough appointed fill his removal for the unexpired term, and this action was to oust the defendant from brought said office on that such ground invalid. appointment Martin W. Littleton and Frederick Allis for appellant.
The
of home
rule
underlies our
principle
insti
political
tutions
as well to
as to
applies'
election of locаl
officers.
v.
55 N. Y.
(People
Albertson,
;56
v.
People
224 Aheabit.-
Points
196.
of counsel.
[Yol.
Board,
N. Y. 369 Minor
v.
129
v.
Happer
;
(People
set,
on Ex.
&
Mitchell 27 Cons. ch. 387; Laws, Sturges, App. Div. ;38 ex rel. v. N. 43 Lacombe, ; Wood 99 Y. Mead People § 493; v. O'Neil, 516; 87 N. Matter 91 Y. Stratton, N. Y. 4 Tonnelle v. N. v. Hall, Y. 108 140; Brady, Delafield 524; Y. v. N. Dibble ex 571; Hathaway, Hun, rel. T. T. R. R. Co. Y. St. v. Comrs. 95 N. Taxes, 554; Burch v. Y.N. Starch Newbury, 374; Oswego Factory 21 Y. If the N. charter construed Dolloway, 449.) the members board of aldermen the upon power confer the defendant fill out appoint unexpired portion the term from which has been removed by governor, the constitutional and of this state, legislative policy confers localities the or election upon power of local but state оfficers, preserves accountability will be conferring upon remove, governor power nullified. of N. Y. art. 10, (Const, 2, 7.) §§
Nelson 8. for committee of citizens. Spencer J. Section 382 of the charter of 57ew York Hiscook, 466 of the (Chapter Laws of its own terms and 1901) by reference to other constitutional and statutory provisions to removal of relating officers, county provided removal of the defendant after governor charges to be heard in his claim is opportunity no defensé, made that all for the trial and provisions protection defendant were not observed in the which resulted proceeding in his removal. is, somewhat however, argued to confer provisions purporting
of removal of defendant conflict with what commonly as the known Home Buie Constitution, provisions invalid. We are are, therefore, so that this argument agreed not well founded, under which provisions gov- *5 ernor are constitutional that do proceeded they valid, not violate either the letter or those spirit provisions secure and of local principles guarantee self-government, it that does seem to discuss them. necessary that removal the defendant therefore, Assuming, People «..Aheaen. Court, Opinion per Hiscock, [Yol. a of the other I shall to discussion valid, proceed
entirely to and which relate our consideration presented questions of his validity subsequent appointment. a to be made virtue of This by appointment, purported referred in the same section of the charter already provision “: in the office of and which reads president Any vacancy shall from the he otherwise, caused removal by borough, for the term election to such vacancy filled unexpired by all the vote of members of board made the-, by majority aldermen then office said benough.” representing that the word that is material or is conceded not, Whether ” in this word election provision equivalent this action The insist siqoport “appointment.” him of the defendant of his office removal deprived he to the its entire term and that could not be appointed term under the for the just provisions unexpired insists that such other hand, appellant, quoted. the board not the case and that such removal neither by him nor he dis- from of aldermen was barred appointing such appointment. qualified accepting at to the mind once It occurs appellant’s authorized and the hoard of aldermen was correct theory his removal, him to vacancy just by appoint con- enacted statnte has solemnly authorizing legislature It has author- and absurd results. inconsistent acts spicuously and remove official ized public try and the of aldermen to select to hold office board unworthy fill the him forthwith as vacancy. person resulting proper has that the action of one branch provided govern- another; that оf nullified ment forthwith he may official who has been inefficiency punished public for his loss of his be reimbursed office maladministration may of which has been very safe- service, and that the public supposed deprived be demoralized removal, and benefited guarded it has In effect repealed his immediate reinstatement: of officialsfor for removal in the charter providing *6 People Aheabh. Court, per Hiscock, Opinion oí the N. Y. in the section
canse another self-same authorizing of the man who had dismissed. reappointment just so of an Such results would offend principles against efficient as well as administration of orderly government one those of common sense that no would be ordinary likely to defend them as of wise But it was product legislation. the learned counsel on the for the
urged appellant argu- ment that neither his client nor the courts responsible ill-considered and that unwise enact- legislation legislative ments not do unauthorized amendments. If justify judicial has ordained that such results these legislature actually should be their action is final. But the permitted, principle true rests on the to assume equally courts obligation was not intended to absurdities and to legislation beget exhaust the limit of construction before legitimate affixing it such The any consequences. principles ordinarily govern- of statutes command us favor ing interpretation a con- struction which is most to reason and agreeable justice, consider the entire statute and to effect clause every give thus part thereof, a consistent and harmonious securing and to avoid whole, construction would leave any pro- vision statute without or which effect, would result in a virtual repeal one another. by implication provision by It is, that such however, familiar rules are not here urged that if the statute so applicable; construed as to prohibit it must be there appointment because is read appellant, into after removal implication to hold disqualification and that such inis the nature aof disqualification fine, forfeiture or and not to be This penalty readily implied. consideration does not to be involved. appear necessarily
The case, decision of this it would seem, rested the construction of the clause to the board of giving aldermen to fill the by appellant’s removal, rather than on one implication removal, authorizing this is there so, will be involved primarily prop- erly for or any question forfeiture appellant’s disqualification will vacancy. Ahearw. *7 Court,
Opinion per the Hisoook, J. [Yol. the extent and the one of limitations be power simply will to and which intended confer, legislature apjDointment be rules of construction. subject statutory ordinary to consider Those as has been us out, fules, pointed require and one entire and to consider statute, pro- scope purpose When we do we vision in connection with others. this, that the providing justified believing legislature overlooked or disregarded just filling vacancy proceedings it intended to such or that authorized which lead vacancy, might had to one that be undone under clause just to permit to that it intended one, under another or been accomplished an officewith fill clothe an board with power appointing therefrom because who had been ousted just appointee to hold the con- to be an it. On improper adjudged person to believe it is not but reasonable, justifiable trary, only legally had that in the later clearly legislature enacting the earlier and one, mind giving power to authorize the intended appointment intend to include and did not power proper persons This select found to be otherwise. exception a person just limitation is or understood. should direct
