People ex rel. Moore v. Leavy

The determination of this case depends upon the construction to be given to the charter of the city of Albany, so far as it

“Sec. 21. The mayor shall biennially (and within three months after the commencement of his term of office) appoint by filing a certificate or certificates of appointment with the clerk of the common council (which certificates shall be presented by said clerk to the common council at its next meeting and printed in its journal) one corporation counsel, six district physicians, four city bell ringers, and such clerks and subordinates, not to exceed two, as he may require to aid him in the discharge of his official duties. Such bell ringers, clerks and subordinates to hold their positions at the pleasure of. the mayor.”

Section 13 of title 16 of the city charter provides that:

“Each district physician shall receive a salary of four hundred dollars per year and shall reside in the district for which he is appointed.”

The sections quoted are the only sections of the city charter in which the office of district physician is mentioned. The common council has enacted ordinances dividing the city into six districts, limiting the district physicians in the discharge of their duties, respectively, to the district to which they are respectively appointed, and directing the district physicians in regard to their duties, and in regard to their reports to the several departments. Is each district physician an independent officer, inseparably connected with the particular district for. which he is appointed? The mayor, as well as the common council, the city departments, and the several incumbents of the office of district physician, have always practically so construed the city charter. Their practical construction of the charter appears by the ordinances themselves, the several instruments appointing district physicians, the several oaths of office, the accounts of the chamberlain, the records of the board of health, and every act and record connected with the district physicians prior to January, 1898. This construction of the statute, adopted and long acquiesced in by the various officers and departments of the city of Albany, is entitled to great weight. The plain reading of section 21, tit. 4, as amended, together with section 13 of title 16 of the charter, indicates the correctness of the construction so given to such sections by the officials of the city during so many years. It is suggested by the learned counsel for the defendant that the object of the charter is to authorize the mayor to appoint a certain number of physicians, and to assign them to such sections of the city, from time to time, as required by the needs of the indigent sick. The provision of the charter requiring that the several physicians must reside in the district for which they are appointed effectually prohibits the assignment of physicians from time to time. A person cannot be a resident of more than one district at .the same time, and changes could not be made as suggested, and retain a physician in each district, even if the physicians were not appointed as independent officers, except by a mere coincidence, by which two or more of the district physicians were simultaneously to change their residences in such a way that each district would nevertheless contain one of the persons so appointed. It is also suggested by the learned counsel for defendant that, if the district physicians were appointed as claimed by the re

On the 7th day of February, 1896, Mayor Thacher appointed district physicians as provided by the charter and the ordinances, and such appointments were made by certificate, of which the following is a copy:

“City of Albany, Mayor’s Office.

■ “Albany, February, 7, 1896.

“John Boyd Thacher, Mayor, to the Honorable the Common Council—Gentlemen: Pursuant to the provisions of section 21, title 4, chapter 298, of the Laws of 1883, I hereby designate and assign the following physicians in and for the districts set opposite their respective names:

“First district: Frederick D. Morril, 74 Westerlo Street.

“Second district: Mark S. Leavy, 217 Madison Ave.

“Third district: O. O. Alexander, 3 Second Avenue.

“Fourth district: Charles L. Myers, 47 North Swan St.

“Fifth district: James M. Moore, 7 Congress Street.

“Sixth district: W. P. Brierly, 228 Central Avenue.

“Yours, John Boyd Thacher, Mayor.”

This certificate was duly filed with, the clerk of the common council, and was presented to the common council at its next meeting, and printed in its journal. Mr. Moore, the relator in this action, and the person so appointed Fifth district physician, took an oath of office, and entered upon the discharge of his duties. The oath of office taken by Dr. Moore was similar to the oath of office taken by the district physicians of the city, and of which oath the following is a copy:

“State of New York, City of Albany, Mayor’s Office—ss.: I do solemnly swear that I will support the constitution of the United States, and the constitution of the state of New York, and that I will faithfully discharge the duties

of the office of district physician of the Fifth district according to the best of my ability. James M. Moore.

“Sworn to before me this 7th day of February, 1896.

“John Boyd Thacher, Mayor.”

By the city charter, as well as by the public officers law, all officers shall continue in office until their successors have been duly appointed and qualified.

On the 19th day of January, 1898, Thomas J. Van Alstyne, then mayor of the city of Albany, by certificate substantially in form as the certificate made by Mayor Thacher, which I have quoted, designated and assigned physicians to the several districts set opposite their names, included among which was “Fifth district: Judson H. Lipes.” Said Lipes was given a certificate of appointment, of which the following is a copy:

“State of New York, City and County of Albany, City Clerk’s Office—ss.: This is to certify that Judson H. Lipes, M. D., was duly appointed district physician for the Fifth district of the city of Albany by his honor, Thomas J. Van Alstyne, mayor, on January 19th, 1898.

“Henry A. Molloy,

“City Clerk, City of Albany, N. Y. [L. S.]

“Dated January 20th, 1898.”

It thereafter appeared that Dr. Lipes was not a resident of the Fifth district, and was consequently ineligible to the position of Fifth district physician. He never took the oath of office as Fifth district physician, and does not claim to be entitled to such office. By the same certificate appointing Judson H. Lipes as Fifth district physician, the defendant in this action, Mark S. Leavy, was appointed Third district physician. The defendant took his oath of office as the Third district physician. Thereafter, and on the 2d day of February. 1898, Mayor Van Alstyne directed a letter io Dr. Leavy, the defendant in this action, Dr. Myers, who had by such certificate been appointed Fourth district physician, and Dr. Lipes, who had by such certificate been appointed Fifth district physician, of which letter the following is a copy:

“Albany, February 2, 1898.

“Mark S. Leavy, Charles L. Myers, Judson H. Lipes—Gentlemen: You will severally take notice that, by virtue of the authority in me vested by law, I do hereby transfer you, and each of you, as district physicians, from the respective districts heretofore designated, and do transfer and appoint you, the said Mark S. Leavy, to district No. 5, and you, the said Charles L. Myers, to district No. 3, and you, the said Judson H. Lipes, to district No. 4. You will take due notice thereof, and perform the duties of district physician in the respective district hereby assigned you.

“Respectfully, Thomas J. Van Alstyne, Mayor.”

No other appointment of Dr. Leavy as Fifth district physician was ever made, filed with the clerk of the common council, or printed in its journal, and Dr. Leavy never took an oath of office as Fifth district physician.

As I have stated above, this question should be determined by the answer to be given to the question as to whether the district physicians mentioned in the charter are to be appointed generally by the mayor, and assigned by him from time to time to different sections of the city, or whether they are independent officers, to be appointed