
    The People of the State of New York ex rel. George W. Bush et al., Appellants, v. Byron D. Houghton et al., Respondents.
    (Argued June 8, 1905;
    decided June 16, 1905.)
    1. Appeal — Wiiex Exception Raises Constitutional Question Below. An objection by the appellants that the constitutionality of a statute under which they claim office cannot be attacked for the first, time on appeal to the Court of Appeals is without force, where an exception was taken to the decision of the trial judge that they were lawfully appointed, and the constitutional question was the only one discussed in the-opinion of the Appellate Division.
    3. Oswego, (City of) —Member of Municipal Board of Health Is a City Officer—Yaoancy in Office Must Bf. Filled by City Authorities — Const. Art. 10, § 3. That part of the Public Health Law (L. 1893, eh. Gfil, § 20) directing a county judge to till a vacancy occurring in a. city board of health which has continued for thirty days so far as it relates to filling a vacancy occurring in the board of health of the city of Oswego, is unconstitutional, in tint, members of that hoard, are city officers, within the meaning of section 3, article 10 of the Constitution, and arc particularly described as such in the chai ter and therefore must be .appointed as designated therein.
    
      People ex rel. Bush v. Houghton, 102 App. Div. 209, affirmed.
    Appeal from a judgment, entered. Itarch 14, 1905, upon an order of the Appellate Division of the Supreme Court in the fourth judicial department, which reversed a judgment of Special Term ousting the defendants from the office of members of the hoard of health of the city of Oswego and directed that the complaint he dismissed.
    The nature of the action and the facts, so far as material, are stated in the opinion.
    
      
      Julius M. Mayer, Attorney-General (Elisha B. Powell of counsel), for appellants.
    The defendants did not raise the constitutional question by the pleadings or upon the trial — hence waived it and cannot raise it here. (Snider v. Snider, 160 N. Y. 155; Vose v. Cockroft, 44 N. Y. 415; Dodge v. Cornelius, 168 N. Y. 245; Matter of Andrews, 178 N. Y. 420.) A member of the board of health is not a city officer within the meaning of section 2 of article 10 of the Constitution. (Bamber v. City of Rochester, 63 How. Pr. 103; Maximilian v. Mayor, etc., 62 N. Y. 160; 2 Dillon on Mun. Corp. § 772; Groves v. City of Rochester, 39 Hun, 9; Ham v. Mayor, etc., 70 N. Y. 459; Greaton v. Grippin, 4 Abb. [N. S.) 310; People ex rel. Simpson v. Wells, 181 N. Y. 257.) The office of member of the board of health of the city of Oswego was created by law after the adoption of the Constitution in 1846' and may, therefore, be filled as the legislature may direct. (L. 1848, ch. 116; L. 1895, ch. 394; People v. Draper, 15 N. Y. 532; Bolton v. Albertson, 55 N. Y. 56; Fire Dept. v. A. S. S. Co., 106 N. Y. 566.)
    
      George N. Burt and John Tiernan for respondents.
    The constitutional question involved here has been at issue at all stages of this action, and also in the preliminary proceeding for leave to commence this action. (M. Nat. Bank v. Shinn, 163 N. Y. 363.) Members of the board of health of the city of Oswego are city officers within the meaning of section 2, article 10 of the Constitution. (L. 1848, ch. 116, § 9; L. 1860, ch. 463, tit. 2, § 1; L. 1895, ch. 394.) Even without these express declarations and provisions of' the Oswego city charter, members of the board of health are city officers within the meaning of section 2, article 10 of the State Constitution. (43 App. Div. 236; 21 Hun, 130.)
   Gray, J.

The attorney-general of the state brought this action, upon the relation of the appellants to oust the respondents from their offices as members of the local board of health of the city of Oswego, upon the allegation that the latter had unlawfully intruded ” into the said offices and have unlawfully held and exercised the same. The answer of the defendants denied this allegation and denied that the complainants w'ere ever duly or legally appointed members of the local board of health of the city. The court, at Special Term, directed judgment against the defendants; but, on appeal to the Appellate Division, in the fourth department, the judgment so directed was reversed and the complaint was dismissed upon the merits. In the opinion, which accompanied the decision of the Appellate Division, the ground taken was that the appointment of the complainants in the action was illegal and in violation of section 2, article Í0 of the Constitution. The complainants, further, appealed to this court from the determination of the Appellate Division and have presented, in their counsel’s brief and in his argument, only the constitutional question. They, however, premise the discussion by the objection that the defendants, not having raised the constitutional question by the pleadings, or upon the trial, cannot raise it in this court. The defendants insist that that question was at all times at issue. The question of the validity of the appointment of the complainants turned upon the application of the provisions of section 2, article 10 of the State Constitution and of those of the Public Health Law, under which the appointment in question had be"en made. It appears from the decision of the attorney-general, upon the application for leave to commence the action, that the contention was there made on the part of the defendants that the appointment was unconstitutional. The conclusion of law in the findings by the trial judge, that the complainants were lawfully appointed members of the board of health of the city, was duly excepted to, and, as I have before said, the constitutional question was the only one discussed in the opinion of the Appellate Division. It is stated in that opinion that the contention of-the defendants was that the appointment-was in violation of the State Constitution. It is very clear that the situation is not one where, as in Dodge v. Cornelius, (168 N. Y. 242), the question was raised for the first time in this court, and, there.fore, the defendants would he deemed to have waived the claim of unconstitutionality. The exception to the decision of the trial court, that the plaintiffs were lawfully appointed, ' covers the question sufficiently, and if authority were needed for this, I think it will he found in Massachusetts National Bank v. Shinn, (163 N. Y. 360); where, although not specifically mentioned, the constitutional question was deemed covered hy an exception. Judge Vann, speaking for the. court in that case, observed that “ as it is covered hy the exception to the report of the referee, though not specifically mentioned, - and touches the settled policy of the state until reference to a subject of such importance as to ho embedded in the Constitution, we think' it our duty to decide it.”

