Demarest v. Mayor, Etc., of City of New York

• Decision Date: 08 October 1895
• Parties: DEMAREST v. MAYOR, ETC., OF CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

147 N.Y. 203

41 N.E. 405

DEMAREST

v.MAYOR, ETC., OF CITY OF NEW YORK.

Court of Appeals of New York.

Oct. 8, 1895.

Appeal from supreme court, general term, First department.

Action by William E. Demarest against the mayor, aldermen, and commonalty of the city of New York to recover for salaries alleged to b due to plaintiff and his assignors as aldermen of the city of New York. From a judgment of the general term (26 N. Y. Supp. 585) affirming a judgment for defendants, plaintifff appeals. Affirmed. to be due to plaintiff and his assignors as George C. Eldridge, for appellant.

David J. Dean, for respondent.

GRAY, J.

The plaintiff brings this action for himself and as assignee of others to recover the salaries alleged to be due them as aldermen of the city of New York for the year 1877. The claim is that they were elected to such offices pursuant to the act of the legislature contained in chapter 137 of the Laws of 1870, as amended by chapter 574 of the Laws of 1871, which provided for the election upon a general ticket, from the city at large, of a board of 15 aldermen. The defense of the city is that those laws were repealed by chapter 335 of the Laws of 1873 and, further, that pursuant to the latter act, which contained a charter for the city, other persons were duly elected as aldermen at the election at which the plaintiff and his associates claimed to have been elected, who entered upon and executed the duties pertaining to the office of an alderman of the city, and were paid the salaries claimed by the plaintiff. When the action came on for trial no evidence was given. The whole case was agreed to be contained in the pleadings, it being expressly admitted by the plaintiff that the salaries claimed by the plaintiff in his complaint had been paid by the city to other persons, assuming to have been elected, and who acted as a board of aldermen under the charter of 1873. The complaint was thereupon dismissed by the court upon the motion of the defendant.

Section 4 of chapter 335 of the Laws of 1873 provided for a system of minority representation in the board of aldermen of the city of New York, by restraining the right of a voter to vote for all the aldermen to be elected. It is unimportant to more particularly refer to the provisions of the section, as the system was, not long thereafter, abolished. Laws 1882, c. 403. The plaintiff's propositions are that those provisions were unconstitutional and void, for being in violation of that part of the constitution of the state which guaranties to every qualified voter the right to vote for all officers that may be elected by the people (article 2, § 1), and that the acts of 1870 and 1871 remained in force, under whose provisions he and his associates were elected, and became the legally constituted board of aldermen, and, as such, were entitled to their salaries. The determination of the question of constitutionality, however, is not necessary to the determination of the case, and, as the ground upon which the decision of the general term of the supreme court has been placed is clearly presented in the case, and is perfectly tenable, our judgment may and should rest upon it. We should not pass upon the constitutionality of a statute if the question is immaterial to the case. Frees v. Ford, 6 N. Y. 176. It is a salutary principle, and founded upon the respect due to the legislative department of the government, that the constitutionality of its exercise of power should not be passed upon by the court until a case arises in which a decision of such a question is unavoidable for the determination of the case itself. plaintiff and his associates as aldermen of plaintiff and hs associates as aldermen of the city for the year mentioned, and if we should assume all they claim as to the unconstitutionality of the provisions of the fourth section of the charter of 1873, and the validity of their election, and that they were de jure aldermanic...