I concur in the opinion of Judge HISCOCK.
This case on the conceded facts presents a single question of law, viz.: Can the defendant, John F. Ahearn, who was duly elected borough president of the borough of Manhattan by the electors of said borough for the term of four years, and duly removed from that office by the governor of the state, be reappointed by the board of aldermen of the city of New York, representing the borough of Manhattan, to fill the vacancy thereby created for the remainder of the unexpired term of about two years? *Page 241
The power of the governor to make the removal and the regularity of the proceedings which resulted in the same are not challenged.
The proposition of the appellant briefly stated is, in substance, that, as there is no affirmative provision in the Constitution or statute forbidding the appointment of a removed official to serve for the remainder of his unexpired term, the defendant is now in lawful possession of the office from which the governor removed him, by virtue of the action of the board of aldermen of the city of New York appointing him to fill the vacancy caused by his removal.
A borough president is originally elected by the electors of the borough, while a vacancy is filled by a so-called "election" made by a majority vote of the board of aldermen representing the borough. (Charter, § 382.) The word "election" as used in this connection is the equivalent of appointment. (Sturgis v.Spofford, 45 N.Y. 446.) It is to be observed that the question of election by the people is not involved in this litigation.
If the proposition advanced on behalf of the defendant is sound, then the proceedings before the governor and the removal of the defendant from office were ill advised and a waste of time and money. There is, however, in my judgment, a complete answer to the defendant's position.
The charter of Greater New York (§ 382) provides that a borough president may be removed in the same manner as the mayor; by section 122 the mayor may be removed by the governor in the same manner as sheriffs. Article 10, section 1, of the Constitution deals with sheriffs, clerks of counties, district attorneys and registers. The closing sentence of this section reads as follows: "The governor may remove any officer in this section mentioned, within the term for which he shall have been elected; giving to such officer a copy of the charges against him, and an opportunity of being heard in his defense." The removal of this defendant by the governor, "within the term for which he was elected," involved, under the charter, the exercise of a power conferred upon him by *Page 242 the Constitution. The extent of this power calls for a construction of the language of the Constitution already cited; a question of law with which the legislature has no concern. The governor was called upon to deal with this defendant, in the language of the Constitution, "within the term for which he shall have been elected." After the expiration of that term, the defendant, notwithstanding his removal, would have been free to go before the electors of the borough asking for their votes to make him once more their president.
The vital question is whether the distinguished lawyers who framed the Constitution were dealing with substance or shadow; whether they intended that an unworthy official should be removed for the balance of the term "for which he shall have been elected;" or did they contemplate that he might be reinstated in his position, immediately after the governor's adverse decision, by the board of aldermen, of which body he was a member at the time of his removal?
This provision of the Constitution should be reasonably construed in view of the object sought to be accomplished. The manifest purpose was to provide a summary way for removing from office for the remainder of his term an unworthy official, and the governor was selected as the representative of the people to exercise this important power after the defendant had been afforded a reasonable opportunity to be heard in his defense. This power to remove was undoubtedly limited in its exercise to the balance of the term to prevent any interference with the right of the borough electors to elect a successor after the expiration thereof.
The question now presented is whether the governor can duly remove the defendant from office on a certain day and the board of aldermen reinstate him the following morning. As was well suggested on the argument, if the defendant can be his own successor by appointment, his removal is plainly nugatory and meaningless. It needs no extended argument to establish that such a construction fails to give due force and effect not only to the definition of "public *Page 243 office," but to the language of the Constitution which confines the governor, as already pointed out, to the balance of the term for which the accused was elected. The words last quoted are words of limitation; the framers of the Constitution were careful not to interfere with the right of the people to elect their officers in certain cases.
The power of removal vested in the governor is a meaningless provision unless "public office" implies more than mere title, power and compensation. Mr. Burrill, in his Law Dictionary, under the head of "office," gives this definition: "The idea of an officer clearly embraces the idea of tenure, duration, fees or emoluments, rights and powers, as well as that of duty; a public station or employment; an employment confirmed by appointment of government." This statement is cited with approval in People exrel. Henry v. Nostrand (46 N.Y. 375, 381). In Matter ofHathaway (71 N.Y. 238, 244) Judge ALLEN said: "Public office, as used in the Constitution, has respect to a permanent trust, to be exercised in behalf of the government, or of all citizens who may need the intervention of a public functionary or officer, and in all matters within the range of the duties pertaining to the character of the trust. It means a right to exercise generally, and in all proper cases, the functions of a public trust or employment, and to receive the fees and emoluments belonging to it, and to hold the place and perform the duty for the term andby the tenure prescribed by law." (Italics not in original.) Many other authorities might be cited to this effect. The office to which the defendant was elected by the electors of the borough of Manhattan was the right to exercise all the powers and receive the emoluments of president of that borough for the term of four years.
I vote for affirmance.