Bergen v. Powell

Barnard, P. J.: The constitutional provisions in respect to the duration of the' terms of public officers, where the law affixes no limit, does not apply to the case under consideration. The legislature designates a supervisor of a town, a president of an excise commission and a justice of the peace, they having the shortest time to serve, as an appointing board of three police commissioners. This appointment was to be made in thirty days after the passage of the act. The power of the appointment was not continuous. When a vacancy thereafter happened it was to be filled by the supervisor of the town alone. Section 3 of article 10 of the Constitution provides that “ when the duration of any office is not provided by this Constitution it may be declared by lawand if not so declared such office shall be held during the pleasure of the authority making the appointment.” The majority of the board which assumed to act has no power to appoint, and does not claim to have. It only makes a vacancy for the supervisor to fill. The authority making the appointment was intended to cover a case of a continuous authority to appoint. It is a grave question whether the then persons •who made the appointment of the original commissioners can be placed under the words “the authority making‘the appointment.” The legislature designated them for a single instance to appoint three persons. It was not intended to give a permanent power of removal to one board and of appointment to another. The case of The People v. The Comptroller (20 Wend., 595) was one where the -appointment was continuous. (Chap. 82, Laws 1836, § 4.) The board of police are not now, and were not at the time of removal of the commissioner, the authority making the appointment. The order should be affirmed, with costs and disbursements. Pratt, J., concurred. Present — Barnard, P. J., Dykman and Pratt, JJ.' Order denying mcmdanvus affirmed, with costs and disbursements»