If the a business proprietor organization a workman foreman to conduct of one investigate and should him if found dishonest or incompetent, discharge hire some one time authorize another foreman to at same this latter fill the thus I authority suppose arising, be construed would permitting always reasonably never as man and meaning of some new competent employment dismissed for cause. reinstatement of one immediate just chosen this case from But we consider standpoint on the con- and assume its decision dеpendent appellant that in succeed the order to struction of the clause removal removal maintain the appellant’s must Beople proposition therefore, entire term and, officefor its him of his deprived such result the vacancy to be although appointed no reason to I see shrink was not specifically expressed, it will lead. of the end to which be doubtful test Aheakn. Court, Opinion per Hiscock, N. Y. as is
Doubtless we so say, counsel, might earnestly urged by that the strict letter of the statute would satisfied aby removal which ousted from his office for a anor appellant day hour until some could reinstate him. But appointing if we consider the of this statute general scope purpose led we shall be to the conclusion that the must legislature and intended more than this and that the contemplated which it of a construction language employed susceptible *8 which will out its The removal which is carry purpose. authorized in a can such case as this made after be only incumbent has in been heard his own defense upon charges which his official and conduct challenge qualifications officeand has been found of removal guilty. punishment from office is inflicted because he has been found to have committed acts an unfitness to hold it. We have indicating is equivalent what a that to sufficient cause exists finding why the incumbent should to his not be allowed continue in office and therefore, he be it. It is that, a'judgment deprived true that the in which this occurs is an executive proceeding rather than a it is to one. Still certain funda- judicial subject mental rules of and the facts in this case conceded law, illustrate how it be its essential features to analogous may a trial before a tribunal. judicial
It is of course that the that the intended plain legislature should be a serious one and effective method proceeding rid unfit officials. It is clear and getting public equally will donbless be so conceded in be said anything may or on the written other side of that this question, purpose will be frustrated and the administration of the law turned a into farce under it an official may reap- immediately a removal into a mere and turned pointed temporary suspension. a
In order to avoid such result and in mind the pur- keeping of the statute we are constru- my pose justified, judgment, as removal for which meaning permanent provides ing the entire term of the ouster for incum- lasting remaining he and whose bent from the officewhich has been filling obliga- he As tions has been found unable unwilling discharge. Aheabn. Court, per Hiscook,
Opinion [Vol. Division, at the Mr. Justice Soott Appellate well said than the more much right physically an office implies and to exercise certain room, a specified occupy as its beneficial far So aspect emolument.” receive prescribed office consisted of the concerned, appellant’s right honors and emoluments certain privileges, enjoy powers, should the statute term, and when given prescribed removed it be construed to mean that he should be removed of all that which thus made deprived up these for and dur- right namely, enjoy things the entire term for which he had been selected. ing originally is of as true, counsel, course we do not argued by ” “ term an official from his of office. But speak removing a certain enjoy period privileges prof- is an element of an its important given position and a its removal from office under conception, complete the conditions here mean dismissal for may fairly present from those period rights privileges. it should be that this assumed, If argued by appellant, *9 it will him debar to because construction, appointment term, of his amounts to balance the vacancy unexpired the statute a into disqualification reading written must be there, and, therefore, which expressly to the rules of construction to applicable quasi penal subjected will survived. this test be statutes, statutes of character are to be con-
While designated still are defendant, favor of with strictness they strued rules of construction are reasonable under subject and are not circumstances, they wholly exempt surrounding of the that the means bemay from the principle application end that the letter is read to the and to be somewhat fashiоned in the of the be accomplished. light purpose somewhat it U. S. was said : v. Outing (175 In Bolles Company 205) “ with such must be construed then, statute, being penal, defend strictness as to carefully safeguard rights same intention at the obvious ant and time.preserve it will be construed If the language plain, legislature. Ahearn. Court-, Opinion per Hiscock, of the N. Y.
itas and the words the statute reads, their full mean- given if court will lean more ; favor ing ambiguous, strongly of the than it defendant would the statute were remedial.
Til to effect both cases will endeavor substantial justice.” In U. v. Luchar U. S. S. a criminal (134 621) construing “ statute the said But court : laws are to be con though penal the intention of the strued must yet strictly, legislature govern in tire construction of aswell other and penal statutes, they are not to be construed so as to defeat the obvious strictly * * * intention ‘It legislature. me,’ appears said Mr. Justice United States v. 3Winn, Sumner, Story, 1that the 209, 211, in all these course, is to proper cases, search out and follow true intent of the and to legislature, adopt that sense of the words which harmonizes best with the con iix the manner text, fullest promotes apparent policy ” objects legislature.’ It is said Mr. in his work on Sedgwick Statutory Constitutional Law ed. The rule that (2nd 282): statutes of class are be construed is far from strictly, being rigid or rather, it has in oiré; modern unbending times been so modified and as to mean explained little more than away, like all penal provisions, others, construed fairly intent as according legislative enact- expressed the courts on the ment; one hand to extend the refusing to cases which are not embraced in punishment clearly them, other, mere verbal equally refusing by any nicety, forced construction, or equitable exonerate interpretation, within their parties plainly scope.”
