Opinion
May Term, 1903.
John Cunneen, Attorney-General, for the People.
Teller Hunt, for the relator Stupp.
Robert L. Drummond, for the relator Drummond.
Frank S. Coburn, for the defendant Kent.
James W. Hart, defendant, in person.
Charles T. Whelan, defendant, in person.
Laverne A. Pierce, for the city of Auburn and common council.
Nathan Kent is entitled to hold the office of recorder, James W. Hart the office of city judge, and William S. Elder the office of justice of the peace, until January 4, 1904. Frank J. Stupp, Richard C. Steel Drummond and Charles T. Whelan claim to be entitled to hold these offices, respectively, from January 5, 1903, by virtue of their election thereto in November, 1902. The real question in controversy is when the terms of office of Kent, Hart and Elder expire, in January of the year 1903 or 1904.
If the terms expired in January, 1903, then Stupp, Drummond and Whelan were properly elected in November, 1902, and were entitled to take the office January 5, 1903. If the terms do not expire until January, 1904, then the new incumbents were improperly elected in November, 1902, cannot be so elected until November, 1903, and the old incumbents are entitled to hold the offices until January 4, 1904.
Prior to 1896 the charter election in the city of Auburn was held on the first Tuesday in March of each year, and the terms of office of the city officers commenced on the Monday following such elections. (Laws of 1879, chap. 53, §§ 6, 17.) The terms of office of the recorder, city judge and justice of the peace were four years. (§ 5.) In 1896 a change in the time of holding the charter elections was made, from spring to fall, and the terms of office of the city officers were to commence at noon on the first Monday of January thereafter. (§§ 6, 17, as amd. by Laws of 1896, chap. 520.) The terms of these offices in question were left the same as before. (§ 5, as amd. by Laws of 1896, chap. 520.) These changes rendered some specific provisions necessary for the commencement of this new order of things. Accordingly, section 6 of the charter as amended by the act of 1896 provided that the first charter election under this amended act should take place in November, 1896, and section 12 of the act of 1896 provided that all elective officers of the city in office when the act took effect should hold office until the expiration of the terms for which they had been respectively elected, and until their successors should be elected and qualified. The same section provided that at the charter election held under the provisions of the act in November, 1898, there should be elected a recorder, city judge and justice of the peace, whose terms of office should commence in March, 1899, upon the expiration of the terms of the respective officers whom they were elected to succeed, and should terminate at noon on the 1st Monday in January, 1904. At the charter election held in November, 1898, under this act of 1896, Kent, Hart and Elder were elected to these offices respectively, and under the express and literal provisions of section 12 of said act their terms of office shall expire at noon on January 4, 1904. While the general provision as to their terms of these offices was four years, manifestly the first term under the act, when the change for the time of the charter elections and for the commencement of the terms was being made, could not be just four years, but must be either less or more than four years. If such first terms were made to terminate in January, 1903, they would be about three years nine months. If they were made to terminate in January, 1904, they would be about four years nine months. The Legislature saw fit to make the terms more instead of less than four years. This provision was not inconsistent with the general one in section 5 of the charter, as amended by the act of 1896, making the terms of these offices in question four years, nor was any construction given to the provisions of section 12 of the act of 1896 by the act of 1899 (Chap. 348), when the provision of section 5 of the charter, as amended by the act of 1896, as to the terms of these offices in question, was left unchanged at four years. The provisions of section 12 of the act of 1896 would be equally as inconsistent with section 5 of the charter, as amended by both the acts of 1896 and 1899, if the first term had been made to terminate in January, 1903, and thus made three years eight months, instead of four years. The provisions all read together are in harmony and neither need be set aside in view of the other. It is said that the intent of the Legislature should control, and that there was evidently a clerical error in providing that the expirations of the first terms should be in January, 1904, rather than in January, 1903. We see no adequate reason for saying that any mistake was made or that the Legislature did not intend what it expressly and literally provided in the statute. There can be no doubt of the power of the Legislature to so provide for the length of the first term of these offices under this act of 1896. By section 17 of article 6 of the State Constitution it is provided that the electors of towns may elect justices of the peace whose term of office shall be four years, but it is also provided in the same section that justices of the peace may be elected in the different cities for such terms as shall be prescribed by law. Recorders and city judges in cities are not provided for in the Constitution and, therefore, their terms of office are within the control of the Legislature. ( People ex rel. Ward v. Scheu, 60 App. Div. 592, and cases therein referred to.)
The act of 1896 is not obnoxious to article 3, section 16, of the State Constitution, which provides that private or local bills shall embrace but one subject and that shall be expressed in the title.
The act of 1896 related wholly to an amendment of the charter of the city of Auburn. The title expressed this subject, and it was unnecessary that it should contain anything further to cover all that the act contained. What followed was merely explanatory and was not contradictory or misleading. It is well settled that "where `the title of a local law expresses a general purpose or object, all matters fairly and reasonably connected therewith, and all measures which will or may facilitate the accomplishment of such purpose or object are properly incorporated into the act and are germane to the title.'" ( People ex rel. Village of Brockport v. Sutphin, 166 N.Y. 163, 172, and cases therein referred to.)
These city officers could not be elected in November, 1902, if their terms did not commence until January, 1904.
The statute gave the city clerk no power to determine the year in which their election should take place, nor had he any such power in the absence of statutory provision relating thereto. His only duty was to state in his notice the officers to be elected at any election as provided by law. An incorrect statement by him would have no effect whatever in rendering an election valid which the law did not authorize.
Section 4 of the Public Officers Law (Laws of 1892, chap. 681) provides that "the term of office of an elective officer, unless elected to fill a vacancy then existing, shall commence on the first day of January next after his election, if the commencement thereof be not otherwise fixed by law." When the commencement of the term is fixed by law, it seems to follow that the elections to the office should take place at the last election held before the time such term commences. Any other conclusion would be unreasonable and would lead to serious results. If the clerk could designate any other year he could designate one no matter how remote from the time of the commencement of the term. The policy of the law is better served by holding that the electors should select the persons to hold the offices at a time just prior to the commencement of the term. It is suggested that if a mistake was made as to the year in which these officers were to be elected, and the mistake was not discovered until the election was over and the result declared, the election should still be regarded as valid, though the terms of office did not commence until more than a year after the election, and that the incumbents Kent, Hart and Elder should be held to be estopped from alleging the invalidity of the election in 1902, and to have waived their right to hold their offices after January 5, 1903.
We cannot concur in such a view. We do not think the election of Stupp, Drummond and Whelan in November, 1902, can be regarded as valid, because of mistake, estoppel, waiver or for any other reason. The present incumbents hold their offices until January 4, 1904. Their successors must be elected at the election in November, 1903. It is important that there should be no further doubt as to the persons legally entitled to hold these judicial offices. There should be an election of officers this year to fill these offices about which there can be no further controversy.
Judgment upon the submission should be ordered in accordance with the views hereinbefore expressed, the form of the order to be settled before Justice WILLIAMS on ten days' notice.
No costs are asked for in the submission, and none will, therefore, be allowed.
All concurred.
Judgment ordered in favor of the defendants, without costs. The form of the order to be settled before Mr. Justice WILLIAMS on ten days' notice.