People ex rel. Bridgeman v. Hall

• Decision Date: 18 January 1887
• Parties: PEOPLE ex rel. BRIDGEMAN v. HALL.
• Court: New York Court of Appeals Court of Appeals

104 N.Y. 170

10 N.E. 135

PEOPLE ex rel. BRIDGEMAN

v.HALL.¹

Court of Appeals of New York.

January 18, 1887.

Quc warranto to oust the defendant from the office of chamberlain of the city of Troy. Judgment against the defendant, who appeals.

Esek Cowen, for appellant.

R. A. Parmenter, for respondent.

ANDERWS, J.

We think the judgment should be affirmed, and shall content ourselves by stating briefly the reasons for this conclusion.

The controversy relates to the title to the office of chamberlain of the city of Troy, at the time of the commencement of the action, in September, 1885. The relator claims title by virtue of his nomination by the mayor, May 21, 1885, for the office of chamberlain, ‘for the ensuing term of three years,’ and its confirmation, under the provisions of the charter, by the failure of the common council to reject the same. The defendant claims title under a written appointment, contained in a communication addressed by the mayor to the common council, dated February 7, 1884, in which the mayor, after reciting that ‘Henry S. Church, the chamberlain of the city, had abandoned his office, and, according to accounts, had left the city,’ and also that a partial examination of his accounts rendered it morally certain that he was a defaulter, concluded as follows: ‘Under these circumstances, and in pursuance of the provisions of the charter, I do hereby appoint, subject to your approval, Benjamin F. Hall to discharge the duties of the office of chamberlain during the absence of Henry S. Church.’ The communication was received by the common council on the day of its date, and the appointment of Hall was thereupon approved by a majority vote of the council. It is insisted by the defendant that, although the appointment on its face was an ad interim one, it was in legal effect an appointment for the full term of three years, for the reason that the mayor, under the circumstances existing at the time, had no power to make a temporary appointment, but had power to nominate a chamberlain for a full term, and no other, and that the appointment and confirmation of Hall must be referred to the power actually existing, and not to that attempted to be exercised, and that the restriction contained in the terms of the appointment was therefore nugatory. If this contention is well founded, the defendant was the rightful incumbent of the office in September, 1885, as his term would not expire until February 7, 1887. If, on the other hand, the appointment of Hall was valid as an ad interim appointment only, or was wholly void, and these questions are now open for decision, notwithstanding the adjudication in the former action, then it is conceded that the relator is entitled to the office under the nomination and confirmation of May 21, 1885. It is plain that, if the appointment of Hall was valid only as a temporary appointment during the absence of Chamberlain Church, his right to hold the office expired on the resignation of Church, April 2, 1884, or, at all events, on the expiration of Church's term, October 7, 1884. In either case there was a vacancy in the office May 21, 1885, which could be filled by a nomination and an appointment for a full term. The main question is as to the character and legal effect of Hall's appointment, February 7, 1884.

The chamberlain, under the Troy charter, is to be nominated by the mayor, and confirmed by the common council, and has a term of three years. The charter also contains this provision: ‘In the event of the sickness or absence of the chamberlain, if he shall neglect to appoint some suitable person to discharge the duties of the office, the mayor may appoint some suitable person, to be approved by the common council, to discharge the duties of the office during such sickness or absence.’ The appointment of Hall plainly indicated on its face that it was an attempt to exercise the power conferred by this provision, and that it was not intended as a nomination for a full term. It assumed that there was no vacancy in the office, but that circumstances existed which justified the exercise of the power to make a temporary appointment under the provision referred to. It is insisted, however, that the exigency contemplated by the charter had not arisen, and that the mayor had in fact no authority to make a temporary appointment for the reasons- First, that Church, although he had acted as chamberlain under a regular appointment for one full term and part of a second term, was never in fact chamberlain de jure, by reason of not having filed a proper bond, and that, therefore, no acting chamberlain could be appointed in his place, he being an officer de facto merely; second, that the defalcation and flight of Church was not such an absence as was contemplated by the charter; and, third, that his flight from the city, with an intention not to return to Troy, as is found, was an abandonment of the office, and a removal from the city, which created a vacancy, which could be filled only by an appointment for a full term.

We deem it unnecessary to consider whether, under the circumstances disclosed, the power to make a temporary appointment existed on February 7, 1884. It is clear that the mayor supposed he had the power, and undertook to exercise that power, and that alone. Assuming that the mayor...