New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1858-04-10
THE OBSERVATION-DISCLOSURES CASE.
DECISION OF THE COURT OF APl eAi's IN
FAVOR OF DEvLfN.
COURT OF APPEALS-Apnl q


street Commissioner in the city Of New York, and OBJ
tain por session thereof for the plaintiff Devhnl The
atfendent inserts THE TO- and holds and exercises the
cdice under a. apPohsment by the Governor of the
Slate the flth day Of June 49,, TO I'll vacancy
occssioned by tie death Of Joseph s. Taylor the or
incumbent. The plantS Devln) sisinis the Office by
virtue If an appointment inside by the Mayor with tae
advice ,nd nsent Of the Beard of Aldermen of ssia
city, The 10th dag Of June, Sj7. Ard the general
question vhich has been raised and discussed in the
case, is 20 the authority by sw for Supplying the
vacancy in tAe Office which had c.eurred.'
The council for the doendent ], support Of the au-
thory OF the Governor to sppoilt or the vGssney,
lies upon tie Act TO provide for tiang vacancies in
ofiiccs, passed sebruay3 $40" which It declared
should take efi-s Immediately, aud WATCH, tar as
is material, 20 b. considered deciding this case in
these words: Whenever vacancies shall exist 81
shall occur in Gny of the offices u this Stsse.
where no provewn is now made ey law for
filing the same, the Governor shall appoin,
some suitable perso= rho may he eligible ~ the Office
vacant To become vacant t. execute she duties
thereof until the commencement of the political year
nett succ sdpg the first annual ee,ton after She hsp
peEirg OF the vacancy of which srch officer cpuh by
law be eicted, &C. laws of 1919, n 26l Unless this
provRion applies to toe office in question 1t y not
commended that the aprs'ntment which the Governor
has assumed to make cen be sustained II is an I'M
poYtast Circumstance in determining whether such an
application of tie provision Is proper, that at the
time this act passed the cie OF Street Commits
sioRer existed only uLder ordinance o! toe Common
Council, and OF course subject, in respect to the
mode Ct filling il, the term incumbent should hold
I, his removal the designation Of successor both
the expiration of regular term "a holding aud in
case Of vacancy however arising, to like authority.
The Common Council tad full and complete control,
n these and similar particulars over the office. BY
the act b. amend the Charter OF Ne.-iork, passed
April >, lSi9, this office first created by statute.
Laws Of 1919, p. 27s 1t was declared by sectica II
that here should be cutive department under the
denomination of the Street Department, and that
tie Chief Gicer should be called the Stree. Con-
mi sioneI. The latter set section 20 contains pro-
=. g. .Nt nf ha Iaasl
Of departments, by removal from office or other.
wise, and directs tina the Mayor, by and
with the advice and consent of the Board OF
Aldermen, shall appoint a person to M the
ssme, until the vacancy shall be filled By the election
at the next charter election This at was amended
by an get passed the 18th Of July, 1851, but not in
point material to this case lLaws Of $50, p ,OOl).
Before the passage of the act of April, 1919, while
the Office rested only upon ordinances of the Common
Council il is quite clear that the office was not one of
the "ofieeS of this State, where no provision Is now
made by law for hling vacancies thereis, witbla
the meaning Of those words used IL the act Of Fob
ruary lsi9, in describing the offices to which the
Governor might appoint i'll vacsncies An office
Of the State must at least be an office directly created
by the Constitution or Statute; and provision by
aw to fill vacancies Ii not wanting when the ofcej
the power of appointment thereto aud removal thsro-
from are wholly at the will and pleasure OF the chief
authorities Of municipal corporation. II the office
afer and during the life Ut the act OF April, 1872
making it an office by Statute, could properly be re-
garded as an office OF the State still the act OF the
preceding February, above referred TO, did not em
brace it, nasmuch as the act giving existence to the
flee prescribed how vacancies in II should be hled
ard thereby excluded authority for supplying them
under prior act. The terms OF the act OF February
1919, comforting authority upon the Governor to MI
vacancies in office in cases, also indicate very
plainly the Offices which the act was to extend aud
that not intended to include such an office as the
one question The person appointed to execute the
duties of the Office until the commencement OF the polt
zeal year next succeeding the first annual election after
the happening OF the vacancy at which such officer
could by law be elected. This language is applicable
only to State elective Officer filled for the regular term
at the general State elections. The office most be one
of the aces of this State, to which person may be
by law elected at annual election, the regular term
OF holding which commences with the pohtcai year
ne1t succeeding such election being the frst DAY OF
Jspusry Ii any doubt could be entertained upon the
face of the act in regard to the justice OF this con-
stuotiOD, it would be removed by reference to Sec
of article I'D of the Constitution, in relation to hng
vacancies in offices. That section is in these words
The Legislature shall provide for the filling vacan-
cies in Office; and in OF elective offices, no person
appointed to fill vacancy shall hold his office by viz
tue of such appointment logger than the commence
ment of the political year next succeeding the first
annual election after the happening OF the vacancy
The act doubtless passed to supply vacancies III
ofce H'in Gaze Of elective officers, referred 10 10 this
Constitutional provision The similarity OF language
in the Constitution and act is conclusive that each re-
ferred to the class OF Offices The construction
above given of the act il further confirmed by the TACT
that public necessity appears to have exist sd Tor
by appointment. The power to appoint 70 office gen.
orally extends to filling vacancy during regular
term well ss to the making an appointment at the
expiration Of term And the appointing power can
usually act with all necessary prompness to prevent
serious Inconvenience to the public by protracted
vacancy.
II the act Of April II, 1857, entitled "An act to |
amend the Charter of the City OF New York, IN re-
spect to the mode prescribed by the nineteenth section
Tor the appointment of the heads of Department. was
in force at the time of the vacancy III the office OF
Street Commissioner, and applied to the Mayor ana
Board Of Aldermen then in ofce-whch Will hereafter
be eonsdered-therc IL IN that act ac0nclusive answer
To tAe claim of power in the Governor to make an ap
poiniment for the vacancy. IL expressly provides
another mode Of appointment 10 that once, wnhout
any restriction TO the time or the cases In wDch the
mower may be exercised, and of course embraces all
This provision necessarily repeas, a. IN
consistent with IT, the act OF February 1919 so Tar as
power is given to the Governor TO nil vacancy IN
The office if the latter act would otherwise have
reached the Gaze. ,o,- r
opinion or the reasons stated, hatthe appointment OF
the defendant fill the vacancy IN the office oil street
Commissioner Invalid, for want OF legal authority
in the Governor TO make the appointment; ana that
the defendant has no title 10 the office.
the Office must depend upon whether the power
of appointment TO 1t given by the act OF Apnl
IA, 1861, above referred to, 10 the Mayor ana
Aldermen, might be exercised by the Mayor auo
Aldermen in office when that act was passed Inc
act took effect on the lst day of May 1917 ~
rep.ats in express terms, various statues III ansno-
mtpt of the charter o. the City Of New YORK, and,
among Others. the ac.s OF April = IoE ana july ~
ing for the election G: Mayor and some other officers,
and the terms of their Offices il il declared that the
other heads OF departments among "hGi Is Tue
Street Commissioner, shall be appointed by 10
Msyor by and with the advice and consent Oh tn'
Board Of Aderme1.e Section 81 declares that the
Mayor Aldermen and Councilmea provided Tor IN thi