I find in the record evidence sufficient in law to warrant the indictment of the three appellants of a conspiracy to pervert or obstruct justice or the due administration of the laws (Penal Law, § 580). The test is statutory: "The grand jury ought to find an indictment, when all the evidence before them, taken together, is such as in their judgment would, if unexplained or uncontradicted, warrant a conviction by the trial jury." (Code Crim. Pro., § 258.) *Page 435
The accusatory statement in the indictment recites in detail the charge made against the appellants. In briefer statement the charge is that the appellants Harris — the acting Mayor of Albany, McGuiness — the Corporation Counsel, and Cassidy — formerly the Commissioner of Water and Water Supply, conspired to pervert and obstruct justice or the due administration of the laws by refusing to comply with the provisions of the State Constitution which required the removal from office of the appellant Cassidy who, when called before a grand jury to testify concerning the conduct of his office, refused to sign a waiver of immunity; and by corruptly and unlawfully bringing about the appointment of Cassidy to the office of Superintendent of Water Rent Delinquencies, thereby interfering with and impeding a pending action by which the Attorney-General sought a judgment requiring Cassidy to forfeit his office as Commissioner of Water and Water Supply.
The relevant provision of the State Constitution (art. I, § 6) is as follows: "* * * No person shall be subject to be twice put in jeopardy for the same offense; nor shall he be compelled in any criminal case to be a witness against himself, providing, that any public officer who, upon being called before a grandjury to testify concerning the conduct of his office or theperformance of his official duties, refuses to sign a waiver ofimmunity against subsequent criminal prosecution, or to answer any relevant question concerning such matters before such grand jury, shall be removed from office by the appropriate authorityor shall forfeit his office at the suit of theattorney-general." (Emphasis supplied.)
The minutes of evidence taken before the Grand Jury are available for the present record by reason of an order of Special Term permitting the appellants to inspect such minutes. From that source it appears that evidence of the following facts was brought before the Grand Jury:
On April 27, 1944, the appellant Cassidy held the public office of Commissioner of Water and Water Supply of the City of Albany. His annual salary was $5,000. On that date, when he was called before the Grand Jury to testify concerning the conduct of his office, he refused to sign a waiver of immunity after being informed that such refusal was a ground for his removal from office. On the same day the Attorney-General *Page 436 sent to the appellant Harris as acting Mayor a written notice of the refusal by Cassidy to waive immunity. That notice contained the statement — "I wish to bring to your attention the provisions of Article I Section 6 of the State Constitution, which requires that in such cases such public official `shall be removed from office by the appropriate authority.'" In that connection it should be said that Local Law No. 2, § 4 (1935) of the City of Albany provides that "The commissioner of water and water supply shall hold office during the pleasure of the mayor." The appellant Harris on April 28, 1944, advised the Attorney-General that he had referred the latter's communication relative to Cassidy to the Corporation Counsel — the appellant McGuiness. The appellant Harris as acting Mayor was at that time "the appropriate authority" under the constitutional provision to take action by which Cassidy could be "removed from office". When he failed to take such action and in the absence of any further communication from him or from the appellant McGuiness, as Corporation Counsel, the Attorney-General set in motion the alternative method provided by the Constitution — "* * * at the suit of the attorney general" — to effect Cassidy's removal, and on May 2, 1944, caused to be served on Cassidy a summons and a complaint in an action to declare forfeited his office as Commissioner of Water and Water Supply. Twenty days thereafter — without further communication to the Attorney-General by the appellants Harris and McGuiness — the appellant Cassidy caused to be served an answer, verified May 22, 1944, in which was pleaded his denial that he was then the Commissioner of the Department of Water and Water Supply of the City of Albany. Thereafter, upon that pleading, the Attorney-General's action to compel the forfeiture by Cassidy of his office as such Commissioner was dismissed at Special Term.
We come then to evidence which explains the change in official status experienced by the appellant Cassidy between April 27, 1944, when he appeared before the Grand Jury as Commissioner of Water and Water Supply, and May 22, 1944, when by his verified answer served in the Attorney-General's action he was able to state that he did not hold that office. There is proof that at a meeting of the Board of Estimate and Apportionment of the City of Albany on May 16, 1944, attended by the appellant *Page 437 Harris, as acting Mayor and presiding officer, and the appellant McGuiness, as Corporation Counsel, Mr. McGuiness introduced the following resolution which was unanimously adopted:
"RESOLVED, that the position of Superintendent of Water Rent Delinquencies be, and the same is hereby created in the Department of Water and Water Supply, effective May 15, 1944, at an annual salary of Five Thousand Dollars ($5,000), and be it
"FURTHER RESOLVED, that the person appointed to the position shall under the direction of the Commissioner of Water and Water Supply, or his deputies, have the duty of compiling a list of delinquent water rents and rates, and formulate and execute means and method of collecting the same pursuant to the applicable provisions of law."
