People ex rel. Rosekrans v. Carr

Westbrook, J.

— The'order to show cause in this proceeding was returnable at a special term, to be held in the third judicial district, at Kingston, on the 29th of September, 1881, but was, by consent, heard in the city of Mew York on that day.

In regard to the facts there is no dispute; and upon the argument it was agreed that the only question to be determined was: Is there a surrogate to be elected in and for the city and county of Mew York at the coming general election in Movember next ? The very limited time at my disposal necessitates the shortest possible discussion of the legal problem submitted.

At the general election held in Movember, 1875, Stephen D. "Van Schaick was elected surrogate of the city and county of Mew York in place, of Robert G. Hutchins, whose term of office was to expire on the 31st day of December, 1875.

Van Schaick entered upon the discharge of the duties of ithe office on January 1, 1876, and his term, had he lived, would have expired January 1, 1882. He departed this life, however, in April, 1876, and after his death, and on the 12th day of said month of April, Delano C. Calvin was appointed to fill the vacancy by the board of aldermen of Mew York, acting as supervisors. At the general election held in November following, the said Calvin was elected surrogate by the electors of the city and county of New York. The point which the motion presents is: Does such election entitle^ Calvin to hold the office for the unexpired term of Stephen D. Yan Schaick, deceased, or for the full term of six years % If the election gave to him only the remainder of the term of Mr. Yan Schaick, then, under the stipulation of counsel in open coui’t, the order asked for must be granted; if, however, he took by such election the full term of six years, the motion must be- denied.

By the constitution of 1846, as originally adopted, and as it existed for several years, the office of county judge for every county in the state, except the city and county of New York, was created, and the person elected thereto was to hold it for four years (Article 6, section, 14). The same section and article of the constitution, without prescribing the term and duration of the office of surrogate, provided: “In counties having a population exceeding forty thousand, the legislature may provide for the election of a separate officer to perform the duties of surrogate.” And by section 12 of article 14, it was provided: “All local courts established in any city or village, including the superior court, common pleas, sessions and surrogate’s courts of the city and county of New York, shall remain until otherwise directed by the legislature, with their present powers and jurisdictions; and the judges of such courts, and any clerks thereof in office on the first day of January, one thousand eight hundred and forty-seven, shall continue in office until the expiration of their terms of office, or until the legislature shall otherwise direct.”

By chapter 488 of the Laws of 1847, the legislature provided for the election of a surrogate (also a recorder) of the city and county of New York. The first election of such officer was to take place in November, 1848, and the term of office was to be “ three years from the first day of January next after said election.” The act also provides that in case a vacancy occurred, “ by death, resignation or otherwise, the board of supervisors of said city and county are authorized to fill such vacancy until the general election next ensuing the happening of such vacancy, when an election shall be had to fill the unexpired term of the officer whose term had become so vacant.”

In 1869 another act was passed (chapter 292 of the laws of that yea/r), entitled “An act to fix the duration of the term of office of the recorder, city judge and surrogate in the city and county of New York,” the whole of which was contained in one short section, reading as follows: “ The term of office of the persons who shall hereafter be elected to the office of recorder, city judge, and surrogate, respectively, in the city and county of New York, shall be six years.”

What effect did this latter statute (that of 1869) have upon that of 1847) Unquestionably to repeal and change such provisions of the law of 1847 as were necessarily and absolutely inconsistent with it. There is no dispute as to the existence of a legal rule that repeals by implication are not favored in the law, and that, if consistently with the plain words of the latter statute, the older statute can stand, it shall be so adjudged. Whilst, however, this general principle is conceded, it is also true that, in all particulars in which two statutes are repugnant, the former and the older must give way to the later. No authorities are cited in support of these propositions, for they are too familiar and elementary to need any. We proceed, then, to consider in what respects the law of 1869 is absolutely inconsistent with and repugnant to that of 1847.

That the general and usual term of the office is extended from three to six years is conceded, but it is contended that this is not the case when a vacancy has occurred “by death, resignation or otherwise,” and that the act of 1869 should be limited in its effect to elections held to fill a full term. The difficulty with this construction is that it ignores plain words. Who, according to the law of 1869, are to hold the office of surrogate for six years ? The answer is, giving it in the very words of the law: “ The persons who shall be hereafter elected to the office.” The phraseology will be observed. No exception is made to the general and sweeping provision. It reads: “ The term of office of the persons,” not of some, but of all, and therefore of each and every one, “who shall be hereafter elected to the office of recorder, city judge and surrogate, respectively, in the city and county of New York shall be six years.” When language is so plain, it is difficult i to elaborate, and the attempt will not be made. Manifestly, the act of 18@9, as it is repugnant to and inconsistent with the act of 1847, not only as to the general term of the office, but also to so much of that law as provides that the election, when a vacancy has occurred other than by the expiration of the full term, shall only be for the unexpired term, repeals that of 1847 in both' these particulars, and while not rendering the election to fill the office unnecessary, it changes the effect thereof, so as to confer a full and not a broken term. This result necessarily follows, because, as before stated, all “ persons ” elected after the passage of the act of 1869 must be elected for six years.

