People ex rel. Brown v. Woodruff

The facts as agreed on in this action, are as follows:

1. That the relator was on the 3d day of Hay, 1859, appointed by Robert T. Haws, then being comptroller of the city and county of New York, to the office of commissioner of taxes and assessments for the city and county of New York, in pursuance of chapter 302 of the laws of 1859, passed April 14, 1859.

3. That on the 4th of Majq 1859, the said relator and the said Allen and Williamson took and filed the oath of office required by law, and entered upon the duties of said office, and performed the duties thereof until the 5th day of May, 1864.

4. That on the 5th day of May, 1864, the defendant was, by Matthew T. Brennan, then being comptroller of the city of New York, appointed a tax commissioner in and for said city and county, in the place of the relator.

5. That on the same day Jonathan W. Allen was reappointed by said comptroller to the same office, and George H. Purser was appointed in the place of the said Amor J. Williamson, as such commissioner of taxes.

6. That on the same day the said defendant and said Allen and Purser took and filed the oath of office required by law, and assumed to enter upon the duties of said office. The plaintiffs prayed judgment that the defendant had usurped and intruded into the said office of commissioner of/taxes, Ac., for the city and county of New York, and the rights and franchises thereof, and also prayed judgment of ouster against him, and also judgment that the relator is entitled to said office, its emoluments and fees, Ac., and that he recover from the defendant the fees and emoluments of said office received by him.

Upon these facts, the counsel for the plaintiff requested the justice who tried the action to charge the jury as matter of law, that the plaintiffs were entitled to a verdict in their favor against the said defendant, and the said justice refused so to charge, to which refusal the plaintiffs duly excepted. The said justice thereupon charged the said jury that the said defendant was entitled to a verdict in his favor against the said plaintiffs, and directed the said

The exceptions taken at the trial present fully for the consideration of this court the only -material question arising in the case, namely, the validity and legality of the appointment of the defendant by the comptroller of the city of New York, on the 5th day of May, 1864. It is conceded that the relator had been duly appointed to the sainé office on the 3d day of May, 1859, and had continually thenceforth held and exercised the said office, and discharged the duties thereof, and received the fees and emoluments arising therefrom, until the defendant claimed and took possession of the same by virtue of the appointment made by comptroller Brennan on the 5th day of May, 1864. Had the comptroller power and authority on that day to make such an appointment ? If he had, it follows that the title of the relator to said office terminated upon the appointment and qualification of his successor, the defendant ; as it is conceded that the defendant immediately on receiving said alleged appointment, took and filed the oath required by law. His right and title to the said office of tax commissioner were complete • and perfect, if the comptroller of the city had the power on said 5th of May, 1864, to make the appointment.

The office of tax commissioner was first created by the act of March 30, 1850 (Laws of 1850, ch. 121). The 13th section of that act authorized the board of supervisors of the city and county of New York, to “ appoint three persons to be known as tax commissioners of the city of New York.” The persons so appointed were to be classified into three classes ,• the commissioner of the first class was to hold office until December 31, 1851; the commissioner

The second section of this act authorized the supervisors of said county on the first Monday of June, 1859, and every third year thereafter, to meet and elect by ballot three commissioners of taxes and assessments, for the full term of three years. Any vacancy was to be filled by said supervisors for the residue of the term. The commissioners so appointed were to enter upon the discharge of the duties of said office on the first Monday of July, 1859. Before the period arrived for the operation of this act, or for the action of said board of supervisors as therein provided for, and while the tax commissioners were holding over, pursuant to its provisions, the legislature on the 14th of April, 1859 (Laws of 1859, chap. 302), passed another act in relation to said tax commissioners. The first section of

In conformity with authority conferred by this act, the then comptroller of the city of New York, Robert T. Haws, on the 3d of May, 1859, appointed the relator one of said tax commissioners, and he duly qualified and entered upon the discharge of the duties of said offiice. By the express terms of the act, his term of office was for the period of five years, or until the 3d day of May, 1864. By a general provision of the Revised Statutes, which is declared applicable to all the civil officers of this state, it is provided that every officer duly appointed, who shall have duly entered on the duties of his office, shall continue to discharge the duties thereof although his term of office shall have expired, until a successor in such office shall be duly qualified (1 R. S. 5th ed. § 14, p. 409). The successor here indicated, is to be one appointed by competent authority, and who shall have done some act indicating his acceptance of the office, as by giving a bond when the same is required, or by taking the oath of office required by law. Before he can be duly qualified to take the office, there must be united an appointment by competent authority, and such other proceedings as the law requires to be taken by him, before he can enter upon the discharge of the duties of the office. When these combine, and the term

