not be filled at the general election, but at a special election. [Ed. Note.-For other cases, see Sheriffs and Constables, Cent. Dig. §§ 9-13; Dec. Dig. ~5.] Appeal from Supreme Court, Appellate Division, Second Department. When and how was this vacancy to be filled? at the general election immediately ensuing, In the first place it is to be noted that there is no express provision of law, constitutional or statutory, which requires the vacancy to be filled at the next general election after it occurs. In this respect the pres rel. Davies v. Cowles, 13 N. Y. 350, which will be considered more fully later. In the matter of the application of Samuel J. Mitchell for an order directing Edward F. Boyle and others, constituting the Board of Elections of the City of New York, to receive and file a certificate of nomina-ent case differs essentially from People ex tion of Mitchell as the candidate of the Democratic party for election to the office of sheriff for the county of Queens; County Committee of the Republican Party in Queens County, intervener. From an order of the Appellate Division (161 N. Y. Supp. 1135) affirming an order of the Supreme Court in Queens county granting a peremptory writ of mandamus, the intervener appeals. Order reversed. In order to facilitate the examination of the question before us, let us group together those provisions of the Constitution and the general statutes of the state involved in its determination. Section 1 of article 10 of the Constitution provides that sheriffs "shall be chosen by the electors of the respective counties, once in every three years and as often as vacancies shall happen," except in the counties of New York and Kings and in counties whose boundaries are the same as those of a city. Section 5 of article 10 of the Constitution reads as follows: Appeal by the county committee of the Republican party in Queens county, intervener, from an order of the Appellate Division of the Supreme Court in the Second Department, entered on the 27th day of October, 1916, affirming an order of the Supreme Court in Queens county granting a peremp-cancies in office, and in case of elective officers, "The Legislature shall provide for filling vatory writ of mandamus, commanding the no person appointed to fill a vacancy shall hold board of elections of the city of New York his office by virtue of such appointment longer to receive and file a certificate of the nomi- than the commencement of the political year nation of Samuel J. Mitchell as candidate next succeeding the first annual election after the happening of the vacancy." for the office of sheriff of Queens county to be voted for at the general election of 1916. The object of the proceeding was to obtain a final judicial determination of the question whether an existing vacancy in the office of sheriff of Queens county caused by the death of the incumbent on the 23d of October, 1916, was to be filled at the general election on the 7th of November, 1916. The appeal was argued orally, and the case was taken under advisement on November 1st. The necessity of an early decision precluded the preparation of an opinion prior to its rendition. On the 3d of November this court reversed the order of the Appellate Division, with costs, and denied the application for a peremptory writ of mandamus, stating briefly in a syllabus the grounds of the decision and announcing that an opinion would be handed down at the session beginning on November 20, 1916. This opinion follows. Leander B. Faber, of Jamaica, for appellant. Philip Frank, of Long Island City, for petitioner. W. E. C. Mayer, of New York City, for the Board of Elections. WILLARD BARTLETT, C. J. (after stating the facts as above). A vacancy occurred in the office of sheriff of Queens county on the 23d day of October, 1916, by the death of Paul Stier, who had been elected sheriff in 1915, and had duly qualified and was discharging the duties of the office at the time of his death. The question at once arose: Pursuant to the authority thus conferred upon it, the Legislature has provided that the Governor may appoint "a sheriff, or a coroner, when a vacancy shall occur in either of such offices, and the person so appointed shall hold the office until and including the last day of December succeeding the first annual election thereafter." County Law (Consol. Laws, c. 11), § 180, subd. 2. By the Public Officers Law (Consol. Laws, c. 47) § 38, it is provided: "The term of office of an officer appointed, to fill a vacancy in an elective office, shall be until the commencement of the political year next happening of the vacancy, if the office be made succeeding the first annual election after the elective by the Constitution." Other statutory provisions of vital import here are the following from section 292 of the Election Law (Consol. Laws, c. 17), as amended by Laws 1911, c. 891, § 62, which section is entitled "Filling Vacancies in Elective Offices": "A vacancy occurring before October fifteenth of any year in any office authorized to be filled at a general election, shall be filled at the general election held next thereafter, unless otherwise provided by the Constitution, or unless previously filled at a special election. Upon the failure to elect to any office, except that of Governor or Lieutenant Governor, at a general or special