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In re Application of Kane

Supreme Court of New York, Appellate Division

April 28, 1911

In the Matter of the Application of JAMES KANE, Appellant, for an Order Directing the Issuance of a Peremptory Writ of Mandamus
v.
WILLIAM J. GAYNOR, Mayor of the City of New York, Respondent, to Appoint the Petitioner Herein One of the Commissioners of Election of the City of New York, Representing the Democratic Party.

Page 197

APPEAL by the petitioner, James Kane, from an order of the Supreme Court, made at the Kings County Special Term, and entered in the office of the clerk of the county of Kings on the 9th day of March, 1911, denying the petitioner's motion for a peremptory writ of mandamus.

The opinion delivered at Special Term is reported in Matter of Kane (71 Misc. 163.)

COUNSEL

Charles H. Kelby, for the appellant.

Terence Farley [Louis H. Hahlo and Archibald R. Watson with him on the brief], for the respondent.

WOODWARD, J.:

The petitioner applied to this court at Special Term for a peremptory writ of mandamus to compel the respondent to appoint him to the office of commissioner of elections in the city of New York, and this application has been denied. The petitioner appeals to this court, and the question here presented is whether, under the provisions of section 194 of the Election Law (Consol. Laws, chap. 17; Laws of 1909, chap. 22), the respondent was bound to appoint the petitioner, the latter having been recommended by the chairman of the Democratic county committee of Kings county, as provided in that section.

While it will not be questioned that it is within the power of the Legislature, in creating a new State office, to confer a power of appointment on some individual or association other than a public officer or body (Sturgis v. Spofford, 45 N.Y. 446, 450), such a course is exceptional, and nothing will be presumed in that direction. The appointment of public officials is generally looked upon as involving the executive power; it

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clearly contemplates a voluntary act on the part of the appointing power ( Marbury v. Madison, 1 Cranch [U. S.], 137, 155), and it is impossible to dissociate the idea of discretion from the power. To appoint without discretion would be a mere ministerial act, and entirely takes away the essential element of an appointment, which is but a substitute for an election, the Constitution providing that 'All other officers, whose election or appointment is not provided for by this Constitution, and all officers, whose offices may hereafter be created by law, shall be elected by the people, or appointed, as the Legislature may direct.' (Art. 10, ยง 2.) An election contemplates a free choice of public officers, and an appointment, being a mere substitution for an election, must necessarily involve the same idea, and we are not to look to the Legislature to direct anything which is inconsistent with this fundamental element of an appointment. If there is anything of the kind in the statute it should be expressed in clear and unequivocal language; we ought not to read anything into the statute for the purpose of producing such a result. Tried by this test, is there anything in the Election Law which requires the mayor of the city of New York to appoint an election commissioner who has been designated by the chairman of the Democratic county committee of Kings county; where is the direction of the Legislature that he shall become a mere ministerial officer, doing the bidding of a voluntary organization?

Section 190 of the Election Law provides that 'There shall be a board of elections in every city of the first class in this State which does, or shall, contain within its boundaries one or more counties. The said board shall consist of four persons to be known and designated as commissioners of elections.' Section 191 of the same act provides that 'All such commissioners of elections shall be appointed by the mayor of the city, and shall hold office for a term of two years, except as hereinafter provided. Each of the said commissioners of elections shall be at the time of his appointment a resident and a qualified voter of such city. * * * A commissioner of elections may be removed from office by the governor for cause in the same manner as a sheriff. Any vacancy in the office of commissioner of elections shall be filled by the mayor of the city within five

Page 199

days after the vacancy has been created, and the person appointed to fill such vacancy shall hold office during the remainder of the term.' These provisions are clearly broad enough to cover the city of New York, which is a city of the first class containing 'within its boundaries one or more counties,' and the power of the mayor to fill the offices thus created is full and complete, as well as for the filling of vacancies, and then section 192 provides for the organization of boards, etc., and section 193 provides: 'The mayor of the city of New York shall appoint four persons as commissioners of elections for the full term of two years beginning at twelve o'clock noon of January first in each odd numbered year, each of whom shall be a resident and qualified voter of the city of New York and not more than two of whom shall belong to the same political party or be of the same political opinion on State or national politics.'

Clearly, up to this point there is no limitation upon the power of the mayor to appoint, except that the appointees shall be resident voters of the city, and 'not more than two of whom shall belong to the same political party or be of the same political opinion on State or national politics,' section 196 of the act declaring it to be the 'intention of this article, and said intention is hereby declared, to secure in the appointment of the members of the board of elections established by this article, equal representation of the two political parties which at the general election next preceding such appointment cast the highest and the next highest number of votes for governor, and of which the committees and chairmen of committees have been duly elected as such under and in pursuance of the provisions of article three of this chapter relating to primary elections.' Here we have a clear exposition of the purposes of the statute; it is to provide for a bi-partisan election board in the city of New York, and the mayor is given full authority to appoint such a board; nothing whatever is said about any one sharing in this responsibility, by ...


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