Appeal from Special Term, New York County.
Quo warranto by the People against John F. Ahearn. A demurrer to the complaint was sustained ( 113 N.Y.Supp. 876), and plaintiff appeals. Reversed, and demurrer overruled, with leave to answer.
[115 N.Y.S. 666] Edward R. O'Malley, Atty. Gen., and Ezra P. Prentice, Dep. Atty. Gen., for the People.
Nelson S. Spencer (Charles H. Strong, on the brief), for committee of citizens.
Martin W. Littleton and Fredk. Allis, for respondent.
Argued before INGRAHAM, McLAUGHLIN, HOUGHTON, LAUGHLIN, and SCOTT, JJ.
The plaintiff appeals from a final judgment sustaining a demurrer to the complaint.
The action is in quo warranto, and calls in question the title of the defendant to the office of president of the borough of Manhattan, city of New York. The facts are exceedingly simple. The office of borough president is created by the Greater New York charter, which provides for the election of a president by the electors of the borough and that he shall hold his office for a term of four years. He may be removed in the same manner as the mayor. Charter 1906, p. 227, § 302. Any vacancy in the office of borough president is to be filled for the unexpired term by the votes of a majority of all the members of the board of aldermen then in office representing the borough. Id. The defendant was elected at the general election in November, 1905, for a term of four years commencing on the 1st day of January, 1906. In July, 1907, charges in writing were duly made and preferred against him, and presented to and filed with the Governor of the state. A copy of said charges was served upon defendant, and he was given an opportunity to be heard thereon in his defense, and was, in fact, so heard. On December 9, 1907, the Governor removed him from his said office of borough president. On December 19, 1907, the members of the board of aldermen of the city of New York then in office representing the borough of Manhattan, at a meeting duly called for that purpose, by a majority vote, voted for and undertook to elect defendant to fill the vacancy for the unexpired term caused by his removal from office by the Governor. It is in pursuance of such election or appointment that the defendant now occupies, and claims to be entitled to hold, the office of president of the borough of Manhattan. He does not question in this action the power of the Governor to remove him, nor the regularity and sufficiency of the proceedings which culminated in his removal, but rests his present claim of title to the office wholly upon his election by the aldermen. The sole question, therefore, raised by the demurrer is whether or not the defendant was eligible to appointment to the office to fill for the unexpired term the vacancy caused by his removal therefrom.
The statutory provision as to the removal of a borough president is that he may be removed in the same manner as the mayor. Section 302, Charter 1906. The mayor may be removed from office [115 N.Y.S. 667] by the Governor in the same manner as sheriffs. Section 122, p. 78, Id. The removal of sheriffs is provided for by section 1 of article 10 of the Constitution, which provides that:
" The Governor may remove any officer in this section mentioned, within the term for which he shall have been elected; giving to such officer a copy of the charges against him and an opportunity of being heard in his defense."
This procedure was followed in the case of the defendant. Although the removal by the Governor is an executive act, and therefore not reviewable by the courts ( Matter of Guden, 171 N.Y. 529, 64 N.E. 451), it is not one to be performed arbitrarily or otherwise than in accordance with the procedure prescribed by the Constitution. There must be " charges" against the officer, and he must be afforded an opportunity to be heard " in his defense." The use of these words implies that the charges must be of such a nature as to call for a defense from the accused officer; or, in other words, there must be charged against him something which, if proven and not successfully met by way of defense, will indicate his unfitness to continue to hold the office from which it is sought to remove him. We are bound to assume that the Governor, to whom has been confided by the Constitution the sole power to determine whether the charges are sufficient to warrant removal, and have been proven, will exercise this important duty honestly and lawfully. When, therefore, the Governor has exercised the power of removal, his act is to be taken as a final and conclusive determination by the officer to whom the Constitution has committed the power so to determine that the removed officer is unfit to continue to hold for the remainder of his term the office from which he is removed. That the people can lawfully re-elect the removed officer for a succeeding term, if he be not otherwise disqualified, is not doubted; but that is not the question now before us, which relates solely to the eligibility of the removed officer to be appointed to fill the vacancy during the remainder of the same term. Such an appointment, although made in the present case by a vote of the aldermen, and in the charter denominated an " election," is not an election, but an appointment within the meaning of those words as used in the Constitution. Article 10, § 2. Public office implies much more than the right to physically occupy a specified room, to exercise certain powers, and to receive a prescribed emolument. " The idea of an officer clearly embraces the idea of tenure, duration, fees or emoluments, rights and powers, as well as that of duty; a public station or employment; an employment confirmed by appointment of government." Burrill's Law Dict. tit. " Office" ; People v. Nostrand, 46 N.Y. 375." Public office as used in the Constitution has respect to a permanent trust to be exercised in behalf of the government, or of all citizens who may need the intervention of a public functionary or officer, and in all matters within the range of the duties pertaining to the character of the trust. It means the right to exercise generally, and in all proper cases, the functions of a public trust or employment, and to receive the fees and emoluments belonging to it, and to hold the place and perform the duty for the term and by the tenure prescribed by [115 N.Y.S. 668] law." Matter of Oaths, 20 Johns. 