People Ex Rel. Loew v. Batchelor

Selden, J. The first question which I shall examine is, whether the plaintiff Loew was duly appointed to the office he claims, assuming that there was a vacancy to be filled. This depends upon the question, whether it was necessary to give any notice to the absent aldermen, of the resolution of the 18th of December, 1857, inviting the mayor to attend a convention upon the same afternoon, for the purpose of making the appointments authorized by the act of April 10, 1855. (Sess. Laws, 1855, p. 502.) As this statute expressly provides, that the powers conferred may be exercised at a convention which is attended by a majority only of the board of aider-men, the question whether, in the exercise of such powers, by a number of persons acting either in a corporate capacity or as private individuals, it is necessary, at common law, that the whole number should actually assemble, does not arise. As a *131 majority of all the aldermen not only attended the convention at which the appointment in question was made, but actually voted in favor of such appointment, I regard the question of notice as the only one presented. I shall assume, for the purposes of this case, that the power of making these appointments is conferred upon the mayor and aldermen in their corporate capacity, and that in the exercise of this power they act not as individuals, but as a corporation. This certainly is the most favorable view of the case which can be taken for the plaintiff Loew, since if they act as individuals merely, the necessity of giving notice would no doubt be more apparent than if they are considered as acting as a corporate body. It should be observed in the outset, that the inquiry is not whether it was necessary to give any notice previous to passing the resolution calling the convention at which the plaintiff was appointed. The counsel for the appellant, is, I think, right in the position, that such a resolution might be passed at any stated meeting of the board without any preliminary notice. But the question is, whether such of the aldermen as were absent at the time of the adoption of the resolution, were not entitled to some notice of the time fixed for the election ; or whether, on the other hand, that time might lawfully be so arranged, as effectually to prevent the possibility of their obtaining any notice. The appellant’s counsel assumes, in his printed points, that every member of the board of aldermen “is conclusively presumed to be cognizant of all the proceedings taken at a regular or stated meeting of such body whether he was present at or absent from such meeting.” In this assumption lies the fallacy of his argument. The proposition is too broad. It is true that every member of the board is bound by whatever is done at any stated meeting within the range of the ordinary duties of the board; and no member has any right to object on the ground that he was not present; because all the members have, or are presumed to have, knowledge of the times for holding the stated meetings, and if any member fails *132 to attend he voluntarily waives his right to participate in the business of the meeting. But this is a very different proposition from the one that he is presumed, although absent, intuitively to know all that is done at the meeting, so that when something is done which contemplates future action, not at a stated meeting, he is presumed to have notice of the time appointed for such action, even although, as in this case, that time is so fixed as to render it nearly impossible that he should have any actual notice. If the proposition of the counsel is sound, then a corporate body possessing the power of amotion, may appoint at a stated meeting a time for removing an absent officer of the corporation, and at the time appointed may, unless the charter or bylaws contain some special provision on the subject, actually remove him without giving him any notice of the proceeding; and may even make the time so short as to render notice impossible. I think I hazard nothing in saying, that the law of corporations contains nothing which gives any countenance to such a doctrine. The case of City of London v. Vanacre (5 Mod., 438), cited by the counsel, was very different from this. There the defendant Yanacre had been elected to the office of sheriff of London, at the regular annual election held upon Midsummer day, and had neglected to take upon him the office, and give the bond required by a by-law of the city; and the question was, whether he was liable to the penalty which the by-law imposed. He urged as one ground of defence that he had received no notice of his election; but the court held that he was bound to take notice at his peril. How an election in the city of London is an open, public and notorious event, and it is hardly possible to suppose that a citizen elected to the important office of sheriff at such an election, could for any considerable length of time be ignorant of the fact. The court gave this as one of the reasons for its decision, and it is, I think, abundantly sufficient to support it. The Chief Justice said: “ The election is made in view of the city, of which all persons are to take notice as members of the body politic; and the *133 proclamation is also made in the most notorious place of the city, viz.: on the hustings, where every person may take notice of it.” It is true he also says that every citizen is presumed to be present, where the whole body politic is assembled; but the decision really rests, I apprehend, not upon this fiction of presence, but upon the irresistible presumption that no citizen could be ignorant of so notorious an event. In the more modern case of Scadding v. Lorant (5 Law & Eq. R, 16), which was also cited, the question was as to the validity of a certain tax, or poor rate imposed upon the parishioners by