
    The People ex rel. James M. Moore, Relator, v. Mark S. Leavy, Defendant.
    (Supreme Court, Albany Trial Term,
    June, 1898.)
    Municipal corporations — Construction of charter as to transfer of a district physician, who must be a resident of his district.
    Where a city charter (Laws of 1883, chap. 298, as amended by Laws of 1890, chap. 64, § 2) provides that the six district physicians, to be appointed by the mayor, shall reside in the districts for which they are appointed, they are independent officers inseparably connected with such districts, and the mayor has no power to transfer an appointee from the district of his appointment to another district, and thereby oust an incumbent who is lawfully holding over his term.
    The practical construction long applied by city officials to the provisions of a city charter should be given great weight by the court.
    Quo Wabeahto proceedings.
    Charles Irving Oliver (Albert C. Tennant, of counsel), for relator.
    John A. Delehanty, for defendant.
   Chase, J.

The determination of this case depends upon the construction to “be given to the charter of the city of Albany, so far as it relates to the appointment of district physicians. Section 21 of title 4 of the city charter, as amended by section 2, chapter 64 of the Laws of 1890, provides as follows: “§ 21: The mayor shall .biennially (and within three months after the commencement of his term of office) appoint by filing a certificate or certificates of appointment with the clerk of the common council (which certificate shall be presented by said clerk to the common council at its next meeting and printed in its journal) one corporation counsel,, six district physicians, four city bell ringers, and such clerks and subordinates, not to exceed two, as he may require to aid him in. the discharge of his official duties. Such bell ringers, clerks and subordinates to hold their positions at the pleasure of the mayor.” Section 13 of title 16 of the city charter provides that: Each district physician shall receive a salary of four hundred dollars per year and shall reside in the district for which he is appointedThe sections quoted are the only sections of the city charter in which the office of district physician is mentioned. The common council has enacted ordinances dividing the city into six districts; limiting the district physicians in the discharge of their duties respectively to the district to which they are respectively appointed, and directing the district physicians in regard to their duties, and in regard to their reports to the several departments.

Is each district physician an independent officer inseparably connected with the particular district for which he is appointed?

The mayor, as well as the common council, the city departments and the several incumbents of the office of district physician, have always practically so construed the city charter. Their practical construction of the charter appears by the ordinances themselves, the several instruments appointing district physicians, the several oaths of office, the accounts of the chamberlain, the records of the board of health and every act and record connected with the district physicians prior to January, 1898. This construction of the statute, adopted and long acquiesced in by the various officers and departments of the city of Albany, is entitled to great weight.

The plain reading of section 21 of title 4, as amended, together with section 13 of title 16 of the charter indicates the correctness of the construction so given to such sections by the officials of the city during so many years. It is suggested by the learned counsel for the defense that the object of the charter is to authorize the mayor to appoint a certain number of physicians and to assign them to such sections of the city from time to time as required by the needs of the indigent sick. The provisions of the charter requiring that the several physicians must reside in the district for which they are appointed, effectually prohibits the assignment of physicians from time to time. A person cannot be a resident of more than one district at the same time, and changes could not be made as suggested and retain a physician in each district, even if the physicians were not appointed as independent officers, except by a mere, .coincidence by which two or more of the district physicians were simultaneously to change their residence in such a way that each district would nevertheless contain one of the persons so appointed. It is also suggested by the learned counsel for the defendant that if the district physicians were appointed as claimed hy the relator, it would be in the power of the common council at any time to change the boundaries of the districts in such a manner as to remove from office any of the district physicians appointed by the mayor? If the district physicians were appointed as claimed by the defendant it would be equally in the power of the common council to change the boundaries of the district at any time so as to leave a portion of the territory of the city unprovided with a district physician. The charter assumes that the city will be divided into districts, and as the number of physicians is limited to six the number of districts cannot exceed six and comply with the provisions of the charter. The six districts actually exist at the present time. It is impossible to provide for the several districts and have more than one physician reside in a district. Taking the position of the defendant I do not see how the appointment of the district physicians could be complete until the district for which the persons appointed were to be assigned, has been determined upon. The appointment of district physicians, without reference to the existing districts, would lead to great confusion. The construction given to the charter by the common council in dividing the city into districts, and providing rules and regulations for the conduct of the district physicians and the construction given to the charter and ordinances of the common council by the mayor and other city officers avoids trouble and confusion in regard to appointments and carries out the apparent spirit and intention of the charter itself.