Perhaps a word or two should be added in answer to the argument, that because the act of 1847 provided, first, for an election to a full term; second, for the temporary filling of a vacancy, and, third, for an election to fill the unexpired part of the original term; that, therefore, the act of 1869 should be read as though it simply amended the first section of that of 1847 as to the duration of the entire term. The difficulty with this argument is, that the law of 1869 is not an amendatory statute, which must be read as a part of the original enactment, but is one entirely independent thereof, and adopted years after the other was passed. As the law was at the time of its adoption, there were, it is true, two kinds of an election to fill the office, one for a full term and another for a vacancy. This was a clear evil to be remedied, for it subjected electors and candidates alike to the expense of more frequent elections than were necessary. The act of 1869, therefore, distinctly provided that the term of office of all persons thereafter elected to the office of surrogate should be six years. This is so unequivocally stated that it seems difficult to argue. The election “ to the office,” to use the words of the law, gives a term of six years; and when it can be shown that Hr. Calvin has not been elected (repeating exact language) “ to the office of * * surrogate,” but to something other than the office itself, the argument in favor of an election for an unexpired term may prevail, blether is the title of the act of 1869—“An act to fix the duration of the term of office of the recorder, city judge and surrogate in the city and county of blew York ”—antagonistic to the construction just given to the law itself. The title is as general as are the provisions of the statute. Beading the act and its title together, it is clear that its intention was, in all cases of an election “ to the office,” to confer a full and not a broken term, because, as there are no words of restriction in the title limiting the force of the language employed in the body of the law, full effect must be given to its words, which declare “ the term of office of the person who shall be hereafter elected to the office of recorder, city judge, and surrogate respectively, in the city and county of blew York shall be six years.” A plain and positive declaration of this character should not be reasoned away by specious suggestions as to the legislative intent. Such intent is to be sought for in the words employed and only when they are doubtful is such reasoning sound (Potter’s Dwa/rris on Statutes, 182,183). If an election “ to the office of * * * surrogate,” which occurred after this law took effect, is held to confer only a broken term, such decision overrules the legislative mandate, which declares that the term of office of the person thus elected “ shall be six years.” Upon the statutes of the state, then, it is clear that Mr. Calvin must have been elected to the office of surrogate for the term of six years. A new constitutional provision, however, was adopted in 1869, and to that reference will now be made. Article six of the constitution was then changed and altered in many particulars, and among such alterations will he found one in regard to county judge and surrogate. By section fifteen of that article it is now provided, “ the existing county courts are continued, and the judges thereof in office at the adoption of this article shall hold their offices until the expiration of their respective terms. Their successors shall be chosen by the electors of the counties for the term of six years. * * * The county judge shall also be surrogate of his county; but in counties having a population exceeding 40,000, the legislature may provide for the election of a separate officer to be surrogate, whose term of office shall be the same as that of the county judge.”

It may be observed of this constitutional provision, as was said of the act of 1869, that it is difficult to employ language more specific. The officer called a surrogate, “in counties having a population exceeding 40,000,” is, as the old judiciary article in the constitution of 1846 also provided, allowed to be elected by legislative enactment; but now such legislation is expressly limited and confined to a law providing only “ for the election of a separate officer'to be surrogate, whose term of office shall be the same as that of the county judge,” which is six years, and six years only. With this plain language for our guidance, where is the authority to elect for any term less than this ? The “ successors ” (as the word is plural it means each and every successor) of the county judges in office, when the amendment of 1869 took effect, were required to “ be chosen by the electors of the counties for the term of six years,” and the legislature, while permitted to pass a law requiring the election of a surrogate in counties having a population exceeding 40,000, could only enable the electors to choose one “ whose term of office ” should “ be the same as that of the county judge.” Necessarily and plainly, then, the election held in November, 1816, filled the office of surrogate for the city and county of New York for the term of six years, and any statute allowing or permitting an election for a less term, if not repealed and changed in that particular by the act of 1869, was clearly as to the duration of the term conferred by the election held thereunder, nullified and made void by the amendment to the constitution.

