People ex rel. Haughton v. Andrews — 6 N.Y. St. Rep. 475

Majority

p. 475

People ex rel. Nicholas Haughton et al., App’lts, v. William S. Andrews et al., Resp’ts.^[1]

(Court of Appeals,

Filed March 1, 1887.)

Headnote

New York city—Commissioners of excise—Appointment by mayor does NOT NEED CONFIRMATION OF ALDERMEN—LAWS 1884, CHAP. 43.

Under chapter 43, of Laws of 1884, it was not necessary that an appointment by the mayor of New York in 1886 of a person to act as commissioner of excise in said city should be submitted to the board of aldermen for confirmation.

Appeal from a judgment of supreme court, general term, first department, in favor of defendants, on a case submitted under Code Civil Procedure, § 1279, in an action to try the title of defendants to the office of commissioners of excise.

A. J. Dittenhoefer, for app’lts; Charles W. Dayton, for resp’ts.

Upon a case submitted under section 1279 of the Code of Civil Procedure, it appeared that “the relators, Nicholas Haughton and John J. Morris, and one William P. Mitchell, were nominated to the board of aider-men of the city of New York, as commissioners of excise in the city of New York, by the mayor of that city, prior to the first day of May, 1883, pursuant to chapter 175 of the Laws of 1870, and the nominations duly confirmed by its board of aldermen; that the relators severally took the oath of office and duly qualified as such commissioners of excise and entered upon the discharge of their duties as such. That their term of office was to be three years from the first day of May, 1883, and to continue until others should be appointed in their places. That on the first day of May, 1886, the mayor of the city of New York named the defendants and respondents, William S. Andrews, John Von Glahn and Charles H. Woodman, to be commissioners of excise in the city of New York, by written appointment, as follows:

Under and in pursuance of section 109, chapter 410 of the Laws of 1882, and of chapter 43 of the Laws of 1884, I hereby appoint John Von Glahn a commissioner of excise in the city of New York, for the term of three years, from May 1, 1886, in place of John J. Morris, whose term of office has expired.

[L. s.] W. R. GRACE, Mayor.” J

p. 476

And in the same words each of the others.' That neither of the said several appointments of the defendants and respondents made on the first day of May, 1886, have been submitted to, nor have such nominations, of any or either of them, been confirmed by the board of aldermen of the city of Mew York.

That they have respectively taken the oath of office, as such commissioner of excise and are performing the duties of commissioners of excise, and claim to be regularly in office, without confirmation by the board of aldermen of said city.

The question submitted to the court was : Are the defendants and respondents the legal successors in office o£ the relators ?

We are of opinion that they are. It is declared by statute (chapter 43, Laws of 1884, § 1) that “all appointments to office in the city of Mew York now”—March 17, 1884— “made by the mayor, and confirmed by the board of aider-men, shall after that time be made by the mayor without such confirmation,” and by section 2, that the act shall take effect January 1, 1885.

The relators were appointed under the act of 1870, supra, ■ upon nomination by the mayor and confirmation by the board of aldermen. Except for the subsequent act of 1884, supra, their successors would have been appointed in the same way. The act of 1884 works a change in the manner of appointment, and has been complied with. It is really difficult to find an argument to make clearer the proposition that they are the legal successors in office of the relators. It is argued to the contrary that “excise commissioners are-state and not municipal officers.” Concede that to be so. Prior to 1884 the power to appoint was local, and the relators took office under a statute which vested the appointing power in the mayor and aldermen. For every act done by them in an official capacity, they must have justified under a commission derived from that source, and in answer to a quo warranta, could have shown no other title to office. Mo doubt their duties affect the general public, but they are to be performed within the same limits as those which confined the municipality, the moneys collected through them are to be paid into the city treasury for the benefit of the city and as its property, at one time were applied in payment of the city debt (chapter 549, Laws of 1873) and afterward to benevolent institutions, under appropriations made by its board of estimate and apportionment. Laws of 1874, chapter 642. The salaries of the commissioners were by the act of 1870, chapter 175, to be fixed by the mayor and common council, and paid as those of other city officers are paid, and by the act

p. 477

of 1873, supra, the salaries of the commissioners, as well as the hire of their employees and the other necessary expenses of the board, were fixed by the board of estimate and apportionment of the city and paid by its comptroller.

While, therefore, they may be in one sense, and that a technical one, state officers, their dependence upon the city and its municipal government is manifest, and we see no reason to suppose they are not within the purview of the statute under which the defendants were appointed. Laws of 1884, supra. They are within its letter, and the body of the act is not restrained by its title. It is “An act to center responsibility in the municipal government of the city of New York.” It expresses an intent to bestow upon one person greater power, and to relieve all others of a divided responsibility, and this intent was effected by giving to the executive head of the municipality the sole power of appointment, thus making him individually responsible for its proper exercise. The title and body of the act concur, and the parties to this controversy are so obviously within its condition that we find no objection of the appellant to be well founded.

The judgment appealed from should, therefore, be affirmed.

All concur.