Matter of Larocca v. Flynn

On June 9, 1931, the Board of Aldermen of the City of New York adopted the following resolution: "Resolved. That the office of Surrogate in the County of Richmond shall be a separate office and that there shall be elected by the electors of the County of Richmond at the general election to be held in the year Nineteen Hundred and Thirty-one, a separate officer as Surrogate in and for the said County of Richmond for a term of six years, from and including the First day of January, nineteen hundred and Thirty-two. Successors of such Surrogate shall be elected by the electors within said County at the general election to be held in the year at the end of which the term of such Surrogate, or any of his successors, shall expire, or in the event of the resignation or death of the incumbent of such office prior to the expiration of the term thereof, then as provided by law."

The petitioner, challenging the validity of this resolution, has applied for a mandamus commanding the Secretary of State, the Board of Elections of the city of New York, and the chairmen of the party organizations of the county to refrain from performing their respective functions in giving effect to the resolution and in certifying an election pursuant thereto.

An order of mandamus has been granted, and the case is now here upon an appeal by the officers and chairmen whose action is restrained.

The Judiciary Article of the Constitution of the State, as amended to take effect January 1, 1926, provides inter alia: "In any county having a population exceeding forty thousand, wherein there is now no separate surrogate, the legislature may provide for the election of a separate officer to be surrogate, whose term of office shall be six years" (Art. VI, § 13).

There was a similar provision in almost the same words in the Judiciary Article of the Constitution of 1894 (Art. VI, § 15); and in the Judiciary Article of the Constitution of 1846 (Art. VI, § 14), both as originally adopted and as amended in 1869.

Section 231 of the County Law (Cons. Laws, ch. 11) is a re-enactment of section 221 of the County Law of 1892, which in turn goes back to statutes enacted by the Legislature in 1871 (Laws of 1871, ch. 859, § 3) and in 1847 (Laws of 1847, ch. 276, § 13).

The statute now in force, which is substantially the same as the earlier ones, provides as follows: "The board of supervisors of any county, except Kings, having a population exceeding forty thousand, may, by resolution at a meeting thereof, determine that the office of surrogate therein shall be a separate office, and provide for the election of such officer therein. The clerk of the board shall immediately deliver the resolution to the county clerk, who shall file the same in his office and, within ten days thereafter, transmit a certified copy thereof to the secretary of state; and thereafter a surrogate shall be elected for such county."

We think this enactment is not deprived of validity by reason of the fact that the Legislature has delegated to the local authorities the duty of determining the measure of the local needs (People ex rel. Unger v. Kennedy, 207 N.Y. 533).

The locality does not create the court, does not prescribe the powers and functions of a Surrogate. The court is created by the Constitution, which prescribes also the functions of the office and the tenure of the officer. The Legislature, empowered by the Constitution to provide for an election, has said that it will exercise the power thus conferred whenever the governing body of the county shall signify a belief that provision for an election will promote the local interests (People ex rel. Unger v.Kennedy, supra). The locality does no more than declare its willingness and desire to take advantage of a privilege upon the terms and in the manner ordained by the established organs of the State.

The validity of the resolution, if otherwise involved in doubt, is made impregnable through the reinforcement of a practical construction of more than eighty years.

During all that time a like statute has been in force with the acquiescence and the tacit approval of the bar, the bench and the executive officers of the State (See opinion of the Attorney-General printed in the reports of the Attorney-General for 1900, p. 265). Forty-five years ago, this court, in passing upon the validity of other provisions of the act of 1871 (Laws of 1871, ch. 859), gave a summary of the provisions whereby an option was conferred upon the local board, and took their validity for granted. "Under these provisions," it was said, "nearly one-half of the counties, elected to avail themselves of the privilege of choosing separate officers as surrogates, and the duties of the offices of county judge and surrogate throughout the state were thereafter distributed among three classes of persons, viz.: those who performed the duties of both county judge and surrogate, those who discharged those of county judge alone, and those who acted as surrogate only." (People exrel. Weller v. Townsend, 102 N.Y. 430, 434). Many Surrogates have been elected and have exercised the functions of their office under the title thus conferred (Opinion of Attorney-General, supra). Only the clearest demonstration of error would justify a belated pronouncement that the office was non-existent and its incumbent an intruder (People ex rel.Snyder v. Hylan, 212 N.Y. 236).