eléction, at which such office is authorized to be filled, or upon the death or disqualification of a person elected to office before the commencement of his official term, or upon the occurrence of a vacancy in any elective office which cannot be filled by appointment for a period extending to or beyond the next general election at which a person may be elected thereto, the Governor may in his discretion make proclamation of a special election to fill such office, specifying the district or county in which the election is to be held, and the day thereof, which shall be not less than thirty nor more than forty days from the date of the proclamation." If the death of Sheriff Stier had occurred prior to the 15th day of October last, it would be clear that under this statute the vacancy would have had to be filled at the general election of this year. The sheriff did not die, however, until the 23d of October, and consequently the case does not fall within the purview of the first clause of the section quoted. No express provision is made in the section for filling a vacancy which shall occur after the 15th of October, but before the general election, except so far as this contingency is provided for in the authority conferred upon the Governor to order a special election under such cir cumstances. No opinion was written by the Appellate Division in the present case. The opinion of the learned judge who heard it at Special Term, however, clearly shows the theory on which he granted the application. Referring to the requirement of the Constitution that sheriffs shall be chosen by the electors of the county as often as vacancies shall happen, he held that there was abundant time and opportunity to fill the existing vacancy at the approaching election, declaring that the best conceptions of our govern ment are subserved by returning a vacancy in an elective office to the people at the earliest practicable date. every case where a vacancy in the office of sheriff occurs between the 15th of October and election day it cannot have been intended that the question whether such vacancy was to be filled at the immediately ensuing election should be dependent upon a judicial ascertainment of the fact that there was time to give reasonable notice to the electors. Every such vacancy would give rise to doubt which would have to be settled by a proceeding in court. Without questioning this general principle, we think that the determination as to what constitutes the earliest practicable date in such a case as this has been confided by the Constitution to the Legislature. As has been pointed out, there is no express constitutional The constitutional requirement that sher-command that a vacancy in the office of ffs shall be chosen by the electors of the re- sheriff shall be filled at the next general spective counties "as often as vacancies shall election after it occurs; and it is apparent happen" does not mean that such vacancies from his opinion that the learned Special may not be filled temporarily by the Govern- Term judge would not have decided as he did or, nor does it mean that such a vacancy if the death of the sheriff had occurred so must be filled by election as soon as it hap-near election day as to render it impossible pens. People ex rel. Smith v. Fisher, 24 to notify the electors of the vacancy. In Wend. 215, 219. In the case cited the old Supreme Court was called upon to consider the validity of a statute empowering the Governor in every case where a vacancy should occur in the office of sheriff or county clerk to appoint some fit person to execute the duties of the office until it should be supplied by an election. It was argued that this statute was in conflict with the Constitution, which then provided, as it now provides, that sheriffs and clerks of counties shall be chosen by the electors once in every three years and as often as vacancies shall hap- of the constitutional and statutory proviConsidering them altogether, the intent pen. Mr. Justice Bronson, writing for the sions applicable to the contingency which has court, felt no difficulty in pronouncing the arisen in Queens county seems tolerably law valid. He pointed out that the Legislature at first provided for special elections to plain. First and foremost is the command supply vacancies in those offices; but, as it of the Constitution that vacancies in the was found inconvenient to have elections for office of sheriff shall be filled by election. county officers oftener than once in each As we have already seen, this does not preyear, the law was altered so as to provide vent the Legislature from authorizing the for filling the vacancies at the general elec- Governor to make a temporary appointment tion next succeeding the happening thereof— to fill a vacancy in the office of sheriff. Peoa provision which has since been repealed. ple ex rel. Smith v. Fisher, supra. The va"There must of necessity," said Judge Bron-cancy, nevertheless, is to be filled by election, son, "be an interval of time between the as soon as may be, after it occurs. The Condeath, resignation, or removal of the incum-stitution, however, when it provides for an bent and the filling of the vacancy by the election, means an election of which adequate electors; and it is essential to the public notice may be given to the