
    In the Matter of the Application of James F. O’Brien, Respondent, for a Peremptory Writ of Mandamus against Edward F. Boyle and Others, as Custodians of Primary Records, and as Commissioners of Election, Constituting the Board of Elections of the City of New York, Appellants, and Republican County Committee of Bronx County and Democratic County Committee of Bronx County, Intervenors.
    First Department,
    October 5, 1916.
    Counties — election of public officers, county of Bronx—term, of office — constitutional law.
    Although the sheriff, district attorney, county clerk and register of deeds of Bronx county were elected for a term of four years at the general election in the year 1913, they were entitled to hold office only for the period of three years by virtue of section 1 of article 10 of the State Constitution, and hence the board of elections of the city of New York was justified in determining that said officers should be voted for at the primary and general elections held in the year 1916.
    Chapter 548 of the Laws of 1912, being the Bronx County Act, is in conflict with the aforesaid provisions of the Constitution in so far as it provides that said officials shall hold office for a term of four years.
    The exception as to the term of county officers in the counties of New York and Kings contained in section 1 of article 10 of the State Constitution applies only to the counties specified, and not to other counties which may be within the boundaries of the city of New York.
    Scott, J., dissented, with opinion.
    Appeal by the defendants, Edward F. Boyle and others, as custodians, etc., from an order of the Supreme Court, made at the Bronx Special Term and entered in the office of the clerk of the county of Bronx on the 15th day of September, 1916, granting relator’s motion for a peremptory writ of mandamus.
    
      Terence Farley, for the appellants.
    
      Joseph M. Callahan, for the respondent.
    
      Julius D. Tobias, for the intervenors.
   Dowling, J.:

The question involved in this appeal is whether the tenure of office of the sheriff, district attorney, county clerk and register of deeds of Bronx county is for three or four years. The officials in question were elected at the general election held in November, 1913, for a term of four years and received certificates from the Secretary of State certifying to their election for such term. The board of elections of the city of New York on August 15, 1916, deemed that there was a conflict between the provisions of - the statutes of the State and the Constitution as to the length of the terms of office of the officials in question and thereupon unanimously voted that it was the sense of the board that the following officers in Bronx county should be voted for at the coming election, namely, district attorney, sheriff, county clerk and register of deeds. The board of elections intending, in pursuance of such action, to transmit, issue and publish the notice of primary and general elections for the year 1916, and to include therein a statement that such officials were to to be voted for both at the primary and general elections, the petitioner, who is the sheriff of Bronx county, commenced this proceeding praying for a peremptory writ of mandamus requiring said board of elections to refrain from transmitting, issuing and publishing in the notices of primary and general election of 1916 any statement that elections would be held for the county offices in question in the county of Bronx. From the order granting the relief sought the present appeal is taken.

The doubt as to the tenure of office of the county officials in question arises because of a conflict between article 10, section 1, of the State Constitution, and chapter 548 of the Laws of 1912, being the Bronx County Act. The statute provides, section 3, that " There shall be elected in the said county of Bronx at the general election of nineteen hundred and thirteen a county judge, a surrogate, a district attorney, a sheriff, a county clerk, and a register of deeds. The official term of said officers shall be as follows: The county judge, six years; the surrogate, six years; the district attorney, four years; the sheriff, four years; the county clerk, four years; the register of deeds, four years.” (See, also, Laws of 1913, chap. 825, amdg. said § 3.)

It will be noted that the provision fixing the term of office of the county judge complies with the provisions of article 6, section 14, of the Constitution, and, therefore, no question is raised as to his tenure of office. In like manner the tenure of office of the surrogate is fixed in conformity with the provisions of article 6, section 15, of the Constitution, which provides that the successors of the surrogates then in office “ shall be chosen by the electors of their respective counties, and their terms of office shall be six years, except in the county of New York, where they shall continue to be fourteen years.” No question is raised in this proceeding as to the surrogate’s term of office.

But the Constitution, article 10, section 1, provides that “ sheriffs, clerks of counties, district attorneys and registers in counties having registers, shall be chosen by the electors of the respective counties, once in every three years and as often as vacancies shall happen, except in the counties of New York and Kings, and in counties whose boundaries are the same as those of a city, where such officers shall be chosen by the electors once in every two or four years as the Legislature shall direct.” Unless Bronx county comes within one of the exceptions specified in the Constitution, it is obvious that the tenure of office of the officials in question followed the general rule laid down therein and was limited to three years, and the board of elections were, therefore, correct in taking steps to enable the electors to vote for their successors at the coming general election.

