44 N.Y.S. 575 | N.Y. App. Div. | 1897
By the Laws of 1896 (Chap. 79) there was established in the city of Hew York an additional civil judicial district and District Court. The office thus created was filled by the appointment of
At the time of said appointment of the plaintiff as such clerk lie was holding the office of Member of Assembly of the State, having at the general election held in November, 1895, been duly elected such member from the first Assembly district of Westchester county for the term of one year commencing on the 1st day of January, 1896, and having duly qualified and entered upon the duties of said office. The salary attached to the office of clerk of said court is the sum of $3,000 a year, payable by the defendant in equal 'monthly installments on the first day of each and every month. The plaintiff has duly presented to the comptroller of defendant his claim for salary, as the same became due and payable, and payment thereof has been refused by the. said comptroller. The ground upon which such refusal is based is that the plaintiff, at the time of his appointment, was ineligible for appointment as such clerk by reason of the fact that at such time he was holding said office of Member of Assembly. The sole question, therefore, which the case presents is, was the plaintiff’s appointment a valid appointment ? The ground of the plaintiff's ineligibility to hold the office is claimed to exist by virtue of an inhibition created by article 3, section Y, of the Constitution of the State. It reads as follows: “No member of the Legislature shall receive any civil appointment within this State, or the Senate of the United States, from the Governor, the Governor and Senate, or from the Legislature, or from any city government, during the time for which he shall have been elected, and all such appointments and all votes given for any such member for any such office or appointment shall be void.”
It is claimed that this section creates an absolute prohibition of appointment of a Member of Assembly to any civil office within this State. It is quite within the language of the Constitution, as well as within its spirit and intent, to say that its framers intended
It is further argued that it was the purpose of the Constitution to disqualify legislators from being appointed to such offices as the plaintiff now holds. The Constitution of 1846 provided for this subject in article 3, section 7. As then framed it did not embrace the language “ or from any city government.” These words first made their appearance in the amendment to this section of the Constitution adopted in 1874. By Laws of 1862 (Chap. 484) clerks of District Courts were appóinted by the board of supervisors. This remained the appointing power until 1872, when, by chapter 438 of the laws of that year, the power of appointment was vested in the justices of these courts. In 1877 the latter act was repealed; but it was re-enacted in the following year (Chap. 345, Laws of 1878). There does not seem to have been any relation between the adoption of the amendment to the Constitution in 1874 and the act which authorized the appointment of clerks hy the justices of the District Courts. When this amendment was adopted, and for two years prior thereto, the appointing power was the justices themselves, and the amendment did not operate thereon at all; consequently, it could not have been aimed at them. Hor do we think that this amendment was ever intended to affect the question of the appointment of Members of Assembly, except such appointment came from some one of the sources therein mentioned. In other words, we think, the evil
We are, therefore, of opinion that the plaintiff was eligible to appointment to this office, and that his appointment was valid. In consequence of which he becomes entitled to judgment, as provided in the submission, with costs.
All concurred.
Judgment for the plaintiff upon agreed statement of facts, with costs.