January 1st, 1923 to January 1st, 1924.

Total amount Expended by the State during the above period for
Maintenance and Carrying on the Work of the Commission.

August 1st, 1921 to January 1st, 1922..
January 1st, 1922 to January 1st, 1923.

$36,687 80

82,883 05

80,717 43

January 1st, 1924 to January 1st, 1925..

83,683 36

STATE OF NEW YORK

IN SENATE

JANUARY 12, 1925

Opinion of the Attorney-General in reference to the vacancy existing in the office of President of the Board of Aldermen of the City of New York

STATE OF NEW YORK

OFFICE OF THE ATTORNEY-GENERAL

ALBERT OTTINGER,

ALBANY, January 19, 1925.

Attorney-General.

To the Senate of the State of New York:

By a resolution under date of January 12, 1925, your Honorable Body has transmitted to me three inquiries which concern the office of the President of the Board of Aldermen of the City of New York. The Supreme Court has determined that there is a vacancy in that elective office, and you ask my opinion upon the following matters:

"1. The officer, if any, by whom the powers and duties of the president of the board of aldermen shall be exercised and performed, if the continuing vacancy in such office be not filled;

"2. The power of the governor under sections forty-two and forty-three of the public officers law to either call a special election to fill the vacancy or appoint a person to execute the duties of the office;

"3. The power of the municipal assembly to adopt a local law providing for filling the vacancy.'

OPINION

To expedite an answer, and to comply with your resolution "as speedily as possible," my views are stated in brief.

The office of the President of the Board of Aldermen of the City of New York is an elective constitutional office. It became vacant when its occupant accepted a State office. At the general election in 1924, there should have been elected a person to fill the office of President of the Board, all of which is now of general knowledge. With reference to filling elective offices temporarily by appointment, article X, section 5, of our Constitution provides:

"Vacancies in offices; how filled.-Sec. 5. 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."

This means and the courts have already so informed us, that no appointment to an elective office can under any circumstances extend beyond the 31st day of December following the actual happening of the vacancy. (People ex rel. Dietz v. Hogan, 214 N. Y. 216; Matter of Mitchell v. Boyle, 219 N. Y. 242; People ex rel. Conklin v. Boyle, 98 Misc. 364; Matter of Schwab v. Boyle, 174 A. D. 442, affd. 219 N. Y. 561.) It results, therefore, that the office we have under consideration cannot be filled by any sort of an appointment under any existing or possible legislative act. The Constitution in preserving the right of the voter to vote for all elective officers has set up the barrier. And the same Constitution of 1846 provided as well that all elective city officers shall be chosen by the electors of their cities. (Article X, section 2.) The Legislature was, in every intendment, forbidden to confer an appointing power upon the Governor or upon any local authority, in the case of an elective office, except as a prior aid to the municipality in performing its function of filling such offices by an election.

The Governor now has clear statutory authority to call a special election. This is the accepted method historically, and its use we may say is almost part of the constitutional method of filling vacanies in elective offices. Prior to the adoption of the Constitution of 1846 in which was inserted for the first time the provision that appointment to elective offices should expire at the end of the year, the Legislature had already taken, care of instances where an existing vacancy had failed to be filled at a general election, by

providing that the election procedure should still be continued thereafter and a special election called. It had enacted by chapter 130 of the Laws of 1842 that:

"Sec. 9. If a vacancy proper to be supplied at a general election, shall not have been supplied at the general election next succeeding the happening thereof, a special election to supply such vacancy shall then be held.'

This provision was doubtless observed by the constitution makers of 1846 and regarded as but an expression of what they themselves were accomplishing, namely, the filling of elective offices and vacancies in elective offices, by elections rather than appointments. (People v. Snedeker, 14 N. Y. 52, 57.) The gift of a power of appointment for a brief period was, of course, necessary, but an appointment was understood to be a servant to the process of election and to lead up to, not to supplant the people's selection of their officer at the earliest reasonable opportunity, regardless of when or how the vacancy occurred.

The provisions of the Act of 1842, which we have quoted, requiring special elections after general elections where vacancies in the elective offices still persisted, remained in our statutes until the Election Law of 1892 (chapter 680) when the general schedule of repeals removed them, and in their place was inserted, with the same thought and object, the provision for special elections on call of the Governor to fill vacancies in elective offices. The Legislature, in section 4 of the Election Law of 1892, declared that the Governor shall call special elections in those instances where appointments were unprovided for or forbidden, and where an election already passed had failed to fill the office. It is the predecessor of present section 42 of the Public Officers Law:

"Sec. 4. Filling vacancies in elective offices at general and special elections.-A vacancy occurring before October fifteenth in any year, in an office authorized to be filled at a general election, shall be filled at the general election held next thereafter, unless otherwise provided by the constitution, or unless previously filled at a special election, or unless a special election therefor shall have been ordered to be held on or after such fifteenth day of October and before such general election.

"Upon the failure to elect to any office, except governor or lieutenant-governor, at a general or special election at which the office is authorized to be filled; or upon the death or disqualification of a person elected to office at a general or special election before the commencement of his official term; or upon the occurrence of

a vacancy in any elective office, which cannot be filled by appointment for a period extending to or beyond the next general election at which a person may be elected thereto, the governor shall make proclamation of a special election to fill such office, specifying the district or county in which the election is to be held, and the day thereof, which shall be not less than twenty nor more than forty days from the date of the proclamation."

The expression in mandatory form of the Governor's duty to call special elections remained in the Election Law until chapter 119 of the Laws of 1907 when the Legislature substituted the provision that the Governor "may in his discretion" make proclamation of a special election. I am of the opinion, and I draw my conclusion from observations heretofore made by the courts, that the Constitution still renders it mandatory upon the Governor to call special elections to fill vacancies in elective offices when all temporary appointment power has been extinguished or terminated by constitutional limitation, and that the former election. law, now section 42 of the Public Officers Law, though modified in form, must be read to the same effect as formerly. The modified statute must be deemed to have been enacted in conformity with the Constitution under which, except where the Constitution itself permits exercise of the appointing power, the filling of elective offices by popular election is mandatory. Where, therefore, the appointing power fails, special elections must be called and held to fill vacancies in elective offices.

In Matter of Mitchell v. Boyle, 219 N. Y. 242, 249, referring to the filling of a vacancy in the office of sheriff, the court towards the close of its opinion remarks:

"It is to be observed that special elections are no novelty in our system of state government. Prior to the enactment of the Revised Statutes, vacancies in the office of sheriff and county clerk were filled at such elections (see People ex rel. Smith v. Fisher, supra); and by the Revised Statutes it was provided: 'If a vacancy proper to be supplied at a general election, shall not have been supplied at the general election next succeeding the happening thereof, a special election to supply such vacancy shall then be held.' (1 R. S., ch. VI, title 2, Sec. 9.) If this provision had been transferred to the Election Law, without making the exercise of the power to call a special election discretionary in the governor, it would have precisely covered the case in hand; but reading section 292 of the Election Law in connection with the Constitution, the requirement to call a special election under the circumstances of the present case is really mandatory."