People ex rel. Foley v. Unger

answer a petition for.the revocation of bis license denying a violation of the Liquor Tax Law. alleged in the petition and raise an issue as to any of the facts material to the .granting of such order, the justice, judge or court should- hear, the proofs of the parties, and might, if deemed necessary or proper, take testimony, in relation to the allegations of the petition or answer, or appoint a referee to take proofs in relation thereto, and report the evidence to such justice, judge or court without opinion. By chapter 680 of the Laws of 1905 this provision, being subdivision 2 of section 28 of the Liquor Tax Law, was amended by striking out the words “or appoint, a referee to take proofs in relation thereto, and report the evidence to such justice, judge or court, without opinion.” The court held that as the power to refer was omitted from the amended statute, the court had no power to refer; that the “ sentence we are considering, unamended, required the court, on the return of the order to show cause, to hear the proofs of the parties, or to direct a referee to take the same and report without opinion. The- sentence, as amended, requires the court, on the return of the order to show cause, to hear the proofs of the parties in relation to the allegations of the petition -or answer. The power to refer the taking of proof is omitted, and it must be assumed under the circumstances that the Legislature intended to change the practice in this regard.” The Legislature must have had some intention in striking out the words “ or appointed,” and it seems to me that it could only have been for the purpose of restricting this power of appointment to a justice who had been elected and would thus hold the office for ten years so that he could have some control over the subordinates of the court in which he is to preside. In Stuber v. Coler ( 164 N. Y. 22 ), while this point was not involved, the discussion turned upon the effect to be given to the words “ elected or appointed ” in the charter of 1897, and it was held that justices of the peace or the justices of the District Courts within the enlarged territory constituting the new city who were in office before the new charter went into effect were not-justices who had been elected or appointed to the reorganized Municipal Court and, therefore, were not authorized to made appointments to these positions. The fact that this construction of the statute may produce some confusion in case a clerk should die, or resign, or be removed while an appointed justice is in office is not substantial, for the vacancy would only exist

for a few months when the successor of the appointed justice would be elected. It is not disputed but that under the Public Officers Law (General Laws, chap. 7 [Laws of 1892, chap. 681], § 5) the relator would hold over Until his successor was appointed, and this is confirmed by section 1558 of the charter (Laws of 1901, chap. 466.)

I think this order was right and should be affirmed, with ten dollars costs and disbursements.

Patteesob, P. J., Laughlib and Claeke, JJ., concurred; Scott, J., dissented. - '

There is a fundamental objection to the relator’s application which is quite independent of the question whether or not Hornidge was legally appointed, and that is that the relator could not, whether a successor was appointed or not, hold office beyond the term for which he was appointed, which it is conceded expired by limitation on July 9, 1907. It has been held in this State that at common law, and ill the absence of a statute so providing, an officer whose term has expired has no right to hold oyer (People ex rel. Morton v. Tieman, 8 Abb. Pr. 359 ), and he certainly can have no such right when he is expressly excepted from the operation of a statute giving to officers generally the right to hold over. Section. 5 of the Public Officers Law (Laws of 1892, chap. 681) provides that “Every officer, except a judicial officer, a notary public, a commissioner of deeds and an officer whose term is fixed by the Constitution, * * * shall * * * ]10ld over and continue to discharge the duties of his office, after the expiration of the term for winch he shall have been chosen, until his successor shall be chosen, and qualified.”

The exception applies, to every judicial officer, and is not limited' to magistrates, judges or justices. It has been distinctly held by the Court of Appeals that an assistant clerk- of a District Court in the city of New York, predecessor of the present Municipal Court, is a judicial officer embraced within the judiciary system of the State. (Whitmore v. Mayor, 67 N. Y. 21 ; People ex rel. Gilchrist v. Murray, 73 id. 535.) The same rule must apply to the relator, and as his claim to salary must rest upon the validity, of his own title to the office, and -not upon any supposed 'defect in. .the title of

him who claims to have been appointed as his successor, it follows that his present application should be denied. If or am I at all convinced that Hornidge was not legally appointed. It seems to me to be. clear that the sections of the charter of 1897 relating to the Municipal Court intended to provide for two classes of justices to be appointed by the mayor. One class consisted of those justices whose office was created by the charter, who were to be originally appointed by the mayor, and who were to hold, office until December 31, 1899, or a term of nearly two years. It was with reference to these justices that section 1373 provided that clerks and assistant clerks should be appointed for a term of six years by the justices “ elected or appointed,” and those words applied only to those newly-created justices. (Stuber v. Coler, 164 N. Y. 22 .) It was necessary to specifically authorize these originally appointed justices to appoint clerks, because as their office was newly created they succeeded no one, filled no vacancy, took no authority by devolution from any predecessor, and could nót have equipped their courts unless, given power to appoint clerks. When the revision of 1901 was made this necessity had disappeared, because all the originally appointed justices had been succeeded by elected justices. It was for this reason alone, as I consider, that the words “ or appointed ” were omitted in the revision from section 1373, leaving the provision as it now stands that clerks and assistant clerks shall be appointed by justices “elected” from the district. In my.opinion neither the inclusion of the words “ or appointed ” in section 1373 of the charter of 1897, nor their omission from the same section in the charter of 1901 had any reference to or bearing upon the power of the second class of justices to be appointed by the mayor, to wit, those appointed to fill a vacancy for the interim between the happening of the vacancy and the election and qualification of a successor. As to these the rule to be applied is the one which would have been applicable if both the charter of 1897'and the charter of 1901 had provided, as the latter charter does, that clerks and assistant clerks shall be appointed by the justice elected from the district. The general rule is, as seems to be conceded on all hands, that a public officer appointed to fill a vacancy caused by death, resignation or removal possesses all the power that his predecessor would have possessed if -he had remained in office, and I can find nothing in the word

“ elected-” to-indicate an intention'on-the'part of the-" Legislature to . créáte -ah exception to this--general rule, especially as - the "résult-ofso .doing might leave"-a court -unprovided with a clerk fór ¡a considerable period.- ’ -For both reasons,- therefore, "-.because the- -relator did-not hqld-over and-had-no title "to the'office" in -any-eventj and- second,, because:Horn-idge was:lawfully appointed, the- order -in -myopinión should he reversed atid- the-motion- denied.- -

. „ Order .afdrmed, wjth ten dollars costs., apd dishprsemeñt^..