The practical construction supplied by the acquiescence of bench and bar and the executive officers of the State does not exhaust the evidence upholding the action of the Legislature. There is to be added to all this a practical construction by the sovereign people. The successive judiciary articles of the Constitution were adopted, we must presume, with knowledge of a course of legislation and a tenure of office so open and notorious. Instead of an expression of dissent there was confirmation and approval. "The existing Surrogates Courts are continued, and the Surrogates now in office shall hold their offices until the expiration of their respective present terms" (Constitution, art. VI, § 13, Judiciary Article of 1926; Constitution, art. VI, § 15, Judiciary Article of 1894).

"We do not readily overturn the settled practice of the years" (Story v. Craig, 231 N.Y. 33, 40).

The practice does not cease to be significant because the Legislature has at times acted of its own initiative. No doubt it had the power to do so if it pleased. So also the practice does not cease to be significant because the local authorities are without power to fix the salary to be paid. An office may exist though no compensation is attached to it (People ex rel. Clark v. Stanley, 66 N.C. 59, 63; State v. Kennon, 7 Ohio St. 547,558, 559; Mechem on Public Officers, § 7). Whether a statute covering the subject is now upon the books, we do not attempt to rule. If we assume that there is none, the duty to fix a salary will devolve upon the Legislature convening after the election (Constitution, art. VI, § 13), and presumably will be discharged. "When the surrogate shall be elected as a separate officer, his compensation shall be established by law, and shall be payable out of the county treasury" (Constitution, supra). No embarrassment has ensued in the past when new elections were held at the instance of a county. The Legislature has acted at some appropriate time, and has fixed the fitting pay. We must presume that all departments of the government will continue to co-operate in a genuine endeavor to make the Constitution and the statute work.

No conflict is perceived between the provisions of the County Law and those of the Home Rule sections of the Constitution as amended in 1923 (Art. XII, §§ 2, 3, 4).

A Surrogate is not a city officer, but a member of the judicial system of the State (Matter of Adler v. Voorhis, 254 N.Y. 375,379).

The Home Rule provisions did not have the effect of repealing automatically existing legislation affecting the property, government or affairs of cities; still less any legislation affecting the interests of the State as well as those of the locality.

Again, no conflict is perceived between the provisions of the County Law and those of article III, section 27, of the Constitution to the effect that "the Legislature shall, by general laws, confer upon the board of supervisors, or other governing elective bodies, of the several counties of the State such further powers of local legislation and administration as the Legislature may, from time to time, deem expedient." The powers confided to the locality, though touching matters of State concern, are local, none the less, in the range of their territorial extension (Huber v. People, 49 N.Y. 132;Kerrigan v. Force, 68 N.Y. 381; Ferguson v. Ross,126 N.Y. 459, 464; Economic P. C. Co. v. Buffalo, 195 N.Y. 286;Matter of McCabe v. Voorhis, 243 N.Y. 401, 413, 414). Legislation may be local, though the interests affected outrun the bounds of the locality (Ferguson v. Ross, supra; Adler v.Deegan, 251 N.Y. 467, 489, 491). In thus holding we assume that the delegation of a power so intimately touching the welfare of the State is not to be gathered by implication from words of doubtful meaning (Whitmore v. Mayor, 67 N.Y. 21). Where the meaning is unequivocal, the grant will be upheld.

The Constitution does not require that the action of the local authorities in providing for the election of a Surrogate shall be postponed until the term of the County Judge in office at the date of the resolution shall have expired by lapse of time. The resolution does not take from the County Judge any office that was his at the time of his election. It does not abridge his term. It does not oust him from any post of responsibility or honor. To his office of County Judge the Constitution annexed certain duties which were those of a surrogate. In so annexing them it provided that they might at any time be severed by appropriate legislation. The acceptance of the office was the acceptance of the contingency that inhered in its creation.

Other objections to the resolution have been considered, and have been found to be untenable.

Whatever powers formerly resided in the county Boards of Supervisors in the territory included within the city of New York are vested at the present time in the Board of Aldermen (N Y Charter, § 1586; Constitution, art. III, § 26).

The question of the justice or wisdom of the proposed separation is not before us. When constitutional power is found to exist, our jurisdiction is exhausted.

The order should be reversed and the petition denied.