the vestry of the parish of St. Paneras. The rate was imposed at an adjourned meeting of the vestry, and one ground taken by the counsel was, that no sufficient notice had been given of such adjourned meeting; the notice actually given having omitted to state the purpose for which the meeting was to be held. It was conceded that the notice given of the original meeting was in all respects regular and sufficient. This case went from the Court of Queen’s Bench, where it was commenced, through the Court of Exchequer Chamber to the House of Lords, where, to a question as to the sufficiency of the notice, the judges, by the Lord Chief Baron, responded as follows: “We are unanimously of opinion that the rate was not rendered invalid by reason of the alleged defect in the notice of the adjourned meeting. It was sufficient to give notice on the church door of the purpose for which the first meeting was to be held, and that notice having been duly given, we think that the notice so given extended to all the adjourned meetings, such adjourned meetings being held for the purpose of completing the unfinished business of the first meeting, and being in continuation of that meeting.” This case, so far as it has any bearing upon the present, weighs decidedly against the position of the appellant’s counsel. It is plainly implied in what was said by the Chief Baron, that in order that notice of a prior meeting should extend to one which is subsequent, the latter must be held for the same purpose, and as, virtually, amere continuation of the first meeting. Here the second meeting not only was not to complete the *134 unfinished business of the first, but was to do that which could not have been legally done at all at the previous meeting. Neither was the second in any sense a continuation of the first meeting, but an original meeting of a new and distinct body. The general notice which every member is presumed to have of the stated meetings of the board of aldermen, could therefore, in no manner, according to the principles of the case of Scadding v. Lorant, extend to the convention at which the plaintiff Loew was appointed. It is of course indispensable for the appellants to show, that all the members of the appointing body had notice of some sort, either actual or presumptive, of the time fixed for making the appointments. It would be absurd to hold that a portion only of those to whom a power of appointment is confided can get together and exercise the power without notice to their associates. It is not only a plain dictate of reason, but a general rule of law, that no power or function entrusted to a body consisting of a number of persons, can be legally exercised without notice to all the members composing such body. Wilcock lays down this rule in respect to municipal corporations. He says: “ All corporate affairs must be transacted at an assembly convened upon due notice, at a proper time and place; consisting of a majority of the persons of each class, to which the prescription or charter has confided the power.” (Wil. on Mun. Corp., § 58.) The same rule applies to private corporations (Angell & Ames on Corp., ch. 14, § 1), and as the reason of the rule, so no doubt the rule itself, applies with equal force to all aggregate bodies although unincorporated. It is not pretended that there was any notice in fact in the present case, and I think it has been shown that none can be deduced either from the unfounded fiction, that every member of the board is presumed to know all that is done in his absence, by the board of aldermen, or from the well founded presumption, that every member is cognizant of the times fixed for holding the regular meetings of such board. I am therefore clearly of the opinion that the appointments made at the *135 convention held upon the 18th of December, 1857, were void for the want of due notice to the aldermen who were absent. The next question is, whether that branch of the judgment of the Supreme Court which declares, that the defendant Batchelor lawfully holds, and has not usurped or intruded, into the office in question, is or is not erroneous. The ground upon which it is alleged to be erroneous is, that so much of section 71, chapter 344, of the Laws of 1857, as enacts that the clerks of the district courts of the city of ¡New York, who should be in office at the then next ensuing election of the judges of said courts, should hold their offices for the same time as the judges then to be elected, is in conflict with section 2 of article 10 of the State Constitution, which provides, that all city officers whose election or appointment is not provided for by the Constitution “shall be elected by the electors of such cities (&c.), or of some division thereof, or appointed by such authorities thereof as the legislature shall designate for that purpose.” The clerks of these courts in office at the time of the passage of the act of 1857, and at the then next ensuing election of judges of said courts, of whom the defendant Batchelor was one, were appointed by the mayor and board of aldermen, under the act of April 11, 1851. (Sess. Laws, 1851, ch. 147, § 1.) By that act they were to be appointed on or before the 31st of December, 1851, and to hold their offices for four years. A subsequent act passed at the same session (ch. 514, § 7), providing for the election of justices of the district courts—those first elected to hold their offices until the 31st day of December, 1857, and those thereafter elected to hold for the period of six years from the expiration of their previous term—contained a provision making the term of the several clerks of these courts correspond with that of the justices. The effect of this provision was to extend the terms of the clerks appointed under the act of April 11, 1851, from the second Tuesday' of May, 1856, when they would otherwise have