MacAdams v. Cohen

McAvoy, J. A vacancy having occurred in the office of the mayor of the city of New York by the resignation of the mayor on September 1, 1932, the president of the board of aldermen, under section 23 of the Greater New York Charter (Laws of 1901, chap. 466), which makes the provision for vacancies in the office of- mayor, commenced to act as mayor. Section 23 of said charter reads as follows: “ Whenever there shall be a vacancy in the office of mayor, or whenever, by reason of sickness or absence from the city, the mayor shall be prevented from attending to the duties of his office, the president of the board of aldermen shall act as mayor, and possess all the rights and powers of mayor during such disability or absence. In case of a vacancy he shall so act until noon of the first day of January succeeding the election at which the mayor’s successor shall be chosen.” Section 51 of the Second Class Cities Law, which is almost identically worded, has been construed by the Court of Appeals in Matter of O’Connell v. Corscadden (243 N. Y. 86), and it was there held that such an enactment did not alter the general legislative policy with respect to the time for holding elections in case of a vacancy in an elective office, and that accordingly an election must be held to fill the vacancy at the next election day at which, under the general law, a successor can be chosen. With reference to the claim of the appellant in that case, that the words “ until noon of the first day of January next succeeding [363] the election at which the mayor’s successor shall be chosen,” did not refer to the next succeeding election day after the vacancy occurred, but referred to the election day at which the mayor can be elected under the law, as then existing, which would be the last election day of the term and would enable the acting mayor to serve the full unexpired term of the former mayor, it was forcefully pointed out that such an intent could not be ascribed to the Legislature in enacting that section. If such intention existed, the court said, it would be an “ unnecessary and clumsy way of expressing such an intention.” Wherever provisions of law refer to a successor, or an appointee who is to fill an unexpired term, the Legislature has specifically prescribed that method of succession. As the Court of Appeals says in the Corscadden Case (supra), “ It leaves no doubt about it.” It, therefore, seems to us that when the Greater New York Charter in section 23 provided that in case of a vacancy (in the office of mayor), he (president of the board of aldermen) shall so act until noon on the first day of January succeeding the election at which the mayor shall be chosen, the meaning intended to be conveyed was the same meaning that the Court of Appeals found in the Second Class Cities Law in the Corscadden case; that is, that the mayor’s successor should be chosen at the next election day at which under the Election Law a successor can be chosen. The policy of the State appears to be, from a long line of enactments, beginning with the first edition of the Revised Statutes of New York, that a vacancy in an elective office must be promptly filled by an election, and that an appointment or other succession is to be held only until an election may be held. Since chapter 909 of the Laws of 1896, section 4, was enacted, the time for filling vacancies in elective offices was limited to such vacancies as occurred before October fifteenth of any year. The section reads as follows: “Filling vacancies in elective offices. A vacancy occurring before October fifteenth of any year in any office authorized to be filled at a general election, shall be filled at the general election held next thereafter, unless otherwise provided by the Constitution, or unless previously filled at a special election.” This section (as amd. by Laws of 1907, chap. 119) later became section 292 of the Election Law of 1909 (as amd. by Laws of 1911, chap. 891), and subsequently is found in a later revision in the Public Officers Law as section 42, being added by chapter 649 of the Laws of 1922. It is not found in the present Election Law. The vacancy in the office of mayor having occurred before October fifteenth, and since it has not been filled at a special election, [364] and there is no constitutional provision against filling it at the general election to be held after the vacancy occurred, it would seem to follow that it must be filled at the general election of 1932. The respondent argues that the omission in the charter of a provision for election of mayor for the unexpired term and the retention in section 97 of the charter (as amd. by Laws of 1905, chap. 633) of provision for election of a comptroller to fill a vacancy indicates the intent of the Legislature to effect a policy under the present charter to hold mayoralty elections only in odd years, that is every fourth year after 1905, never in an even year, not even to fill a vacancy in the intervening odd years. But it may be as well argued that the omission in section 23 of the provision for filling a vacancy in the office of mayor by election was because of an intent to allow the basic general statute to govern the situation, since such statute is broad enough to cover any office authorized to be filled at a general election and would comprehend the mayor’s office, unless the Constitution provided otherwise, or unless there had been a previous special election held. This provision has been considered so broad by the courts as to be held to govern all cases in the case of vacancies not expressly or completely dealt with in the Constitution. We think that section 94 of the charter (as amd. by Laws of 1923, chap. 667, and N. Y. Local Laws of 1929, No. 19) deals solely with the duration of the mayor’s term, and does not deal with the filling of any vacancy in such term. Whether the election of the mayor of the city of New York must be held in the next general election or not, depending upon whether such office of mayor is a constitutional office, need not be decided, because even though the Constitution failed to require the election to be held at the next succeeding annual election after the happening of the vacancy, we conclude that the general policy of the State, as enacted in its statute making provision for the holding of elections in the case of vacancies in elective offices, makes an election imperative. No such statute, referring specifically to the filling of a vacancy in office, makes any contrary provision, so that the general statute must apply. It follows that the order so far as appealed from should be reversed as matter of law, the petition of the petitioner David MacAdams dismissed, and the petition of the petitioner David H. Knott granted. Finch, P. J., and Townley, J., concur; Martin, J., dissents.