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People ex rel. Lathers v. Raymond

Supreme Court of New York, Appellate Division

December 30, 1908

PEOPLE EX REL. LATHERS ET AL.
v.
RAYMOND, MAYOR, ET AL.

[114 N.Y.S. 366] J. Addison Young, for relators.

Michael J. Tierney, for respondents.

Argued before JENKS, HOOKER, GAYNOR, RICH, and MILLER, JJ.

[114 N.Y.S. 367] JENKS, J.

This certiorari is to review the removal of the three members of the board of public works of the city of New Rochelle. The relators contend that the relators are not city officers, so that they cannot be removed by the common council, that, even if they are city officers, there is no power of removal in that body, and that the facts did not justify removal, even if there was official authority therefor. I think that the officials are city officers, for their duties, as declared and defined by chapter 661, p. 1521, of the Laws of 1907, show that such duties relate to matters which affect the municipality in distinction from the state. Dillon on Municipal Corporations (4th Ed.) § 58, and authorities cited; Bieling v. City of Brooklyn, 120 N.Y. 98, 24 N.E. 389.The learned corporation counsel insists that the power of removal is vested in the common council by section 19 of the charter of the city, which reads:

" Suspension and Removal.-The common council and each city board may remove any city officer appointed by them, for dishonesty, incapacity, neglect of duty, or other irregularities, giving such officers reasonable notice thereof and a reasonable opportunity to be heard, and such officer may be suspended pending such investigation.
" Filling Vacancies in City Offices.-Except as otherwise provided in this act, if a vacancy shall occur otherwise than by expiration of term, in any elective office of the city, the common council shall appoint a person to fill such vacancy for the balance of the unexpired term. A vacancy occurring in any appointive office of the city, otherwise than by expiration of term, shall be filled for the balance of the unexpired term by the same authorities and in the same manner as an appointment for a full term."

This contention involves the question whether these officers are appointed by the common council. The provision of appointment is in section 1 of the said act of 1907, which reads:

" Within thirty days after the passage of this act there shall be appointed by the mayor of the city of New Rochelle, subject to the affirmative vote of at least one-half of the number of aldermen in office, three citizens of the city of New Rochelle, who shall constitute the board of public works of the city of New Rochelle, who shall serve without compensation. One of said commissioners shall be appointed for six years, one for four years and one for two years from May first, nineteen hundred and seven."

Although the common council consists of the mayor and aldermen (section 50 of article 4 of the charter [Laws 1899, p. 174, c. 128]), I think that the common council does not appoint those commissioners. The provision quoted contemplates nominations by the mayor and confirmations by the aldermen. Strictly speaking, neither the mayor alone appoints nor the aldermen alone appoint. The word " appointed," as used to describe the action of the mayor, is to be taken in its recognized sense of " nominated" or " selected." People ex rel. Kresser v. Fitzsimmons, 68 N.Y. 519.Much less can it be said that the power in the aldermen of confirmation is that of appointment. The Constitution of this state provides that certain state officers are " appointed by the Governor by and with the consent of the Senate," and the Constitution of the United States provides that as to certain officers the President " shall nominate and by and with the consent of the Senate of the United States appoint" them, but none would contend that perforce of the power of confirmation either the state Senate or the United [114 N.Y.S. 368] States Senate appoints such officials. The charter does not even provide that the common council (which is composed of the aldermen and the mayor) shall confirm, but the aldermen, and the same act also indicates the distinction between the mere power of confirmation and that of appointment, in that section 20 of article 2 (Laws 1899, p. 161, c. 128) provides:

" Except as otherwise provided in this act, if a vacancy shall occur otherwise than by expiration of term, in any elective office of the city, the common council shall appoint a person to fill such vacancy for the balance of the unexpired term. A vacancy occurring in any appointive office of the city, otherwise than by expiration of term, shall be filled for the balance of the unexpired term by the same authorities and in the same manner as an appointment for a full term."

If the appointments were made by the aldermen or by the common council, the recognized procedure would be a choice by that body subject to the approval by the mayor. Cassidy v. City of Brooklyn, 60 Barb. 105, affirmed on opinion 47 N.Y. 659; People ex rel. Ennis v. Schroeder, 76 N.Y. 160; People ex rel. Kehoe v. Fitchie, 76 Hun, 8O, 28 N.Y.Supp. 600.I do not find a provision in charter or in statute, and I am not cited to any one, other than the section discussed, that expressly provides for the removal of the three commissioners. They cannot be removed at the pleasure of the appointive power, for they have definite terms of off'co. Section 1, c. 661, p. 15 21, Laws 1907.

If, then, the common council have the power of removal, it must be found in the inherent power in a municipal corporation to remove its officers. This power is recognized. Dillon on Municipal Corporations (4th Ed.) § 240, citing authorities which find their source in the judgment of Lord Mansfield in the famous case of Rex v. Richardson, 1 Burr. 517, says:

" The power to amove a corporate officer from his office, for reasonable and just cause, is one of the common-law incidents of all corporations. This doctrine, though declared before, has been considered as settled ever since Lord Mansfield's judgment in the well-known case of The King v. Richardson. It is there denied that there can be no power of a motion unless given by charter or prescription; and the contrary doctrine is asserted-that from the reason ...

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