Lanza v. Wagner

• Citation: 229 N.Y.S.2d 380,183 N.E.2d 670,11 N.Y.2d 317
• Parties: , 183 N.E.2d 670, 97 A.L.R.2d 344 Vito F. LANZA et al., Appellants, v. Robert F. WAGNER, as Mayor of the City of New York, et al., Respondents.
• Decision Date: 17 May 1962
• Court: New York Court of Appeals

Page 380

229 N.Y.S.2d 380

11 N.Y.2d 317, 183 N.E.2d 670, 97

A.L.R.2d 344

Vito F. LANZA et al., Appellants, v. Robert F. WAGNER, as Mayor of the City of New York, et al Respondents.

Court of Appeals of New York.

May 17, 1962.

Samuel Shapiro, New York City, and Vito F. Lanza, in person, for appellants.

Leo A. Larkin, Corp. Counsel (Sidney P. Nadel, Seymour B. Quel and Joseph M. Callahan, Jr., New York City, of counsel), for Robert F. Wagner, as Mayor of City of New York, respondent.

Louis J. Lefkowitz, Atty. Gen. (Irving Galt and Sheldon Raab, New York City, of counsel), in his statutory capacity under section 71 of the Executive Law, Consol.Laws, c. 18.

FULD, Judge.

Prior to the summer of 1961, the Education Law of this State provided that the Board of Education of the City of New York was to consist of nine members appointed by the Mayor (§ 2553, subd. 2), Consol.Laws, c. 16. During the early part of August, the Mayor asked those then serving on the board to resign, and all except three tendered their resignations. On August 21, the Legislature, convened by the Governor, met in an Extraordinary Session for the purpose of dealing with conditions in the school system of New York City. Finding and declaring that 'The conditions existing in (such)n school system * * * have shaken public confidence, cause * * * grave concern and call for prompt corrective action' (§ 1) in short, finding that 'this is a time of crisis for the New York city schools' (§ 1) the Legislature passed the statute, now before us, under which the city's Board of Education was to be reorganized and reconstituted, the method of effecting appointments to the board materially altered (L.1961, ch. 971).

Pursuant to the legislation, the terms of those then comprising the Board of Education were to come to an end on September 20, 1961 (§ 2) and appointment of new members of the board, as well as of their successors, were to be made by the Mayor from a list of nominees to be submitted to him by 'a selection board' consisting of the heads of three universities located in New York City and the presidents of eight other organizations representing educational, civic, business, labor and professional groups interested in city affairs including education (§§ 3, 5, Education Law, § 2553, subd. 2). ¹ In making its nominations, the selection board was directed to receive and consider 'recommendations from representative associations (and) * * * groups active or interested in the field of education' and to select nominees who in its judgment are 'persons of outstanding experience, competence and qualification for service on the board of education' (§ 3). For the purposes of the initial appointment of nine new board members, the selection panel was required to submit a list of at least 18 nemes by September 15, 1961 (§ 3). If the Mayor should fail to make the appointments by September 20, the State Commissioner of Education was to make them from among the nominees submitted to the Mayor (§ 3). If the selection board submitted less than 18 names to him, the Mayor was 'to fill from the names submitted that number of vacancies equal to one-half the number of names submitted disregarding resulting fractions and the mayor (was authorized to) fill any remaining vacancies * * * without regard to the provisions of this section' (§ 3). ²

Following enactment of the statute, the selection panel met, nominated 26 persons, eight more than the specified minimum, and submitted a list of such nominees to the Mayor. Several days later, the Mayor made his appointments to the board from that list. The plaintiffs, former members of the board who had not resigned and whose terms of office still had some time to run, brought this action for a judgment (1) declaring the new statute unconstitutional and (2) enjoining the Mayor from making appointments to the board to cull from their complaint 'in (their) place and stated'. ³ The court at Special Term dismissed the complaint, the Appellate Division affirmed unanimously and the appeal is here as of right on constitutional grounds.

The plaintiffs' basic contention is that, insofar as chapter 971 of the Laws of 1961 terminates their terms of office and provides for a new method of appointing board members, it violates the home rule provisions of the State Constitution (art. IX, § 9) and, insofar as it vests the power of nomination in private persons and organizations, it not only interferes with home rule but also constitutes some sort of impermissible delegation of legislative authority. They further urge that the statute is a bill of attainder, in violation of section 10 of article I of the United States Constitution.

