People ex rel. Bradley agt. Stevens.

Also, held, that that portion of the act of the legislature of May 4, 1866, entitled "An act to enable the board of supervisors of the county of New York to raise money by tax for the use of the corporation of the city of New York, and in relation to the expenditure thereof," which contained the following provision: "The engineer and assistant commissioner of the Croton aqueduct department, now in office, shall continue in office for the term of three years from and after the passage of this act; and any vacancy in their number shall be filled by the members of the board remaining in office," comes in conflict with section 16, article 3 of the constitution of the state, and is void. This court reversed the judgment of the supreme court, which was in favor of the relator (GROVER, J., dissenting); and, subsequently, on stay of remittitur, and special application by the relator, granted a new trial. On the second trial, before BRADY, J., held, that, on looking at the question as res nova, the act of 1867 is in contravention of section 2 of article 10 of the constitution. The president of the Croton aqueduct department was an officer within the authority given by the act of 1842; and, having been designated by ordinance under that act, the position was an office created by act of the legislature.

It was not destroyed by the act of 1849, or so changed by its provisions that its identity was lost. It continued, and was recognized by that act and extended by it.

September Term, 1869.

THIS was an action, in the nature of a quo warranto, brought to try the title of the office of president of the Croton aqueduct board. The relator was nominated December 7th, 1866, by the mayor of the city of New York to the board of aldermen, to the office in question, and was confirmed by the board; whereupon he took the oath of office, and qualified as such president.

At the time of relator's appointment the appellant was in possession of the office to which he had been appointed April 12, 1860, for the term of five years. In 1863 the legislature had enacted, in an act relative to the charter, that the present chief officers of the Croton aqueduct board should continue to hold their offices for four years from the date of the appointment of the present assistant commissioner of the said board. Mr. Robert L. Darragh was the assistant commissioner in office when the act was passed, and had been

People ex rel. Bradley agt. Stevens.

appointed such officer December 3, 1862, and the four years from his appointment expired December 3, 1866.

The tax levy act of 1866 contained a clause continuing in office, for a term of three years after its enactment, the officers of the Croton aqueduct board.

In 1867 the legislature, in an act entitled "An act in relation to the Croton aqueduct department," provided that the term of office of the persons now severally discharging the duties of president, &c., was thereafter fixed for the term of five years.

The general term decided in favor of the relator, and the respondent appealed to this court.

John Slosson & L. R. Marsh, for appellant.

The defendant, president-commissioner of the Croton aqueduct board, appeals from a judgment of ouster herein.

The relator claims to be entitled to the office of president of the Croton aqueduct board, by virtue of an appointment made by the mayor and aldermen of the city of New York, which appointment was made on the 17th day of December,

1866.

The defendant claims:

1. That the power of appointment had been taken from the mayor and aldermen by an act of the legislature entitled "An act to enable the board of supervisors of the county of New York to raise money by tax," passed May 4, 1866 (Sess. Laws 1866, vol. 2, p. 2059).

And that, therefore, the appointment of the relator was null and void.

2. That by the act of the legislature entitled "An act in relation to the Croton aqueduct department, in the city of New York," passed April 8th, 1867 (Sess. Laws 1867, vol. 1, p. 538), this defendant was vested with the office of president-commissioner of the Croton aqueduct board for the term of five years from the first day of January, 1867.

People ex rel. Bradley agt. Stevens.

The main questions in the case turn upon the constitutionality of these two laws, and upon the effect of the relator's disclaimer of the office.

If either of these laws is constitutional, the relator has no claim to the office, and the judgment must be reversed.

The supreme court, at circuit and at general term, held both of these laws to be repugnant to the constitution, and judgment was entered that the relator was entitled to the office claimed, and ousting the defendant.

From this judgment this appeal is taken.

There is no dispute about the facts. All were admitted, and were fully found by the judge who tried the case.

It is unnecessary to refer to the facts, more particularly, here.

Such of them as it is necessary to refer to will be found fully stated in those parts of the following points where the consideration of them appropriately belongs.