voters. Any other welfare that some person should in the mean-election would be little better than a political time discharge the duties of the office. mockery. People ex rel. Deitz v. Hogan, 214 The language of the Constitution is N. Y. 216, 108 N. E. 459. In the case of not that the office shall be filled by election vacancies not expressed and completely dealt in every possible case, nor that a vacancy with in the Constitution itself, it has left the shall be supplied in that manner as soon as question of what constitutes adequate notice it happens; but the language is that vacan- to the Legislature. A vacancy is not to be cies shall be supplied by election as often as filled at an election where such notice canthey happen." See People ex rel. Hatfield v. not be given. The Legislature has determin The Revised Statutes contained a provision, also then in force, requiring the secretary of state to give notice of such a vacancy, if it occurred prior to the 15th of October (1 R. S. [4th Ed.] 340, § 4); but, as the vacancy did not occur until after that date, he gave no notice thereof. Nevertheless, at the general election (which was a general election of judges) on November 6, 1855, nearly 50,000 electors of the First judicial district voted for "Justice of the Supreme Court, short term, to fill a vacancy." A plurality of these votes having been cast for Henry E. Davies, the Court of Appeals, reversing the New York General Term by a vote of five to three, held that these facts established prima facie the election of Henry E. Davies to fill the vacancy in the Supreme Court caused by the death of Mr. Justice Morris. ment of section 292 of the Election Law, I election of judges, when it shall be filled by that where a vacancy occurs after the 15th election for the residue of the unexpired term." Const. 1846, art. 6, § 13. of October, sufficient notice cannot be given that it will be filled at the general election immediately ensuing. Under such circumstance it becomes the duty of the Governor to order a special election so that the vacancy may be filled by the voters before, or as soon as possible after, his temporary appointment of a sheriff terminates by reason of the constitutional limit of its duration, namely, the beginning of the next political year. It is true that the statute empowers him to order a special election "in his discretion"; but this statutory qualification cannot prevail against the command of the Constitution that a vacancy in the office of sheriff shall be filled by election as soon as may be, consistently with the ability to give adequate and reasonable notice to the electors. Hence, where the vacancy happens between the 15th of October and general election day, a special election, of which not less than 30 nor more than 40 days' notice must be given, should be called to fill it. It is to be observed that special elections are no novelty in our system of state government. Prior to the enactment of the Revised Statutes vacancies in the office of sheriff and county clerk were filled at such elections (see People ex rel. Smith v. Fisher, supra); and by the Revised Statutes it was provided: "If a vacancy proper to be supplied at a general election, shall not have been supplied at the general election next succeeding the happening thereof, a special election to supply such vacancy shall then be held." 1 R. S. c. 6, tit. 2, § 9. If this provision had been transferred to the Election Law, without making the exercise of the power to call a special election discretionary in the Governor, it would have precisely covered the case in hand; but, reading section 292 of the Election Law in connection with the Constitution, the requirement to call a special election under the circumstances of the present case is really mandatory. The case of People ex rel. Davies v. Cowles, 13 N. Y. 350, is not an authority for the respondent. It is readily and essentially distinguishable from the case at bar. In that case there was an express provision of the Constitution commanding that when the office in question became vacant it should be filled at the next general election. We have nothing of that sort here. On the 23d of October, 1855, the death of Robert H. Morris caused a vacancy in the office of justice of the Supreme Court in the first judicial district. The Constitution as then in force provided as follows: "In case the office of any judge of the Court of Appeals or justice of the Supreme Court shall become vacant before the expiration of the regular term for which he was elected, the vacancy may be filled by appointment by the Governor, until it shall be supplied by the next general 114 N.E.