The forfeiture of otherwise will sometimes rights existing *10 inferred from be statutes which do not penal expressly pre- scribe such results. Thus in v. Wells Denio, (3 226) Griffith it was held that where a statute a imposes penalty doing an act, such act in terms unlawful, although prohibited or declared to be and a of action to recover for illegal, right was denied because the had sold them liquors in vio- plaintiff a statute lation of a inflicted one only penalty upon without a and did not in terms license, selling liquors prohibit 232 v. Ahearh. Court, per
Opinion of Hiscock, [Yol. a fair held to inference that when a said sale. It was be stat- of a ute a certain act it imposed penalty performance to make such act intended illegal. aid consideration
Some be subject may an examination of the derived from statute general relating offices. vacancies public of the Public Officers Law ch. 681, Section (L. when in force was removed, appellant
amended) provides: office shall be vacant of either “Every happening before the events term expiration following " * * * 3. His removal from (the inсumbent’s) thereof: * * * 5. His of a or a crime conviction office. felony, a violation of his oath office.” involving the conviction of certain crimes and a Thus removal from the same on an effect official’s precisely office incumbency Either event ousts him and makes the office. officevacant. in either no case that his ouster shah express provision There term that he not be the entire may immediately be fill the caused If he can be vacancy thereby. appointed fill the one in the other. case, vacancy appointed of the Penal Code willful Section 117 provides a officer to his office any duty omission by perform public therefore, conviction of such and, be misdemeanor shall “ * * * a crime conviction would offense of his oath of and canse a office,” violation involving is not A misdemeanor vacancy. punishable imprison- within of- section and, therefore, ment in state’s prison not forfeit all such conviction would the Penal Code, pub- the term of the all sentence, lic offices, during suspends, ” and all trusts sen- person the civil private rights, far as words, In other so these con- provisions tenced. a misdemeanor would not convicted of suffer cerned, person to hold and his public a general disqualification his conviction would to be appointed the statute the construction declaring depend upon that when the statute provides Is possible vacancy. of oath of a crime violation involving
conviction *11 Aheaen. Opinion Court, per Hiscock, IT.-Y.
shall be as so an incumbent’s regarded seriously impairing him and usefulness it shall oust competency ipso facto it still be office, intends that this and effect ouster may and that be the individual temporary may immediately been and restored to the has appointed very so created even promptly may imperatively though still be which has on the conviction subject imprisonment and oust him ? It is not a sufficient operated disqualify answer to this it occur would never possibility say and that no would have the ever temerity appointing power to make an such The test of the appointment. meaning of a statute is rather purpose what than what may prob- will be done under under ably it. And as has been suggested the statute there is and distinction between be no ought such criminal conviction and a for cause removal of his incumbent office depriving creating If one be turned into mere vacancy. may temporary the other suspension may.
Brief attention next must be to some given arguments behalf of based on facts and reasons which are appellant believed to be at least to the indirectly opposed foregoing views.
Our attention called to in which the various eases legis- lature has affixed as a certain conviction consequence crimes a to hold and to disqualification provisions the nature of the of a regulating impeachmеnt judgment officer and which either public defendant provide removed from office or be removed from may simply office and and en office or to hold disqualified joy particular class of offices or trust honor, profit, because of these of or for provisions disqualification express that no intended in argued can disqualification absence of and that more certainly express provision serious should not be attached consequence proceed- under dis- review than to those of where ings impeachment ' must be for. qualification Independent expressly provided other answer is any. reply argument, complete *12 People v. Ahearn. Hrscocic,
Opinion Court, per J. [Vol. cited that the instances the disqualification provided or some either to hold office a disqualification any general dis- that such office, nobody general particular argues from the removal of the defendant would flow qualification is that the in this here defendant by case. The proposition the a his has removal particular deprived within lie selected and term for which had been particular he was removed. If after an impeachment proceeding without where the removal general judgment simply the official should arise whether disqualification question fill the caused be to by vacancy might immediately appointed the, a somewhat his question analagous pres- impeachment, that in ent be It is not overloоked one would presented. trial of Barnard, Judge
impeachment Judge Allen a as member of Court of Appeals, impeachment sitting would be that a of mere removal court, urging judgment seek did to enforce entirely inadequate, argument alone the such under inadequacy saying judgment fill the That be vacancy. defendant might appointed as a matter of made statement, however, against argument form of is not to be as certain controlling procedure, regarded us. now before authority true that it is that if defendant’s removal is urged him as the effect of from be construed appoint- having barring it be as effected ment must vacancy, having regarded That to hold office. argument disqualification any general was tried attention. The defendant does not serious require of a certain office dur- his administration charges affecting from removed term, certain punishment ing him immedi- removal barred office. Because such it fill term, ate vacancy unexpired him to it not to be claimed disqualified ought seriously a new term of take other office to be elected to some his involved in same neither which were way trial he was and from neither which removed. defend- it
But is said that caused by lastly vacancy ant’s filled removal were election by people, A he aw. Hiscock, of tlie Opinion, Court, N. per T.