It is contended that, although Bronx county had no existence at the time of the adoption cf the new Constitution and its future existence could not have been in the minds of those who framed it, still, as the territory embraced in the present Bronx county formed apart of the then existent county of New York, it is included within the exception and the Legislature had power to fix the terms of office of the county officials in question at either two or four years. So to hold would be a distortion and extension of the plain language of the Constitution, which would in effect be judicial legislation. No particular rights were conferred upon territory embraced in the excepted counties of New York and Kings. The only effect of the provision was to empower the Legislature to fix terms of office for the county officials in question in those counties which would bring about their election in those years when the city election in the city of New York was to take place, for those county officials performed acts which were intimately connected with the general administration of city affairs. But this practice was not followed for the whole city, for the counties of Richmond and Queens, which also form a part of the city, still elect their county officials for three-year terms and are not claimed to be within the exception. So that Bronx county will not be the only county embraced in the city limits whose county officials are elected for a three-year term, but with Richmond and Queens will constitute a majority of the counties embraced within the city limits which follow that rule. The argument as to the advisability of having such elections at the same time as the city elections is one that may appeal to the law-making power, but is without force when addressed to those who are enforcing the law as it stands. As instancing the anomalous situation in which the Bronx County Act placed the county officials, it may be pointed out that the act made the term of the surrogate of Bronx county six years, although if the arguments of the relator herein are sound, the surrogate, being elected in territory which was a part originally of the county of New York would be entitled to a fourteen years’ term of office under the provisions of article 6, section 15, of the Constitution heretofore quoted.

The conclusion seems to be justified that the exemption of the counties of New York and Kings was and is intended solely for the political divisions of the State bearing that title, and cannot be extended so as to carry the exemption to portions of the territory originally embraced in such counties and thereafter transferred to other counties or created into new counties.

Nor does Bronx county come within the second exception, for its boundaries are not the same as those of the city of New York.

It follows, therefore, that under the Constitution the county officials of Bronx county in question were elected for terms which could not exceed three years, and the board of elections properly prepared the necessary facilities for the election of their successors at the coming general election.

The order appealed from will, therefore, be reversed, and the motion for a peremptory writ of mandamus in all respects denied, with costs to the appellants against the respondent.

Clarke, P. J., McLaughlin and Smith, JJ., concurred; Scott, J., dissented.

Scott, J. (dissenting):

The sole question involved in this appeal is whether or not the territory now embraced within the county of Bronx and formerly embraced in the county of New York is exempted from the general provisions of article 10, section 1, of the State Constitution which prescribes that “Sheriffs, clerks of counties, district attorneys and registers in counties having registers, shall be chosen by the electors of the respective counties, once in every three years and as often as vacancies shall happen.” The exception is applied to “ the counties of New York and Kings, and in counties whose boundaries are the same as those of a city,” in which it is provided that “such officers shall be chosen by the electors once in every two or four years as the Legislature shall direct.”

When this constitutional provision was enacted (1894) the county of New York, as then established, comprised all or very nearly all of the territory now embraced in the county of Bronx, which was set apart from the county of New York and erected into a new county by chapter 548 of the Laws of 1912. The question, as it seems to me, is as to what the exception in the section of the Constitution above quoted was intended to apply to. Whether it was intended to apply to the territory which in 1894 was designated by the term “County of New York,” or merely such territory as might at any time thereafter be known as the county of New York. If the latter view is the correct one the Legislature might at any time have defeated the intent of the Constitution by changing the name of the county of New York, even as it stood in .1894.

Obviously the exception was inserted in the section because óf the conditions which prevailed in the counties of New York and Kings, and not merely because of the names which those counties then bore. Those conditions applied in 1894, and still apply to the territory comprised within those counties and it seems to me to be reasonably clear that it was the view of the framers of the Constitution of 1894 that a different rule as to the tenure of the specified county officers should apply in the thickly populated urban territory then comprised in the counties of New York and Kings, from that which applied in other parts of the State. The framers of the Constitution - were dealing with conditions as they existed when the Constitution was made, and no construction should be given to that document which would defeat its apparent, purpose, if any other construction is permissible. I think that it was the intention of the Constitution that as to the territory then known as the counties of New York and Kings the county officers enumerated in article 10, section 1, should thereafter be elected for two or four years, and not, as in other parts of the State, for three, years, and that the Legislature could not, if it would, have defeated that intention by changing the names of the excepted counties, or by subdividing them and erecting new counties out of parts of them. That this is the view taken by the Legislature is made apparent by section 3 of the Bronx County Act. (See, also, Laws of 1913, chap. 825, amdg. said § 3.)

I, therefore, think that the order appealed from was right and should be affirmed.

Order reversed, with ten dollars costs and disbursements, and motion denied.  