I. The act of 1866, entitled An act to enable the board of supervisors of the county of New York to raise money by tax," &c., which we will hereafter call the "tax levy act," took away from the mayor and aldermen the power of making appointments in the Croton aqueduct board.

The provision in reference to the Croton aqueduct board is as follows:

"The engineer and assistant commissioner of the Croton aqueduct department shall continue in office for the term of three years from and after the passage of this act, and any vacancy in their number shall be filled by the members of the board remaining in office," &c. (Laws of 1866).

At the time of the passage of this act the defendant was president of the Croton board.

He had been appointed under the charter of 1857, April 12, 1860, for the term of five years.

The defendant's term of office was extended by the act entitled "An act relative to the charter of the city of New York," passed April 3d, 1863, providing as follows:

People ex rel. Bradley agt. Stevens.

"The present chief officers of the Croton aqueduct board shall continue to hold their offices for four years from the date of the appointment of the present assistant commissioner of said board, and until their successors shall have been duly appointed and qualified (Laws of 1863, chap. 68, p. 92).

No question is made as to the validity of this law. It merely extends the time of holding the office, and is therefore directly upheld by the case of The People ex rel. Loew agt. Batchelor (22 N. Y., 128).

It is conceded and found that the defendant held the office in question under this extension until December 3d, 1866. And it is also conceded and found that the defendant still continues in possession of, and exercises and discharges the duties of said office.

Unless, therefore, the relator has been duly and legally appointed to the office in question, the defendant, without. any further appointment, holds over and continues in said office until a successor shall have been duly appointed and qualified (Act of 1863, supra; 1 R. S., 117 [marg.], sec. 9).

The plaintiff, as stated, claims to have been appointed to the office by the mayor and aldermen of the city of New York, pursuant to the provisions of the charter of 1857(Laws of 1857, secs. 24, 19).

The first question, then, is whether the power of appointment at that time was vested in the mayor and aldermen.

The provision of the "tax levy act" already quoted, if constitutional, clearly divests the mayor and aldermen of this power of appointment and bestows it upon the members of the Croton aqueduct board.

"Any vacancy in their number shall be filled by the members of the board remaining in office."

This provision clearly means vacancies in the board and has been so held, between these parties, and acquiesced in and not appealed from (People ex rel. Bradley agt. Stevens, 2 Abb. [N. S.], 148). As to the validity of this provision: But the relator claims, and the court has found, that this provi

People ex rel. Bradley agt. Stevens.

sion is "null and void as being repugnant to the constitution of this state."

The claim is, that it is repugnant to section 16 of article 3 of the constitution.

"No private or local bills, &c., shall embrace more than one subject and that shall be expressed in the title."

It is submitted, on the part of the defendant, that this provision in the "tax levy act" is, in all respects, constitutional and valid, and, further, that an act of the legislature will not be declared void by this court unless it clearly and plainly violates the restrictions of the constitution.

"It is the exercise of a judicial function of the most delicate nature to declare an act of the legislature void, and it is not to be expected that courts will assume it unless the case be plainly and clearly in derogation of constitutional limitations. Nor is it to be expected that they will be zealous or astute to find grounds to thwart or defeat the legislative will, or resort to subtle or strained constructions to bring a statute into conflict with the organic law; but it is to be expected that they will presume in favor of the constitutionality of a statute giving a liberal construction to uphold it and refrain from declaring legislative action void, unless such a conclusion cannot be avoided" (Met. Board of Excise agt. Barrie, 34 N. Y., 657, 668). Onus on the party assailing (15 N. Y., 543; 37 id., 378; Pt. 1, and cases).

1. The "tax levy act," as a whole, is a general act and does not come within the purview of article 3, section 16 of the constitution.

There are no authorities holding directly the tax levies, which are passed yearly, to be local acts, but there are authorities which hold the other way. In People ex rel. Bradley agt. Stevens (2 Abb. [N. S.], 348, 351, 352) the supreme court held such an act not to be a local act, judge INGRAHAM saying: "I have not been able to find any direct adjudication that a law providing for raising moneys for taxes in a city or county is a local law."