-25 While the reasoning of the prevailing opinion in the Cowles Case would have equally upheld an election to fill a vacancy in the Supreme Court which occurred only the day before election, it is impossible to resist the conviction that the court was influenced by the fact that the four leading political parties of the day had actual notice of the vacancy in time to nominate candidates and place their ballots in the hands of the voters, nearly 50,000 of whom actually participated in the election. Thus the essential rights of the voters had been in fact preserved. It may be doubted whether the result would have been the same if it had appeared that the vacancy occurred too late to permit of any real notice to the electorate. However this may be, the possible consequences of the decision were seen to be so serious that the constitutional provisions concerning vacancies in the Supreme Court and Court of Appeals have been changed so that now a vacancy in either of those tribunals must occur not less than three months before a general election in order to be filled at such election. Const. art. 6, §§ 4, 8. From what has been said we think it has been made plain that the point involved in People ex rel. Davies v. Cowles, supra, differs essentially from that involved in the present case, and that the doctrine of that decision does not control the disposition of this appeal. In the other cases relied upon by the respondent we find no decision of authority which is opposed to our conclusion In this case, namely, that upon the facts disclosed by the record the existing vacancy in the office of sheriff of Queens county was not required or authorized to be filled at the general election of 1916. HISCOCK, CHASE, COLLIN, HOGAN, CARDOZO, and POUND, JJ., concur. Order reversed, etc. (219 N. Y. 328) MACDONALD v. ORDWAY et al., Civil Serv- Under the Highway Law (Consol. Laws, c. 25) § 30, authorizing the county supervisors to appoint a highway superintendent and to fix his salary, and County Law (Consol. Laws, c. 11) § 12, empowering the supervisors to fix the salaries of the county officers, the supervisors can fix the salary of a highway superintendent at $5,000, though the notice of the civil service examination for applicants for the position stated that the salary would be $2,500, there be ing no law authorizing the civil service commissioners to state the amount of the salary in such notice, especially where it appears that every person in the county qualified to accept the position had taken the examination, so that it could not be contended that better qualified applicants would have been secured if the notice had stated the salary to be $5,000. [Ed. Note. For other cases, see Highways, Cent. Dig. 88 308, 351, 353; Dec. Dig. 94.] Chase, Hogan, and Cardozo, JJ., dissenting. Appeal from Supreme Court, Appellate Division, Third Department. appointed the appellant, was $5,000 per annum, with an allowance for expenses not to exceed $2,500 per annum. It is not claimed that the action of the board of supervisors was fraudulent, ill-advised, or wasteful. The question presented is: Was the appointment of the relator at the salary as stated in and of itself illegal? The board of supervisors had the absolute and exclusive right to appoint the county superintendent of highways and to fix the salary and provide for the payment of his necessary expenses. The Highway Law declares that the term "county superintendent," when used in it, shall mean the county superintendent of highways (Consolidated Laws, c. 25, § 2, subd. 3), and provides: "The board of supervisors of any county may appoint a county superintendent, determine the amount of the bond which he shall give, fix his salary, which shall be a county charge, and may remove such county superintendent for malfeasance or misfeasance in office, upon written charges, after an opportunity to be heard, not less than five days after the service upon such superintendent of a copy of such charges. The term of office of each superintendent shall board of supervisors as above provided, or by the be four years unless sooner removed by the commission as hereinafter provided." Section 30. The general powers and duties of the superintendents are prescribed by section 33. The County Law enacts: The board of supervisors shall "have power to fix the amount and the time or manner of payment of the salary or compensation of any county officer or employé, except Application by Charles MacDonald against Samuel H. Ordway and others, constituting the Civil Service Commission of the State of New York, for a writ of mandamus to compel the Commission to certify to the salary of relator as county superintendent of highways for the county of Westchester. An order of the Special Term denying the motion for the peremptory writ as a matter of law, not of discretion, was affirmed by the Appel-exceptions are immaterial here], and the term of late Division (160 N. Y. Supp. 64) as a matter of law, and relator appeals. Reversed, with directions to grant the application. William A. Davidson, of Port Chester, for appellant. Egburt E. Woodbury, Atty. Gen. (James S. Y. Ivins, of New York City, of counsel), for respondents. COLLIN, J. The appellant applied for a peremptory writ of mandamus which should command the respondents, constituting the state civil service commission, to certify to the salary of the appellant as county superintendent of highways for the county of Westchester. The respondents had refused to certify to the salary upon the ground that the appointment of the relator at the salary claimed was illegal. The Special Term denied the application as a matter of law, and not of discretion. The Appellate Division affirmed the order of the Special Term as a matter of law, and not as a matter of discretion. The conclusion of the respondents is based upon the facts that the notice to the public of the open competitive examination, under the Civil Service Law of the state, of the applicants for the office involved, stated, "The