When the legislature has provided two modes of conferring offices, one by nomination by the mayor to the common council and their confirmation of such nomination, and the other by appointment by the mayor alone, I do not think that the distinction thus made can be ignored, and one method treated as the equivalent of the other. The office of excise commissioner, now in controversy, was, as is decided in People v. Gates (56 N Y, 387), conferable by appointment by the mayor. The power and responsibility rested with him alone. Instead of himself making the appointments the mayor, in the present case, proposed names to the common council for their approval, and they having approved his nominations the nominees were sworn in. It does not seem to me that this was a valid exercise of the power of appointment. The argument in its support is, that inasmuch as the mayor had power to appoint without asking the consent of the common council, his consulting them was a mere superfluity which did no harm. But the answer to this argument is that the mayor did not exercise his power, but submitted the question to the common council. It is by no means certain that if they had rejected his nominations, the nominees would, nevertheless, have been admitted to the office, or even that if the mayor had not supposed a confirmation *Page 522 necessary he would have made the nominations which he did. Both of these propositions must be assumed for the purpose of establishing that the nomination was equivalent to an appointment. When the legislature has conferred this power upon the mayor, I think he must exercise it and give to the public the benefit of his free choice, and assume the entire responsibility of the selection, and that it is not a compliance with the law to submit the matter to the decision of another body, and thus divide both the power and responsibility.
The judgment should be reversed.
All concur with EARL, J., except RAPALLO, J., dissenting.
Judgment affirmed.