Art. X, § 2

Election or Appointment of Officers

"The

Div. 349, 136 N. Y. S. 1001, reversed on other grounds 206 N. Y. 494; Mead v. Turner, (1909) 134 App. Div. 691, 119 N. Y. S. 526; Syracuse v. Hubbard, (1901) 64 App. Div. 587, 72 N. Y. S. 802, appeal dismissed (1901) 168 N. Y. 668, 61 N. E. 1128; Printing, etc., Ass'n v. New York, (1896) 8 App. Div. 230, 40 N. Y. S. 607, affirmed (1896) 152 N. Y. 257, 46 N. E. 499, 37 L. R. A. 788; Hequembourg v. Dunkirk, (1888) 49 Hun 550, 2 N. Y. S. 447. purpose of the constitution was to preserve to the people of the local divisions of the state the power to select such local officers as they had theretofore selected, but not to give them the right to select new officers even if their duties are local, providing their functions are new and the functions of existing officers are not interfered with." Morgan v. Furey, (1906) 186 N. Y. 202, 78 N. E. 869, affirming 114 App. Div. 127, 99 N. Y. S. 783.

Appointment by other than public authorities. By virtue of its power to prescribe the mode of filling new offices, the legislature can confer the power of appointment to a new office on a private individual or association. Sturgis v. Spofford, (1871) 45 N. Y. 446, modifying 52 Barb. 436. See also People v. Raymond, (1868) 37 N. Y. 428; Kane v. Gaynor, (1911) 144 App. Div. 196, 129 N. Y. S. 280; State Board of Pharmacy v. Bellinger, (1910) 138 App. Div. 12, 122 N. Y. S. 651. Thus, an act (ch. 46 of the Laws of 1853) giving the appointment of commissioners of pilots of New York city to the chamber of commerce, and the presidents of marine insurance companies, is not in conflict with this section. Sturgis v. Spofford, supra. In that case the court said: "It is insisted that the power of appointment can only be conferred upon somebody or officer representing or responsible to the people. The language of the constitution does not justify this position. . County, city, village and town officers, whose election or appointment is not provided for in the constitution, are directed to be appointed by section two in a certain specified manner, but the framers of the constitution carefully omitted any direction in the next clause of the section as to the manner of appointment of officers whose offices should be thereafter created. The omission of any direction as to the appointment of such officers is significant of the intention of the framers and the people to leave the unrestricted power in the legislature."

Test of new office. The word "hereafter" in this section must now be taken to mean after the date of the adoption of the present constitution, that is to say, after 1894. In re Brenner, (1902) 170 N. Y. 185, 63 N. E. 133, affirming 67 App. Div. 628, 74 N. Y. S. 1121, 67 App. Div. 375, 73 N. Y. S. 689, and Melody v. Goodrich, 67 App. Div. 368, 73 N. Y. S. 741. See also People v. Pelham, (1915) 215 N. Y. 374, 109 N. E. 513, reversing 166 App. Div. 779, 152 N. Y. S. 428. The authority of that theory has, however, been questioned on this ground. It is a rule of the constitution that where a revision is made of the constitution and a provision of the latter is embodied in the former, such a provision must be construed as a continuation of the former constitution and not as a new and independent stipulation. “It follows, therefore, that the constitution of 1846 having been continued by the constitution of 1894 in haec verba, so far as these provisions are concerned, it is deemed to be a continuation of the provision from the time of its first enactment in 1846; and the offices that were new thereunder still continue to be new offices, which may be filled "as the legislature may direct." Per Haight, Bartlett, and Vann, JJ.; O'Brien and Cullen, JJ., and Parker, C. J., dissenting; Allison v. Welde, (1902) 172 N. Y. 421, 65 N. E. 263, reversing 72 App. Div. 729, 76 N. Y. S. 1008. Within the meaning of the rule stated, an office may be new either in the sense that its substantial and operative functions are new or in the sense that its functions prior to the adoption of the constitution had not been performed by public officers. Thus, the metropolitan fire commissioners, created by the Act of March 30, 1865, and endowed thereunder with the functions of officials of the former fire department of New York city, are new officers inasmuch as the officials of the fire department

