
    Same Term.
    
      Edmonds, Justice,
    In the matter of the application of A. B. Whiting.
    The office of health officer at the port of New-York'is neither a city nor a county office, within the language of the 2d section of the 10th article of the constitution.
    And upon a vacancy occurring in such office, the same is to be filled by the governor and senate, and not by the board of supervisors.
    Where a person appointed to an office under a statute which provided that he should hold it only until the sense pf the governor and senate should be declared, persisted in holding the same after the governor and senate had appointed a su&i cessor, who had a ciear right to the office, and the incumbent refused to deliver np to his successor the books and papers appertaining to the office; Held that it was a proper ease for the issuing of a warrant, under the provisions of the revised statutes (1 JR. S. 124, § 50) to commit the incumbent to jail until he should surrender them.
    The title tq an office can be determined only on a quo warranto, and not upon a summary application under the statute. Per Edmonds, J.
    Upon an application under the statute the court can only determine the right to the present possession of the office; and that on a prima facie case for the applicant.
    On the 29th of December, 1847, Dr. Van Hovenburgh, then health officer at the port of New-York, resigned his office ; and on the 28th of January he communicated that fact to the board of health and required them to fill the vacancy, under a statute which authorizes that board to supply any vacancy that may occur in the office of either of the health commissioners, whether arising from temporary inability or otherwise, “ but the person so appointed shall hold his office only till such inability be removed, or the sense of the governor, or of the governor and senate be declared.” The board immediately appointed Samuel Russell Childs, who qualified and entered upon the duties of the office. At that time Dr, Whiting had been nominated by the governor, for the office, and on the 4th of February the nomination was confirmed by the senate. On the 14th of February he took the oath of office and attempted to enter upon its duties, but was obstructed by Dr. Childs, who claimed to be the lawfully appointed incumbent, and who refused, on demand, to surrender up the books and papers belonging to the office. Application was then made to Judge Edmonds fqr a warrant against Dr. Childs to commit him to jail until he should surrender them. The application was argued by
    
      W. C. Noyes & E. Sandford, for Dr. Whiting; and by
    
      T. W. Tucker & D. B. Ogden, for Dr. Childs.
   Edmonds, J.

The provision of the constitution out of which the question before me has sprung, is the second section of the tenth article, and is in the following words: All county officers whose election or appointment is not provided for by this constitution shall be elected by the electors of the respective counties, or appointed by the boards of supervisors or other county authorities as the legislature shall direct. All city, town and village officers shall be elected by the electors of such cities, towns and villages, or some division thereof, or appointed by such authorities thereof as the legislature shall designate for that purpose. All other officers shall be elected by the people or appointed as the legislature may direct ” All this would be plain enough if the terms “ county officer” or “ city officer” had obtained a definite meaning; but unfortunately they are not defined in that instrument. They were unknown to our former bonstitutions, and they are unknown even to the revised statutes, except in the index. We are therefore left to determine what was intended by the use of those terms in the constitution. And the difficulty of the conjecture is very much increased by the fact that most of the officers connected with this city are appointed in and for “the city and county of New-York.” So that when a health officer is appointed “ for the city of Albany,” we can well imagine him to be a city officer, but when he is appointed “ for the city and county of New-York,” it is not so easy to determine whether he is a city or county officer.

There are certain officers that are very readily understood to be county officers; such as sheriffs, coroners, surrogates, &c. ; for they are appointed or elected for a county, must reside in the county, and can perform their functions only within the bounty. So there are officers clearly and easily known, for the same reason, as city officers—such as mayor, recorder, aldermen and the like—and village officers; such as village trustees— and town officers; such as town clerk, constable, collector, &c. But there is a large number of officers, both judicial and administrative, whom it is difficult to classify under either of these denominations; and among them is the officer in question. This difficulty can be appreciated by a reference to the statutes as they existed when the constitution was framed, and which are by that instrument continued still in force. For instance, notaries public. There shall be 100 in the city and county of New- Nork, so many in the other cities” as shall be determined, &c. and “so many in each of the counties” as the governor and senate may think proper. (1 R. S. 98.) Now which is the office of notary public, a city or county office, especially in regard to New-York? There shall be 54 auctioneers for the city and county of New-York, 4 for the city and county of Albany, and one or more for every other city, village or county, &c. (1 R. & 98.) What is an auctioneer, and" especially in New-York~a city or county officer? So as to cullers of staves and heading, of whom it is provided, (1 R. S. 99,) there shall be a certain number for the city and county of New-York, 2 or more for the city of Hudson, and so many in the other counties as shall be deemed necessary. These are a few only of the instances of the same kind which are to be found in our statutes. And they are material to the matter in hand; because, as to health officer, while in Albany and Hudson he is appointed for those cities, in New-York he is appointed for the city and county. (1 R. i$. 100.)

If it is said that the health officer is a city officer here, because he is so in Albany and Hudson, it may with the same propriety be said that the judges of the superior court and common pleas are city officers, because they were in like manner appointed for the city and county. (1 R. S. 97.) If it is said he is a county officer because appointed for the county, the answer is that he is just as much a city officer, because he is just as much appointed for the city as for the county. It is impossible therefore to say that he is either, to the exclusion of the other. I have already remarked that an officer is local, (that is, a county or city officer,) when he is appointed for a city or county, and must reside and perform his functions therein. In such a case there is no difficulty in determining whether he is a city or county officer. But when either of these requisites is wanting, the difficulty of determining that question begins. The health officer is not required by law to reside in this city and county, but the due performance, of his duties in fact requires his residence out of the county; and his functions are to be exercised out of, as well as in, the city and county. When to this is added the consideration already mentioned—that in respect to the remaining requisite, it is impossible to say whether he is appointed for the city or for the county—it seems to me to be an inevitable conclusion that the office of health officer cannot with propriety be pronounced either a city or county office within the language of the constitution.