We may quickly dispose of the attack upon the statute on the score of its having shortened the plaintiffs' terms of office. The office held by each of the plaintiffs was concededly created by the Legislature, not by the Constitution, and there is no constitutional inhibition against the mere shortening of the term of an existing statutory office by legislation aimed at the office rather than at at its incumbent. (See Conner v. Mayor of City of N. Y., 5 N.Y. 285, 295-296; Long v. Mayor of City of N. Y., 81 N.Y. 425; Dodge v. Board of Educ., 302 U.S. 74, 78-79, 58 S.Ct. 98, 82 L.Ed. 57; Phelps v. Board of Educ., 300 U.S. 319, 323, 57 S.Ct. 483, 81 L.Ed. 674.) Public offices are created for the benefit of the public, and not granted for the benefit of the incumbent, and the office holder has no contractual, vested or property right in the office. (Long v. Mayor of City of N. Y., 81 N.Y. 425, 427-428, supra.) Absent any express constitutional limitation, the Legislature has full and unquestionable power to abolish an office of its creation or to modify its term, or other incidents attending it, in the public interest, even though the effect may be to curtail an incumbent's unexpired term. (See Conner v. Mayor of City of N. Y., 5 N.Y. 285, 295-296, supra; Long v. Mayor of City of N. Y. 81 N.Y. 425, 427- 428, supra; Dodge v. Board of Educ., 302 U.S. 74, 78-79, 58 S.Ct. 98, supra.)

We may be equally brief in dealing with the plaintiffs' attack on the statute as a bill of attainder. Such a bill has been defined as a legislative act which applies either to named or easily identifiable individuals in such a way as to inflict punishment or impose penalties upon them without a judicial trial. (See Cummings v. State of Missouri, 4 Wall. 277, 323, 71 U.S. 277, 323, 18 L.Ed. 356; United States v. Lovett, 328 U.S. 303, 315, 66 S.Ct. 1073, 90 L.Ed. 1252; Garner v. Los Angeles Bd., 341 U.S. 716, 722, 71 S.Ct. 909, 95 L.Ed. 1317; Communist Party v. Control Bd., 367 U.S. 1, 82 et seq., 81 S.Ct. 1357, 6 L.Ed.2d 625.) Stated even more succinctly, 'Punishment is a prerequisite'. (Garner v. Los Angeles Bd., 341 U.S. 716, 722, 71 S.Ct. 909, supra.) There is not the slightest warrant in the present case for the charge that either the purpose or the effect of the statute was to punish or impeach the plaintiffs or any other incumbent member of the former board or to render them ineligible for consideration as potential appointees to the new Board. It is clear that general legislation such as this, designed solely to provide a more effective and efficient body and aimed at the office of board members rather than at the incumbent office holders, has none of the objectionable attributes of a bill of attainder. (See Garner v. Los Angeles Bd., 341 U.S. 716, 722, 71 S.Ct. 909, supra.)

This brings us to the challenge directed at the new appointive procedure prescribed by the statute. As we have already stated, the plaintiffs' principal reliance is on the home rule provisions of our State Constitution, contained in section 9 of Article IX. As far as pertinent, section 9 reads as follows:

'All city, town and village officers whose election or appointment is not provided for by this constitution shall be elected by the electors of such cities, towns and villages, or of some division thereof, or appointed by such authorities thereof, as the legislature shall designate for that purpose. All other officers whose election or appointment is not provided for by this constitution and all officers whose offices may hereafter be created by law shall be elected by the people or appointed, as the legislature may direct.'

The purpose of these provisions is to preserve the principle of home rule for cities, towns and villages 'by continuing the right of these divisions to select their local officers, with the general functions which have always belonged to the office.' (People ex rel. Metropolitan St. Ry. Co. v. State Bd. of Tax Comrs., 174 N.Y. 417, 434, 67 N.E. 69, 63 L.R.A. 884; see, also, People ex rel. Wood v. Draper, 15 N.Y. 532, 539.) With the exception of essentially new offices, created after the adoption of the constitutional provisions, the Legislature is thus prohibited from providing for the selection of such local officers other than through local elections or through appointment by local authorities. (See Matter of Brown-Lipe Gear Co. v. Ferris, 275 N.Y. 418, 10 N.E.2d 466; People ex rel. Town of Pelham v. Village of Pelham, 215 N.Y. 374, 109 N.E. 513; People v. Raymond, 37 N.Y. 428; see, also, Matter of McAneny v. Board of Estimate, 232 N.Y. 377, 390-391, 134 N.E. 187, 191-192; Matter of Morgan v. Furey, 186 N.Y. 202, 206-2078 78 N.E. 869, 870.) Those restrictions do not, however, apply to nonlocal or newly created offices. (See People ex rel. Wood v. Draper, 15 N.Y. 532, 539, 186 N.Y. 202, 206-207, 78 N.E. 869, 446, 450; Matter of Morgan v. Furey, 186 N.Y. 202, 206-207, 78 N.E. 869, 870, supra.)

It is perfectly clear, as all the members of the court agree, that the plaintiffs' reliance on section 9 is misplaced, since members of New York City's Board of Education are not 'city officers' within the meaning of that section. On the contrary, it has long been settled that the administration of public education is a State...