expired, to the 31st day of December, 1857. It will be seen, therefore, that but for the act of 1857 (Sess. Laws, 1857, ch. 144, § 71), the terms of the clerks then in *136 office would have expired on the 31st of December, 1857, and in that case it would have been the right and the duty of the mayor and board of aldermen, on or before that day, to have proceeded under the act of April 10, 1855 (Sess. Laws, 1855, ch. 293, § 1), which had taken the place of that of April 11, 1851, to appoint the several clerks, for a new term of six years; as by the resolution and convention of the 18th of December, 1857, they attempted to do. But by section 71 of the act of 1857, which provided that the clerks in office at the time of the next election of justices should continue to hold their offices “for the same time as the justices then elected,” the terms of those clerks were extended for six years from the 31st of December, 1857, when they would have expired by virtue of the acts of April 11 1851, and July 11, 1851, under which the appointments were made; and the question upon this point is, whether the legislature was precluded, by the constitutional provision to which I have referred, from thus extending the terms of these officers. In considering this point I shall assume, that the officers in question are city officers, within the meaning of section 2, article 10 of the Constitution. I regard them as clearly belonging to that class of local officers, for the election or appointment of whom that section was intended to provide. But it by no means follows that the legislature, in passing the act of 1857, has transcended its powers. The Constitution provides simply for the election or appointment of these local officers, but says nothing about the length of their respective terms. If, therefore, the act of 1857 can be justly said to have elected or appointed the clerks in question it is in conflict with the Constitution; otherwise not. The statute certainly does not in terms purport either to elect or appoint. It simply provides that persons already in office, and who have received their appointment from a legitimate source, shall continue to hold their offices, &c. But it may be said, that their original appointment being for a special term which has expired, the act of 1857 was in effect a reappointment for a new term of six years. This argument *137 overlooks the fact that no constitutional term is prescribed. The only limitation upon the term was purely legislative; and what the legislature may do, it may undo, unless prohibited by some provision of the Constitution. There is nothing in the Constitution which either expressly or by implication restrains the legislature from altering or changing the term of any office which it has once fixed. The whole arrangement of the time for which these local offices shall be held is left entirely to the discretion and control of the legislature, to be regulated from, time to time as the legislature may see fit. The only form, in which, as it seems to me, the argument against the validity of the law in question can be presented with any apparent force is this: It may be said, that the authority of the mayor and aldermen to appoint, having been limited to the specific term prescribed by the legislature, the whole power and force of their appointment was necessarily exhausted when that term expired; and hence that the office could not be legally held beyond that time except by virtue of some new appointment. This is plausible, but the answer will be found in that section of the Revised Statutes which provides, that every officer properly appointed who shall have duly entered upon the duties of his office, “shall continue to discharge the duties thereof, although his term of office shall have expired, until a successor in such office shall be duly qualified.” (1 R. S., 117, § 9.) This statute is to be taken in connection with that which specifically conferred the appointing power upon the mayor and aldermen; and their combined effect was to authorize those officers to appoint for the prescribed period and until a successor should be duly appointed and qualified. Hence the force of their appointment would not necessarily cease at the expiration of the specified term. If, therefore, the legislature, in 1857, had in direct and explicit terms provided that no action should be hadunder the Laws of 1851, or 1855, authorizing the mayor and aldermen to appoint until December, 1863, these clerks would have continued to hold their offices by virtue of their original appointment, until that period. This is precisely what the legislature has in effect done by the present law. *138 They have said the clerks now in office shall hold over until a certain time. This is simply saying that no new clerks shall be appointed until that time. Could not the legislature do this ? Ho one I think can doubt the power of the legislature to withdraw entirely, or postpone, the exercise of an authority conferred by itself alone upon the mayor and aldermen. Ho provision of the Constitution contains^ any restriction upon this power. I am prepared, therefore, to hold that the law in question, which in effect does no more than this, is not in conflict with the Constitution. The judgment of the Supreme Court should be affirmed, In so much of the preceding opinion as relates to the irregularity of the relator’s election, Comstock, Ch. J., Davies, Clerks, Wright and Bacon, Js., concurred, and the other judges expressed no opinion. In so much as relates to the constitutionality of the act of 1857, extending the defendant’s term of office, Davies, Wright, Bacon, and Welles, Js., concurred. Comstock, Ch. J., Denio and Clerks, Js., dissented, for reasons thus stated by Denio, J., in the case of The People, ex rel. Osgood, v. Peers, decided at this term upon substantially the same state of facts :