The office of tax commissioner, filled by the relator prior to May 5th, 1864, was not on that day vacant. He was authorized to discharge its duties, and was so discharging them on that day and subsequently, and there was consequently no vacancy eo nomine, to be filled by the comptroller. This provision of law was adopted for wise and beneficial purposes. It was to insure to the people at all times and under all emergencies, the filling of public offices and the uninterrupted discharge of the duties thereof. The exception made in the fourteenth section, of justices of the supreme court, does not impair the force of these considerations. We thus see a perfect and complete system framed by the legislature, which was calculated to prevent, and did prevent any hiatus or interregnum in any of the offices within the state. On fhe expiration of the term of office of any officer, he could continue to discharge, and it was his duty to discharge the duties of his office until his successor was duly appointed and qualified, if living at the expiration of his term of office, and competent to act. By the 40th section of article 4 (1 R. S. 5th ed. p. 413), the legislature made provision for the filling of any vacancy which might happen before the expiration of the term of

First. That the persons first appointed by the comptroller would hold the office perpetually or during life.

Second. That if the comptroller could not under the laws of 1859, make new and further appointments, the offices at the expiration of the terms of those first appointed, would become vacant, and there could be no successor selected if the power to make new appointments is' not vested in him, and thus the most serious consequences would be entailed upon the community. To obviate these alarming and startling results, it is contended that we are to imply and infer an intent on the part of the legislature to have the power lodged in the comptroller in the first instance, remain with and to be exercised by him whenever the exigency should arise which might call for it. It is a dangerous principle to imply power when it is not conferred by legislative authority in clear and distinct terms. It is always competent for the legislature to speak clearly and without equivocation, and it is safer for the judicial department to follow the plain intent and obvious meaning of an act, rather than to speculate upon what might have been the views of the legislature in the emergency which may have arisen. It is wiser and safer to leave to the legislative department to supply a supposed or actual casus omissus, than attempt to do it by judicial construction. Happily in the present instance we are not forced to resort to the field of speculation or conjecture of legislative intent, to obviate the anticipated evils which have been supposed would result from holding that this power of appointment of these officers was not exhausted by the comptroller with the efflux of the period of five years mentioned in the act of 1859. The office of tax commissioner was created by

These officers fall within the purview of this section, and, therefore, adequate provision Avas made by law for their reappointment upon the expiration of their term of office, or the filling of any vacancies in their number after the comptroller’s power to fill the same A\as exhausted, or '■for the appointment of their successors, if the appointing poAver thought proper to change the incumbents. There is no occasion, therefore, to resort to any strained, unnatural or forced construction of the act of 1859, to confer by implication upon the comptroller power not vested in him by the, terms of the act, to prevent any of the apprehended mischiefs which have been suggested. It was competent for the legislature to authorize the appointment of these officers in the first instance by the governor and senate, and if the legislature had omitted to prescribe any mode for their appointment originally, or the mode Avhich they did prescribe became exhausted or otherwise inappropriate, this general provision of IaAV Avhich Avas intended to meet all cases, would have been ample for this contingency. Where the mode of appointment was not, or should not be

Much stress has been laid in the argument, upon the use of the words in the first section of the act of 1859, “ and until others are appointed in their places,” after defining the term of the appointees of the comptroller to be made immediately after the passage of the act. It is urged that these words indicate an intention to confer on the comptroller the authority to appoint “others” than the original appointees and persons to fill their vacancies' for the residue of their terms. But the intent and meaning of this language are obvious. In the first place it is 'to be observed that it is but a new declaration by the legislature of a general and existing provision of law applicable to all offices except justices of the supreme court, already adverted to, namely : That all officers except those named, should continue to discharge the duties of their respective offices, notwithstanding the expiration of their terms of office, and until their successors were duly appointed and qualified. In the next place, these words confer no power of appointment upon the comptroller, or any other officer or authority. The effect, and only effect, therefore, of the language used is to repeat a general provision of" law, which would have been as operative as if no allusion had

As ample provision was made by general laws for the continuation of the board and the reappointment of the successors of the first appointees, no injury to the public interests can follow, if it is held that the power of the comptroller has been exhausted, when he “ immediately ” upon the passage of the act of 1859, appointed the relator and his two colleagues to the office of commissioner of taxes. No vacancies having occurred during the term of five years mentioned in the act, no occasion occurred for invoking the other sole power conferred on the city comptroller by the act, namely, that of filling vacancies. The powers thus conferred, were at the expiration of the term of five years fully and wholly exhausted {In matter of Hollister agt. Bank of Buffalo, 27 N. Y. 393 ). If the board could be kept in existence by the provisions of law then existing, and adequate power given to keep the office full, then no further legislation was imperatively demanded, and no occasion presented for any forced construction of this act. To maintain the position that this court imply such continuous power in the comptroller to make additional and further appointments as the exigency might arise from time to time, the principles announced by this court in the case of Weed agt. Tucker ( 19 N. Y. 422 ), are confidently appealed to. It is to be remarked that that case referred to a power conferred to make a contract “ to enter into a contract,” to publish a paper on the part of the state.

