This action is in the nature of quo warranto, brought by the attorney-general upon his own information, *Page 78 pursuant to section 1948 of the Code of Civil Procedure The action is primarily against certain persons alleged to have usurped and entered into the office of city magistrates in the boroughs constituting the second division in the city of New York. Pursuant to section 1954 of the Code, the persons who claim to have been elected to said offices, and rightfully entitled thereto, are also made defendants. The allegations of the pleadings need not be recited, since they are sufficiently indicated by the facts which must be discussed in connection with the questions of law to be decided. Suffice it to say that the complaint proceeds upon the theory that under section 1392 of the revised charter of New York city, enacted in 1901, there was a valid election in the fall of that year at which certain persons were elected to the office of city magistrates in the boroughs of Brooklyn, Queens and Richmond, who are prevented from discharging the duties thereof and receiving the emoluments belonging thereto, by the unlawful usurpation of said office by the defendants above named. Said defendants, by their answer, challenge the constitutional validity of said charter provisions, and allege their own legal incumbency of said office pursuant to legal appointments made prior to said election. To this answer the plaintiffs interposed a demurrer on the ground that it is insufficient in law. The demurrer was overruled and from the interlocutory judgment entered upon that decision the plaintiffs appealed to the Appellate Division, where it was affirmed by a divided court. The questions certified to this court involve not only the sufficiency of pleading, but the serious constitutional questions which underlie the action.
For the purposes of administration of criminal justice, the greater city of New York, under its original charter, enacted in 1897, was divided into two divisions. In the first division were the boroughs of Manhattan and the Bronx; in the second, the boroughs of Brooklyn, Queens and Richmond. (Sec. 1390.) When said charter went into effect the office of city magistrate was in existence in the former city of New York, having been established by chapter 601 of the Laws of 1895. *Page 79 Section 1392 of said charter provided that the city magistrates in office when it took effect should continue to hold their office until the expiration of their respective terms, and should be known as the city magistrates of the first division; that their successors should be appointed in the same manner and have the same powers and duties as provided by said chapter 601, Laws of 1895. The act just referred to provided that such magistrates should be appointed by the mayor for terms of ten years. On account of the different conditions which prevailed in the boroughs of Brooklyn, Queens and Richmond, the charter provisions relating to the office of city magistrate in these boroughs were more elaborate than those above summarized. It was provided that the police justices in the former city of Brooklyn, who should be in office on the 31st day of January, 1898, should continue in office until the expiration of their respective terms, but should thereafter be known as city magistrates of the second division of the city of New York and have the powers and duties thereinafter prescribed for city magistrates, and no other; that additional magistrates should be appointed, who should be residents of the boroughs of Queens and Richmond respectively, and (Sec. 1394) that "the successors of said magistrates shall at all times thereafter be appointed by the mayor of said city and shall be residents and electors of the borough from which said magistrates whom they shall be appointed to succeed were appointed, and shall hold office for ten years."
In section 1396 the powers of city magistrates in said second division were defined as follows: "The said magistrates appointed or continued in office pursuant to this title, shall have and exercise within the said second division such powers as are conferred by law upon the city magistrates in the city of New York, by chapter six hundred and one of the laws of eighteen hundred and ninety-five, and the acts amending the same, except as herein otherwise provided."
Section 3, chapter 601, Laws of 1895, provides: "On and after the first day of July, eighteen hundred and ninety-five, the city magistrates appointed pursuant to this act shall *Page 80 have and shall exercise all the powers and jurisdiction, not inconsistent with the provisions of this act, which, on the thirtieth day of June, eighteen hundred and ninety-five, shall be vested by law in the police justices, except proceedings respecting bastards."
Thus far we have a uniform system under which city magistrates were to be appointed in both divisions of the Greater New York. Broadly stated, their powers were the same as those formerly possessed by the police justices in the old city of New York.
In 1901 the legislature revised the charter of Greater New York (Chap. 366, Laws 1901). It provided for the election of city magistrates within the borough of Brooklyn in lieu of their appointment. Section 1392 of the revised charter provides: "At the general election to be held in the borough of Brooklyn in the year nineteen hundred and one, there shall be elected in each congressional district, as then constituted in said borough, one city magistrate, and in the territory constituting the borough of Brooklyn there shall be elected two city magistrates at large, and the terms of office of all said city magistrates so elected shall commence on the first day of January nineteen hundred and two and continue for six years thereafter." In the boroughs of Manhattan and the Bronx the city magistrates were to be appointed by the mayor as before. Under this provision city magistrates were elected in the borough of Brooklyn at large and by congressional districts as therein provided. This contest, as above stated, is between the defendants who claim to have been thus elected and the four answering defendants who claim to hold said office by appointment.
