O'Brien v. Boyle , 160 N.Y.S. 917 ( 1916 )

Dowling, J.:

The question involved in this appeal is whether the tenure of office of the sheriff, district attorney, county clerk and register of deeds of Bronx county is for three or four years. The officials in question were elected at the general election held in November, 1913, for a term of four years and received certificates from the Secretary of State certifying to their election for such term. The board of elections of the city of New York on August 15, 1916, deemed that there was a conflict between the provisions of - the statutes of the State and the Constitution as to the length of the terms of office of the officials in question and thereupon unanimously voted that it was the sense of the board that the following officers in Bronx county should be voted for at the coming election, namely, district attorney, sheriff, county clerk and register of deeds. The board of elections intending, in pursuance of such action, to transmit, issue and publish the notice of primary and general elections for the year 1916, and to include therein a statement that such officials were to to be voted for both at the primary and general elections, the petitioner, who is the sheriff of Bronx county, commenced this proceeding praying for a peremptory writ of mandamus requiring said board of elections to refrain from transmitting, issuing and publishing in the notices of primary and general election of 1916 any statement that elections would be held for the county offices in question in the county of Bronx. From the order granting the relief sought the present appeal is taken.

The doubt as to the tenure of office of the county officials in question arises because of a conflict between article 10, section 1, of the State Constitution, and chapter 548 of the Laws of 1912, being the Bronx County Act. The statute provides, section 3, that " There shall be elected in the said county of Bronx at the general election of nineteen hundred and thirteen a county judge, a surrogate, a district attorney, a sheriff, a county clerk, and a register of deeds. The official term of said officers shall be as follows: The county judge, six years; the surrogate, six years; the district attorney, four years; the sheriff, four years; the county clerk, four years; the register of deeds, four years.” (See, also, Laws of 1913, chap. 825, amdg. said § 3.)

It will be noted that the provision fixing the term of office of the county judge complies with the provisions of article 6, section 14, of the Constitution, and, therefore, no question is raised as to his tenure of office. In like manner the tenure of office of the surrogate is fixed in conformity with the provisions of article 6, section 15, of the Constitution, which provides that the successors of the surrogates then in office “ shall be chosen by the electors of their respective counties, and their terms of office shall be six years, except in the county of New York, where they shall continue to be fourteen years.” No question is raised in this proceeding as to the surrogate’s term of office.

But the Constitution, article 10, section 1, provides that “ sheriffs, clerks of counties, district attorneys and registers in counties having registers, 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, where such officers shall be chosen by the electors once in every two or four years as the Legislature shall direct.” Unless Bronx county comes within one of the exceptions specified in the Constitution, it is obvious that the tenure of office of the officials in question followed the general rule laid down therein and was limited to three years, and the board of elections were, therefore, correct in taking steps to enable the electors to vote for their successors at the coming general election.

It is contended that, although Bronx county had no existence at the time of the adoption cf the new Constitution and its future existence could not have been in the minds of those who framed it, still, as the territory embraced in the present Bronx county formed apart of the then existent county of New York, it is included within the exception and the Legislature had power to fix the terms of office of the county officials in question at either two or four years. So to hold would be a distortion and extension of the plain language of the Constitution, which would in effect be judicial legislation. No particular rights were conferred upon territory embraced in the excepted counties of New York and Kings. The only effect of the provision was to empower the Legislature to fix terms of office for the county officials in question in those counties which would bring about their election in those years when the city election in the city of New York was to take place, for those county officials performed acts which were intimately connected with the general administration of city affairs. But this practice was not followed for the whole city, for the counties of Richmond and Queens, which also form a part of the city, still elect their county officials for three-year terms and are not claimed to be within the exception. So that Bronx county will not be the only county embraced in the city limits whose county officials are elected for a three-year term, but with Richmond and Queens will constitute a majority of the counties embraced within the city limits which follow that rule. The argument as to the advisability of having such elections at the same time as the city elections is one that may appeal to the law-making power, but is without force when addressed to those who are enforcing the law as it stands. As instancing the anomalous situation in which the Bronx County Act placed the county officials, it may be pointed out that the act made the term of the surrogate of Bronx county six years, although if the arguments of the relator herein are sound, the surrogate, being elected in territory which was a part originally of the county of New York would be entitled to a fourteen years’ term of office under the provisions of article 6, section 15, of the Constitution heretofore quoted.

The conclusion seems to be justified that the exemption of the counties of New York and Kings was and is intended solely for the political divisions of the State bearing that title, and cannot be extended so as to carry the exemption to portions of the territory originally embraced in such counties and thereafter transferred to other counties or created into new counties.

Nor does Bronx county come within the second exception, for its boundaries are not the same as those of the city of New York.

It follows, therefore, that under the Constitution the county officials of Bronx county in question were elected for terms which could not exceed three years, and the board of elections properly prepared the necessary facilities for the election of their successors at the coming general election.

The order appealed from will, therefore, be reversed, and the motion for a peremptory writ of mandamus in all respects denied, with costs to the appellants against the respondent.

Clarke, P. J., McLaughlin and Smith, JJ., concurred; Scott, J., dissented.