The defendant was duly appointed to the office of clerk of the district court, from which it is sought to oust him, on the 31st December, 1851, for a term which expired on the same day in the year 1857. He claims to continue the incumbent of the office by virtue of an act of the legislature, passed in April of the last mentioned year, the effect of which, if constitutionally valid, is to extend his official term for a further period of six years. (Laws of 1857, p. 726, § 71.) If his position is sustained he is still in office; and, without examining any other question, he will be entitled to judgment.
The plaintiff challenges this legislation as a violation of the Constitution. He maintains that the office is a city office within the meaning of section 2 of article 10, which declares *Page 139 "that all city, town and village officers whose election or appointment is not provided for by this Constitution, shall be elected by the electors of such cities, towns and villages, or of some division thereof, or appointed by such authorities thereof as the legislature shall designate for that purpose." This section further provides, that "all officers whose offices may be hereafter created by law, shall be elected by the people or appointed as the legislature may direct." The plaintiff's position is, that the place can only be filled by election, or appointment by the local constituency; and that, although the defendant's appointment for the primary term was valid, the renewal or extension of that term by the act of the legislature was a violation of the provision referred to, and, consequently, was void.
The first inquiry is, whether this clerkship is a city office? At the time of the adoption of the Constitution, the appointment was vested in the mayor, aldermen and commonalty of the city, which body had also the power of removal. (Laws of 1820, ch. 1, p. 3, § 5.) So far as the manner of selecting the incumbent was concerned, it was one of the offices of the city. Then the duties were all to be performed within the city. It is true, they appertain to the administration of justice, which is a subject of universal concern; but it is the administration of justice within a particular local division with which the office is conversant. It was never doubted but that justices of the peace, out of the cities, were county or town officers. They were formerly appointed by the central government; but their duties were all to be performed within some county, and hence they were county officers. After they came to be chosen in the towns, a question arose whether they continued to be county officers or were town officers (The People v. Keeler, 25 Barb., 421; S.C.,17 N Y, 370); but it is very plain that they were either one or the other. The functions of those clerks have the same character of locality with that of the justices whose clerks they are, and the justices are officers of the same description within the city as justices of the peace are in the other counties. *Page 140
Hence, I think it very plain that the clerks are city officers, within the sense of the constitutional provisions.
But though they are city officers, yet, if their offices have been created since the formation of the Constitution, the legislature is free to provide for their appointment in any manner they may think expedient, or to make the appointment themselves. (The People v. Draper, 15 N.Y., 537, 538.) The question upon this part of the case is, whether the office of justices' clerk existing when the Constitution was made, is the same office which the defendant fills, and which is the subject of this controversy. These New York justices' courts have been the subject of frequent legislative regulations, but I am of opinion that their identity and the legal identity of the clerks have been preserved. When the Constitution was framed they existed under the act passed in 1820, already referred to. There were, according to that act, four justices then called assistant justices, to each of whom a defined portion of the city was assigned. Each justice was to have a clerk, to be appointed and to be removable by the mayor, aldermen and commonalty. The defendant's counsel argues that the offices of those clerks have been abolished, and new offices created — of one of which the defendant is an incumbent — since the adoption of the Constitution, and that the provision consequently does not apply. This depends upon the construction to be put upon the subsequent legislation.
In 1848, it became necessary to change the mode of appointment of the justices, to meet the provision of the Constitution requiring judicial officers of this class to be elected. (Art. 6, § 18.) By the act then passed there were to be six judicial districts, and the justices were to be chosen at a charter election, and the clerks were to be appointed by the common council; and both the justices and the clerks were to hold their offices for four years. (Laws of 1848, p. 249.) The style of assistant justices, before used, was changed to justices; but all the provisions of law applicable to the former justices and their clerks were declared to apply to those mentioned in the act. (§ 4.) The jurisdiction as to amount was raised from $50 to $100. In *Page 141 terms, the former offices of assistant justice and assistant justices' clerk were abolished. (§ 10.) At the same session of the legislature the former name of assistant justices' court was restored, so as to accommodate these courts to a provision of the Code of Procedure which had referred to them by that name. (Ch. 276.) This act of 1848 was twice amended in 1857. The first amendatory act required the clerks to be chosen by "the mayor and board of aldermen, or a majority thereof." (Ch. 147.) The other act of the same session established a new official term for the justices. They were to be chosen in November, 1851, and every six years thereafter, at the general election. Those first elected were to commence to serve on the second Tuesday of May succeeding their election; and those afterwards chosen, on the first day of January after the election The official term was to be six years. It was then provided "that the clerks of these courts hereafter appointed, shall enter upon the performance of their duties at the same time, and shall hold their offices for the same period as the justices" to be elected under the act. This was the construction of the law, as to the constitution of the office, when the defendant was appointed in December, 1851. According to the strict language of the act of 1848, the former office was abolished and a new one was created. But I am of opinion that for all substantial purposes, and especially as regards the application of the constitutional provision under consideration, the former office is to be considered as continuing, under certain necessary modifications. The system of justices' courts was the nucleus to which the justices and the clerks were attached. These were the ancient courts of the city, which had been created for the trial of small causes. As the city increased in business and population, the system required to be expanded; and, with the diminishing value of money, and the increase in the amount of ordinary transactions, the limit as to the amount for which judgment might be given was increased. The circumstance which establishes the essential identity in legal character of the courts, and their judges and clerks, is the direction in the fourth section, that all the provisions of law respecting the former *Page 142 courts should apply to those referred to in the act. The clause proposing to abolish the former offices and to create new ones was, in substance and effect, a simple change of name; and the other provisions of the act were only modifications of the functions of the courts and their officers. The Constitution took effect upon these clerks as city officers, and declared that they should be elected or chosen by the people or by some authority of the city; and it continues to attach to them, notwithstanding the change of name and the subsequent modification of their functions. (The People v. Draper, supra, 539.)