It was, however, argued that the constitutional provisions just referred to do not apply to the surrogate of the city and county of Hew York, who it is claimed was an officer older than the constitution of 1816, and continued by section 12 of its fourteenth article hereinbefore given. Certain it is, that prior to the constitution of 1816, not only the city and county of Hew York had a surrogate, but so also had every other county in the state (1 JSdrmmcPs Statute, 88). The former was retained by constitutional enactment, and the latter were allowed to be continued in counties, the population of which exceeded 10,000, if the legislature should so provide. It is further conceded that under the original constitution of 1816, the duration of the term in both cases vested in legislative discretion. The question, however, now is, when the new judiciary article (article 6) was adopted in 1869, did such legislative discretion, as to the duration of the term, terminate in both cases, or was it continued as to the one, and repealed as to the other ? It will be readily admitted by every reader of the instrument, that as to certain local courts section 12 of article 11 of the constitution (which is the one relied upon to prove that the term of a surrogate in Hew York is subject to the legislative will) is interfered with. Section 12 of the new sixth article does certainly make new and explicit provisions as to the “superior court of the city of Hew York, the court of common pleas of the city and county of Hew York, the superior court of Buffalo and the city court of Brooklyn.” Section 25 also places the term of all incumbents of the office of surrogate at the time of the adoption of the article beyond the control of the legislature by expressly declaring that “ surrogates,” and certain other judicial officers therein named, “in office when this article shall take effect, shall hold their respective offices until the expiration of their terms.” As clearly, in these particulars, by necessary implication, section 12 of article 14 is changed, is that portion of section 15 of article 6 (the new'judiciary article), which it is conceded abolishes the legislative discretion as to the duration of the term of the office of surrogate in all counties, except the city and county of Yew York, to be construed as confined to them only; or is it to receive a broader interpretation as fixing all over the state, without any exception whatever, the duration of the term ? The former construction involves the thought that permanency in the office for a stated and unalterable term was sought to be attained in every county except in the one in which it was most needed, and the further and equally absurd one that, while the term of the incumbent holding the office at the time of the adoption of the article was fixed in every county, and the term of every successor of every incumbent all over the state, except in the city and county of Yew York, was definitely fixed at six years, that of the successor of the incumbent in that locality was unprovided for. If Yew York city and county, as to the duration of the future terms of its surrogates, were to be left to the legislative will, why was it not excepted from the operation of the clause (section 25 of article 6) which secured to incumbents in office their positions until the expiration of their respective terms ? Why was the holder of an office, whose term was probably almost expired by lapse of time, made secure in his place, whilst all successors would continue in office only during the legislative will ? This reasoning necessarily forces the conclusion that the framers of article 6 supposed that they had by its fifteenth section, in all cases given a distinct and clear term of office to the person elected surrogate, by declaring that when a legislative enactment provided for the election of a surrogate “ his term of office shall be the same as that of the county judge,” and, therefore, as it was necessary also to declare when those thereafter elected should take office, they provided, making no exception, that all incumbents of the office at the time of the adoption of the article, should hold it until the expiration of their respective terms. This view harmonizes the entire instrument, and secures that which is known to have 'been one of the objects of the artiartiele, permanence and security in judicial positions.

It may properly be added that there is nothing in section 12 of article 14 of the constitution repugnant to the view just expressed. The local courts therein mentioned were continued, and “ the judges ” thereof (of whom the surrogate was one) and their “ clerks ” “in office on the 1st day of January, 1847,” were continued “ in office until the expiration of their terms of office, or until the legislature shall otherwise direct.” The amended judiciary article of 1869, after the section just quoted, had fulfilled its object as to the judges then in office and their successors up tó that date, continues the legislative power to provide for an election, but declares and defines the term, thereby removing all legislative discretion as to the duration thereof, and places all surrogates in the state upon an equality as to their continuance in office. It is trae that New York has no officer styled a county judge, but the constitution, when it declares that the term of surrogate shall be the same as that of the county judge, means, when it speaks of the latter, the officer of that title created by the instrument, and not one who must reside in the county in which there is a surrogate to be elected.