The reasoning of the opinion of the learned chief judge of this court in the case of Weed agt. Tucker {supra), is inapplicable to the one now under consideration. The cases referred to by him as analogous to that were where there was no general provision of law applicable, where the .power first conferred had been exercised and was exhausted. Those cases showed, that from necessity, the authority conferred was not a temporary exigency which was intended to be provided for, but the establishment of a permanent system respecting that portion of thg public business. The relator, therefore, continued to hold the office of tax commissioner, notwithstanding his term of office had expired, and was entitled to hold the same until the governor and senate should appoint his successor, and such successor had duly qualified. It follóws that the defendant had no legal title to the office in question, and judgment of ouster must be rendered against him. The judge at the circuit, therefore, erred in his refusal to charge as requested, and in charging as he did, and the exceptions to such refusal and charge were well taken.

The judgment appealed from must be reversed, and judgment rendered for the plaintiffs that the defendant has usurped the said office of commissioner of taxes, &c., and that he be ousted therefrom, and that the relator is declared entitled to the said office, and to the fees and emoluments

Denio, Ch. J., Brown and Davis, JJ., dissented.

Note.—The very great importance of this decision, especially in reference to future acts of the legislature in passing statutes designating the officers and corporate bodies under the constitution, who are to make appointments to city offices, will justify, perhaps, a brief review of it upon authority and upon principle.

The 1st section of the act of 1859, which relates to the appointment of commissioners of taxes for the city and county of New York, and which is the only section relating to the'mode of appointment, reads as follows:

" § 1. Immediately upon the passage of this act, there shall be appointed by the comptroller of the city of New York, three commissioners, who shall form a board and be designated commissioners of taxes and assessments for the city and county of New York, who shall hold their office for the term of five years, and until others are appointed in their places. Any vacancy in said board of commissioners from death, or resignation or otherwise, shall be filled by said comptroller for the balance of the term for which such commissioners are appointed. The annual compensation for-each commissioner shall be $3,500, to be paid monthly by the comptroller, out of the county treasury.”

Suppose the legislature at its session in 1864, and before the 5th day of May, 1864, had passed an act that the commissioners of taxes in office on the day last named, should hold their offices respectively for the term of five years from and after that day, would it not be a parallel case to the People agt. Batchelor (22 N. Y. R. 128), where the clerks of the district courts of the city of New York, were by an act of the legislature continued in office after the period for which their respective terms of office would expire under their appointment, for the same time (six years) as the justices then elected ? These clerks were appointed by the mayor and board of aldermen, under the act of April 11, 1851, by a provision. very similar to that contained in the act of' 1859, giving the comptroller power to appoint the commissioners of taxes. The act of 1857, extending the offices of these clerks, raised the constitutional question whether it did not conflict with section 2, of article 10, of the state constitution, which provides that all city officers whose election or appointment is not provided for-by the conititution, shallbe elected by the electors of suchcitiés (&c.),’or of some division thereof, or appointed by such authorities thereof as the legislature shall designate for that purpose.” If, therefore, the mayor and board of aldermen had exhausted their power of appointment by making one appointment for a specific term, and had no authority to reappoint under the act for another specific term, there could have been no constitutional question raised in the case, because *by one act of appointment their power having become exhausted, there could be no legal obstacle or

In Weed agt. Tucker (19 N. Y. R. 422), which was a question whether the power committed to the secretary and other state officers was exhausted when they had entered into one arrangement according to the.act for the designation of a state paper, Judge Denio in delivering the opinion of the court, says: “The cases are quite common where the first appointment is alone provided for, and there is no express statement that it is to be repeated at fixed periods, or from time to time, as the exigencies of the case may require, yet the permanent nature of the duties, and their connection with the administrative policy of the state, shows that it was not a temporary exigency which was intended to be provided for, but the establishment of a permanent system respecting that portion of the public business. For example, the legislature, by the constitution, was required at its first session to provide for the appointment of commissioners to reform and simplify the practice of the courts, but there was no provision for renewing its members in any event (Art* 6, § 24), and yet it is well known that one at least of,

Again, he say s: Before considering more particularly the provisions of the existing statute, I wish to refer to the rules of construction applicable to the case. In one of the opinions delivered in the supreme court, and in the argument of the plaintiff’s counsel before us, it is urged in substance, that the power conferred upon the state officers should be construed strictly; and it is said to be an elementary rule that where power is granted to particular officers by the legislature, it is to be construed as limited to a single exercise of it, unless the statute in plain terms provide for its exercise on more than a single occasion. If such a general rule of construction prevails at all, and I have been unable to find the evidence of it, I am persuaded that it is limited to private grants or to the grants of the public property, or of franchises for the emolument of individuals or private corporations.” i3o much for authority.

Now let us look at the question upon principle. There is no question but what this statute confers in terms, the power on the comptroller to make the appoint- . ment of these commissioners. It say s, there shall be appointed by the comptroller of the city of New York, three commissioners.” Here is the power conferred in express and plain terms. The statute then goes on to designate the title