It seems to me, too, that this view of the case removes from this section of the constitution its apparent obscurity, and renders it plain and simple, easily to be understood, and easily to be executed. Thus “ county officers,” within the meaning of the constitution, would comprehend all those who are appointed, or elected, for a county, and must reside and perform the duties of their offices within their counties, such as sheriffs, coroners, county clerks, &c. City, town, or village officers,” ■such as unite the same requisites in respect lo their localities, as mayor, recorder, aldermen and the like. Aud “all other officers,” such as do not unite all these requisites, but are wanting in one or more of them, and including, above all, an officer who is appointed both for city and county, and is wanting in both the other requisites. This construction renders all •the provisions of the section under consideration harmonious, and is therefore commended to us as that which ought most readily to be adopted.

And I cannot persuade myself, notwithstanding the ingenuity displayed on the argument, that such was not the intention of the constitution. When the framers of that instrument entered upon the task of providing the mode of filling the offices ■necessary to a good government, they could not have overlooked those several pages of the revised statutes where they are grouped together as legislative, executive, judicial, and administrative offices. And the most cursory perusal of those pages would have shown them, at a glance, that many of those offi'•cers could not properly be regarded as either county or city officers. In addition to the cases of that kind I have already 'alluded to, I will mention another, appearing on those pages, namely, inspector of sole leather, which, in New-York and Albany is both a city and county office, in Troy, Hudson, &c. is a city office, in Lewis,- Onondaga, and other counties, is a county office, and in “the port of Sag Harbor” is neither, The most obvious provision for this, and other kindred cases, was that of this section, which provides for all other offices than those which had already been provided for as properly county and city offices. Almost any other provision would have made the machinery of carrying the' constitution into effect, especially in regard to many quite unimportant offices, exceedingly cumbersome and incongruous.- Any other construction of the constitution would, it seems to me, require" of me to adopt a standard for the locality of offices which neither the constitution nor the statutes have established; or, in other words, to legislate where the convention and the legislature hate omitted to do so. That would be quite beyond my province.

The counsel for the defendant in these proceedings, werd right in saying that the question before me involved the title to this office, and that that title could be determined only on a quo warranto, and not on this summary proceeding. I can here only determine' the right to the present possession of the office, and that on a prima facie case for the complainant. But if it could be made to appear that the governor and senate had no right, under the constitution, to make an appointment, then the complainant’s prima facie right to the possession would necessarily fall to the ground, and his application be dismissed.I have therefore been compelled to examine into the title of thd parties, in order to determine the right to possession. In doing so, I have arrived at the conclusion that this officer is one of those who are not, necessarily, under the constitution, to be elected or appointed by local authoritiés, but is one that is to be elected or appointed as the legislature may direct. It remains to be seen whether the legislature have so directed, and whether the appointment of Dr. Whiting is pursuant to that direction.

The claim set up in behalf of Dr. Childs in this regard is, that the legislature must direct, before an appointment can be made; that this whole matter is novus hospes¡ on which there must first be legislative action, under the constitution, before there can be any appointment made, Under the statutes, as they existed when the constitution was adopted, the health officer was to be appointed by the governor and senate. The constitution re-enacts and continues all the statutes then in force, which were not repugnant to the constitution. I have already shown that an appointment by the governor and senate was not thus repugnant. So that when Dr, Whiting was appointed, the health officer might be appointed in such manner as the legislature might direct; and there was an act of the legislature in force directing that he should be appointed by the governor and senate. It seems to me that this is a conclusive answer to the argument; unless we are to regard the constitution as resolving the government into its original elements, excepting only so far as that instrument itself had otherwise specifically provided; a view of things scarcely warranted, so long as any effect is awarded to the 17th section of the first article of the constitution. Dr. Whiting’s right to the present possession of the office being thus established, it seems to me that it does not lie in Dr. Childs’ power to object to his taking possession, for Dr. Childs is a mere intruder. He was appointed .only until the sense of the governor, or governor and senate, was ascertained. The moment it was ascertained, and a knowledge of it brought home to him, his functions utterly ceased; so, that whether Dr. Whiting was properly appointed or not, Dr. Childs from that moment ceased to have any authority to act as health officer. It follows that if Dr. Whiting is not the incumbent, the office is vacant. This isthe effect of the statute under which Dr. Childs was appointed, and of the tenure by which he held his office; and he can now have no right to discharge the duties or to retain the documents and papers of the office. This matter then, appears before me in this aspect: that Dr. Whiting has a clear right to the possession of the office, and that Dr. Child? is a mere intruder into it; his right to it having ceased by the expiration of his term; he having been appointed under a statute which declared that he should hold it only until the sense of the governor and senate be declared. (1 R. ¡S. 115, § 19.) The case is therefore within the statute authorizing these summary proceedings, whenever any person shall be removed from office, or the term for which he shall be elected or appointed shall expire,” (1 R. S. 124, § 50;) as that statute was construed and understood by the supreme court, and also by Kent, circuit judge, in the Brooklyn city clerk case. (5 Hill, 616.) All the judges in that case regarded this statute as applicable to a case where the applicant’s title was clear, and where the defendant is not in possession under color of lawful right to hold it. And although it is not a substitute for a quo warranto, because it does not establish the title, yet it is kindred, and in addition to the remedy by mandamus, which has always been an appropriate mode of settling the possession.

The warrant applied for must, therefore, be granted against Dr. Childs, whose term of office has expired; because of his withholding from Dr. Whiting, his successor in office, the books and papers in his custody as health officer, or in any way appertaining to that office.  