
    People v. Raymond.
    
    
      Constitutional law.—Power of appointment.
    
    It is not competent for the legislature to create a new office, and vest the power of appointment thereto, in the governor and senate, when the duties to he performed are the same as those of a former county officer, made elective by the constitution.
    
    Appeal from the general term of the Supreme Court, in the first district, where a judgment entered in favor of the defendant, in a case tried before the court, without a jury, had been reversed, and a new trial awarded; the defendant stipulating for judgment absolute, in case of affirmance.
    This was an action in the nature of a quo warranto, brought by the Attorney-General, to test the right of James M. Raymond to the office of commissioner of taxes and assessments of the city and county of New York, to which he had been appointed by the governor, by and with the advice and consent of the senate, pursuant to the provisions of the act of 17th April 1867. (Laws of 1867, ch. 410.) The only question involved was the constitutionality of that act.
    The judge at special term held the act to be valid, and rendered judgment in favor of the defendant; but the same was • reversed at general term, and a new trial awarded; whereupon, an appeal was taken to this court, the defendant giving the usual stipulation*
    
      
      Allen, Hutchins and Reynolds, for the appellant.
    
      Champlin, Attorney-General, and Anderson, for the People.
    
      
       Also reported in 43 How. Pr. 173, where will be found the opinion of the supreme court, at general term.
    
    
      
       People v. Bradley, 43 How. Pr. 423.
    
   Grover, J.

This is an action in the nature of a quo warranto, brought by the Attorney-General, to determine the title of the appellant to the office of commissioner of taxes and assessments of the city and county of New York. The appellant was duly appointed to such office, by the governor, with the consent of the senate, pursuant to § 1, chap. 410, Laws of 1867 (p. 981), and has duly qualified according to the requirements of said act. r*§kt tf10 office, therefore, depends upon the constitutionality of said act.

It is claimed by the counsel of the respondent, that the act in question is in conflict with § 2, art. x. of the constitution, and therefore void. That section- provides that 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 "board of supervisors, or other county authorities, as the legislature shall direct. 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 or villages, or of some division thereof, or appointed by such authorities thereof as the legislature shall designate for that purpose. All other officers whose election or appointment is not provided for by this constitution, and all officers whose offices may hereafter be created by law, shall be elected by the people, or appointed as the legislature may direct.

There is no question, but that the office in question is exclusively a city office. To determine whether the act in question is constitutional, so far as the power of appointment is thereby vested in the governor, with the consent of the senate, it is necessary to determine, whether the office, in substance, existed at the time of the adoption of the present constitution, and if found not so existing, then the further question, whether city, town, and county offices, subsequently created, may be filled in any mode prescribed by the legislature.

To determine the first question, it is necessary to ascertain the functions and duties of the office in question. These, upon examining the act in question, the act of 1859, page 678, the acts of 1857 and 1850, and the previous legislation, will be found' to consist of power to appoint deputies, clerks, &c., who, together with the officers in question, by performing the various duties of their respective offices, are to make an assessment of all the property liable to taxation, in the city, for municipal and state purposes ; to correct the rolls of such assessments, and to equalize the same, and to preserve such rolls in an office to be kept by them, and deliver the same to those whose duty *it is to J levy the taxes upon such rolls, authorized upon the property of the city.

It is necessary, also, to inquire, whether the like functions were performed by any officers, at the time of the adoption of the existing constitution. This all know must have been so, as taxation upon property is not wholly of modern origin, but has existed, at intervals, for state purposes, and, at all times, for municipal purposes, since the existence of the state, and there must, necessarily, have been, at all times, some mode oy which a valuation of the property liable to taxation was made' by public authority, as a basis upon which saxes were apportioned among its owners. An examination of the statutes in force at the adoption of the constitution, will' show that such valuation was then made by assessors chosen by the electors of the respective wards of the city, two in each ward; that these ward assessors were required to assess all the taxable property in their respective wards, and when this was completed, they were all required to meet together as a board, and when so met, to compare, equalize and correct all the assessment-rolls of the city, and when completed, the assessors were to deliver the same to those whose duty it was to apportion the taxes required tc be collected upon the basis of such valuation.

Thus, it appears, that precisely the same essential functions were performed in making, equalizing, correcting and delivering the assessment-rolls by the ward assessors, at the time of the adoption of the constitution, that were contemplated to be performed by the commissioners of taxes and assessments, by the act in question. That, although the names of the officers and their mode of appointment have been changed, the result to be accomplished by the one, is identical with that of the other.