I think the question is properly before us and I pass to the merits of the appeal. It is sufficient to say of the facts of this case that in 1903, prior to the expiration of his term of office, the mayor of the city of Oswego nominated, among others, these two conqdainants to fill certain vacancies in the board of health of the city; which nomination the common council declined to confirm. Following the provision of section 20 of the Public Health Law, the mayor then notified the county judge of Oswego county of the existing vacancies and the latter appointed the complainants to fill them. The newly-elected mayor of the city, upon entering office in January, 1904, in a communication to the common council, nominated these two defendants, with others, to he members of the hoard of health in the place of the two complainants, upon the ground that he believed the prior appointment to have" been illegal and of no effect. The common council confirmed his nominations and the defendants entered upon the duties of their office. The legal question is this: Was the office of member of the hoard of health of the city of Oswego a local one and was the incumbent a city officer, within the meaning of section 2, article 10, of the State Constitution? The provision of the State Constitution, so far as applicable, reads as follows: “ All city", town and village officers, whose election or appointment is not provided for by this Constitution, shall be elected by the electors of such cities, towns and villages, or of some division thereof, or appointed by such authorities thereof as the Legislature shall designate for that purpose.” The board of health is created under the Public Health Law, (Laws 1893, Chap. 661), and section 20 of the law provides that “ there shall continue to be local boards of health * * * in the several cities * * * of the State. * * * The board shall consist of the mayor "" * * and at least six other persons, * * * who shall be appointed by the common council, upon the nomination of the mayor.” The same section, further, provided that “ If the proper authorities shall not fill any vacancies occurring in any local board within thirty days after the happening of such vacancy, the county judge of the county shall appoint a competent person to fill the vacancy for the unexpired term,” etc. It would seem that the provision for a local board of health in a city was sufficiently explicit as to the municipal character of the office; but it is argued, in substance, that, because the common council has not the power to: control the members of tlie board in the discharge of their duties, and because those duties do not relate to the exercise of corporate powers, they are not city officers. This argument is sought to be reinforced by the proposition that the duties of such officers are public in their nature and that they are not servants of the municipal corporation, but of the general public. I do not consider that this argument is quite sound. The members of the board of health might well be public officers, in the sense that their duties were rendered to the public under a general law of the state, and yet they could be city officers within the meaning of the Constitution. I think that the question does not turn so much upon whether the officers are the servants, or agents, of the city, as upon whether their offices were created for the city, unconnected with any other territory. The doctrine of the case of People ex rel. Haughton v. Andrews, (104 N. Y. 570), and, as well, that of People ex rel. Wood v. Draper, (15 ib. 532, 539), may be, appropriately, referred to. They are subserving the general public interest in promoting and maintaining sanitary conditions in the locality; but they, equally, execute a corporate purpose of the municipal government; which, if it is not to be implied, is actually made a part of its charter by the laws. They are to be appointed under the statute, primarily, by the governing municipal authorities and the performance of their duties is confined territorially to the city. It seems to me that the situation was such as the People intended to be met, when establishing in the fundamental law of the state the principle of “ home rule ” for its political subdivisions. The appointment of the complainants by the county judge of the county was, of course, not an appointment by a municipal authority and it cannot be justified, unless the appointees are to be regarded as public officers, whose offices constitute no part of the city government. That they can be so viewed and that their appointment could validly be shifted from the mayor and common council of the city, in the event of unfilled vacancies in the board, upon a county officer I do not believe. Whatever doubt there might be with respect to a member of the board of health of the city being a city officer ought to disappear, when we notice ■' the provisions of the charter of the city. The charter is found in chapter 394 of the Laws of 1895 and title II relates to “ Officers of the City; Their Election and Appointment.” By section 4, it is provided that The officers of the city shall ■ be as follows: Elective officers — one mayor, * * * etc.; appointive officers — a city chamberlain. * * * members of the board of health.” By section 5, it is provided that “ no person shall be eligible * * * to any office in and for the city of Oswego * * * unless "* * * an elector and resident of said city * * * and no person shall be eligible to the office of mayor * * * member of the board of health * * * unless he is assessed upon the last preceding assessment-rolls of said city. * * * ” If a member of the board of health could not be regarded elsewhere in the state as a city officer, the legislature, which enacted the Public • Health Law, under which his office is created, has, certainly, made him a city officer of the city of Oswego. In view of ■what lias been said, further discussion is needless and I advise the affirmance of the judgment appealed from, with costs.

Cullen, Oh. J., O’Brien, Bartlett, Haight, Vann and Werner, JJ., concur.

Judgment affirmed.  