Election or Appointment of Officers

Art. X, § 2

had never been public officers. People v. Pinckney, (1865) 32 N. Y. 377. In that case the court said: "The fact that the functions and powers that are now centered in an office have previously, in some form, been used to the benefit and advantage of the public, is not the test to which this question is to be brought. Under such a test, it would be difficult to conceive a case, where a new office could be made, for it taxes ingenuity to imagine duties or functions of public interest that have not, in some form, been exercised by some class of existing officers or persons. The test, therefore, must be, whether the functions conferred are substantially new, in the sense that they were not exercised by public civil officers, at the time the constitution was adopted." Colorable change in office.- An office must be new in fact to fall within the catagory of those offices "hereafter" created which may be filled as the legislature shall direct. A bare change in the name of an office existing at the time of the adoption of the constitution or a colorable modification in the functions thereto pertaining, does not render it new. Morgan v. Furey, (1906) 186 N. Y. 202, 78 N. E. 869, affirming 114 App. Div. 127, 99 N. Y. S. 783; Allison v. Welde, (1902) 172 N. Y. 421, 65 N. E. 263, affirming 72 App. Div. 629, 76 N. Y. S. 1008; Matter of Brenner, (1902) 170 N. Y. 185, 63 N. E. 133, affirming 67 App. Div. 628, 74 N. Y. S. 1121, 67 App. Div. 375, 73 N. Y. S. 689, and Melody v. Goodrich, 67 App. Div. 368, 73 N. Y. S. 741; People v. Albertson, (1873) 55 N. Y. 50; People v. Crooks, (1873) 53 N. Y. 648; People v. Raymond, (1868) 37 N. Y. 428; People v. Pinckney, (1865) 32 N. Y. 377; People v. Draper, (1857) 15 N. Y. 532, affirming 25 Barb. 344. "The constitution cannot be evaded by a change in the name of an office, nor can an office be divided and the duties assigned to two or more officers under different names, and the appointment to the offices made in any manner except as authorized by the constitution; and courts will scrutinize acts of the legislature and see that the constitution is not evaded and its intent frustrated by a mere colorable change in the designation and title or the duties of an officer, when the appointment is taken from the locality, and will hold the act void unless the change is real and substantial." People v. Albertson, (1873) 55 N. Y. 50. Nor is an office, to which are attached functions pertaining to a former office, rendered new by the grant of additional powers calculated to facilitate the performance of some essential functions of the former office. People v. Raymond, (1868) 37 N. Y. 428.

Officer of new subdivision.- An officer of a new civil division of the state, erected by the legislature subsequent to the adoption of the constitution (see supra, I, General Purpose and Effect), is evidently a new officer and as such may be elected by the people, or appointed, as the legislature may direct. Heister v. Board of Health, (1868) 37 N. Y. 661; People v. Shepard, (1867) 36 N. Y. 285; People v. Pinckney, (1865) 32 N. Y. 377; People v. Draper, (1857) 15 N. Y. 532, affirming 25 Barb. 344. See also Morgan v. Furey, (1906) 186 N. Y. 202, 78 N. E. 869, affirming 114 App. Div. 127, 99 N. Y. S. 783; People v. Albertson, (1873) 55 N. Y. 50. Thus, the Act of 1866 (ch. 74), establishing the Metropolitan Sanitary District out of several counties, is not unconstitutional in placing in charge of the sanitary affairs of the district a commission appointed by the governor and senate. Heister v. Board of Health, (1868) 37 N. Y. 661. Similarly, the act to establish a Metropolitan Police District (ch. 659, Laws of 1857) is not unconstitutional in providing for the appointment of the police commissioner of the district by the governor by and with the advice of the senate. People v. Draper, (1857) 15 N. Y. 532, affirming 24 Barb. 344. The legislature may not, however, use its power to create new civil and political divisions as а cloak to evade the provisions of this section vesting in the locality the privilege of selecting local officers. Where such a division is created and the appointment of its officers is made by other than local authority, that division must be new, separate, and distinct in fact as well as name; else, the act of its creation is a nullity. People v. Albertson, (1873) 55 N. Y. 50; Devoy v.

Art. X. § 2

Election or Appointment of Officers

New York, (1867) 36 N. Y. 449; People v. Pinckney, (1865) 32 N. Y. 377. See also People v. Pelham, (1915) 215 N. Y. 374, 109 N. E. 513, reversing 166 App. Div. 779, 152 N. Y. S. 428. See also People v. Draper (1857) 15 N. Y. 532, affirming 25 Barb. 344. "It would not be competent, for the legis lature to create a new civil division of the state, and abrogate the local offices of the several counties that might compose it, and direct the appointment by the governor and senate of other officers limited to perform the same local functions only, although distinguished by a new and more extended title. If that were so, the central power could draw to itself the appointment of all local officers not expressly provided for by the constitution itself.” People v. Pinckney, (1865) 32 N. Y. 377. Thus, chapter 638, Laws of 1873, uniting the city of Troy and certain unimportant lands adjacent thereto into the Rensselaer Police District, is void, since it is patent that the main object of the act is the establishment of a new police force in despite of this section for the city of Troy, the other fragments of territory being included to disguise the true legislative intent. People v. Albertson, supra.