492; Matter of Hathaway, 71 N.Y. 238.Many other authorities might be cited to the same effect. They all agree in finding in the definition of a public office the idea of a public trust and of a prescribed and defined term or tenure, so that each term is an entity separate and distinct from all other terms of the same office. U.S. v. Hartwell, 6 Wall. 385, 18 L.Ed. 830; U.S. v. Germaine, 99 U.S. 508, 25 L.Ed. 482; Hall v. Wisconsin, 103 U.S. 5, 26 L.Ed. 302; Auffmordt v. Hedden, 137 U.S. 310, 11 Sup.Ct. 103, 34 L.Ed. 674; People v. Duane, 121 N.Y. 367, 24 N.E. 845; Wardlaw v. Mayor (Super.) 19 N.Y.Supp. 6; Thurston v. Clark, 107 Cal. 285, 40 P. 435; Mechem on Public Offices, § 1.
Up to the time of defendant's removal therefrom he held a public office, which implied and included the right and duty to exercise the functions of a public trust for a defined term. His removal from office conclusively determined, in legal contemplation, that he was an unfit person to continue to perform that public trust during the term which then attached to the office from which he was removed. His removal separated him in the manner provided by law from his office, and from every incident of the office, and this, as we consider, was the clear intent of the Constitution. To permit the immediate reinstatement of the same person to the same office for the same term would nullify the constitutional provision for removal. If so, it is clearly illegal. It is not possible to believe that the framers of the Constitution and the people who adopted it, after providing so carefully for the removal of an unfit officer, intended that such removal should be rendered nugatory by the immediate reappointment of the same person to fill out the unexpired term from which he had just been removed. The diligence of counsel and our own researches have resulted in finding no case in this state, and very few elsewhere, in which this precise question has arisen. It did so arise, and was discussed in State v. Rose, 74 Kan. 262, 86 P. 296, 6 L.R.A. (N. S.) 843; State v. Dart, 57 Minn. 261, 59 N.W. 190; State v. Welsh, 109 Iowa, 19, 79 N.W. 369.
In State v. Rose, supra, the defendant had been ousted in an action of quo warranto from the office of mayor of Kansas City. At a special election held to fill the vacancy thus created Rose was re-elected. The judgment of ouster restrained him from exercising the powers and receiving the emoluments of the office of mayor " for and during the term for which he was elected," and the proceeding in the case cited was one to punish him for contempt in again assuming the office. The court did not rest its decision upon the prohibition contained in the judgment of ouster, apparently deeming that the express prohibition added nothing to the effectiveness or scope of the judgment. Its decision was placed upon the broader ground that, by reason of his ouster, Rose was ineligible to re-election for the remainder of the term. After citing some of the cases hereinbefore referred to, defining the nature and scope of a public office, the court, then proceeding to its conclusion, said:
" What was involved in the proceeding [the ouster case]? And of what was the defendant deprived by the ouster?*** The office of mayor which [115 N.Y.S. 669] was conferred on the defendant at the general city election in 1905 was not a transient or occasional trust. The office, with its rights and privileges, was given to him for a fixed time. It was a two-year trust; an entire thing.*** The right to exercise the functions of the office of mayor, and to enjoy its privileges for the two-year term, was an entity conferred on the defendant, and it was that which was taken from him by the quo warranto proceeding.*** The resignation or the removal of an officer during his term and the election and appointment of his successor do not divide the term or create a new and designated one. The successor is filling out his predecessor's term, and, when the defendant re-entered the office and undertook to exercise its duties, he was simply filling out a portion of the very term which he had decided he was never to hold. Since, under the law, he had forfeited and was ousted from the right to occupy the office for the remainder of the term, no subsequent election or appointment could restore him to that which he was adjudged to have forfeited and lost. The electors of the city are as much bound by the law as their representatives and officers, and the special election did not warrant the defendant in ignoring or violating the judgment rendered under the law.*** The statute authorizing removal would serve little purpose if the district judge could appoint the unfaithful officer (county attorney) for the term forfeited, and thus again invest him with the opportunity to continue the violations of duty and of law. ...