On the 7th day of February, 1896, Mayor Thacher appointed district physicians as provided by the charter and the ordinances, and such appointments were made by certificate of which the following is a copy:

City of Albany, Mayor's Office,
Albany, February 7, 1896.
John Boyd Thaoher, Mayor,
“To the Honorable, the Common Council:
Gentlemen.— Pursuant to the provisions of section 21, title 4, chapter 298, of the Laws of 1883, I hereby designate and assign the following physicians in and for the districts set opposite their respective names:
First district.— Frederick D. Morrill, 74 Westerlo street.
Second district.— Mark S. Leavy, 217 Madison avenue.
Third district.— O. 0. Alexander, 3 Second avenue.
Fourth district.— Charles L. Myers, 47 North Swan street.
Fifth district.— J ames M. Moore, 7 Congress street.
Sixth district.— W. P. Brierly, 228 Central avenue.
“Yours,
“ John Boyd Thaoheb,
"Mayor.”

This certificate was duly filed with the clerk of the common council, and was presented to the common council at its next meeting and printed in its journal. Mr. Moore, the relator in this action, and the person so appointed fifth district physician, took 'an oath of office and entered upon the discharge of his duties. The oath of office taken by Mr. Moore was similar to the oath of office taken by the district physicians of the city and of which oath the following is a copy:

“ I do solemnly swear that I will support the Constitution of the United States and the Constitution of the state of New York and that I will faithfully discharge the duties of the office of District Physician of the Fifth District, according to the best of my ability.
“ James M. Moobb.
“ Sworn to before me, this 7th day of February, 1896.
“ John Boyd Thaoheb,
“Mayor.”

By the city charter as well as by the Public Officers. Law all officers shall continue in office until their successors have been duly appointed and qualified.

On the 19th day of January, 1898, Thomas J. Van Alstyne, then mayor of the city of Albany, by certificate substantially in form as the certificate made by Mayor Thacher, which I have quoted, designated and assigned physicians to the several districts set opposite their names, including among which was “Fifth district, Judson H. Lipes.” Said Lipes" was given a certificate of appointment, of which the following is a copy:

STATE "OF HEW YORK,
“ City and County oe Albany, City Clerk's Office,
This is to certify that Judson H. Lipes, M. D., was duly appointed District Physician for tjie Fifth District of the City of Albany, by his honor, Thomas J. Van Alstyne, Mayor, on January 19th, 1898.
“ Henry A. Maloy,
“[l. s.] “ City Cleric, City of Albany, N. Y.”
Dated, January 20th, 1898.”

It thereafter appeared that Dr. Lipes was not a resident of the fifth district, consequently ineligible to the position of fifth district physician. He never took the oath of office as fifth district physician, and does not claim to be entitled to such office. By the same certificate appointing Judson H. Lipes as fifth district physician, the defendant in this action, Mark S. Leavy, was appointed third district physician. The defendant took his oath of office as the third district physician. Thereafter and on the 2d day of February, 1898, Mayor Van Alstyne directed a letter to Dr. Leavy, the defendant in this action, Dr. Myers, who had by such certificate been appointed fourth district physician, and Dr. lipes, who had by such certificate been appointed fifth district physician, of which letter the following is a copy.

Albany, February 2, 1898.

“ Maw S. Leavy, Charles L. Myees, Judson H. Lipes :

Gentlemen.— You will severally take notice that by virtue of the authority in me vested by law, I do hereby transfer you and each of you as district physicians from the respective districts heretofore designated and do transfer and appoint you the said Mark S. Leavy to district Ho. 5, and you, the said Charles L. Myers to District Ho. 3, and you, the said Judson H. Lipes to District Ho. 4. You will take due notice thereof and perform the, duties of district physician in the respective district hereby assigned you.

Respectfully,

“ Thos. J. Van Alstyne,

" Mayor.”

No other appointment of Dr. Leavy as fifth district physician was ever made, filed with the clerk of the common council or printed in its journal, and Dr. Leavy never took an oath of office as fifth district physician.

As I have stated above, this question should be determined by the answer to be given to the question as to whether the district physicians mentioned in the charter are to be appointed generally by the mayor and assigned by him from time to time to different sections of the city or whether they are independent officers to be appointed by the mayor for a particular district designated in the appointment. I think such question should be answered in favor of the relator and to the effect that- the district physicians are independent officers inseparably connected with the district for which they are appointed, and the relator is entitled to judgment, as asked for in his complaint, with costs, and a decision and judgment may be prepared accordingly.

Judgment for relator, with costs.  