People v. Fitzgerald

• Decision Date: 17 January 1905
• Citation: 180 N.Y. 269,73 N.E. 55
• Parties: PEOPLE v. FITZGERALD et al.
• Court: New York Court of Appeals Court of Appeals

180 N.Y. 269

73 N.E. 55

PEOPLE

v.FITZGERALD et al.

Court of Appeals of New York.

Jan. 17, 1905.

Appeal from Supreme Court, Appellate Division, First Department.

Action by the people against Thomas W. Fitzgerald and Appleton L. Clark. From a judgment of the Appellate Division (89 N. Y. Supp. 268,96 App. Div. 242) in favor of defendant Fitzgerald on the submission of controversy, Clark appeals. Affirmed.

The facts, as agreed upon by the parties, are substantially as follows: In January, 1898, the respondent Fitzgerald was appointed justice of the court of special sessions for the Second Division of the city of New York, pursuant to section 1401 of the charter of that city, to hold office ‘until December 31, 1903.’ He qualified and held the office until the expiration of his term. On the 29th of December, 1903, Seth Low, who was then mayor of the city of New York, appointed, so far as he had the power, the respondent Clark to said office, ‘for the term of ten years, which ends on the 31st day of December, 1913, to succeed Thomas W. Fitzgerald, whose term expires December 31, 1903.’ On the 1st of January, 1904, at about 10 o'clock in the forenoon, Mr. Low, claiming to still act as mayor, appointed, so far as he had the power, the same person to the same office ‘for the term of ten years, which ends on the 31st of December, 1913.’ Mr. Clark qualified under each appointment on the day it was made. On the 24th of December, 1903, George B. McClellan, who had been elected mayor at the November election, took the oath of office and filed the official certificate thereof. During the afternoon of January 1, 1904, Mayor McClellan appointed, provided there was then a vacancy, the respondent Fitzgerald to the office in question, ‘to succeed himself and until the 31st day of December, 1913, to take effect immediately.’ Mr. Fitzgerald forthwith qualified in the usual way. Each appointee possessed the legal qualifications to hold the office, and each claims the right to hold it for the term of 10 years. The people take no part in the controversy between the two claimants, but they ask that the question be determined, and that the office be awarded to the person entitled thereto. The Appellate Division, by a divided vote, rendered judgment in favor of Mr. Fitzgerald, whereup Mr. Clark appealed to this court.

J. Newton Fiero and William B. Hornblower, for appellant.

John G. Milburn and James Burke, Jr., for respondent Fitzgerald.

VANN, J. (after stating the facts).

The decision of this controversy depends upon the meaning of the city charter, which contains some provisions inconsistent with each other, and one, as it is claimed, in conflict with the Constitution itself. It is not surprising that confusion arose and that executive officers differed in the interpretation of their powers; for the charter shows some lack of attention to details, caused, as it is said, by combining many scattered statutes into one. We will call attention to the main provisions involved, and for convenience will write in italics the words of special importance before we discuss the questions which arise.

It was provided by the charter of 1897 that on or before the 20th of January, 1898, the mayor should ‘appoint five justices of the court of special sessions of the Second Division * * * who shall hold office until the 31st day of December, 1899, 1901, 1903, 1905, 1907 and 1909, respectively, as designated by the mayor.’ Laws 1897, p. 499, c. 378, § 1401. Although of no importance now, it may be observed that while five offices were created six expirations of the terms thereof were to be arranged by the mayor, which, of course, is impossible. By the charter of 1901 the justices of said court were ‘continued in office until the expiration of the terms for which they have been appointed, and their successors shall be appointed by the mayor for the term of ten years.’ Laws 1901, p. 600, c. 466, § 1405. The next section provides that ‘any vacancy in said office shall be filled by the mayor of said city by appointment within thirty days after its occurrence. If such vacancy occur otherwise than by expiration of a term the person appointed to fill such vacancy shall hold office for the unexpired term of the justice whom he succeeds. If the vacancy occur by the expiration of a term, the person appointed to succeed the justice whose term has expired shall hold office for the term of ten years.’ Id. § 1406. By section 94 the mayor is made the chief executive officer of the city, and it is provided that he ‘shall hold his office for the term of two years commencing at noon on the first day of January after his election.’ Other sections of the charter, which, though not directly material, have some bearing, are cited without quoting therefrom. Id. §§ 97, 1350, 1352, 1357, 1391, 1392, 1424, and 1587.

The Constitution provides that ‘all elections of city officers * * * elected in any city * * * shall be held on the Tuesday succeeding the first Monday in November in an odd-numbered year, and the term of every officer shall expire at the end of an odd-numbered year.’ Const. art. 12, § 3.

The appellant claims that the office in question became vacant at midnight of December 30th, and that his appointment on the 29th was valid, because Mayor Low was in office when it was made as well as when the vacancy occurred. He further claims that, if this position is wrong, still his appointment during the forenoon of January 1st was valid, since, according to the statute, Mayor McClellan did not become mayor until noon of that day, and hence Mayor Low was either actual mayor because his term had not expired or acting mayor because he was holding over.

The respondent claims that at the same instant of time, namely, at midnight of December 31st, the vacancy occurred, Mayor Low's term expired, and Mayor McClellan's term began. Both parties seem to concede, and such is the law, that an appointment to office in anticipation of a vacancy therein is good only in case the officer making the appointment is still in office when the vacancy occurs.

Three questions are thus presented for decision: First. When did the term of the respondent Fitzgerald end? Second. When did the term of the outgoing mayor expire? Third. When did the term of the incoming mayor begin?

1. The decision of the first question turns upon the meaning of the word ‘until’ as it is used in the section of the charter which provides that the original appointee shall hold office ‘until the 31st day of December.’ Section 1401, Laws 1897, p. 499, c. 378. While ‘until,’ as an adverb of time, is usually a word of exclusion, it always includes the date which follows, when the connection and manifest intention so require. It is sometimes used in the sense of ‘until and including,’ either with or without the added words. If it was not used with that meaning in the instance before us, probably it is the first time in the history of the Legislature when it made a public office end on the last day but one of a year, so that one day only of the old year was included in the new term. What object could the Legislature have in thus violating its own custom? Why should it make this office an awkward exception to a convenient rule? Who ever heard of an official term of 10 years commencing on the last day of a year, or even on the last day of a month?

The political and calendar years are the same, and the 1st day of January is the commencement of both. To make the political year, as to one office only, begin on the last day of the calendar year, with no apparent reason for it, would be strange and eccentric legislation, such as we cannot assume was intended. If the Legislature wished to depart from its uniform custom, and do something never done before, we think it would have made its purpose plain, and not left it open to question. ‘Until’ is an ambiguous word, because it sometimes has one meaning and sometimes another, even in the act before us. Sections 1373, 1384. When used in relation to a favor it generally has an inclusive meaning, and prolongs the privilege. Thus, by an extension of time of payment ‘until’ a day named, the day is included. When used with reference to a penalty it has an exclusive meaning, and shortens the suffering; for if a convict is sentenced to imprisonment ‘until’ a day named, the day is excluded. Sometimes the meaning depends upon usage or utility, as where the word is used in the light of a uniform custom, or a particular sense promotes convenience. A vacation ‘until’ Easter and a hiring ‘until’ the Fourth of July are examples; for the former includes the day named, while the latter does not. Still, even in these instances, which are mentioned simply for the purpose of illustration, the meaning might be changed by the context or by the apparent object of the...