#### In the Matter of the Application of Francis B. Delehanty, Respondent, for a Peremptory Writ of Mandamus against J. Gabriel Britt and Others, as Custodians of Primary Records and as Commissioners of Elections of the City of New York, and Patrick J. Scully, as City Clerk of the City of New York, Appellants.

First Department,

August 26, 1914.

Constitutional law — chapter 489 of the Laws of 1900, requiring an additional justice of the City Court of New York to he elected at a general election in an even-numbered year, violates section 3 of article IS of the State Constitution.

Chapter 489 of the Laws of 1900, providing that on and after January 1, 1901, the City Court should consist of the justices of the City Court then in office and one additional justice who should be elected at the general election to be held in 1900, for a term of ten years, is in violation of section 3 of article 13 of the State Constitution, which provides that “all elections of city officers, including supervisors and judicial officers of inferior local courts, * * * except to fill vacancies, shall be held ” in odd-numbered years.

Appeal by the defendants, J. Gabriel Britt and others, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 24th day of August, 1914, granting relator’s motion for a peremptory writ of mandamus requiring defendants to certify at the coming primary and general elections for the year 1914 to the existence of but one vacancy in the office of justice of the City Court of the City of New York.

*Samuel J. Rosensohn,*for the appellants.

*Herbert C. Smyth [Frederic C. Scofield*with him, on the brief], for the respondent.

Ingraham, P. J.:

Prior to the adoption of the charter of Greater New York, under section 1206 of the Consolidation Act (Laws of 1882, chap. 410) and chapter 26 of the Laws of 1883 the term of office of justice of the City Court was six years. By section 1346 of *737the charter of Greater New York (Laws of 1897, chap. 378) it was provided that the justices of the said City Court in office when that act took effect should continue to hold office until the expiration of their respective terms; hut the successors of said justices should be elected for and hold office for the period of ten years, thus increasing the term of the successors of each of the justices then in office from six years to ten years. (See, also, Laws of 1901, chap. 466, § 1346.)

By chapter 489 of the Laws of 1900 it was provided that on and after January 1, 1901, the City Court should consist of the justices of the City Court then in office and one additional justice who should be elected at the general election to be held in November, 1900. Such additional justice was to be elected and to hold office for ten years from January 1, 1901. It seems to be conceded that the act violated the constitutional provision in so far as it required an additional justice to be elected at the general election to be held in November, 1900. There was no vacancy here, for this was an entirely new office created by the act. I think the whole act is unconstitutional and void as in violation of section 3 of article 12 of the Constitution. The act says that on and after January 1,1901, the City Court should consist of the justices of the City Court then in office and one additional justice, who should he elected at the general election to be held in November, 1900. The provision of the Constitution prohibits the election of justices in the year 1900, except to fill a vacancy. There was no vacancy at the time of the election of 1900. The term of the new justice was not to commence until January 1, 1901, and the office did not come into existence until that date, and then the only justice that could fill that office was a justice elected in November, 1900.

The question is entirely different from that presented in *People ex rel. Snyder*v. *Hylan*(212 N. Y. 236), for in that case the appointment was made under the provision of section 14 of article 6 of the Constitution, which was adopted at the general election of November, 1913. The constitutional provision took effect January 1, 1914. At that time the office of two additional county judges of Kings county came into existence, but they could not lawfully be filled until the election of 1915, *738the first odd-numbered year. It seems to be held in that case that county judges could not be elected -until the odd-numbered year. So, a new justice of the City Court could not be elected except in an odd-numbered year. Ho election could be held in 1900 and there was no vacancy at the time of the election in that year. Ho election could be held in the year 1901 to elect a justice of the City Court to fill a vacancy as the Legislature had not created an office to be filled in that or any succeeding year. As was said by the Court of Appeals in the case last cited: “ For there could he no such thing as an office defacto,” and “ ‘ there can he no officer *defacto*when there is no office to fill.’ ”

After January 1, 1901, there was no more a “vacancy” that could be filled in the even-numbered year than there was when the term of a justice, who had been duly elected, had expired. When his term had expired the provision of section 3 of article 12 of the Constitution applied to his successor and whenever his successor was elected it must he in an odd-numhered year, and so, when a new office was created, the officer to hold the office must be elected in an odd-numbered year, and when the Legislature created the office to be filled at an election specified, and the provision for the election was void as violating the Constitution, it seems to me that the whole act is void.