salary of the position is $2,500," and the salary of the position fixed by the board of supervisors of Westchester county, when they * * [the office and mode of appointment Manifestly the statutes place in the board of supervisors the absolute and exclusive power and authority to fix the salary of the county superintendent. There is not any contravening or conflicting statute. We have not found or been referred to any statute or rule of the civil service commission directing or empowering the commission to state in the notice of an examination of applicants for a position the salary attached to a position. The courts below have asserted and the respondents assert that the competitive examination contemplated by the Constitution and statutes has not been held in the present case, because it was held for a $2,500 position, and not for a $5,000 position; In and the accompanying argument is that the improvement of highways in the county. They will be examined on the duties of the position as prescribed in the Highway Law, and on the methods and actual operations of improving and maintaining county and town highways." In this case the salary could not indicate the duties or responsibiliites of the office because they were defined by the statute. Unquestionably the examination was so framed and executed that it tested and disclosed "No person shall be capable of holding a civil satisfactorily to the commission and within office who shall not, at the time he shall be chosen thereto, be of full age, a citizen of the the intent of the Civil Service Law the variUnited States, a resident of the state, and if it ous qualifications of the applicants. As a rebe a local office, a resident of the political sub-sult of it, the commission placed the name division or municipal corporation of the state of the appellant as one of the first three apfor which he shall be chosen, or within which the electors electing him reside, or within which his official functions are required to be exercised." Public Officers Law (Consol. Laws, c. 47) § 3. The rights and powers relating to the position of county superintendent constitute it a civil office (Matter of Hathaway, 71 N. Y. 238), and the statute so denominates it. Highway Law (Consol. Laws, c. 25) § 30. Upon the hearing at the Special Term the respondents introduced, without contradiction, in opposition to the application, a letter to them from the chairman of the board of supervisors stating: "It occurs to me that the only point your commission could raise would be that at a salary of $5,000 more applicants would take the examination and better qualified engineers would be available. Upon this point let me state that at the recent examination twenty-five actually took the examination and twenty-four passed. Personally I do not believe we have a single additional engineer left in the county who would take the examination if they had known the salary was to be $5,000." pearing on the eligible list. In so far as the The orders of the Appellate Division and the Special Term should be reversed, with costs in this court and the Appellate Division, and the application should be granted. sent. The argument that a greater number and better qualified applicants would have entered the examination had the larger salary been stated in the notice would seem baseless. The examination fulfilled the requirements and intent of the Constitution and the statutes. As we have already stated, the comWILLARD BARTLETT, C. J., and HISmission declared the salary of the position COCK and CUDDEBACK, JJ., concur. without statutory direction or authority. CHASE, HOGAN, and CARDOZO, JJ., disUpon the expiration of the term of appellant's predecessor, the board of supervisors simply requested the commission "to hold an examination for the office of county superintendent of highways for the county of Westchester." The salary of the predecessor was $2,500. The absolute power and right to fix the salary of the successor was in the board of supervisors, and had not been exercised. The statutes defined with clearness the general powers and duties of the office and re stricted applicants to residents of Westches ter county. The notice of the examination declared: "The duties of the position are to have general supervision of construction, improving and repairing bridges and town highways in the county. Candidates should have thorough practical experience in the actual construction and maintenance of highways, and should be familiar with the highways of the county and their needs, and with the best means and material available for Orders reversed, etc. (219 N. Y. 355) PUBLIC SERVICE COMMISSION FOR FIRST DIST. v. INTERBOROUGH RAPID TRANSIT CO. (Court of Appeals of New York. Nov. 28, MANDAMUS 133-DISOBEDIENCE OF ORDer (Consol. Laws, c. 48) § 57, providing that when Under Public Service Commissions Law the Commission is of opinion that a carrier is failing or about to fail to do anything required of it by law or by order of the Commission, it shall institute action or proceeding to have such violations or threatened violations stopped and prevented by mandamus or injunction; and that the final judgment therein shall either dismiss the action or direct that mandamus or injunction, or both, issue as prayed, or in such For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |