Summary
In Matter of Obergfell (239 N.Y. 48, 50), the Court of Appeals said: "The abridgment of the term upon the conviction of the incumbent is not a punishment for his offense.
Summary of this case from Matter of Toro v. MalcolmOpinion
Argued October 22, 1924
Decided October 24, 1924
Appeal from the Supreme Court, Appellate Division, Second Department.
Jacob L. Holtzmann for appellant. David B. Tolins for respondents.
The question to be determined is whether there is a vacancy in the office of mayor of the city of Long Beach which may be filled at the general election of November, 1924.
Long Beach is a city with a population of less than fifty thousand inhabitants (L. 1924, ch. 50). Its mayor, William H. Reynolds, was convicted of the crime of grand larceny on July 5, 1924, and sentenced to imprisonment in the county jail of Nassau county for the term of six months. Upon his appeal from the judgment of conviction, he obtained a certificate of reasonable doubt which stayed the execution of the judgment (Code Crim. Pro. sec. 527), and he is now at large with his appeal pending and undetermined. Section 30 of the Public Officers Law (Cons. Laws, ch. 47) provides that "Every office shall be vacant upon the happening of either of the following events before the expiration of the term thereof: 1. The death of the incumbent * * *. 5. His conviction of a felony, or a crime involving a violation of his oath of office." The argument is made that the certificate of reasonable doubt, by staying the execution of the judgment, has stayed also the creation of a vacancy, or, if a vacancy exists, the right to fill it. We read the statute otherwise. The abridgment of the term upon the conviction of the incumbent is not a punishment for his offense ( Matter of Rouss, 221 N.Y. 81). It is an automatic limitation upon the duration of his office ( McKannay v. Horton, 151 Cal. 711). The application of the statute is not defeated by the possibility that the judgment may be reversed. That possibility would be present though a certificate had not been granted and the incumbent were in jail. The statute does not mean that a vacancy shall exist in those cases, and those only, where the incumbent is subjected to physical restraint. Its meaning is that one convicted of a felony shall not retain a post of honor ( McKannay v. Horton, supra).
It is argued that the vacancy may not be filled until the election of 1925, at the natural expiration of the term for which Mr. Reynolds was elected. The charter of Long Beach (L. 1922, ch. 635) is said to be defective in failing to provide the requisite machinery for the filling of intermediate vacancies. If that be so, a later statute (L. 1924, ch. 50) supplies the omission; and under its authority the election may proceed.
The order should be affirmed without costs.
HISCOCK, Ch. J., CARDOZO, POUND, McLAUGHLIN, CRANE, ANDREWS and LEHMAN, JJ., concur.
Order affirmed.