
    COURT OF APPEALS.
    The People ex rel. Charles Rosenkrans, respondent, agt. Joseph B. Carr, secretary of state, appellant.
    
      Surrogate of the city of New Tork—His term of office.
    
    The act of 1869 (Laws of 1869, chap. 282), which provides that “ the term of office of the persons who shall hereafter be elected to the office of recorder, city judge and surrogate, respectively, in the city and county of New Tork, shall be six years,” does not repeal the third section of the act of 1847 (Laws of 1847, chap. 488), which provides that “in case a vacancy shall occur in either of said offices ” (recorder or surrogate of the city and county of New Tork) “by death, resignation or otherwise, the board of supervisors of said city and county are authorized to fill such vacancy until the general election next ensuing the happening of such vacancy, when an election shall be had to fill the unexpired term of the officer whose term had so become vacant.”
    The provisions of section 15 of article 6 of the constitution, as amended in 1869 with reference to county judges and surrogates in counties having a population of over 40,000, do not refer or apply to the city and county of New Tork. This provision applies only to the counties (other than the city and county of New Tork) wherein there are courts known as the county court, and judges known as the county judge, and the office of surrogate of the city and county of New Tork is not held under section 15 of article 6, but is a local office established especially for that city!, under pre-existing laws, and recognized and continued by section 12 of article 14 of the constitution, and the term of that office is left wholly under the control of the legislature.
    Where C., the present incumbent of the office of surrogate of the city and county; of New York, was appointed on the 12th day of April, 1876, by the] board of aldermen of New York, acting as supervisors to fill a vacancy occasioned by the death of Y. S., whose term of office, had he lived, would have expired January 1, 1882, and at the general election held in November following the said C. was elected surrogate by the electors of the city and county of New York:
    
      Held, that such election only entitled 0. to hold the office for the unexpired term of Y. S., deceased, and not for the full term of six years, and consequently his term of office would expire December 81, 1881 (Affirming S. 0., ante, 19).
    
      Decided October, 1881.
    ■ Charles Eosenkrans, a taxpayer of New York city, sought, by- application to justice Westbrook, to secure a mandamus to compel the secretary of state to give notice of the election of a surrogate in the county of New York, in place of the present incumbent, Delano 0. Calvin, upon the allegation that his term of office will expire December 31, 1881. The application was denied, it being claimed that Mr. Calvin’s term would not expire until 1882 (See ante, 5). The general term, first department, reversed justice Westbrook’s •order (see ante, 19) and from such reversal this appeal is 'taken. ¡
    
      idames B. Dyddy, for respondent.
    
      William B. Buggies, deputy attorney-general, for appellant.
   Rapallo, J.

— The office of surrogate of the city and county of New York existed long before the adoption of the constitution of 1846, and is recognized in the twelfth section of article 14 of that instrument, which provides that “ all local courts established' in any city or village, including the superior court, common pleas, sessions and surrogates’ courts of the city and county of New York, shall remain, until otherwise directed by the legislature, with their present powers and jurisdiction.” There is no limitation of the power of the legislature to fix or alter the term of office of the surrogate of the city and county of New York, as it may see fit. By the section last cited, it was provided that the judges of the courts therein named in office on the first of January, 1847, should continue in office until the expiration of their terms of office, or until the legislature should otherwise direct. By the amendments contained in article 6 (adopted in 1869), section 13, the terms of office of the judges of the superior and court of common pleas, to be thereafter elected, were fixed at fourteen years, but no provision was made in respect to the term of office of the surrogate. The provisions of section 15 of the same article, with reference to county judges and surrogates in counties having a population of over 40,000 do not, in our judgment, refer or apply to the city and county of New York. That section continues the then existing county courts, and declares their jurisdiction and the term of office and powers of the judge thereof, and provides that the county judge shall also be surrogate of his county, but in counties having a population exceeding 40,000 the legislature may provide for the election of a separate officer whose term of office shall be the same as that of county judge.” We think that this provision applies only to the counties (other than the city and county of New York) wherein there are courts known as the county court, and judges known as the county judge, and that the office of surrogate of the city and county of New York is not held under section 15 of article 6, but is a local office established especially for that city, under pre-existing laws, and recognized and continued by section 12 of article 14 of the constitution, and that the term of that office is left wholly under the control of the legislature. A reading of the entire section (fifteen of article six) in connection with section 16 of the same article confirms this interpretation.

This view disposes of the argument that the term for which the surrogate of the city and county of New York must be elected is fixed by the constitution at six years (which is the constitutional term of office of the county judge), and that the legislature has no power to fix a shorter term, even when the election is to fill a vacancy occasioned by the death of an incumbent before the expiration of his term.

The only question remaining to be considered is, whether the act of 1869 (Laws of 1869, chap. 292), which provides that “ the tejrm of office of the persons who shall hereafter be elected to the office of recorder, city judge and surrogate, respectively,5 in the city and county of New York, shall be six years,” repeals the third section of the act of 1847 (Laws of 1847, chap. 488), which provides that “in case a vacancy shall occur in either of said offices ” (recorder or surrogate of the city and county of New York) “ by death, resignation or otherwise, the board of supervisors of said city and county are authorized to fill such vacancy until the general election next ensuing the happening of such vacancy, when an election shall be had to fill the unexpired term of the officer whose term had so become vacant.”

It is not claimed that there is any express repeal of this section, but ¡it is contended that the provision, that in case of a vacancy during a term an election shall be had to fill the unexpired term, is inconsistent with the provision of the act of 1869, that the term of office of whoever shall be thereafter elected surrogate shall be six years, and that by reason of this inconsistency the prior provision must be deemed repealed.

After a cajreful consideration of both acts we are of opinion that no such inconsistency appears. The first section of the act of 1847 provides for the election at the general election in November of a recorder and surrogate for the city and county of New York, “ who shall hold their respective offices for the term of - three years from the first day of January next after said election,” and afterwards follows the third section, which provides that in case of a vacancy occurring during such term it shall he filled by election for the unexpired part of the term. There is no repugnancy or inconsistency in these two provisions, which are contained in the same act. The act of 1869 declares that as to persons thereafter elected the term of office shall be six years, and leaves the other provisions of the act of 1847 untouched. There is no more inconsistency between the provision which fixed the term of office and that which provides for filling a vacancy for an unexpired term, when contained in two acts, than when contained, as they originally were, in a single act. In substance the only effect of the act of 1869 was, in our judgment, to change the term of office from three years to six years, leaving in force all the other provisions of the act of 1847, which declare when the term shall begin, how, in a case of a vacancy, it shall be filled until the next election, and that when the election is had it shall be for the unexpired term of the preceding incumbent. In the absence of any reference, in the act of 1869, to those provisions, or of the substitution of any other on the same subjects, we are not authorized to infer that it was intended to repeal them. The language of the act of 1869, making it applicable to persons thereafter elected, was manifestly adapted for the purpose of excluding the idea that it was intended to extend the terms of those in office at the time of the passage of the act, a construction for which there might have been some color, if the act had simply declared that thereafter the term of office of recorder and surrogate should be six years, or if it had amended the act of 1847 by substituting the word “six” in place of “three.” The repeal of an existing law cannot be implied from language so clearly satisfied by attributing to it a different purpose.

Our conclusion is that the order at the general term should be affirmed.  