the latter would have the to elect defendant not- and that distinction can drawn removal, no withstanding betweеn the to fill the elec- power vacancy by people tion and that board of aldermen to fill appoint- ” ment. While I am not to assent to personally prepared that if the proposition filling *13 removal had been the voters of conferred
.appellant’s upon limited district to be exercised have would by election, they had aider- than the discretion board greater power it is sufficient men, for the that that say present not here and it is not it. necessary pass is little
There chance that the involved principles actually our decision will ever embarrass the of selection practically of whomsoever the removed by people they desire, including official. In all cases nearly arise, might is conferred some temporarily filling vacancy and then the elect for a appointing power full, people complete term which could not be term regarded part unexpired of office from which had official been rather removed, but as a new term and for the full election which term he would not be because of said here. Thus ineligible anything case of a of a sheriff removal as of other officials county would be filled and then an vacancy by temporary appointment election would be held for a full entire While term. the elec- would tion be occasioned from primarily by vacancy arising the election could not as held for removal, regarded rather but as held for the purpose filling vacancy, pur- another term and, under the views therefore, pose filling forth, hereinbefore set while the officialwho had removed been would from to fill the prevented taking of his he not be term, would dis- vacancy part original an election for what was treated as qualified accepting a new term. I fail to see this any argument principle against in the fact that the new term created the Constitution by within commence covered might period original repioved. term an from which has That is incumbent been a mere matter of constitutional or statutory provision. v. Ahea.ru. Court, per Hiscock,
Opinion of the [VoI. are not numerous. It is The authorities upon subject should be. would seldom natural they happen a hear- removed from for cause after office duly person himself into caused to intrude would attempt vacancy ing in that or that his conviction of own wrongdoing would occasion contro- legal appointing power permit such preponderance versy by person. appointing in favor there con- is, whatever decidedly authority in this ease. thus far clusions which prevailed Minnesota Dart Minn. (57 The action of State 261) had treasurer been removed dealt a case where county with his under malfeasance. from office for Pending suspension he and thereafter his final removal resigned charges the board of he had been before his removal appointed сommissioners resignation. county held that his The court eligibility during the term for which had remainder of originally *14 and that involved removal elected was proceedings he was on rendered removed ineligible been having charges that he could not avoid for vacancy, his trial. this result pending by voluntary resignation Kan. ex rel. v. Rose Kansas Coleman (74 In State 262) of had been from his that removed it held where mayor he could not he of official misconduct conviction office on is such removal. to fill re-elected him in this case trae removing expressly judgment but the court mak him the entire term, ousted original this affirmed the provision its decision ing proposition to its ; entire term was not essential decision for the removal without such under the circumstances special that the removal of his entire him deprive provision operated he was removed. term during Iowa, The cases of lowa Welsh (109 State 19) are also cited as Fla. (31 Matter Advisory Opinion 1) it true the People’s position,
sustaining that effect. case does have at least in the latter opinion Jersey City (25 case of ex rel. Tyrrell In the State People v. Ahearn. Hiscock, Court, of per Opinion N. Y. had J. L. court before it the 536)
N. consideration of for a a motion writ of mandamus directed to peremptory the common council it admit Jersey City commanding one as a of said council. He member had form Tyrrell been had been erly member, expelled charges bribery and then had been re-elected. The court wrote effect that the sentence of did not him from expulsion disqualify re-elected to the same office and also that been being having re-elected could not be for the same offense. expelled In Matter Guden Div. was said (71 App. 423) “it decision that an merely the-effect that the authority common council of no had Jersey City expel member for acts committed election, previous ques tion whether such officer been being having expelled council once, conviction of official hav corruption, could re-elected, be for the same ing expelled again identical offense.” Aside from this of what this summary .
case as it is to such con might regarded holding, subject siderations as to an election applicable people official had who from a been expelled legislative body from an distinguished appointment.
I find decided the court and written nothing nothing exrel. v. Coler N. Y. Judge Devery (173 Cullen our which conflicts 112), urged upon attention, with the conclu sions which have been reached. That case statu considered a that the commissioner of the of Hew tory police city “Y orle whenever in the said may, j udgment mayor city or the interests shall so be removed *15 public require, from office and shall be either, for by ineligible reappointment thereto.” Cullen was of the that the Judge opinion pro vision incumbent who be removed from any rendering might the office of for police-commissioner ineligible reappointment unconstitutional, and this view was entertained because such was of most character,” disqualification arbitrary since the incumbent be removed without those might charges or that which are in the and for case, hearing required present that reason a removal did not involve reflection on the any Ahearh. Court,
Opinion per Hiscock, [Yol. character of the officer removed. There official or personal the substantial distinction no between difficulty seeing and this. case has decisions courts, beyond attempt
Passing in behalf made to sustain the views been urged appellant bodies in to the action on reference legislative by passing fill had been re-elected to the cases of those who vacancies and much has their caused been expulsion importance by House Commons in to the action of English given for an of a case. Wilkes was offense Wilkes politi expelled — — libel which does not nature a seditious cal appear or to have involved committed official any capacity misfeasance the House of office, or Com turpitude personal a for cause broad mons very expel exercising a unfits in its member parliamentary judgment It was at first determined on Const. duties. 838.) (Story § Wilkes Commons rendered the House of expulsion to fill the caused for еlection vacancy expul ineligible wTas rescinded. If neces this action but sion, subsequently seem that substantial distinction it would sary, might effects between case of drawn expulsion resulting very exercising comprehensive jurisdiction body legislative its other reasons not over own membership political there of officialduties and where betrayal amounting the removal is and a case where based no hearing solely occurs after a But it is misfeasance only official hearing. here to consider this doctrine legislative unnecessary House of Commons Wilkes adopted by practice to case of for official considered expulsion case applicable our has been national House misfeasance fairly rejected by which make the latter’s facts action Representatives here. basis of very argument pertinent were instituted
In one proceedings 1870 expulsion against sale of Whittemore for naval appointments alleged such the accused academies. military Pending proceedings and he then at a from his election special resigned fill such When resignation. chosen *16 v. Aheakit. Court, HiscocK, Opinion Bep.] per H. Y. the credentials of such election were laid the house a before
resolution was That House of duly adopted, Represen- tatives decline to allow said Wliittemore be sworn as * * * and direct that his Representative crеdentials to him.” returned was a this resolution Accompanying pre- amble the facts of the reciting proceedings expulsion Wliittemore and the fact that he against had escaped expul- sion It was thus that mem- by resigning. determined, first, ber not the effect of might escape expulsion proceedings that a member thus resigning, and, second, proceeded against for official to fill the misfeasance was for election eligible his On expulsion. resignation escape the other side of the case will attention be called to remarks of General this action and Logan supporting resolution its force this connection. He said breaking that “he did not that the Constitution presume contemplated or mere expulsion reasons, political anything a violation of the rules House or infraction except of some law. lie assumed that where the House existing had the right for violation its rules or of some expel law it had the same to exclude a existing person * “ * its It was a man from- to exclude body.
House crime. It was feature which distin- crime of. this case from those of Messrs. Ohio, guished Giddings, Brooks and after Keitt, South who Carolina, receiving House, censure had their and after seats, resigned had been of Mr. re-election admitted to the House. case was also Matteson, Hew who had been York, censured, he had because returned to different, succeeding Congress that which he had had no been censured, juris- diction of the offense committed its against predecessor.”
