People Ex Rel. Mitchell v. . Sohmer , 209 N.Y. 151 ( 1913 )

The question involved on this appeal is not intricate. It is very simple and depends upon a construction of the Public Officers Law. Did the office of commissioner of labor become vacant at the expiration of the term of Commissioner Williams and remain so vacant within the meaning of that law for the purpose of choosing a new incumbent for that office? The office did become and was vacant, that is empty, unoccupied, without an incumbent after the expiration of Commissioner Williams' term "for the purpose of choosing his (the incumbent's) successor." That is the express provision of the statute. It is urged that the words quoted should not be construed to prevent an ad interim appointment in case of an actual "vacancy occurring or existing" in an office when the senate is not in session, although the actual vacancy occurs after the expiration of such term of office. The statute does not so qualify its general language.

We are not referred to any decision construing the statute now in force upon the exact question in controversy. Most of the decisions discussed by counsel were rendered when other statutes were in force. The words of section 5 of the Public Officers Law (Cons. Laws, ch. 47) as follows: "after the expiration of such term, (term of office) the office shall be deemed vacant for the purpose of choosing his successor," were new in section 5 of chapter 681 of the Laws of 1892, from which section 5 of the Public Officers Law was taken.

Neither the words quoted nor any similar language were included in the Revised Statutes (Part 1, chap. 5, title 6), although it was therein provided that every public officer appointed, with certain named exceptions, "shall continue to discharge the duties thereof, although his term of office shall have expired, until a successor in such office shall be duly qualified." (Section 9.)

The following, among other decisions in this state, relied upon by the relator, were rendered prior to said statute of 1892 in the construction of statutes existing at the time when the several decisions were rendered. (Tappan v. Gray, 9 Paige, 507; People ex rel. Simpson v. Van Horne, 18 Wend. 515;People ex rel. Brown v. Woodruff, 32 N.Y. 355.) The commissioners of statutory revision in their notes say that "the provisions of section 5 as to appointment of successors of officers holding over after expiration of term will clear the law on the subject of its present ambiguity." The decisions of other states and in the Federal courts, called to our attention, are each based upon the particular statutes under consideration. The question involved on this appeal is without controlling precedent.

What did the legislature intend by the words, "The office shall be deemed vacant for the purpose of choosing his successor?" It did not mean that the office was wholly vacant for all purposes, because the language quoted is used in connection with the provision that every officer, with the exceptions named, who enters upon the duties of his office, shall, "unless the office shall terminate or be abolished, hold over and continue to discharge the duties of his office, after the expiration of the term for which he shall have been chosen, until his successor shall be chosen and qualify." It intended that the office be deemed vacant in every respect so far as it relates to a new incumbent as fully as if the provision for a holdover had not been therein included.

The statute deals with vacancies occurring in an office when the incumbent is appointed for a prescribed term. A vacancy by expiration of the term of office is a certain event to occur at a known time. The statute also deals with vacancies that may arisebefore the expiration of the term of office by death or other event, the time of which is not known. It provides for filling vacancies in the two classes of cases. I quote from the statute:

"§ 39. A vacancy which shall occur during the session of the senate, in the office of an officer appointed by the governor by and with the advice and consent of the senate, shall be filled in the same manner as an original appointment. Such a vacancy occurring or existing otherwise than by expiration of term, while the senate is not in session, shall be filled by the governor for a term which shall expire at the end of twenty days from the commencement of the next meeting of the senate."

