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Council of Appointment." That council, as already pointed out, had practically the absolute power of appointment and removal of nearly all public officers, both civil and military. The principle of the provision was retained in later Constitutions, substituting for the Council of Appointment the authority making the appointment, which is now various and widely distributed.

In People ex rel. Lyndes v. Comptroller (1839) 20 Wend. 595. Chief Justice Nelson says that the "duration of office here obviously refers to the period of time the incumbent shall hold, that being the proper measure of it. This period has been previously prescribed in the Constitution in respect to many of the officers, and the scope of the section is to provide for the case of officers whose term of office is left at large, as well those that might be created by statute as those to be found in the Constitution." If there is no fixed time during which officers are to hold, they are removable at the pleasure of the appointing power.

Application of section.-This section applies "not only to offices existing at the time of its enactment, but also to offices created since. It does not apply to cases where the tenure of office is fixed by the statute." The act of 1889, chap. 453, provided for a board of commissioners of improvements of the town of Westchester, to be appointed by the supervisor after sixty days. The statute fixed the duration of the office, which was unlimited. After the original creation of the board the supervisor had no power of appointment, except to fill vacancies. Re Jarvis v. Waterbury (1895) 84 Hun, 462, 32 N. Y. Supp. 389.

Assessors of New York.-The New York consolidation act (1882, chap. 410) authorized the board of tax commissioners to appoint four assessors. Appointments were made and afterwards incumbents of the office were removed by resolution, without notice and without charges. The duration of the office was not fixed by the Constitution nor by statute. The assessors were subject to removal at pleasure by the tax commissioners. People ex rel. Cahill v. Barker (1896) 5 App. Div. 227, 39 N. Y. Supp. 140, affirmed in (1896) 150 N. Y. 570, 44 N. E. 1127.

Assistant aldermen.-The New York revised charter of 1873, chap. 335, abolished the board of assistant aldermen and transferred

its powers to the board of aldermen as the common council of the city. This legislation was sustained in Demarest v. Wickham (1875) 67 Barb. 312, where it was held that the office "was one whose duration was not provided for by the Constitution, and for that reason it could be declared and controlled by law" under this section. Other points were involved in the general term, and its judgment was affirmed in (1875) 63 N. Y. 320, but without considering this point.

Civil service commission.-The legislature cannot delegate to the civil service commission the power to prescribe the duration of a term of office, nor can such a commission, by its rules, require the removal of a public officer to be only upon charges and an opportunity to be heard, where no such limitation is imposed by statute. People ex rel. Percival v. Cram (1900) 164 N. Y. 166, 58 N. E. 112, in which it was held that dockmasters in New York did not, under the charter of 1897, hold office for a fixed term, and were subject to removal at pleasure by the commissioners of the dock department. Delegation to municipality.—Another view of this provision was presented in People ex rel. Seward v. Sing Sing (1900) 54 App. Div. 555, 66 N. Y. Supp. 1094, where the court say in substance that the legislature may delegate to a municipal board the power to fix the terms of local officers, and that a resolution so fixing the official term has the same effect as a statute. A resolution by the board of trustees of the village of Sing Sing, declaring that the term of policemen should expire on a specified day in each year, which was the day on which the resolution was adopted, was sustained, although its effect was to deprive the incumbent of his office, the court holding that without such resolution the power of removal was absolute, and that from either point of view the incumbent ceased to be entitled to hold the office after the adoption of the resolution.

Foreman of repairs.-In People ex rel. Bowers v. Dalton (1898) 23 Misc. 294, 50 N. Y. Supp. 1028, affirmed in (1898) 31 App. Div. 630, 54 N. Y. Supp. 1112, a foreman of repairs in the water department in New York was held to be subject to removal by the commissioner at pleasure. The term of employment was not fixed by the charter.

House of Refuge, general supervisor.-The term of the general supervisor of the House of Refuge at Hudson is not fixed by statute (1896, chap. 546), and such officer may be removed by the superintendent of the institution, subject to the approval of the board of managers. People ex rel. Ray v. Henry (1900) 47 App. Div. 133, 62 N. Y. Supp. 102. Justice Herrick, writing the opinion in this case,

says "it may be that a law making the term of office to last during good behavior, as is frequently done, would be a compliance with this section of the Constitution," and that it must be obvious that civil service rules cannot, in any way, limit or restrain the power of removal conferred by the Constitution.

Power must be continuous.-The provision in this section that when the duration of an office is not declared by law "such office shall be held during the pleasure of the authority making the appointment" applies only where the authority is continuous. Thus, where the power to make the first appointment was vested in certain local officers, such power could apply only to the persons who, at the time specified, answered that description, and not to those who, at some future time, might be incumbents of the offices. The authority embraced a single act, and was exhausted with its performance. Bergen v. Powell (1884) 94 N. Y. 591.