There does can alter these remarks which nothing fundamental facts involved action directly had House of that Wliittemore These were Representatives. insti- of official were misconduct; guilty proceedings
tuted for his and which he escaped only by resigning; expulsion that it was held he could not the consequences escape *17 People Ahearu. Bartlett, per T. Opinion, Edward J. [Yol. him rendered and that his misconduct so
misconduct doing, by for the of balance election ineligible such expulsion. his term caused resignation escape it must follow that proceedings expulsion Certainly had been and the member their termination had proceeded have been would officefor misconduct removed from to fill the held to be vacancy. ineligible of authority destroying especially significant, in this the Wilkes case as practice authority legislative that it was cited in debate as an authority against country, its then and doctrine taken, (Hinds’ action rejected. being vol. 487; House of 1, Precedents of the p. Representatives, full in the debate And 830, recognition vol. p. etc.) case and cases Whittemore taken of the distinction between after mere censure for causes members politi- where resigning misfeasance had been also re-elected, and not cal involving had the re-election cases where Congress succeeding of had In view the one at which the member been punished. of our one' branch legislative body, action by highest cited of have been various statements opinions based on the doctrine of and historical writers constitutional in this to lose their value as authorities the Wilkes case seem country. should, affirmed,
The order with costs, affirmative. certified answered
Edward T. I concur in the J. opinion Bartlett, Judge Hiscook.
This case on the conceded facts presents single question F. Ahearn, viz.: Can John who was law, defendant, of the elected Manhattan president duly borough borough the term the electors said of four borough years, removed from that office of the duly governor the board of aldermen of the state, reappointed city Manhattan, to fill York, Hew representing borough created for the vacancy thereby remainder unex- two term about years pired Í v. Ahearr. Opinion, Bartlett, per
ÍT. T. Y. Edward make The removal and the -the which resulted in same are regularity proceedings not challenged. stated sub- is, proposition appellant briefly *18 the
stance, as there is no affirmative in Consti- that, a tution or statute removed of forbidding official for his to serve the remainder of term, unexpired défendant is lawful now of possession virtue removed of the action of the him, governor by
board of aldermen of the New York him of city appointing to fill the his removal. vacancy by
A is elected the electors of borough president by originally awhile is filled a so-called “election” borough, by made a vote of the board aldermen by majority represent ” “ The word election as ing (Charter, 382.) borough. § used in this connection is the equivalent appointment. 45 It is be observed
(Sturgis N. Y. Spoford, 446.) that election involved in question people this litigation.
If the defendant is advanced on behalf of the proposition then the sound, before the and the proceedings governor removal of the defendant from office ill a were advised and waste of time and There is, however, my money. judg- ament, answer to the complete defendant’s piosition.
The charter of Greater New York (§ 382) provides the same manner as the borough president removed section 122 the" be removed mayor; by mayor may in the same manner as sheriffs. Article section governor 10, of the deals Constitution with clerks sheriffs, counties, district The sentence this attorneys registers. closing “ section reads as remove follows: The governor may officer in this section the term for which he within mentioned, shall have been to such of the officer elected; cop>y giving heard in and an his him, charges against opportunity being defense.” The removal defendant of this governor, “ within the involved, term under elected,” which he was upon him the exercise charter, conferred power Aheakn. Bartlett, per
Opinion, T. Edwabd [Yol. The extent this calls for
the Constitution. of the construction of Constitution already language has of law with which the cited; legislature question to. with no was called deal concern. within Constitution, defendant, language After the term which he shall have been elected.” term, defendant, notwithstanding expiration free before the electors his would have been removal, go their to make more votes him once asking borough their president.
The vital whether lawyers distinguished framed the Constitution were with substance who dealing intended official shadow whether ; unworthy they for the balance of the term “for which should be removed ” that he or did shall been elected; contemplate they after the be reinstated immediately gov- position, might *19 adverse the board of of aldermen, ernor’s decision, by time his ? a member at the of removal body the con- should be This Constitution reasonably provision the The in to be strued view sought accomplished. object manifest was to removing summary way provide purpose, official, the his term an office for remainder of unworthy the as was selected the and representative governor this after the defendant to exercise power important people in his be heard a reasonable to had been afforded opportunity in limited remove defense. This to undoubtedly power interfer- of the term to its exercise to the balance prevent any to electors elect successor with the of the ence right borough after the thereof. expiration can now whether
The governor рresented and a certain the defendant from office on day remove duly him reinstate morning. the board of aldermen following the defendant As was well argument, suggested his removal successor own by appointment, can extended and It needs no meaningless. plainly nugatory fails give establish that such construction argument “of effect t-o the definition public due force and not only People v. Ahearn. per Gray, Opinion, M Y. of the but to Constitution which confines
office,” language as balance out, already pointed governor, term for which accused was elected. The words last of limitation the framers of the words Constitu- ; quoted tion careful not to interfere with the were right people to elect their in officers certain cases.
The removal vested is a power meaning less unless office” mere more than “public implies and Mr. in his Law Dic title, Burrill, compensation. “ under the head of this definition: tionary, office,” gives “ The idea an officer embraces idea of clearly tenure, fees or well duration, as as emoluments, rights powers, that of station or ; duty public employment; employment confirmed This statement by appointment government.” is cited with ex rel. Nostrand approval Henry (46 N. Y. In 375, Matter N. Y. 381). Hathaway (71 244) said : Judge Public used Constitution, Allen has to a trust, be exercised respect permanent behalf or of all citizens who need the government, intervention aof and in all public officer, matters within the funсtionary of the duties range to the character trust. pertaining means a to exercise in all generally, cases, proper the functions aof trust or public to receive employment, the fees and emoluments and to hold it, belonging place term duty the temore perform and Toy pre scribed law.” l)\y other (Italics original.) Many authorities be cited effect. office to which might *20 the defendant was elected the electors by of borough Manhattan the to exercise all the right powers receive the emoluments of of that for president the borough term of four years.