"§ 30. Every office shall be vacant upon the happening of either of the following events before the expiration of the term thereof:

"1. The death of the incumbent;

"2. His resignation;

"3. His removal from office;

"4. His ceasing to be an inhabitant of the state, or if he be a local officer, of the political subdivision, or municipal corporation of which he is required to be a resident when chosen;

"5. His conviction of a felony, or a crime involving a violation of his oath of office;

"6. The judgment of a court, declaring void his election or appointment, or that his office is forfeited or vacant;

"7. His refusal or neglect to file his official oath or undertaking, if one is required, before or within fifteen days after the commencement of the term of office for which he is chosen, if an elective office, or if an appointive office, within fifteen days after notice of his appointment, or within fifteen days after the commencement of such term; or to file a renewal undertaking within the time required by law, or if no time be so specified, within fifteen days after notice to him in pursuance of law, that such renewal undertaking is required. When a new office or an additional incumbent of an existing office shall be created, such office shall for the purposes of an appointment or election, be vacant from the date of its creation, until it shall be filled by election or appointment."

"§ 5. Every officer except a judicial officer, a notary public, a commissioner of deeds, and an officer whose term is fixed by the constitution, having duly entered on the duties of his office, shall, unless the office shall terminate or be abolished, hold over and continue to discharge the duties of his office, after the expiration of the term for which he shall have been chosen, until his successor shall be chosen and qualified; but after the expiration of such term, the office shall be deemed vacant for the purpose of choosing his successor. An officer so holding over for one or more entire terms, shall, for the purpose of choosing his successor, be regarded as having been newly chosen for such terms. An appointment for a term shortened by reason of a predecessor holding over, shall be for the residue of the term only."

It is assumed without controversy that Commissioner Williams' term of office expired during the session of the senate, and although he remained in office as a holdover, as prescribed by section 5, that section also provides that "The office shall be (is) deemed vacant for the purpose of choosing his successor." Such vacancy continues until a new incumbent is chosen. It does not end with the adjournment of the senate to occur again when the senate reconvenes. For the purpose of determining whether the statute contemplates another and different vacancy arising by reason of some uncertain event affecting a holdover incumbent after the expiration of a fixed term of office, the first words of section 30 are important. That section provides that "Every office shall be vacant upon the happening of either of the following events before the expiration of the term thereof." The same is true of the language of section 39 as follows: "Avacancy occurring or existing otherwise than by expiration ofterm, while the senate is not in session, shall be filled by the governor" as therein provided.

The statute, as we have seen, deals with vacancies occurring by reason of the expiration of a term of office which is a certain event, and a vacancy occurring before the expiration of the term of office which is an uncertain event. The occurrence of any of the events mentioned in section 30 after the expiration of the term, does not create a vancancy for the purpose of an appointment of a successor incumbent, to be filled temporarily by the governor, because the vacancy for the purpose of choosing a successor has existed by reason of the statute from the date of the expiration of the term. The right to choose a successor incumbent depends upon the statute and not upon the event which removed the holdover incumbent.

It is plain as an abstract proposition, apart from the words of any provision in regard thereto, that no vacancy can be wrought in any office by the act or fault of the incumbent after theexpiration of the term for which he was first entitled to hold it. (People ex rel. Jackson v. Potter, 47 N.Y. 375.)

The governor's power to make an ad interim appointment is confined to cases of actual vacancies arising from events occurring before the expiration of the term of the incumbent of an office. In all cases other than a vacancy occurring before the expiration of the term of office, the vacancy for the purpose of appointing a successor incumbent is deemed to exist from the date of the expiration of the term of office.

In view of the general purpose and express language of the statute, it appears that it was not the intention of the legislature in providing when an office shall be deemed vacant, to qualify or restrict the purpose in any way so far as it relates to choosing a new incumbent, nor did it intend to permit a temporary or ad interim appointment by the governor if an actual vacancy occurs after the expiration of the term in an office occupied by a holdover.

By such construction force and effect is given to the language of the statute and to the purpose of revising it as expressed by the commissioners of statutory revision.

The public service is not endangered by the provisions of the statute. It is provided by section 41 of the Labor Law (Cons. Laws, ch. 31), in substance, that the duties of an office in case of an actual vacancy devolve upon the deputy. If the governor considers an occasion extraordinary he can call the senate together to consider an appointment by him. (Const. art. IV, § 4.)

The order should be affirmed, with costs.