Thus far no comment has been made upon section 16 of article 6 of the constitution, under which it is claimed an election to fill a vacancy, as the act of 1847 unamended by subsequent statutory or constitutional enactments requires, might be upheld. That clause simply empowers the legislature, on the application of the board of supervisors, “ to provide for the election of local officers, not to exceed two in any county, to discharge the duties of county judge and of surrogate, in cases of their inability or of a vacancy, and to exercise such other powers in special cases as may be provided by law.” It clearly has no reference whatever to the filling of either office, if the same is vacant, but only, as it plainly. declares, to the election of “ local officers,” who in cases of “inability” dr “vacancy” shall “discharge the duties of county judge and of surrogate.” The power of the legislature to provide for the election of a surrogate by the electors of a county remains unimpaired, and consequently the act of 1847, requiring the election of such an officer, but altered and changed by the act of 1869 and the constitution itself as to the duration of the term when such election is had, remains in full force and effect. It may be proper in this connection to observe that the authority given by the act of 1847 to the board of supervisors to fill the office of surrogate, in case of a vacancy, until the next general election, was continued by section 5 of article 10 of the constitution, which authorizes the legislature “ to provide for filling vacancies in office.”

It will be unnecessary to consider the act of 1871 {chapter 859), because its provisions manifestly do not apply either to the city and county of Hew York or to the county of Kings, and if they did, they could not abridge the term of the office as prescribed and fixed by the constitution.

In reaching the conclusion that this application for a mandamus must be denied, I have not deemed it necessary to fortify clear language by citing adjudications upon words of similar import. If reference is made to The People agt. Green (2 Wend., 266, 272) ; People agt. Oputant (11 Wend., 132), and to the same case in the court of errors (11 Wend., 511), it will be found that my reasoning is abundantly sustained. It seems to me, however, that the act of 1869 and the constitutional enactment (article 6, section 15), are their own best interpreters, and that they effectually and clearly provide that an election by the people to the office of surrogate can only be for the term of six years; and that consequently the term of Mr. Calvin as surrogate of the city and county of Hew York will not expire until January 1, 1883, and that the secretary of state was right in omitting to give notice of any election to fill that office at the coming Hovember election.

In closing .this opinion a word should be added upon the case of (The People agt. McKinney, 41 Barb., 515), upon which the counsel for the relator places much reliance. If, however, the opinion of judge Balcom be carefully read in connection with chapter 179 of the Laws of 1856, which act was the subject of controversy, it will be found that no principle in conflict with anything herein contained was therein enunciated. The point upon which the present opinion depends is, that both the statutes and the constitution of this state give a six years term to any person elected by popular vote to the office of surrogate, and that such an election for a shorter period is now, and was in 1876, a legal impossibility. The act of 1856 (chap. 179), however, which created the office of “ school commissioner,” the title to which in the county of Ohemung, the case reported in 41st Barbour was designed to settle, did not ¡¡declare that every election by the people should give a full term of three years. On the contrary (see section 7), it was those who were chosen “ at the annual general election, held in the year one thousand eight hundred and fifty-seven, and every three years thereafter,” who were to “ hold office for three years, and until their successors shall have qualified according to law,” and nowhere in the law was this length of term given to any others. The court, therefore, very properly decided that an individual chosen, not at a triennial election, but under one held by virtue of section nine, which provided that in .case of a vacancy the county judge should appoint “ a successor to fill such vacancy, till the next following general election, when a successor shall be chosen as hereinbefore provided,” should hold the office only for the unexpired term of his predecessor. This conclusion was inevitable because section seven required an election to be held in 1857, “ and every three years thereafter,” to fill the office, and this general and plain provision would have been defeated if the election held under- the ninth section was adjudged to confer a full term. The court, therefore in construing the statute, decided that section seven provided for an election giving a full term, and section nine contained the scheme for filling a vacancy. It is true that the latter section, after providing for an appointment by the county judge “ of a successor to fill such vacancy till the next following general election,” declared that at such general election a successor should “ be chosen by the electors, as hereinbefore provided but such provision referred only to the mode and manner of its conduct, and not to the effect flowing from it. It is evident, therefore, that the act of 1856 provided for two kinds ■of election by popular vote — “ one every three years,” which .gave a full term, and another to fill a vacancy. No similar provision exists, or can now be made by the legislature, in regard to the office of surrogate. It is nowhere declared, either in the statutes or in the constitution of the state, that an election shall be held every sixth year to fill the office, but, •on the contrary, both statute and constitution affirm that every ■election by popular vote gives a full term of six years, and nothing less.

The formal announcement that this motion must be denied, in view of what has already been said, seems to be superfluous. It is made to say, in connection therewith, that as the question presented is one of public importance, in which the relator has no personal interest, and which should be judicially settled for the benefit of all persons interested in the administration of justice in the city and county of New York, such denial is without costs.