Daily Register Printing & Publishing Co. v. Mayor of New York

The main question presented by the demurrers in this case is whether the power of designation conferred upon the judicial officers, specified in chapter 656 of the Laws of 1874 (Preface to Laws of 1875 page 4), is or is not continuous. The plaintiff insists that such power was exhausted by a single exercise, while the defendants contend that the power is continuous.

The converse of this rule applies where the authority is conferred to provide for a temporary exigency (see People ex rel. Brown v. Woodruff, 32 N. Y., 369 ), or where a particular question is to be decided by a single exercise of judgment (Cox v. Mayor, 103 id., 523), or where a single act is to be performed within a specified time, especially when the act is required to be so performed ty a particular person then in office. (Bergen v. Powell, 94 N. Y., 591 .) So, too, as to private grants, or to grants of the public property or of franchises for the emolument of individuals or private cor porations. (Weed v. Tucker, 19 N. Y., 432 .)

The crucial question, then, in the case at bar, is whether the power

There is no distinction in principle between this case and the case of Weed v. Tucker, nor is there any material difference between the respective acts. "Whatever difference there is in the phraseology of the two acts favors and strengthens the claim of continuous power in the case at bar. Here there is a designation, and there there was a contract. The same purpose precisely was effected in a slightly different manner. There the board was required to “ enter into contract.” But that amounted practically to nothing more than the designation of a State paper to be thereupon governed by the terms of the statute. Indeed, the act was entitled “An act to designate a State paper.” The contract was the form whereby the designation was to be effected. Its terms were the statutory provisions. The board, it is true, took upon itself to contract for four years, but it

The fallacy of the plaintiff’s position, on this point, is in its assumption of a vested right in the continuance of its service. The claim is, that, by force of the act and the original designation thereunder, a contractual relation sprang up between it and the city in perpetuity, that is, so long as it fairly prints and publishes what it

It is further insisted that, even if the continuous power be granted, the judicial officers cannot create the occasion for its exercise. But that is only another way of saying that these officers cannot redesignate where such redesignation involves a change in the existing

In all these illustrations, I am speaking, of course, of a designation indefinite as to time. Different questions might arise where the service is being performed under a designation or contract for a fixed period —■ claims of vested right on the one side and of unauthorized specification of contract or designated period on the other. These questions may well be left for consideration when the occasion arises. It seems clear to me, then, that the privilege of judging when the proper occasion has arrived for the repeated exercise of power, subject, possibly, to any vested contract rights (where an attempt has heen made to fix a definite contract period), is necessarily involved in the grant, by implication, of continuous power. ■ One is as essential to the due and harmonious execution of the system as the other, and it is impossible, without throwing the whole

The claim, therefore, of an original power of designation which is absolute, supplemented by a continuous power of designation which is limited, cannot be maintained without jeopardizing the j>ermanency, vitality and usefulness of the system. ~We are consequently remitted to the plaintiffs original and more logical position, namely, that there is no continuity of power to he exercised upon aivy occasion or emergency, however critical, and that the life of the system is dependent upon the single and isolated designation with which the execution of the plan originates. It is either that or there is a continuous power which may be exercised, from time to time, whenever the designating officers deem that the efficiency or permanency of the service will be promoted thereby. In my judgment, the latter is the true construction of the act. The former cannot be sustained, either upon principle or authority. The case of Weed v. Tucker has never been questioned, and its reasoning-is directly in point. The People v. Woodruff ( 32 N. Y., 355 ) has been referred to as establishing the contrary doctrine. But, on a careful analysis, I find no antagonism between the two cases. In the People v. Woodruff the question was as to an appointment to office, and Weed v. Tucker was, in that respect, distinguished, but as applicable to contracts, not even questioned. The decision in People v. Wood-ruff proceeded mainly upon the conclusion that the implication of a continuing power of appointment in the comptroller was not essential to keep the hoard of tax commissioners full or to preserve the system. This conclusion was based upon a provision in the Revised Statutes which (treating the comptroller’s power as exhausted by a single exercise) authorized the governor to make the new appointments. Thus, said Judge Davies, “a mode of.appointment exists and is provided for, which meets the exigency and relieves the question from all embarrassment.” Judge Davies commented as well up>on the fact that the statutes there in- question required the comptroller to act “ immediately, ” and to appoint for a specified time; also that it conferred upon the comptroller power to fill vacancies happening during the specified term, and stopped there. The court, in effect, held that the intention of the legislature, as evinced

£{No provision was made by law,” observed Judge Davies (referring to Weed v. Tucker), “ for any new or further contract, unless the same could be inferred or implied from the terms of the act, or from the circumstances of the case. * * * The cases referred to by him (Judge Denio) as analogous to that were, where there was no general provision oflcuw applicable, where the power first conferred had been exercised cmcl was exhausted. Those cases showed that, from, necessity, the authority conferred was not a temporary exigency whicli was intended to be provided for, but the establishment of a permanent system respecting that portion of the public business.” Here (as in Weed v. Tucker) we have no governor to make the redesignation in case of need — mo general provision of law applicable — no remedy save an appeal to the legislature. And the system might completely break down between the happen-, ing of the occasion for the exercise of the continuous power and the meeting of the legislature. But, notwithstanding this reasoning of Judge Davies, three of the judges dissented; and Judge Davis delivered an opinion (concurred in by Chief Justice Denio and Judge Brown), holding that the permanency of the board, under the phraseology of the act, admitted of no doubt, and that within the reasoning “ of the very clear and convincing opinion ” of Judge Denio in Weed v. Tucker, the comptroller’s power to appoint to full terms was not limited to a single occasion. The phrase ££ immediately upon the passage of the act ” was viewed, not as a limitation, but simply as a command to set about the exercise of the general power conferred — with speed. The case, therefore, is an authority only with regard to appointments to office under an act phrased with the seeming purpose of excluding continuity of power,

One or two minor points are made, but they do not call for extended consideration. The difficulty with regard to the continued publication of legal notices, in process of publication at the time of the redesignation, is considered in Weed v. Tucker, and it is there shown that the possibility of such incidents should not affect the conclusion upon the question of continuous power.

There is nothing in the point as to the prohibition of justices of the Supreme Court from holding other offices or public trusts. The duty imposed upon the presiding justice, of designating (with others) a law journal in which the calendars of the courts should be published, is nothing more than an additional duty attached to the judicial office. Having made that designation, certain other incidents follow under the act, such as the' requirement with respect to legal notices generally. Rut the designation of the journal is, primarily, for the thorough dissemination of the court calendars. This is important in securing preparation for trial and prompt attendance upon the call of the calendars. It would certainly be a very narrow and strained construction of the Constitution to hold that a duty, having such results for its object, was foreign to the judicial office. The illustrations of similar duties imposed upon the presiding justice and his associates by other laws, furnished by Mr. Justice Patterson in his opinion at Special Term, suffice to show a general legislative intent not to confine the judicial duty to the bare hearing and decision of cases, but occasionally to impose upon the judges, in the line of their vocation, duties bearing upon the general administration of justice.

For these reasons the judgment should be affirmed, with costs.

Daniels and Cullen, JJ., concurred.

Judgment affirmed, with costs.