The constitutional provision which the said appointed magistrates invoke in support of their claim that the amendment of the charter in 1901 is unconstitutional, is the last clause of section 17 of article 6, which reads as follows: "The electors of the several towns shall, at their annual town meetings, or at such other time and in such manner as the legislature may direct, elect justices of the peace, whose term of office shall be *Page 81 four years. In case of an election to fill a vacancy occurring before the expiration of a full term, they shall hold for the residue of the unexpired term. Their number and classification may be regulated by law. Justices of the peace and judges or justices of inferior courts not of record, and their clerks, may be removed for cause, after due notice and an opportunity of being heard, by such courts as are or may be prescribed by law. Justices of the peace and district court justices may be elected in the different cities of this State in such manner, and with such powers, and for such terms, respectively, as are or shall be prescribed by law; all other judicial officers in cities, whoseelection or appointment is not otherwise provided for in thisarticle, shall be chosen by the electors of such cities, orappointed by some local authorities thereof."
Assuming that this section of the Constitution applies to the case at bar, we see no escape from the conclusion that the charter amendment of 1901 is unconstitutional. The mandate of the Constitution is that judicial officers in cities, whose election or appointment is not otherwise provided for, shall be chosen bythe electors of such cities or appointed by some localauthorities thereof. This language is plain and unequivocal. It presents two distinct alternatives. Either may be chosen. It must be one or the other. If the office is to be filled by appointment, the agency by which that is to be accomplished is broadly, yet clearly designated. If the officer is to be elected, the power of appointment is as plainly excluded. If this is not the fair and reasonable construction of this provision of the Constitution then it is within the power of the legislature to authorize the employment of both methods at the same time, in the same territorial or civil division, or in different divisions, either to suit the caprice of a day or the exigencies of a political condition. If judicial officers of the same grade, performing the same duties in the same local division, may be appointed in part and elected in part at the same time, we shall not have long to wait for such use of the power as will serve the selfish ends of the designing *Page 82 few at the expense of the public weal. If magistrates may at the same time be appointed in the boroughs of Manhattan and elected in the borough of Brooklyn, why may they not be elected in one part of a borough and appointed in another? And if this may be done what becomes of the system by which two boards of magistrates are created in the two divisions of the Greater New York, designed to promote unity and cohesion in the administration of criminal justice in the city at large?
Under the charter of 1897 there was uniformity of tenure, jurisdiction and method of selection. Under the charter of 1901 the same officers are to be selected by different methods for terms of different duration, and if this is valid they may also be invested with different jurisdiction. Under the original plan each elector who exercised his right of franchise had an equal part in the selection of all the magistrates, through his vote for the mayor who appointed them. In the present situation the electors of the borough of Brooklyn have the right, in common with the electors of the borough of Manhattan, to vote for the mayor who appoints the magistrates in the first division; and also to vote, both by districts and at large, for the magistrates in their own borough, although that right is denied to the electors of the first division. There has been no exercise of the discretion vested in the legislature by section 17, article 6 of the Constitution. In the creation and continuance of this court two methods have been combined so that neither has been distinctly adhered to, notwithstanding the imperative constitutional command that one or the other not both, shall be followed. In Matter of Gage (141 N.Y.' 117), Judge FINCH, speaking of article 10, section 2, of the Constitution, which provides that certain officers "shall be elected by the peopleor appointed as the legislature may direct," says, "that is, in such cases it may choose between election and appointment, and in the latter event may dictate the authority and mode of appointment." In People ex rel. Goring v. President, etc., ofWappingers' Falls (83 Hun, 135), section 104 of the Election Law was construed. In *Page 83 speaking of the character of the office in controversy, Judge CULLEN said: "The office here in dispute is a local office. By the Constitution it must be filled by election or appointment as the legislature shall direct, * * * and it is only one of these two methods that the legislature can adopt."
Does section 17 of article 6 of the Constitution apply to this case? The single question thus far discussed is, whether the charter amendment of 1901 violates that feature of said article and section of the Constitution which requires the legislature to adopt one or the other of the two alternatives therein set forth in the method of selecting "judicial officers in cities whose election or appointment is not otherwise provided for." Upon that question the constitutional provision above referred to seems to be clearly applicable. But, even if it were not, the case would be governed by the similar provisions of section 18, article 6, or section 2, article 10, of the Constitution, the first of which declares, "Except as herein otherwise provided, all judicial officers shall be elected or appointed at such times and in such manner as the legislature may direct," and the second of which provides that "All city, town or village officers whose election or appointment is not provided for by this Constitution shall be elected by the electors of such cities * * * or appointed by such authorities thereof as the legislature shall designate for that purpose."