Juror commissioner of New York county.- The office of juror commissioner of New York county, created by chapter 602, Laws of 1901, is a new office, although prior to the adoption of the constitution the duties pertaining thereto were attached to a like office of New York city. New York city, however, comprises several counties, all of which were subject to the jurisdiction of the city juror commissioner: whereas, the duties of the juror commissioner of New York county relate solely to that county. Allison v. Welde, (1902) 172 N. Y. 421, 65 N. E. 263, reversing 72 App. Div. 629, 76 N. Y. S. 1008.

Superintendent of elections.— The office of state superintendent of elections, created by the Metropolitan Elections District Law (Laws 1898, ch. 676; Laws 1905, ch. 689) is new in name and essentially new in functions; the legislature, therefore, was authorized to provide for appointment of its incumbent by the governor instead of by some local authority and the law in that particular is a valid exercise of legislative power. Morgan v. Furey, (1906) 186 N. Y. 202, 78 N. E. 869, affirming 114 App. Div. 127, 99 N. Y. S. 783.

Railroad terminal commissions.- An act (ch. 842, Laws of 1911) creating the railroad terminal commission of the city of Buffalo and designating the members of that commission is not unconstitutional hereunder inasmuch as the members of the commission are new officers and possess essentially new duties, although they discharge some duties which had been previously performed by city officers. People v. Bradley, (1913) 207 N. Y. 592, 101 N. E. 766, affirming 155 App. Div. 882, 139 N. Y. S. 1139; Hanrahan v. Terminal Station Commission, (1912) 152 App. Div. 349, 136 N. Y. S. 1001, reversed on other grounds 206 N. Y. 494.

Rapid transit commissioners are officers whose positions were created after the adoption of this constitution. Sun Printing, etc., Ass'n v. New York, (1896) 8 App. Div. 231, 40 N. Y. S. 607, affirmed (1896) 152 N. Y. 257, 46 N. E. 499.

Commissioner of records.-The office of commissioner of records for the city and county of New York is new and is distinct from that of registry for such city and county. People v. Palmer, (1873) 52 N. Y. 83.

Tax commissioners.-The office of tax commissioner was created by law subsequent to the adoption of the constitution. The legislature is competent therefore to prescribe the mode of selecting tax commissioners. People v. Woodruff, (1865) 32 N. Y. 355.

Water commissioner. The board of water commissioners of the city of Dunkirk, upon whom the duty of operating the city electric-light system was devolved, by chapter 485, Laws of 1871, has been held a new body, the members of which the legislature is competent to appoint. Hequembourg v. Dunkirk, (1888) 49 Hun 550, 2 N. Y. S. 447.

Town receiver of taxes. The office of receiver of taxes in the town of Newton, Queens county, is not a new office, the functions pertaining thereto being substantially the same as those attaching to the position of town collector. People v. Crooks, (1873) 53 N. Y. 648.

§ 3. Duration of office.

When the duration of any office is not provided by this Constitution it may be declared by law, and if not so declared, such office shall be held during the pleasure of the authority making the appointment.

Const. 1777, Art. XXVIII; amended, Const. 1821, Art. IV, § 16; amended, Const. 1846, Art. X, § 3.

Scope. This section "relates not only to offices existing at the time of its enactment, but also to offices created since." Matter of Jarvis v. Waterbury, (1895) 84 Hun 462, 32 N. Y. S. 389.

