By section 1346 of the Greater New York Charter (Chap. 378 of the Laws of 1897, as amended by chap. 466 of the Laws of 1901) it was provided that the successors of the justices of the City Court then in office should be elected for ten years. The precise language of the section is: "The Justices of said City Court in office when this act shall take effect shall continue to hold office until the expiration of their respective terms; but the successors of said justices shall be elected for and hold office for the period of ten years."
In People ex rel. Weller v. Townsend (102 N.Y. 430) it was held that similar language in the Constitution gave a surrogate or a county judge elected after the happening of a vacancy the full term prescribed by the Constitution. The language there under consideration was: "The existing County Courts are continued, and the *Page 438 judges thereof in office at the adoption of this article shall hold their offices until the expiration of their respective terms. Their successors shall be chosen by the electors of the counties for the term of six years." (Const. 1846, as amended, art. 6, section 15.)
The language of the Greater New York charter is so similar to that of the Constitution construed in the Townsend case that it should be held to have the same effect. But section 3 of article XII of the Constitution prescribes that all elections except to fill vacancies of city officers, including judicial officers of inferior local courts, shall be held in an odd-numbered year, and that the term of every such officer shall expire with the expiration of an odd-numbered year. If, therefore, the legislature were permitted to prescribe that vacancies in the offices mentioned should be filled for a full term it is apparent that if the vacancies occurred in an even-numbered year the term of the newly-elected incumbent would expire in an even-numbered year and thereafter elections for those offices be regularly and systematically held in even-numbered years. After the lapse of a number of years it might happen that a majority of the local officers would be elected in even-numbered years and the whole constitutional scheme for divorcing local from general elections rendered nugatory It follows, therefore, as it seems to me, that the act of the legislature (Section 1346 of the Greater New York charter) cannot be upheld in its entirety (Matter of Markland v. Scully, 203 N.Y. 158); although by express provision of the Constitution a single election for a vacancy only can be held in an even-numbered year. Mr. Justice Green, having been properly elected in 1904 to fill a vacancy, the only question is how long his term ran. In the Markland Case (supra) we held that the statute then before the court was void. It is not necessary to go so far in the present case. The statute under consideration in the Markland case violated the Constitution *Page 439 in several respects, while here section 1346 of the charter is in conflict with the Constitution only where it makes the term of a justice of the City Court, elected in an even-numbered year, ten years. It seems to me that we can give effect to the charter provision to the extent to which it is not in conflict with the Constitution — that is to say, if the vacancy occurs in an odd-numbered year, the person elected to fill the vacancy may hold for ten years; if in an even-numbered year, then only for nine years. But whether the statute is to be thus construed or to be held wholly invalid, the result is the same as far as the disposition of the present case is concerned. In either event Judge Green is only a de facto officer, and the office is vacant for the purpose of being filled by election. (Election Law [Cons. Laws, ch. 17], § 42.) If Judge Green's election for the full term of ten years were valid, certainly his term would expire with the close of this year, and the people would be entitled to elect his successor. It is a little difficult to see how the fact that his present incumbency of the office is not justified by law can deprive the people of the privilege of electing his successor, as his only claim is that he was elected for ten years, and that period certainly expires this year.
These views lead to the same conclusion as that reached by my brother HOGAN, although by a somewhat different route.
WERNER, HISCOCK, COLLIN and CARDOZO, JJ., concur with HOGAN, J.; MILLER, J., concurs with WILLARD BARTLETT, Ch. J.
Order reversed, etc. *Page 440