I vote for affirmance. J. The be considered close and may
Gray, I but am of debatable; the that the statute opinion should receive that liberal which will construction, effectuate the to be to purpose attributed the fairly enactment. legislative v. Aheabh.
Opinion, per Gray, [Vol. to for the term remove, is, of displace, The purpose who has been found of the which official, acts, his office, guilty in office rendered his continuance prejudicial public section 382 of the When charter interests and welfare. city’s the the of for the removal by president provides and after a for and, then, charges hearing, borough, of aldermen, the board office the by any vacancy filling leads of its fair construction scope purpose, irresistibly, that the of the dis- the mind to conclusion consideration not be official subject may placed is conferred which appoint power body, upon nor ren- he is not Doubtless, vacant disqualified, position. the action of office dered gover- public ineligible, from the as the result of office, to remove nor but ; power with the con- the statute, under coupled power proceedings the removal, to fill the negatives ferred in the office to be reinstated during the person’s right assert elected. To term for he had been is in words, not restricted reinstate because existed, power a vain and foolish act to make of thing. legislative and re-elect nominate That thereafter, People might, not does term of the same him to new complete an hold office, affect conclusion. implied right that the is not by holding attribute citizenship, negatived under maladministration, removed from official in his office reinstated statute, authority may of the munic- another department exercise of citizens are subject The rights ipal government. fit to see as the impose limitations people
such therefore, public and, interests good government consideration, as is now under a restriction, welfare. Such official misconduct, office for removal from consequent upon inferable think and I one fairly an unreasonable is not the statute. provisions in the con- think therefore, Judge I, Hiscock him and with I will has reached and agree that he clusions from. the affirmance appealed judgment vote *21 People Aheaen. N. 7. Sep.] opinion, per Cullen, Dissenting Oh. J. I Olí. J. have no doubt the (dissenting).
Cullen, under the the statute which removed defendant from governor office the is valid and constitutional. Greater York By New that the charter it is enacted 382) president borough (§ manner in the same as the be removed may mayor, pro of the act. section it is vided in other sections By pro removed vided that the be the may by mayor manner as section 1 of same sheriffs, by governor the sheriff be removed the article 10 of Constitution of the to such officer copy governor, charges against giving him heard in his A and an defense. opportunity pro the the removal of the vision mayor governor authorizing the will in the charters of of New ever be found York city with made of a elective, since office was exception brief not like the of the removal power period. was of which before the commissioner,
police validity N. court in ex rel. v. Coler Y. In Devery (173 103). there under consideration conferred statute power defend absolute unqualified. governor
ant removal here only upon charges, subject and after an misconduct, opportunity necessarily imply can it be well contended his defense. Nor heard being is violation governor power upon conferring The sheriff of the Constitution. the home rule provision Constitution, but must, a local officer, only makers did not If the Constitution chosеn the electors. vest in of home rule to
deem with the it inconsistent spirit an elective sheriff, removing power the bestowal upon it is difficult to see gover officer, why is not who, local, nor the same over an officer though of that deemed a violation spirit. should be elective, necessarily the article of the mentioned in officers not Bocal specially treasurers super such as to, Constitution referred county to removal subject intendents long poor, found is now same manner. Such authority gover Baw Public Officers (sec. 23) been challenged. has never under these statutes nor to act *22 246 .People v. Ahearn.
Dissenting opinion, per Culler, Oh. J. [Vol. that the enact that where an Hor I deny do legislature might removed for official officer had been miscon under these statutes he should not be duct eligible reap: fill re-election to pointment
removal. qualificationsforoffi.ee legislature provide where the Constitution, not when prescribed by qualifica are not tions or prescribed arbitrary. (People disqualifications N. Y. 159 v. 154 id. 439 ; ; Platt, Purdy, People 3 Cow. Barker v. 686.) People, case with
But the this below difficulty judgment has enacted that is that the no char- legislature that sustained unless this cannot be court acter, judgment as a matter of law removal from office holds disqualifies re-election or from reappointment vacancy, although to that I had is no enactment effect. there sup- statutory the law was too established tо the firmly contrary posed It is true that decisions to be question. judicial open on the but correctness of few, to be found point of an indi- like the excellence of character principle, legal its universal as established vidual, firmly accept- -may decisions and the failure to favorable it, ance I think that this is true of the is mooted. when subject that removal from does not On disqualify. proposition John Wilkes was from 1769, the 3rd of February, expelled “ a scandalous of Commons for the House having published was its libel,” and seditions undoubtedly prerogative. lie was the same month re-elected to the the 16th of On the House of without opposition. Thereupon Commons that “John Wilkes this resolved been Commons having was and is house, session of Parliament expelled incapable to serve in this elected member Parliament,” of being This last was declared void. action of House his election in a ferment. set of Commons kingdom Though it was the of vehement defenders, some subject wanting in one of his famous Lord Chatham most denunciation. the Commons under the pretense orations charged had law and enacted a a law, made disqtialifica- declaring Ahearf. opinion, Bep.] Dissenting per N. Y. Otjllen, Oh.
tion unknown law. The con- controversy long A tinued. new Parliament Wilkes convoked, having was elected and in thereto, the House of Com- May, mons directed that the resolution that he was disqualified should be the house as sub- expunged journаls *23 versive of the the electors and of the whole rights people.
From that time it has been the law of that accepted England from House of not Commons does expulsion prevent re-election thereto. Hist. In Constitutional (2 May’s p. 27.) was from the House of Commons expelled Bradlaugh and been returned the electors of having Northampton, his took seat the house without on the (Treatise question.