But it is argued, on the part of the appellant, that additional powers have been conferred, and additional duties imposed upon the commissioners. This is true: they are to keep an office, during the entire year, in which the rolls are to be kept for inspection; • they are to procure and preserve maps of the lots in the city; to keep a record of the building permits; to them power is given to insert in the rolls, property which has been omitted, and to do some *other acts, none of which were required of the assessors, and which they were not authorized to do. But an examination of these new duties and powers will show, that they are all such as are calculated to. facilitate, and the better enable them to perform, the same essential' duty performed by the assessors, that is, of perfecting a valuation of the property as a basis of taxation. Such additional facilities in the performance of the same duties, surely cannot make them, new officers,' in the sense of the constitution. If they can thus be made new, the section of the constitution above quoted may readily be made a mere nullity.

I am far from conceding, that it would be competent for the legislature, to take from the city all control over the assessment of the property of the city for purposes of taxation, and vest this power in the central authority, by conferring powers upon the officers or boards, upon which they conferred it, over other subjects, and imposing duties upon them entirely foreign to those of making the assessment. The plain intention of the section of the constitution in question, was, to preserve to localities the control of the official functions of which they were then possessed, and this control was carefully preserved, consistent with the power of the legislature .to make needful changes, by restricting the power of appointment of other officers to perform the same functions, to the people, or some authority of the locality. Any other construction would render the section in question, when applied to the cities of the state, substantially nugatory. It is not enough, that the name of the officer is changed, or the powers enlarged, to authorize the legislature to confer upon the governor the appointment of officers to discharge the duties performed by city officers, at the adoption of the constitution. This accords with the reasoning of the prevailing opinion in People v. Draper (15 N. Y. 532), and also with that of other cases, although the precise point has never been decided by this court.

It is insisted, that the assessors elected by the wards of the city were not city officers. It will be seen, by the act of 1830, that they not only assessed the property of their respective wards, but all were required to *meet as a board, and act upon and perfect all the rolls of the city. This clearly made them city officers, within the meaning of the constitution. The acts of 1859, 1857 and 1850, gave the power of appointment of the commissioners to some local authority of the city, and thus preserved the local control over the subject. The act of 1867 vests the appointment in the governor and senate, and thus deprives the city of all local control of the assessment of the property of the people, for the purposes of taxation. It thus deprives the people of the city of a right secured to them by the constitution, and is, therefore, void.

This renders a discussion of the question—whether the legislature can provide for the appointment to a city office, created after the adoption of the constitution, in any mode deemed best for the public interest— unnecessary, for the reason, that the office in question was not so created, within the meaning of the constitution. I will simply remark, that this question was decided in People v. Pinckney (32 N. Y. 377), in which it was held, that this power was possessed by the legislature. The question was noi at all discussed, but it was assumed, that it had been decided in the same way in People v. Draper (supra). A slight examination will show that there was no such question decided in the latter case. It was there held, that the officers in question were not city officers, in any constitutional sense, but officers of the district created by the act; consequently, this question was not at all in the case; and all that was said in relation to it, was entirely obiter. Whether the question, under the circumstances, would be considered open in this court, cannot now be determined. The judgment appealed from must be affirmed.

Hunt, C. J.

I am for affirmance. The law of 1867 simply changes the mode of appointment of “ commissioners of taxes and assessments of the city and county of New York,” authorizing the governor and senate to make the appointment. The act of 1859 (p. 678) authorized the comptroller of the city of New York to make the appointment of these commissioners. By the act of 1857 (vol. 2, p. 497), *the supervisors of the county of New York were directed to elect these commissioners, by ballot. Their general and important duty, under each act, was to regulate the assessable property, as is done by assessors in the country. There is a difference in the detail of the duties, but their general character is the same, under each act. In 1850 (p. 188), it was enacted, that there should be elected, by the electors of the ward, two assessors for each ward, and the supervisors were directed to appoint three tax commissioners, who^e duties were prescribed in §§ 15 to 22, being, generally, to receive, review and correct the assessment-rolls, and deliver the same to the supervisors. Previously to this time, the duties of assessors were substantially as provided in the revised statutes—the act of 1830 providing for a meeting of all the ward assessors, for the purpose of equalizing the taxes.

In effect, the legislature have divided the duties of assessors, as they existed in 1846, and have given an important part of them to commissioners of taxes and assessments. The assessors are elected by the city and county authorities, or divisions of them; and, under art. x., § 2, these commissioners must be elected in the same manner. (People v. Draper, 15 N. Y. 532; People v. Pinckney, 32 Id. 381; Warner v. People, ex rel. Jonnet, 2 Denio 272.) The present law is in violation of this principle.

Judgment affirmed.  