Complaint of Jarvis v. Waterbury , 65 N.Y. St. Rep. 594 ( 1895 )

Pur Curiam :

Affirmed on opinion of the judge at Special Term, and on the additional ground that the remedy sought should have been by quo warranto.

The order should be affirmed, with costs.

Present — Pratt and Dykman, JJ.

Order affirmed, with ten dollars costs and disbursements.

The opinion of Gaynor, J., at Special Term was as follows :

Gaynor, J.:

Section 3 of article 10 of the Constitution of this State provides that “ When the duration of any office is not provided for by this Constitution, it may be declared by law, and if not so declared such office shall be held during the pleasure of the authority making the appointment.” This relates not only to offices existing at the time of its enactment, but also to offices created since. (People ex rel. Lyndes v. The Comptroller, 20 Wend. 595.) But it relates'only to cases where the power of appointment is continuous, and not to cases where the power of appointment is exhausted when once exercised. (Bergen v. Powell, 94 N. Y. 591.) In other words, and more plainly speaking, it does not apply to cases where the tenure of office is fixed by the statute. In the present «ase the statute (Chap. 453,-Laws 1889) fixes the tenure of the office. Section 1 authorizes the supervisor to appoint five commissioners, who shall be a body, corporate and known as the commissioners of improvements. Section 3 provides that whenever a vacancy shall occnr through death, resignation or refusal to act, the remaining commissioners shall appoint a person to fill the vacancy, and that in default of their so doing the supervisor shall fill. it. It is therefore obvious that the statute provided for the creation of a body corporate by the appointment of five persons by the supervisor, and for its perpetuity by the filling of vacancies. The duration of the office of the commissioners is “ provided for ” in this scheme of the statute. The statute makes the tenure unlimited. It creates a body corporate with the attribute of perpetual succession by means of its own members filling vacancies. It cannot therefore be said that the statute does not provide for the duration of the office. Chapter 302 of the laws of 1859 presents an instance of the appointing officer’s power being exhausted by once making the appointments. (People ex rel. Brown v. Woodruff, 32 N. Y. 361.) The provision in section 3 that “ the said officers shall hold their respective offices for one year,” refers to the officers of the body corporate provided for in the preceding sentence, namely, the president, treasurer and secretary. It is also fatal to this application that the supervisor has never removed the three remaining members of the body corporate whose places he assumes to fill, if he had the power. It is aside from the case, but it should be considered whether the body has the power to act while a vacancy exists. (People ex rel. Henry v. Nostrand, 46 N. Y. 375.)

The motion is denied, without -costs.