&Law Tlios. E. etc., Parliament, Privileges, 1863, May, The career of is a John Wilkes of American his- 1864.) part for, tory, nevertheless he was the profligate was, though steadfast of the of the supporter liberties colonies rights resisted the encroachments of Crown. courageously To resistance we owe the of the Federal Con- stitution warrants. forbidding issuing general
The law of the Wilkes case has been universally accepted in this country statemen, publicists text-writers, as said, decisions are though, Mr. already judicial scanty. Bancroft, his of the United History States, 275, says (p. “ vol. The disfranchisement of Wilkes had no 6): authority in law.” Mr. in his work standard Cushing Legislative Assemblies, from a or. says (p. 182): Expulsion former, from the same cannot be as a legislative assembly, regarded unless personal disqualification, law.” specially provided by Professor in his Constitutional Law Pomeroy (§ 716) says: “ It is true that Senators and Representatives may expelled to which body but they belong, punishment removes from the plainly inadequate; expulsion present but is oflSce, no obstacle to re-election thereto.” In 1797 Blount, William Tennessee, senator from was from expelled the United States Senate for a hostile promoting military expedition territories Floridas and against Spain in the interest of Great Britain. For that Louisiana, conduct [Oct.,. Ahearn. Culler, opinion, per
Dissenting Oh. [Yol. the House of
he was also impeached Representatives. of either Senate that Members of was decided by Congress stress of house were subject impeachment. House impeach- support managers
argument immediate re-elec- did not his was that prevent ment expulsion so should, therefore, and that permitted tion impeachment from office. he would be holding disrpmlified convicted for re-election that Blount The assertion qualified and seems counsel assumed admitted by unquestionable. of this state
The Constitution 13) (Art. prescribes § further shall not cases extend impeachment “Judgment or from to removal removal disquali than hold and office of trust honor, profit fication enjoy thus that removal from office under this State,” recognizing itself does not create a conviction disqualification. Upon *24 when of a Court on impeachment, justice Supreme of be rendered thereon arose, Judge question judgment was of this court said that the defendant simply Allen from he re-elected removed be immediately might fill or people appointed vacancy. (Barnard’s vol. We one however, 2195.) have, Impeаchment, p. judi v. cial decision on exact In ex State rel. point. Tyrrell N. J. L. council Common Council common (25 536) had Tyrrell and expelled bribery corruption. Jersey City was re-elected and the common council then sus He a him. he sued mandamus to out compel pended Thereupon him as the common council a At member. recognize threshold of the case, very presenting maintain the relator to was the whether proceeding, question which the defendant chal re-election, eligible held that The court he was. In answer to lenged. whether member of that iswho adjudged body is to be official and there misconduct guilty gross
to-day unfit to exercise his or even fore expelled men associate with fit to fill can be character, possibly the same office such a man can to-morrow, whether Ah earn. v. opinion, Dissenting per Cullen, N. Y. Ch. thrust, back of honorable and upon body men, upright
as their official con- compeer associate, by misguided with the odor his fresh stitutency, him, about corruption the court said: These, law- however, questions to consider. is for the making power legislature say how far in to limit the particular cases, necessary, of the members of a common council, particular punish offenses, not for the courts.” This decision is cited with Dillon work approval by Judge Municipal Corpora- tions (Yol. ed.], 248). [4th §
canMor sound reason be the result of the any why given removal from office as a matter should, governor than law, flows any greater expulsion by Whatever be the view body. taken other legislative it is court, settled a recent states, decision of this that the action of the a sheriff from officeunder removing the constitutional that has been cited judicial j but executive. (Matter Guden, 171 N. Y. There-1 529.) if there is distinction to be fore, drawn from effect of a removal that distinction is judicial proceedings, immaterial here. j this uniform current of we have two recent
Against authority decisions. The first is ex State rel. Childs Dart Minn. (57 262). defendant, county treasurer, resigned during for removal for pendency misconduct, there proceedings board commissioners to appointed by county *25 n fill the his The by discussion resignation. the is brief. “We The court said: are of the opinion very that he was not for opinion while reappointment eligible under or the of the suspension, during pendency proceedings.
The removal be nullified or reversed in cannot proceedings that manner. Such removal are not for the merely proceedings of the the include office; purpose ousting they person holding the that he has his for office forfeited charge qualification * * * for the remainder of the term. Whether the at voters the the he could condone offense polls by We are forfeited his it is not here decide. to necessary -y. Abeam. 250- Culler, opinion, per Oh. J.
Dissenting [Vol. do so.” not could commissioners the county the of opiniоn of the doctrine Kan. 262) v. (74 Rose ex rel. Coleman In State the court held the There followed. was case the Dart the for re-election by even was ineligible officer removed cer the in the decision Bose case In one respect people. is If a removed officer appoint ineligible tainly logical. is election. is ineligible Eligibility ment, equally an attribute the elected or person exclusively appointed, the does at all character or depend upon position he obtains his title. The those whom election to office is invalid. v. person ineligible people (People is Nor there force Purdy, supra) suggestion so far as Condonation, condonation offenses people. means The concerned, simply against public pardon. is vested While exclusively power governor. pardoning source from which all is the ultimate derived is the power still the their act in a constitution people by adopting people, their own thus, limited power; cannot legislature a law. delegate people power making (Barto Y. can v. 8 N. No more there Himrod, 483.) delegated determine whether a candidate is people or nor his offense if he has com ineligible, pardon eligible The mitted one. in these arguments opinions cases, or election a removed permit reverse the action of the officer nullify removing The not new. same officer, made argument the action of the House of Commons in the apologists It is Wilhes case. answered opinion Supreme ex rel. Court New State Jersey Tyrrell Common It is not anomalous that the Council division of the (supra). one enable officer to render government may powers the action of another. nugatory pardoning power him set enables at vested naught of courts The Federal decisions courts of first juries. instance famous sedition upheld constitutionality Jefferson entertained laws. Thomas and on contrary view, all election pardoned who had president persons *26 Aheakn. opinion, per Dissenting Y.N. Cullen, Oh. J. under that
sentenced on the that the law, avowedly ground statute was unconstitutional. is this division of the that renders the case government powers private master or false employer analogy. that