President of village. Prior to 1895 the office of president of the village of Saratoga Springs was filled by election by the people. In 1895, by chap. 247, the power to select the president was transferred from the people to the village board of trustees, and the term of the incumbent was to cease on the election of the first president by the trustees. The term of the president was not fixed by the Constitution, and might therefore be shortened by the legislature. People ex rel. Mitchell v. Sturges (1898) 27 App. Div. 387, 50 N. Y. Supp. 5, affirmed in (1898) 156 N. Y. 581, 51 N. E. 295.

Removal.-"The general rule is that where the power of appointment is conferred in general terms and without restriction, the power of removal, in the discretion and at the will of the appointing power, is implied and always exists, unless restrained and limited by some other provision of law." People ex rel. Cline v. Robb (1891) 126 N. Y. 180, 27 N. E. 267, where it was held that a member of the park police of New York might be dismissed without charges.

§ 4. [Legislature to prescribe time of elections.]—The time of electing all officers named in this article shall be prescribed by law.

[Const. 1777, art. 29; 1821, art. 1, § 15, art. 4, 88 10, 15; Am. 1826 (justices of the peace); Ams. 1833, 1838 (mayors); Const. 1846, art. 10, 4; 1894, art. 12, § 3.]

The legislature has complied with this section by en

acting general and local election laws, special municipal charters, and other statutes which provide for the election of local officers.

§ 5. [Vacancies. ]-The legislature shall provide for filling vacancies in office, and, in case of elective officers, no person appointed to fill a vacancy shall hold his office by virtue of such appointment longer than the commencement of the political year next succeeding the first annual election after the happening of the vacancy.

[Const. 1846, art. 10, § 5; also provisions in this Constitution relative to particular offices.]

Appointment by governor.—The act of 1849, chap. 28, authorizing the governor in certain cases to make appointments to fill vacancies in office, applies only to elective offices, and not to offices filled originally by appointment. People ex rel. Devlin v. Conover (1858) 17 N. Y. 64

Buffalo commissioner of public works.-This office is not elective under the Constitution, and the legislature may therefore in its discretion provide for the method of filling vacancies in such office. In September, 1900, the mayor appointed a commissioner to fill a vacancy, the appointment to take effect at once and to continue until January 1, 1902. The mayor's appointee was held entitled to the office as against the person chosen to fill the vacancy at the city election in 1900, and the charter provision authorizing such an appointment was sustained. People ex rel. Ward v. Scheu (1901) 167 N. Y. 292, 60 N. E. 650.

Deputy county clerk.-A deputy clerk, in case of a vacancy in the office of county clerk, may perform the duties of that office until the election and qualification of a successor, or the appointment by the governor of a person to fill the vacancy, and the authority of the deputy ceases on the happening of either event. People ex rel Smith v. Fisher (1840) 24 Wend. 215.

Holding over-Under the statutory provision authorizing the incumbent of an office to continue to discharge the duties of the office until his successor is appointed and has qualified, the office, after the expiration of the regular term, was held not to be vacant so as to permit the governor to fill it by appointment during the recess

of the senate. In case of a vacancy the legislature may provide for the temporary discharge of the duties of the office until it can be filled in the manner described by the Constitution. Tappan v. Gray (1842) 9 Paige, 507, citing People ex rel. Simpson v. Van Horne (1835) 18 Wend. 518.

Justice of the peace.-A justice of the peace elected at an annual town meeting to fill a vacancy enters immediately upon the duties of his office. The legislature may provide for an executive appointment to fill a vacancy, but the term of an incumbent so appointed would expire upon the election of an officer to fill the vacancy at the next town meeting. People v. Keeler (1858) 17 N. Y. 370.

Legislative discretion.-The Constitution does not require an election in all cases to fill a vacancy in an elective office, and the vacancy may be filled in such manner as the legislature directs; but if the legislature provides for an election in such a case, the person elected to fill the vacancy takes the office immediately and holds for the residue of the unexpired term. Re Eliott (1886) 6 N. Y. S. R. 8.

New York justice of special sessions.-By § 1401 of the Greater New York charter the justices of the court of special sessions of the second division of the city of New York are to hold office until the 31st day of December. By § 1406 a vacancy in such office is to be filled by the mayor within thirty days after its occurrence. In People v. Fitzgerald (1904) 96 App. Div. 242, 89 N. Y. Supp. 268, affirmed in (1905) 180 N. Y. 269, 73 N. E. 55, it was held that an appointment to fill such a vacancy, made prior to the 31st of December, was invalid; the appointment could not be made until after the expiration of the term. In this instance the term of the justice expired December 31, 1903. By § 94 of the charter, as amended in 1901, chap. 466, the mayor's term expired at noon on the 1st of January, 1904. The outgoing mayor attempted to fill the vacancy, first by an appointment dated December 29, 1903, and again by another appointment made in the forenoon of January 1, 1904. It was held that, by operation of the Constitution, article 12, 83, the mayor's term expired at midnight on the 31st of December, 1903, and that the charter could not be construed as extending the term until noon of the following day. It was accordingly held that both appointments were invalid, the first because it was made before the expiration of the justice's term, and the second because it was made after the expiration of the mayor's term. I venture to suggest another reason for the invalidity of the first appointment; namely, that the outgoing mayor could not make an appointment

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