In the Matter of the Application of WILLIAM H. MARKLAND, Respondent, for a Peremptory Writ of Mandamus to PATRICK J. SCULLY, City Clerk of the City of New York, and Others, Appellants.
APPEAL by the defendants, Patrick J. Scully, city clerk, etc., and others, 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 15th day of September, 1911, granting a peremptory writ of mandamus directed to said city clerk, commanding him to make and transmit to the custodian of primary records a notice specifying the office of the Municipal Court justice for the sixth Municipal Court district of the borough of Brooklyn as one of those to be voted for at the election in 1911, and also directed to J. Gabriel Britt and others, constituting the board of elections of the city of New York, directing them to publish a notice which shall include the said office.
Patrick E. Callahan [James D. Bell with him on the brief], for the appellants.
Arnon L. Squiers, for the respondent.
In 1907 the revised charter of the city of New York was amended to read as follows: 'Vacancies occurring in the office
of justice of said court [[the Municipal Court of the City of New York], otherwise than by expiration of term, shall be filled at the next general election in an odd numbered year happening not less than three months after such vacancy occurs, for a full term, commencing on the first day of January next after said election; and the mayor of the city shall appoint some proper person to fill such vacancy in the interim within twenty days after the same occurs.' (Laws of 1907, chap. 603, § 3.) The words in italics indicate the extent of such amendment.
George Fielder, who had been elected a justice of the Municipal Court for the sixth district of the borough of Brooklyn, died August 8, 1911. This was less than three months prior to the date fixed for the general election in this year. If the amendment of 1907, above referred to, established a valid condition precedent, the vacancy resulting from his death may not be filled at such general election, and this application should be denied.
The general provision of the Constitution relative to filling vacancies is that 'in case of elective officers, no person appointed to fill a vacancy shall hold his office by virtue of such appointment longer than the commencement of the political year next succeeding the first annual election after the happening of the vacancy.' (Const. art. 10, § 5.) The learned counsel for appellant contends that this section has no application to judicial officers. It is true that in the judiciary article of the Constitution special provision is made with regard to the filling of vacancies in the office of justice of the Supreme Court (Art. 6, § 4), in the Court of Appeals (Id. § 8), and in the County and Surrogates' Courts (Id. § 15). But the history of the adoption of that portion of those sections which contains the clause postponing elections to fill vacancies in these judicial offices from the next general election to the 'next general election happening not less than three months after such vacancy occurs,' clearly demonstrates that prior thereto the section above referred to did apply to judicial offices, and that it was deemed prudent to resort to a constitutional amendment with reference to the specific offices above mentioned to prevent such application. In the Constitution of 1846 the general provision relative to filling vacancies in elective offices was identical in language
with that of the present Constitution (Const. of 1846, art. 10, § 5). The only provision therein contained specially relating to judicial offices was to the effect that 'In case the office of any judge of the Court of Appeals or justice of the Supreme Court shall become vacant before the expiration of the regular term for which he was elected, the vacancy may be filled by appointment by the Governor until it shall be supplied at the next general election of judges, when it shall be filled by election for the residue of the unexpired term.' (Const. of 1846, art. 6, § 13.)
On October 23, 1855, Robert H. Morris, a justice of the Supreme Court, died. The general election in that year occurred on November sixth. Under the Election Law then in force (Laws of 1842, chap. 130, as amd. by Laws of 1847, chap. 240, § § 3, 7), it was not possible to give the notice therein provided for of an election to fill such vacancy, and no such notice was given. At the general election, however, ballots were cast for various candidates for the office of justice of the Supreme Court, of which Henry E. Davies received the greatest number. On December 3, 1855, the Governor appointed Edward P. Cowles to fill the vacancy caused by the death of Morris. Cowles took possession of the office and declined to yield the same, contending that there could be no 'general election of judges' to fill that vacancy at the election of 1855, since there was not time to give the statutory notice thereof. In quo warranto proceedings, brought by Davies, he was held to be entitled to the office. Referring to the Election Law, which provided that 'all vacancies' (with certain exceptions not necessary now to notice) 'shall be supplied at the general election next succeeding the happening thereof' (Laws of 1842, chap. 130, tit. 2, § 8, as amd. by Laws of 1847, chap. 240, § 6), the Court of Appeals said: 'By this enactment the Legislature have exercised the power which it is claimed they possess, under article 10, § 5, of the Constitution, to provide for filling vacancies in office. ...