I have said the doctrine that from officedoes expulsion has not been with the disqualify universally accepted, excep- it is tions noted. But that the action of the House of urged case B. F. Representatives Whittemore, represent- ative from South Carolina, effect. contrary (1 Hinds’ Precedents of House of That Representatives, 487.) case is The effect of misapprehended. expulsion the case at for Whittemore all, had not been He expelled. The
had on which the ground action of the resigned. of the House was that majority proceeded could body refuse to receive a person guilty crime, though possessing the constitutional This is from the qualifications. apparent of General who moved the argument resolution. He Logan said The (Id. Constitution of p. 540): United States, which authorizes rules and Congress prescribe regulations for the of their government members, provides two-thirds vote either House one of its mem- may expel any bers without the offenses for which either prescribing House * ** This may expel. with being which I theory start I then out, assume that where the House of Represent- atives has for an offense its rules power expel or against a violation of law of the it has the same land, exclude a from its He the case person body.” distinguished then before the where a member had House, been guilty an actual and that of other crime, who after persons having been censured House had and been resigned re-elected. distinction made General shows that very Logan was not the censure of the House nor expulsion body that created the but the offense of which the disqualification, member had guilty, sufficiency insufficiency as a exclusion the House was ground judge. there is no such to review the courts char- Surely acter of the acts for which this defendant was removed. *27 People v. Aheaee. Culleh, opinion, per
Dissenting Oh. J. [Yol. action was followed similar case of This precedent Boberts, a from the Utah, H. whom representative Brigham that he was a refused to admit on House ground polyga- There was no mist. (Id. question previous p. 527.) expul- The was the as in the in that case. same sion — the of the House to exclude Wliittemore case right that in its criminal rendered opinion crime or conduct of that JSTo can unfit member body. to be lawyer applicant of Messrs. Little- read clear forceful report minority at least correct- field and De Armond without doubting the action however, of this decision. Whether, ness or the cases no House was not bearing justified from office se disqualifies expulsion per proposition re-election or reappointment. “ doctrine is : Where underlying principle general hold are however, no limitations prescribed, is an office under cur attribute system implied public political are those those who competent par. citizenship, only deemed officers being eligible ticipate choosing general sec. There 67.) chosen.” on Public Officers, (Mechem but these are neces rule, only implied exceptions the like. such as minority, idiocy (Bar sary exceptions, Even of crime does ker v. conviction People, supra.) constitu unless prescribed by disqualification disqualify on Elections statute. In the work tion or Judge McCrary it that in the it is Eor absence said: (section 354) plain office on conviction of such (i. e., forfeiting crime), legislation seems well convicted law, settled, according a time at continue to exercise felon least, may, indeеd of a unless imprisonment functions public do so.” Commonwealth also, he be (See, deprived ex 3 Watts & S. State 338; . Shaver, v 36 N. L. In J. Pritchard, rel. Comrs. v. 101.) Police held ex Thornton Hun, rel. Bush v. (25 456) People offer nor the to bribe that neither the electors bribing the certificate of election them a person receiving him from render him holding would disqualify ineligible v. Ahearn. opinion; Cullen, Oh., per Dissenting IT. Y. of a the absence constitutional or statutory provision such such was disability.
declaring Appreciating section 1 of law, for purpose preventing bribery, article 13 art. 12, Constitution (Constitution *28 as to a in his was amended so officer 1) require publie § official oath swear that he had been of no bribery guilty office. of the I force obtaining appreciate arguments has an officer who been from his removed against allowing be elected or thereto. again appointed They but should be addressed to the not cogent, they legislature; to the courts. The same course should be taken as was taken in reference to There the Constitution was amended. bribery.
Here statute should be amended. But for the courts declare not enacted disqualification legislature the Constitution to use the of Lord is, Chatham, language to declare the make but to the law. What led the law, legis lature to omit the removed officer we know not. disqualifying be because it did not occur to the lawmakers that where an officer had been for removed misconduct, appointing officers or electors return would him to the office from which he had been removed. If such was the then case, there is omission the statute which the courts simply cannot On the other it is supply. hand, possible intended to a removed legislature official an give oppor to review the of his tunity removal justice by seeking re-election or to the office. In reappointment 1874 the the state removed the district attorney In the election of that Kings county. general year incumbent so removed was re-elected to the office electors He was county. removed the last during of his so the term term, he year which was elected covered
no of the old term. But under the part Constitution a in that officeand the other vacancy officesmentioned in article 10 Constitution must be at held the next election for a full term. (Coutant Wend. People, Therefore, 511.) had the district removed the first attorney or second of his term and the electors shown the year same confidence People Ahearn. Cullen, opinion,
Dissenting per Ch. J. [Vol. term have held office for would him, very part exists from which he had been removed. The same condition in the office of as to officers. When occurs judicial vacancy Court, of this or of court, judge justice Supreme not less at the next election to be filled happening general than three thereafter a full term. It is conceded months in аccord- in these cases an officer who has been removed unless ance with the Constitution, disqualified holding of a court of would office by impeachment, .sentence for a new term.' What then becomes re-election qualified the official that removal is from the whole of theory If term election to and, therefore, vacancy? precludes found no between inconsistency people fill the officer and his removal of a constitutional eligibility how can court removal, created justified *29 would be created that such inconsistency declaring a similar character ? enactment of legislative seem to in the The case before us does display appointing of the action of but reckless officers governor, disregard If the evil can corrected easily legislature. correct decide "the it, courts, attempt proposition as matter of law removal from office disqualification imports return to fear that the decision soon fill the I vacancy, all I fear that it will afford and most of prece- them, plague mem- of whose bodies, dent qualifications legislative a settled to overturn bers are Constitution, prescribed law. of constitutional principle bo reversed
The order of the Division should Appellate with costs in Term affirmed, and the judgment Special both courts. read for and Gray, JJ"., Bartlett Edward-T.
Hisoook, J., reads Ch. J., concurs; Cullen, affirmance, Werner, Willard J., concurs; with whom Chase, opinion, dissenting J., Bartlett, sitting.
Order affirmed.