People v. Dethloff
| Decision Date | 24 July 1940 |
| Citation | 28 N.E.2d 850,283 N.Y. 309 |
| Parties | PEOPLE v. DETHLOFF et al. |
| Court | New York Court of Appeals Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from Supreme Court, Appellate Division, Fourth Department.
Proceeding by the People of the State of New York against Edward C. Dethloff and Samuel Sapowitch upon a submission of controversy pursuant to ss 546-548 of the Civil Practice Act, to determine which of the two defendants was entitled to serve as a lawfully appointed public administrator for Erie County for a term of five years from January 1, 1940. From a judgement in favor of defendant Dethloff, 259 App.Div. 480, 19 N.Y.S.2d 870, the defendant Sapowitch appeals.
Reversed, and judgment directed in favor of defendant Sapowitch.
RIPPEY, J., dissenting. James O. Moore and Philip Halpern, both of Buffalo, for appellant.
Henry W. Killeen, of Buffalo, for respondent Dethloff.
Each of the two defendants claims the office of Public Administrator of Erie County by legal appointment. Recognizing in the controversy a matter of public concern, and in an effort to bring about a judicial determination of the question involved, the Attorney-General invoked procedure authorized by sections 546-548 of the Civil Practice Act and in due course the matter came before the Appellate Division as a submitted controversy.
The claim of the defendant-respondent Dethloff, which has been upheld by the Appellate Division, rests upon his appointment on September 7, 1939 to take office January 1, 1940 by Surrogate Montesano, who was then serving as Surrogate of Erie County under an interim appointment terminating December 31, 1939, made necessary by his predecessor's death in office.
The claim of the defendant-appellant Sapowitch rests upon his appointment on January 1, 1940, by Surrogate Vandermeulen who had been duly elected Surrogate and assumed office on that date.
As such defendant asserts that his appointment was made under authority given to the Surrogate of Erie County by section 125 of the Surrogate's Court Act (Laws of 1920, ch. 928) formerly section 2595 of the Code of Civil Procedure (Laws of 1914, ch. 443) our problem is one of statutory construction to determine the precise authority granted by the Legislature to the appointing officer. The material portions of the statute to be construed are as follows:
‘The surrogate of the county of Erie shall, within ten days after September first, nineteen hundred and fourteen, and every five years thereafter, except as hereinafter provided, appoint a suitable person as public administrator of and for said county, to take office immediately, and to hold office for the term of five years from the first day of January succeeding his approintment, unless sooner removed for cause.
‘In case of a vacancy in said office by reason of death, resignation or otherwise, said surrogate shall fill the same by appointing a suitable person as public administrator, to take office immediately upon his appointment and qualification, and hold for the term of five years from the first day of January succeeding his appointment, unless sooner removed for cause. * * *’
At the outset we note among the conceded facts that on September 7, 1939, when the defendant Dethloff was appointed, there was an incumbent in the office of Public Administrator whose term of office did not expire until December 31, 1939. It also appears that in the formal appointment of each defendant his term is designated as ‘beginning on the first day of January, 1940, and expiring at midnight on the 31st day of December, 1944.’
The question is thus presented did the statute under consideration authorize Surrogate Montesano, whose term of office expired December 31, 1939, to anticipate a vacancy which normally would not occur until his term had expired and to appoint on September 7, 1939, a Public Administrator to take office January 1, 1940?
(1) The judgment which we review, in effect, answers that question in the affirmative. In reaching that conclusion we believe the Appellate Division erred in adopting an interpretation of the statute which ascribes to the Legislature an intent to introduce a system of prospective or anticipatory appointments despite a long-standing public policy and a well-established common law rule to the contrary and in the absence of a clear indication in the statute of an intent to bring about such a change. Furthermore, by excising from the statute the phrase ‘to take office immediately,’ as being in irreconcilable conflict with the remainder of the statute, we believe the Appellate Division has discarded the phrase which, more than any other, discloses the true intent to the act and gives point to much of the statute which remains.
In that connection it is not difficult to understand why the phrase ‘to take office immediately’ must be disregarded if the view which has thus far prevailed is to be adopted. The defendant Dethloff concedes that he could not have taken office under his appointment until a vacancy occurred on January 1, 1940. He asserts that he had the right to take office on that date solely by reason of his appointment which had been made on September 7, 1939. If he is correct in the latter assertion, and if he gives full effect to the language which the Legislature chose to employ to express its intent, it must follow that he was required ‘to take office immediately’ after his appointment on September 7, 1939. But on that date on vacancy in the office existed. It is this anomalous position in which the respondent is thus placed which prompted the Appellate Division to reject the phrase as being in conflict with what it conceives to be the purpose of the act.
(2) Viewed in the light of settled rules of construction and of certain common law principles, we find in the statute a grant by the Legislature to the Surrogate of Erie County of a power of appointment which we believe was improperly exercised in favor of the defendant Dethloff. If the Legislature intended that the normal method of appointment should give way to the abnormal practice of permitting prospective appointments which, as in the instant case, may become effective after the appointing officer is out of office, we would expect to find some clear indication of an intent to abrogate a well-established common law rule. That rule, as stated by Judge Vann in People v. Fitzgerald, 180 N.Y. 269, 274,73 N.E. 55, 56, is ‘* * * that an...
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