It also appears that on the date when the resolution quoted above was adopted there was in the office of Commissioner Cassidy a deputy commissioner to whom a local law gave authority, "in case of the absence * * * of the commissioner" that he, the deputy commissioner, should "discharge the duties of the office until the commissioner returns". (Local Law, No. 2, § 5 [1935].) Another statute which the evidence shows was put to useful application was section 19 of the Second Class Cities Law, applicable to the City of Albany. That statute provides that "No person shall, at the same time, hold more than one city office.Upon the acceptance by a city officer of a second office theoffice first held by him shall thereupon become vacant." (Italics supplied.) On the afternoon of May 18, 1944, the appellant Cassidy went to New York City, absenting himself from his office for approximately twenty-four hours. Returning to Albany the following day (May 19, 1944) he appeared on May 20, 1944, before the appellant Harris and took the oath of office as Superintendent of Water Rent Delinquencies — the new position created on May 16, 1944, which entitled the incumbent to an annual salary of $5,000, the same as that of the Commissioner. The deputy Commissioner — exercising his statutory powers in the absence of the Commissioner — had appointed Cassidy, the Commissioner, to the newly created position during the latter's overnight "absence" in New York City. When, on May 20, 1944, Cassidy took the oath of office pertaining to *Page 438 his new position, the office of Commissioner, of which he was the incumbent until that moment, "thereupon became vacant" under the statute.
It was thus made to appear by evidence before the Grand Jury that after receipt of formal notice from the Attorney-General that Cassidy, as a witness before the Grand Jury, had refused to sign a waiver of immunity, the appellant Harris — who, under the Constitution and applicable statutes was "the appropriate authority" to remove Cassidy from office — failed to take such action. Instead, in co-operative effort with the appellant Cassidy and the appellant McGuiness, who also had notice of Cassidy's conduct before the Grand Jury, the appellant Harris participated in a sequence of official acts which culminated in the transfer of Cassidy from the office he formerly held as Commissioner of Water and Water Supply to a position in the same department at the same salary. Indeed, the appellant Harris, in answer to questions addressed to him before the Grand Jury, admitted it to be "a fact" that the new position of Superintendent of Water Rent Delinquencies at $5,000 a year was created especially for the appellant Cassidy; he admitted it to be "a fact" that he (the appellant Harris) participated in the making of a "tailor-made job" for Cassidy; and finally he admitted that he participated in what the examiner termed "the subterfuge of keeping him [Cassidy] in the City employ at the same salary."
The failure by the appellant Harris to remove Cassidy — an official duty which he was enjoined by the Constitution to perform — was unlawful because such conduct was "not a compliance with the duty * * * expressly enjoined upon him by law." (Peopleex rel. Childs v. Knott, 187 App. Div. 604, 610, affd.228 N.Y. 608.)
I cannot agree with the view expressed for a majority of the court as a basis for the decision about to be made that there is no evidence in the record that Cassidy was not qualified for the appointment to the new position of Superintendent of Water Rent Delinquencies. When he came before the Extraordinary Grand Jury in response to a subpoena, Cassidy had notice that the inquiry then being conducted by that body was directed to his conduct as Commissioner of the Department of Water and Water Supply, which public office he then held. This court *Page 439 has recently had occasion to say that "Public officers are the servants of the People and the latter may say upon what terms they shall be engaged or continue in office after their engagement. * * * They [the People] have the power, by a constitution, to set conditions, with which there must be compliance, if one is to be or continue to be a public officer. Immunity may still be claimed. If claimed, one may not continue as a public officer." (Italics in original text.) (Canteline v.McClellan, 282 N.Y. 166, 170, 171.) I accept that pronouncement as descriptive of one of the means by which public policy in this State is formulated. "The power of grand juries to inquire into the wilful misconduct in office of public officers * * *" is a matter of fundamental public policy in this State. (N.Y. Const., art. I, § 6.) I regard the constitutional amendment of 1938 to be a further expression of that fundamental State policy, which the Grand Jury had the right to consider, that a public officer is to be deemed unfit for public service "* * * who, upon being called before a grand jury to testify concerning the conduct of his office or the performance of his official duties, refuses to sign a waiver of immunity against subsequent criminal prosecution". (N.Y. Const., art. I, § 6.)
Giving credence to the evidence before the Grand Jury, which stands unexplained and uncontradicted, I think it supports the conclusion that the appellant Harris evaded the performance of his constitutional duty to remove Cassidy from the public office he then held. In concert with the other two appellants he devised and aided in carrying out a plan to accomplish the vacatur of the office of Commissioner of Water and Water Supply without formally removing Cassidy therefrom and to continue him in public office, without interrupting his tenure in public service, by installing him in a new position in the same department created especially for him at the salary he had been receiving as Commissioner. Such concerted action by the three appellants was designed to and did thwart the constitutional mandate — which required the removal in good faith of Cassidy from the office he held on April 27, 1944 — and the action instituted by the Attorney-General as an alternative constitutional means to accomplish such removal. It was an obstruction of justice or of the due administration of the laws and was unlawful. "If the acts conspired for tend to obstruct *Page 440 the due administration of the laws the statute [Penal Law, § 580] makes the conspiracy criminal whether the acts themselves are so or not." (Drew v. Thaw, 235 U.S. 432, 438; People v.Sheldon et al., 139 N.Y. 251, 265-266.)
The evidence of conduct by the three appellants which brought about the change on May 20, 1944, in the official status of Cassidy, would be sufficient if unexplained or uncontradicted to warrant a conviction by a trial jury and is in law a sufficient basis for the indictment.
Accordingly I dissent and vote to affirm the order of the Appellate Division.
LEHMAN, Ch. J., LOUGHRAN, DESMOND and DYE, JJ., concur with THACHER, J.; LEWIS, J., dissents in opinion; CONWAY, J., taking no part.
Ordered accordingly.