Thus we see that in one respect at least all the constitutional provisions which, by any possibility, can apply to the charter amendment of 1901, are in accord as to the method of selecting public officers, whose election or appointment is not otherwise provided for. They must be elected or appointed. The same office cannot be elective and appointive at the same time and place. This is equally true whether certain provisions of the Constitution are regarded as purely retrospective and contemporaneous or prospective as well; for, as we have seen, every provision of the Constitution upon this subject, whether dealing with the past, present or future, makes it clear beyond dispute that election or appointment are alternatives and not coincidents. In this view of the case it is unnecessary *Page 84 to discuss the questions whether the office of city magistrate in the Greater New York is an old office with a new name, or a new office; whether the provisions of section 17, article 6 of the Constitution are retrospective and those of section 18 are prospective; whether, in case such magistrates are to be elected, the franchise must be given to all the electors in the city at large under said section 17, article 6, or may be divided into districts in such manner as the legislature may direct under said section 18. Having arrived at the conclusion that the charter amendment of 1901 is unconstitutional, in so far as it provides for the appointment of city magistrates in the first division and for their election in the second division, we might well refrain from discussing all other questions that may become purely academic in the course of events that must follow this decision; but since some of our brethren think we ought to decide the question whether it was constitutional to elect magistrates by districts, we may add that we fully concur in the opinion of Judge CULLEN upon that question.
One other consideration remains to be noticed. The charter amendment of 1901 not only provided that city magistrates in Brooklyn should be elected instead of being appointed, but it also assumed to extend the terms of four city magistrates in office when it took effect. The terms of these officers expired on the last day of April, 1901, but the amendment purported to extend their terms until January 1st, 1902. (Sec. 1392.) This provision was held to be unconstitutional in a decision which seems to have been acquiesced in by all concerned. (Matter ofKelly v. Van Wyck, 35 Misc. Rep. 210.) Upon a writ of mandamus commanding the mayor to appoint successors to the four magistrates whose terms expired on April 30th, 1901, the four respondents herein were appointed. The certificate in each case recited the appointment to be "for the unexpired portion of the term which commenced May 1st, 1901, and which ends December 31st, 1901." The limitation of time expressed in these certificates was undoubtedly based upon the erroneous assumption that the charter amendment of 1901 (Sec. 1392) was valid. Under the law of 1895 as amended *Page 85 in 1897, which was the law in force when the invalid amendment of 1901 was enacted, the term of the office of city magistrate is ten years. No valid appointment can be made for any other term except in case of a vacancy occurring otherwise than by expiration of a term, in which event the person appointed to fill the same shall be appointed for the unexpired residue of the term. It is, therefore, obvious that the appointments of the answering defendants are either absolutely void, or the attempted limitation of the term set forth in their certificates is a nullity which may be treated as mere surplusage. We take the latter view. The only actual power which the mayor had in the premises was to make appointments for terms of ten years. It was his purpose to make such appointments as he supposed he had the right to make. He followed the letter of the statute as he thought it to be. The limitation inserted in the certificates was not based upon a design to make a temporary appointment which, if not authorized would be wholly void, but upon a misapprehension as to which of two statutes, the one void and the other valid, should be followed in making the appointments. Under these circumstances, the case does not fall within the rule laid down in People ex rel. Bridgeman v. Hall (104 N.Y. 177) where the mayor of Troy attempted to make a temporary appointment to the office of chamberlain in the place of the regular incumbent, who was then stated to be absent from the city and supposed to be a defaulter. In that case the mayor had two powers. The one, in case of a vacancy in the office of chamberlain, to nominate for a full term; the other, during the absence of the incumbent, to make a temporary appointment. He attempted to exercise the latter when he should have exercised the former. The error was induced, in part at least, by a mistake as to the existence of extrinsic facts which had a controlling effect upon the validity of the appointment. Upon the facts of the case this court held the temporary appointment void and that it did not inure as an appointment for the full term. But the court was careful to distinguish the case from People ex rel. Andrews v. Lord *Page 86 (9 Mich. 227) and Stadler v. City of Detroit (13 id. 346), and said: "There the appointing power attempted to exercise a power of appointment clearly defined, but by inadvertence or misapprehension, put a limitation upon the appointment which was unauthorized."
A glance at the cases above cited will suffice to show that they cover the question here involved. In the Lord case the governor of Michigan made an appointment to fill a vacancy in the office of probate judge created by the death of the incumbent who had been re-elected, but died before the commencement of his new term. On the succeeding first of January, when said new term was to commence, the governor made another appointment upon the supposition that there was a new vacancy. The Constitution provided that in case of a vacancy the governor is to appoint a person to continue "until a successor is elected and qualified." Under that provision it was held that the second appointment was void and that the first was good "until a successor is elected and qualified." In the Stadler case the term of office of the marshal for the city of Detroit as fixed by charter was two years. Stadler was appointed for a year and gave a bond covering that period. At the expiration of the year he was removed, not in terms, but by the attempted appointment of a successor. The court held that Stadler's appointment was good for two years; that the recital in the bond, of one year, was surplusage, and that Stadler was entitled to the salary of the office. We think that the appointments of the answering defendants were valid for the full term of ten years and that the limitations attempted to be fixed thereto should be treated as surplusage.
For the foregoing reasons the order of the Appellate Division and the interlocutory judgment herein should be affirmed, with costs, and the question certified to this court should be answered in the affirmative.