It is a little difficult to understand how there can be a vacancy within section 3 of article 12 of the Constitution, which may he filled by an election held in an even-numbered year, because the people have failed to elect a judicial officer for a new term. The object of this constitutional provision, as we have been often reminded by the Court of Appeals, is to divorce municipal and local elections from Federal and State elections. To accomplish that purpose the election of judicial officers of inferior local courts must he held in the odd-numbered years. When the term of a judge is about to expire, his successor is elected at the election prior to the date of expiration of the term. If no officer has been selected, a vacancy exists, but to hold that the voters can elect a judicial officer to fill that vacancy in the next even-numbered year would seem to me to violate the express provision of the Constitution and to defeat its manifest object. Certainly, in this respect, it can .make no difference *739whether the unexpired term of the newly-elected judicial officer was nine years or ten years. The Constitution expressly says: “ All elections of city officers, including supervisors and judicial officers of inferior local courts, ** * **except to fill vacancies, shall be held * * * in an odd-numbered year.” Provision was then made for assuring that the term of office of each officer shall expire at the end of an even-numbered year. It seems to me to be quite clear that the Legislature could create an office and provide that the officer elected thereto should be elected in an odd-numbered year. It might create the office in an even-numbered year and provide for an election in the next odd-numbered year, when the G-overnor would have power to fill the office in the meantime, as was the case in the County Court of Kings county, the appointment to which was upheld in *People ex rel. Snyder*v. *Hylan*(212 N. Y. 236). But for the Legislature to attempt to create an office and provide for its being filled in an even-numbered year seems to me to be in violation of express provisions of the Constitution.

It follows that there is no vacancy to be filled in the year 1914, and the order is, therefore, affirmed.

McLaughlin and Dowling, JJ., concurred.

Laughlin, J.:

The order constitutes an adjudication either that the petitioner has been duly elected to the office of justice of the City-Court and that his term of office does not expire this year, or that there is no vacancy in the office of justice of the City Court, the functions of which the petitioner has been and is now exercising, and that there can be no nomination at the ensuing primary or election at the general election to be held in 1914 to elect his successor, or to fill the said office, the functions of which he is exercising.

The Legislature, by the enactment of chapter 489 of the Laws of 1900, created an additional office of justice of the City Court on and after the 1st day of January, 1901, and clearly expressly provided that said additional justice should be elected at the general election in November, 1900, and should hold office “for ten years from the first day of January, nineteen hundred and one.” It is perfectly clear that the Legislature intended to *740create an additional justice of the City Court. It was competent for it to do so. The validity of the creation of the office is hot affected by any invalidity in the provisions with respect to the first election to fill it. The provisions of the statute were followed literally. The petitioner was elected in 1900, and on the assumption that his term expired January 1, 1911, he was re-elected at the general election in 1910. That statute cannot be sustained in its entirety, for if it were, it would be in violation of the constitutional inhibition contained in section 3 of article 12 of the State Constitution, which provides as follows:

> “Election of city officers, when to be held; extension and abridgement of terms.—§ 3. All elections of city officers, including supervisors and judicial officers of inferior local courts, elected in any city or part of a city, and of county officers elected in the counties of New York and Kings, and in all counties whose boundaries are the same as those of a city, except to fill vacancies, shall be held on the Tuesday succeeding the first Monday in November in an odd-numbered year, and the term of every such officer shall expire at the end of an odd-numbered year.”

In the view we take of the case, it is unnecessary to decide whether the original election of the petitioner was valid on the theory that the Legislature could thus provide for the filling of a *vacancy*in the office at its inception by *election,*for it is manifest that on no theory was it competent for the Legislature to provide for filling the office for the full term by an election in an even-numbered year. The full term could only be filled by an election in the first odd-numbered year after the statute took effect, viz., 1901. It is quite clear, however, under the recent decision of the Court of Appeals in *Matter of Trounstine*v. *Britt*(212 N. Y. 421) that the Legislature intended to provide for a fixed, term of office for ten years for the additional justice, commencing on the 1st day of January, 1901. But for the reasons stated in the concurring opinion of Chief Judge Bartlett in the case last cited (p. 437), which was concurred in by Judge Miller, that intention cannot be given effect, for it would conflict with the provisions of the Constitution requiring that the term of office should expire in an odd-numbered year, and, therefore, the term should be deemed *741to expire in the last odd-numbered year thereof, as attempted to be created by the Legislature, viz., 1909. On that theory, the second term of the office commenced on January 1, 1910, and it should have been filled at the general election in 1909. That, however, was not done. The result was that a vacancy in the office existed in 1910, which it was competent to fill at the general election that year. The election of the petitioner, therefore, in 1910 was legal and the term for which he was elected was the unexpired part of the second term of the additional office of justice of the City Court, which will terminate on the 31st of December, 1919.

There is, therefore, no vacancy in the office to be filled at the general election in 1914, and the peremptory writ of mandamus was properly granted. It follows that the order should be affirmed.

Hotchkiss, J., concurred.

Order affirmed, with ten dollars costs and disbursements.