The same considerations apply to the acts of 1855, chapter 293, and 1857, chapter 344. They were regulations of the courts and their officers, but in no respect changed their legal identity.
It follows from what has been thus far said that the legislature could not itself appoint to this office; and the remaining question is, whether the provision contained in the act of April, 1857, is not an appointment of the defendant and the other clerks for an additional term of six years. It declares that "the clerks of these courts shall be appointed and hold their offices in the manner now provided by law; and vacancies in their office shall be filled in like manner; provided, however,that the clerks of said courts who shall be in office at the nextelection of judges for said courts shall hold their offices forthe same time as the justices then elected." (Laws of 1857, ch. 344, § 71.) When the statute was passed, in the spring of 1857, both the justices and the clerks were serving the last year of their respective official terms, which would expire on the last day of that year. The election of justices, as to which no change was made by the act, would take place on the first Monday of November ensuing, and the justices who should be elected would hold their offices for six years from the ensuing first day of January. According to the existing law, a new appointment of clerks was required to be made at some convenient time in advance of the expiration of their offices, so that their successors would be able to enter upon their duties, as required by law, at the commencement *Page 143 of the next year, along with the justices chosen at the November election. Thus, it will be seen, that it was not the purpose of the act to alter in any way the mode or time of appointment, or the official term of the justice; and no change in these respects was to be made as to the clerks, except for this one occasion. Indeed, unnecessary care is taken to declare that the general regulations as to the appointment and the term of office of the clerks are unaltered, except by the proviso. It is to be observed that the terms of the justices and of the clerks had been so adjusted by the act of 1851, as to commence and expire at the same time; and this arrangement, as a general regulation, was not changed. The effect of the provision was simply, that for one term the system as respected the clerks was to be intermitted, the legislature itself assuming to provide for the exigency, and for that purpose ordaining that the clerks found in office on the first Monday of November, should serve for another term; during which term the existing law was suspended. This seems to me such a palpable violation of the Constitution as only to require to be stated to be seen and admitted by every one. The Constitution had provided that the power of appointment should reside in a city constituency — either the electors of the city acting directly, or some existing intermediate local official agency. In obedience to the constitutional injunction, the legislature had designated an appointing board consisting of city magistrates, and had directed that the appointments should be for successive terms of six years; and then, after one set of appointments have been made, and the terms of the appointees are about expiring, the legislature intervene, suspend the agency thus created, and themselves appoint for the next term, selecting the existing incumbents for the appointees. It is no answer to say that the proper appointing power had once designated these individuals for the offices in question. True, they named them for the then ensuing term, but they did not — and they were not permitted to — say whether they would approve of their appointment for a longer time, or for another term. *Page 144
There are a few cases where ex necessitate there may be a temporary departure from a mode of appointment provided by the Constitution. For instance, the clerks of counties are made elective by the people; but as an election cannot be held every day, but a vacancy may occur at any time, the courts have countenanced legislative provisions for an executive appointment till an election according to the forms of the Constitution can be held. (The People v. Snedeker, 14 N.Y., 52; People v.Fisher, 24 Wend., 215.) But the act under consideration is not of such a character. It was not passed to supply any defect in former laws or to provide for an exceptional case. The provision is not incidental to any change which the legislature were making in the constitution of these offices, for they were making none. It was not apropos to anything; but was an independent piece of legislation having no other conceivable object except to ingross the appointment to these clerkships, to which it was constitutionally impossible they could have any right, for a term of six years. The provision conferred no title upon the defendant, whose situation is precisely the same as though no such statute had been attempted to be enacted.
But though the defendant has no title to the office under the act of 1857, he had a right under the general law to hold over until a successor should be appointed and qualified. (1 R.S., 117, § 9.) For the purpose of determining his right under this provision, as well as to enable us to pronounce a judgment upon the right of Osgood, the relator, and who is joined with The People as plaintiff, it is necessary to examine another of the questions made in the case.
