
    William E. Demarest, App’lt, v. Mayor, Aldermen and Commonalty of the City of New York, Resp’t.
    
    
      (Court of Appeals,
    
    
      Filed October 8, 1895.)
    
    1. Constitutional—Statute. •
    The constitutionality of an act of the legislature should not be passed upon by the court, until a case arises in which a decision of such a question is unavoidable for the determination of the case itself.
    2. Officers—De facto—Salary.
    Payment to a defacto officer, while he is holding an office and discharging its duties, is a defense to an action brought by the de jure officer to recover the same salary.
    3. Same—Act of 1873.
    As the elective office of alderman already existed, and was hot created by the act of 1873, the fact that such office was actually assumed under such act by persons other than the plaintiff and his assignors who claim to have been elected aldermen pursuant to a prior act, rendered such incumbents defaeto officers, even though the provisions of the act of 1873, regulating their compensation and mode of election, might have been unconstitutional. ,
    Appeal from judgment of the general term of the supreme court in the first judicial department, which affirmed a judgment in favor of defendant, entered upon an order dismissing the complaint on trial at circuit.
    
      George W. Miller, Seaman Miller ■ and George G. EHidge, for app’lt; David J. Dean, for resp’t,
    
      
      Affirming 51 St. Rep, 211.
    
   Gray, J.

The plaintiff brings this action for himself and as assignee of others to recover the salaries alleged to be due them, as aldermen of the city of New York for the year 1877. The claim is that they were elected to such offices pursuant to the act of the legislature, contained in chapter 137 of the Laws of 1870, as amended by chapter 574 of the Laws of 1871; which provided for the election, upon a general ticket from the city at large, of a board of fifteen aldermen. The defense of the city is those laws were repealed by chapter 335 of the Laws of 1873 and, further, that pursuant to the latter act, which contained a charter for the city, other persons were duly elected as aldermen, at the election at which the plaintiff and his associates claimed to have been elected; who entered upon and executed the duties pertaining to the office of an alderman of the city, and were paid the salaries claimed by the plaintiff.

When the action came on for trial no evidence was given. The whole case was agreed to be contained in the pleadings; it being expressly admitted by the plaintiff that the salaries claimed by the plaintiff in the complaint had been paid by the city to other persons, assuming to have been elected and who acted as a board of aldermen under the charter of 1873. The complaint was thereupon dismissed by the court, upon the motion of the defendant.

Section 4 of chapter 835 of the Laws of 1873 provided for a system of minority representation in the board of aldermen of the city of New York, by restraining the right of a voter to vote for all the aldermen to be elected. It is unimportant to more particularly refer to the provisions of the section, as the system was, not long thereafter, abolished. Chap. 403, Laws of 1882. The plaintiff’s propositions are that those provisions were unconstitm tional and void, for being in violation of that part-of the Constitution of the state,-which guarantees to every qualified voter the right to vote for all officers that may be elected by the people (art 2, sec. 1), and that the acts of 1870 and 1871 remained in force; under whose provisions he and his associates were elected and became the legally constituted board of aldermen and, as such, were entitled to their salaries. The determination of the question of constitutionality, however, is not necessary to the deerrnination of the case, and, as the ground upon which the decision of the general term of the supreme court has been placed is clearly presented in the case and is perfectly tenable, our judgment may and should rest upon it We should not pass upon the constitutionality of a statute, if the question is immaterial to the case. Frees v. Ford, 6 N. Y. 176. It is a salutary principle and founded upon the respect due to the legislative department of the government, that the constitutionality of its exercise of power should not be passed upon by the court, until a case arises in which a decision of such a question is unavoidable for the determination of the case itself.

This action is to recover the salaries of the plaintiff and his associates as aldermen of the city for the year mentioned and, if we should assume all they claim as to the unconstitutionality of the provisions of the fourth section of the charter of 1873 and the validity of their election and that they were de jure aldermanic officers, there is the answer that others assumed to have been elected, received their certificates of election, were inducted into and occupied the office, exercised its duties and, as officers de facto, were paid salaries. That is a complete answer and one. which has the sanction of the authorities. Their title cannot be questioned collaterally in such an action and, even were the action of such a nature as to permit the question, the payment already made to the de facto officers of the salary belonging to the office would be a good defense to the claim of the plaintiff. The case of Dolan v. The Mayor, 68 N. Y. 274, where this- principle was asserted, was rested upon the ground of public policy, which requires that fiscal officers, charged with the payment of salaries, should be deemed justified in paying them to persons clothed with the apparent title to an office, without inquiring whether others have the better right. The remedy, it was said, of the person wrongfully deprived of the office is to recover damages for the wrong against the usurper. In McVeany v. The Mayor, 80 N. Y. 185, and in Terhune v. The Mayor 88 id. 247, the doctrine was upheld that payment to a de facto officer, while he is holding the office and discharging its duties, is a defense to an action brought by the dejure officer to recover the same salary. It is unnecessary for us to reason, now, upon a doctrine which has so often been discussed in the cases. Offices are created for the benefit of the public and the title of their incumbents is not to be inquired into except in some way prescribed by law. Their acts will not be invalidated, nor official dealings with them be affected, by reason of some illegality in their election not judicially declared.

The appellant, however, undertakes to meet this phase of the matter by the suggestion that if section four of the~acts of 1873 was unconstitutional and void, no legal office of alderman was ' created by its provisions and, therefore, there could not be either a dejure or a de facto incumbent thereof. But that office as a part of the local government existed by law and was not created by the act of 1873. In the case of Norton v. Shelby County, 118 U. S. 441, relied upon by the appellant, it was held that as the act attempting to create the office never became a law, the office never came into existence. A board of commissioners Was provided for to take the place of the county court of Shelby county and commissioners were appointed to take the place of justices of the peace ■and because the constitution did not permit this to be done, it was .adjudged that the act was void; and it followed that the office never legally existed. That was not this case. Here the office of alderman always existed and the legislative intent, as evidenced in the act of 1873, was to introduce the experiment of minority representation in the municipal government. The provision of that act, in question, did not, as in the Shelby County case, attempt to create an office, where none before existed. Unless the office did exist by law, how could the plaintiff and his associates base their present claim to have been elected to it ? This very demaiid and suit are an ample concession that aldermanie offices existed to be filled. The plaintiff’s position is that the law of 1873 was void and that, although so expressed in terms, it was ineffectual to even accomplish the repeal of the previous acts of 1870 and 1871, under which they claimed to have been elected. But, if by existing provisions of law there were the offices of aldermen to be filled by election, then the fact is that they were assumed by other persons, claiming to have been elected, and though the provisions of law regulating the composition of the board and the mode of election thereto and under which they entered into office, might be unconstitutional, that would not affect the existence of the office. They would, though ursurpers, be de facto officers, exercising the particular governmental duties incident to the office usurped.

The judgment appealed from should be affirmed, with costs.

All concur.

Judgment affirmed.  