Generally. When the power of appointment to an office is conferred in general terms and without restriction and the duration of the term of office is not fixed by the constitution or by statute, the office is held only during the pleasure of the authority making the appointment and it may remove the appointee at any time. People v. Wells, (1904) 178 N. Y. 135, 70 N. E. 218; People v. Cram, (1900) 164 N. Y. 166, 58 N. E. 112, reversing 50 App. Div. 381, 64 N. Y. S. 158; People v. Robb, (1891) 126 N. Y. 180, 27 N. E. 267; People v. Scannell, (1901) 62 App. Div. 249, 70 N. Y. S. 983; People v. Sing Sing, (1900) 54 App. Div. 555, 66 N. Y. S. 1094; People v. Henry, (1900) 47 App. Div. 133, 62 N. Y. S. 102; People v. Drake, (1899) 43 App. Div. 325, 60 N. Y. S. 309; People v. Barker, (1896) 5 App. Div. 227, 39 N. Y. S. 140, affirmed 150 N. Y. 570, 44 N. E. 1127; Armatage v. Fisher, (1893) 74 Hun 167, 26 N. Y. S. 364; People v. Dalton, (1898) 23 Misc. 294, 50 N. Y. S. 1028, affirmed 31 App. Div. 630, 54 N. Y. S. 1112, mem. See also People v. Nixon, (1898) 32 App. Div. 513, 53 N. Y. S. 230, affirmed 158 N. Y. 221, 52 N. E. 1117; Abrams v. Horton, (1897) 18 App. Div. 208, 45 N. Y. S. 887; Matter of Jarvis v. Waterbury, (1895) 84 Hun 462, 32 N. Y. S. 389. However, it seems that the legislature may "prescribe that the term of an office shall be during good behavior and that an officer can be removed only after a hearing or trial." People v. Cram, (1900) 164 N. Y. 166, 58 N. E. 112, reversing 50 App. Div. 380, 64 N. Y. S. 158. See also People v. White, (1901) 59 App. Div. 17, 69 N. Y. S. 30; People v. Henry, (1900) 47 App. Div. 133, 62 N. Y. S. 102. Of course the legislature may, where it has granted the authority to appoint to an office created by it, authorize the removal of the incumbents in any manner in which it may see fit. People v. Whitlock, (1883) 92 N. Y. 191; People v. Peck, (1902) 73 App. Div. 89, 76 N. Y. S. 328; People v. Ham, (1901) 59 App. Div. 314, 69 N. Y. S. 283; People v. Sturges, (1898) 27 App. Div. 387, 50 N. Y. S. 5, affirmed 156 N. Y. 580, 51 N. E. 295. Thus, a removal without notice or hearing may be authorized. People v. Whitlock, (1883) 92 N. Y. 191; People v. Peck, (1902) 73 App. Div. 89, 76 N. Y. S. 328. So the legislature may abridge the term of an office created by it, by express words, or may specify an event upon the happening of which it shall end. People v. Whitlock, (1883) 92 N. Y. 191. Similarly, a law which declares the term of an office may be so altered as to shorten the length of the term of an incumbent. People v. Sturges, (1898) 27 App. Div. 387, 50 N. Y. S. 5, affirmed 156 N. Y. 580, 51 N. E. 295. Continuousness of appointive authority. The power of removal conferred by this section of the constitution applies only where the authority by which

Art. X, §§ 4, 5

Time of Elections; Vacancies

the appointment is made is continuous, and is not applicable where the power of appointment is exhausted when once exercised. Bergen v. Powell, (1884) 94 N. Y. 591, affirming 30 Hun 438; Matter of Jarvis v. Waterbury, (1895) 84 Hun 462, 32 N. Y. S. 389. Thus, in Bergen v. Powell, (1884) 94 N. Y. 591, affirming 30 Hun 438, where it appeared that appointments had been made under the Act of 1878 (ch. 305, Laws of 1878), which provides for the appointment of three police commissioners for the town of New Lots within thirty days after the passage of the act by certain town officers specified, the court held that the power of original appointment was conferred only upon those who at the time specified held the offices named, not upon those who might thereafter be incumbents; that the power embraced but a single act and was exhausted with its performance, and that those holding the offices named had no authority to remove the persons so appointed.

§ 4. Time of elections; legislature to fix.

The time of electing all officers named in this article shall be prescribed by law.

Const. 1821, Art. I, § 15, Art. IV, § 15; amended, Const. 1846, Art. X, § 4. See also Const. 1777, Art. XXIX. In relation to mayors see Const. 1777, Art. XXIII; Const. 1821, Art. IV, § 10; amendments of 1833 and 1839; Const. 1894, Art. XII, § 3.

§ 5. Vacancies in office.

The Legislature shall provide for filling vacancies in office, and in case of elective officers, no person appointed to fill a vacancy shall hold his office by virtue of such appointment longer than the commencement of the political year next succeeding the first annual election after the happening of the vacancy.

Const. 1846, Art. X, § 5.

Purpose of section.—“In the case of elective officers the necessity for the existence of some continuous authority to fill vacancies temporarily, in order that the performance of their duties may not be too seriously interrupted, and the inconvenience and inadequacy of any system by which such power could be exercised by the people through the medium of popular elections except at regular periods, led to the adoption of that clause of the constitution which delegated to the legislature, power to make provision for such cases. The entire scope and theory of the constitution, however, requires those offices when vacant to be filled by the people, at their regular annual election when it is possible to do so, but when a departure from that mode is rendered necessary by any circumstance, the power of selection is limited to the shortest space of time possible, and a return to the elective principle at the earliest opportunity is necessitated. The constitution, therefore, provides that the legislature shall make provision for the selection of persons to fill temporarily such vacancies as may occur in public offices, but in the case of the adoption of any other mode than that of election, such power is limited to the period of time intervening between the commencement of the political year next succeeding the first annual election after the happening of the vacancy, and the occurrence of the vacancy." People v. Townsend, (1886) 102 N. Y. 430, 7 N. E. 360, reversing 40 Hun 360. See also People v. Keeler, (1858) 17 N. Y. 370, reversing 25 Barb. 421.