The statute for the appointment of clerks was modified the last time by the act of April 10, 1855 (ch. 293, § 1), and is in the following words: "The mayor of the city of New York and the members of the board of aldermen of said city, or a majority of them, shall meet in convention when directed by the board of aldermen or a majority of the members, and appoint the police clerks and clerks of the district courts in said city. It shall, nevertheless, be lawful, if the mayor, after a notice of eight days from the board of aldermen, shall neglect *Page 145 to appear, for the members of the board of aldermen or a majority thereof, to proceed to appoint the clerks of the said courts, in the same manner and with the like effect as if the mayor was present." It appeared that there was a regular meeting of the board of aldermen held on the 18th day of December, 1857, seventeen aldermen being present, at which a resolution was adopted, inviting the mayor to meet the aldermen in convention the same evening at half-past six o'clock, for the purpose of appointing the district court and police clerks. The mayor appeared at the time named and a convention was accordingly formed, at which the mayor and sixteen aldermen appear to have been present and to have voted. An appointment of clerks for the seven districts was then made by resolution, thirteen members voting in the affirmative. Among the persons so appointed was John J. Ware, who was named the clerk of the second district, which is the office of which the defendant in this action claims to be the incumbent. The board of aldermen at this time consisted of twenty-two members. Prior to the 18th of December, to wit, on the 14th day of that month, the board had adopted a resolution to meet in convention to make these appointments on the 21st of December; but this resolution was rescinded at the meeting of the 18th, prior to the passage of the one by which it was determined to go into convention on the same evening. The case states that Ware took the oath of office and gave a proper official bond, and has demanded the office of the defendant, and is still living and a claimant of the office.
For some reason not explained in the papers, the board of aldermen and the mayor continued to hold conventions for the purpose of filling the offices, as though nothing effectual had been done in December, 1857, in the ensuing years 1858 and 1859; and, finally, on the 9th day of November, 1859, a convention of nine members of the board of aldermen was held, at which a full set of clerks was appointed by ballot. Among these was the relator, who was chosen clerk of the second district. Being of opinion that there was not at that time any legal occasion for making choice of a clerk, I have not particularly *Page 146 examined the other questions arising upon the validity of this alleged appointment. I am satisfied that J.J. Ware was legally chosen on the 18th of December, 1857, and that consequently the office was full when it was attempted to appoint the relator. The objection to the proceedings of that day is, that it was not shown that all the members of the board of aldermen had notice of the time and place of holding the convention; and, in point of fact, it was not shown that any notice was given except such as was afforded by the passage of the resolution of the board fixing the time of meeting in convention. It is a well settled rule, that where a duty of a public nature is entrusted to a plurality of individuals or official persons, a majority are competent to determine, though it is necessary that all should have notice and be afforded an opportunity to participate. But the rule plainly has no application where the duty is cast upon a deliberative body or an administrative board, which holds stated or regular meetings, for the performance of its appropriate duties. If an additional public duty is committed to such a body, it is, in judgment of law, to be performed in its collective character, and not as isolated individuals having no other principle of cohesion, and requiring to be brought together by special notice. The aldermen, as a branch of the municipal government, frequently meet as a board for the performance of their functions. An act of 1851 had committed the appointment of these clerks to the mayor and board of aldermen, but had not declared what should be the consequence if the mayor should refuse or neglect to meet the council. As a joint meeting would be requisite to make the appointment, it would always be in the power of the mayor to prevent one being made, by abstaining from attendance. The act of 1855, now under examination, seems to have been passed to remedy this defect. Power was given to the board to initiate the movement, by directing that a joint meeting should be held at a given time, and then, if the mayor, after having had a notice of eight days, should fail to attend, the aldermen could make the appointment without him. I am persuaded that the amendment had no other object than *Page 147 the one mentioned. The words members of the board of aldermen are, it is true, used; but not, as I think, with any design to make their ultimate action separate or individual, in any different sense from what it would have been under the act of 1851. It is probable that a majority of the aldermen have the power, out of the board, to direct a joint meeting, and, in such a case, it may be that notice should be given to all the members. But this power is equally given to the board, and in this case, the resolution for the convention was adopted at one of its regular meetings. It was the act of the board, and not of the individuals as separate public officers. The board, as well as each of its members, were concluded by this act, and each was legally chargeable with notice, and no other notice was required to be given.
The result of these views is, that the judgment of the Supreme Court should be reversed, and that judgment of ouster should be given against the defendant. He has no title to the office, in the light of an incumbent awaiting the choice of a successor; for Mr. Ware was legally chosen to succeed him. The relator has no title, for the office was filled by a regular appointment before the proceedings upon which he relies were taken.
Judgment affirmed.