People v. Molineux
53 Barb. 9
N.Y. Sup. Ct.
1868
Check Treatment
Gilbert, J.

This is an action in the nature of quo warranto, to try the title of defendant to the office of major-general of the second division of the National Guard of this state. The jury, under the direction of the court, rendered a verdict for the people, and the case was then reserved for further consideration. No question was made that the case is one within the provisions of the statute of quo warranto, or that the action is in due form. (Code, § 432.) The defendant was appointed by the governor during the present recess of the senate, upon the happening of a vacancy occasioned by the resignation of-the previous incumbent, Major-General Duryea. I have little hesitation in saying that the formalities requisite to invest the defendant with the office have been performed. The sole question. in the case, therefore, is whether the governor had the power to make the appointment without the consent of the senate; and this, in my opinion, depends upon the question whether there is a statute authorizing this mode of filling the vacancy, except in time of war. The provisions of the constitution on this subject exclude all implication of power in the governor, virtute offieii. Section 3 of article 11 ordains that “the governor shall nominate, and, with the consent of the senate, appoint all major-generals,” &c. This language is too plain to admit of any doubt that the consent of the senate is essential to the validity of an original appointment. Section 5 of article 10, confers upon the legislature the power, and makes it their duty to provide for the filling of vacancies in office. This is necessarily exclusive of the governor. Whatever other powers, therefore, he may possess, as corn-man der-in-chief, these specific powers of appointment and of fillingvacancies have not been conferred upon him by the constitution, but on the contrary have been thereby carefully withheld from him and deposited elsewhere. Upon the trial, evidence was given to show that the power in question *14had heen exercised- by the predecessors of the present executive. In a ease involved in any doubt, this fact would deserve to have great weight; but otherwise it is entitled to very little consideration, in a legal point of view. To come at once to the question presented, I have been able to find only two statutes which have any bearing upon it, and these are the only ones cited by the learned counsel for the defendant. The first is chapter 28, of the laws of 1849, entitled, “■ An act to provide for filling vacancies in office.” That act provides, that “ Whenever vacancies shall exist, or shall occur in any of the offices of this state, where no provision is now made by law for filling the same, the governor shall appoint some suitable person who may be eligible to the office so vacant ‘ or to become vacant, to execute the duties thereof until the commenment of the political year next succeeding the first annual election, after the happening of the vacancy at which such officer could be.by law elected; and the person so appointed to fill such vacancy shall possess all the rights and powers, and be subject to all the liabilities, duties and obligations of such officer, as they are now or may hereafter be prescribed by law,” &e. In the instance before me, there was not any exercise of the power conferred by this statute. The appointment of the defendant is not to perform the duties of the office temporarily, but is a full and complete appointment to the office itself. But I am of opinion that this statute does not apply to the case. In the first place the statute limits the duration of appointments under it to the commencement of the political year next succeeding the .annual election after the happening of the vacancy, at which by law, such officer ■could be elected. In the case of a major-general, this period would never arrive, The tenure of that office is not restricted to any specified time. Upon a literal construction of the statute, therefore, an execution of the *15power thereby granted would be equivalent to a permanent appointment, which would be in direct contravention of the provision of the constitution before cited, requiring the consent of the senate to such an appointment. In the second place, the law has always provided for filling vacancies in the office of major-general, by devolving the command upon the officer belonging to the division next of rank; and, finally, regarding the intention of the legislature, it is quite evident to my mind, that this statute was passed to provide for the filling of vacancies in elective offices only. The other statute cited is part 1, chapter 5, title 6, article 4, section 42 of the Revised Statutes. (1 R. S. 123.) It is not disputed that this statute is in force. The language of section 42, taken by itself, would clearly embrace this case. But the heading or inscription to chapter 5, in which this section is contained, is “ of the public officers of this state other than militia or other town officers,” &c. Much effort was spent, and many authorities cited, to show that the title of an act cannot control the plain words contained in the body of the statute. Subject to the qualification that, “ the words, if they be general, and not express or precise, shall be restrained unto the fitness of the matter or person,” this rule of interpretation is correct. But the inscription to chapter 5 is not in any sense a title to a statute. It forms a part of the body of the act quite us much as the section cited, and it was inserted for the purpose of controlling and limiting the scope and application of the general words used in the chapter. Part 1 of the Revised Statutes was passed as one act. (Laws of 1827, 2d session, ch. 9; Id. 1828, 2d session, ch. 20.) The title and preamble of this act are in these words: “ An act concerning the territorial limits and divisions, the civil polity, and the internal administration of this state.. Whereas it is expedient that the several statutes of this state, relating to its territorial limits and divisions, its civil *16polity, and its internal administration, should be consolidated and arranged in appropriate chapters, titles, and articles; that the language thereof should be simplified, and that omissions and other defects should be supplied and amended; therefore the people of the state of JSTew York, represented in senate and assembly, do declare and enact as follows,” &c. Then follow the chapters, titles and articles into which the act is divided, each containing a preliminary statement of the subjects to which they respectively relate. In this form of enactment such statements are a part of the law itself, and not in any wise extrinsic to the enacting clause. Their office is solely to control, limit, and apply, the succeeding provisions of the statute. To reject them, or refuse to give effect to them, according to their fair and ordinary import and understanding, would be to make the law, not to administer it. The rule I have thus laid down has, so far as I know, been uniformly applied to the Bevised Statutes, and has also been followed in respect to the Code of Procedure. (Williams v. The People, 45 Barb. 201.) I have thus briefly intimated the results of the examination which I have been able to give to the case. It follows that, either there is a casus omissus m the statute on this subject, or the legislature have intentionally left the vacancy in the office of major-general, occurring in time of peace, to be filled in the ordinary way, namely, by a simple devolution of the command upon the officer next in rank. I think the latter alternative is most probable, being more consonant with the nature, organization and objects of the militia system. In time of war the governor is expressly vested with the power of appointment, in case a vacancy occurs. (Laws 1862, p. 899, § 85.) And it seems to me that the legislature, while framing a code of laws on this subject, did, by making the exercise of this power to depend upon such an exigency, evince a clear intention not to intrust the power to be exercised in time of peace. But if a casus *17omissus exists, the court has no power to supply it. My conclusion is that the people are entitled to judgment.

[Kings Special Term, October 28, 1868.

Judgment accordingly.

Gilbert, Justice. The above decision was affirmed, pro forma, at a general term held in Kings county, December, 19,1868, Lott, P. J. and J. F. Barnard, Gilbert and Tappan, JJ. present ; and it was affirmed unanimously by the Court of Appeals, March term, 1869.]