
    In the Matter of the Application of Joseph S. Schwab, Appellant, for a Writ of Peremptory Mandamus against Edward F. Boyle and Others, as Custodians of Primary Records and as Commissioners of Elections, Constituting the Board of Elections of the City of New York, and Patrick J. Scully, as City Clerk of the City of New York, Respondents.
    First Department,
    October 5, 1916.
    Constitutional law — State Constitution, article 10, section 5, as to filling of vacancies, construed — filling of vacancy in office of president of board of aldermen of city of New York.
    The words “ elective officers ” as used in section 5 of article 10 of the State Constitution, providing for the filling of vacancies in offices, relate to officers selected by the qualified voters of the State or some political subdivision of it, as distinguished from officers selected in another way.
    One selected to discharge the duties of an elective office in case of a vacancy can only hold such office or discharge the duties connected with it until the next ensuing general election —no matter how such selection is made—whether by the Governor, mayor or board of aldermen.
    Hence, upon the resignation of the president of the board of aldermen of the city of New York, he being a constitutional officer, the vice-chairman, under section 83 of the Greater New York charter and the provisions of the Constitution, becomes clothed with the powers and duties of the president only until the next ensuing general election.
    Dowling, J., dissented, with memorandum.
    Appeal by the relator, Joseph S. Schwab, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the lYth day of August, 1916, denying his motion for a peremptory writ of mandamus restraining the defendants from certifying at the coming primary and general election in 1916 to the existence of a vacancy in the office of the president of the board of aldermen of the city of New York or calling for the election of his successor, - and further restraining them from printing any ballots containing nominations for said office, from counting any votes for said office and from receiving or printing the names of any nominations therefor.
    
      Ira J. Ettinger, for the appellant.
    
      Terence Farley, for the respondents.
   McLaughlin, J.:

The question presented by this appeal is one of law — the facts, which are as follows, being undisputed.

At an election held in the city of New York in November, 1913, one George McAneny was elected president of the board of aldermen for a term of four years beginning January 1, 1914, and expiring December 31, 1917.

At an election held in the seventh aldermanic district of such city in November, 1915, one Frank L. Dowling was elected a member of the board of aldermen for a term of two years beginning January 1, 1916, and expiring December 31, 1917. On the third of January following the commencement of his term of office he was, under a provision of the Greater New York charter (Laws of 1901, chap. 466, § 23) made vice-chairman of the board of aldermen. This section provides that‘ The board of aldermen shall elect a vice-chairman to preside over its meetings, who shall possess the powers and perform the duties of the president of the board of aldermen, when the president is sick, absent or under suspension, or while the president of the board of aldermen is acting as mayor, or when a vacancy occurs in said office, and who shall, during such time, be a member of every board of which the president of said board of aldermen is a member by virtue of his office.” On the 31st of January, 1916, McAneny having resigned, Dowling, by virtue of this section, became invested with ‘‘ the powers [to] perform the duties of the president of the board of aldermen.” Section 18 of the charter (as amd. by Laws of 1912, chap. 131), relating to the board of aldermen, or so much of it as is pertinent to the question involved, provides that ‘‘ The board of aldermen shall consist of members elected one from each of the aldermanic districts * * * and of the president of the board of aider-men * * *. The president of the board of aldermen shall be chosen on a general ticket by the- qualified voters of the city at the same time and for the? same term as herein prescribed for the mayor. * * * The aldermen shall be elected at the general election in the year nineteen hundred and one, and every two years thereafter. The term of office of each member of the board of aldermen shall commence on the first day of January after his election, and shall continue for two years thereafter. The phrase, all the members of the board of aldermen, wherever used in this act, shall be taken and held to mean all the members of said board, including the president of the board of aldermen and the presidents of the several boroughs. The phrase, members elected to the board of aldermen, wherever used in this act, shall be taken and held to mean all the members of said board, except the president of the board of aldermen and the presidents of the several boroughs. Any vacancy which may occur among the members elected to the board of aldermen shall be filled by election by a majority of all the members elected thereto, of a person who. must be of the same political party as the member whose place has become vacant; and the person so elected to fill any such vacancy shall serve for the unexpired portion of the term.”

The question presented by the appeal is whether a vacancy - will exist in the office of the president of the board of aldermen on the 31st of December, 1916. If so, then the same must be filled at the ensuing general election. If such vacancy will exist, then the order from which the appeal is taken is right and should be affirmed. If, on the other hand, Dowling’s term as president of the board does not expire until December 31, 1911, the time when McAneny’s term would have expired had he not resigned, then there is no vacancy and the order is erroneous.

Section 5 of article 10 of the Constitution of the State provides that “The Legislature shall provide for filling vacancies in office, and in case of elective officers, no person appointed to fill a. vacancy shall hold his office by virtue of such appointment longer than the commencement of the political year next succeeding the first annual election after the happening of the vacancy.”

In People ex rel. Deitz v. Hogan (214 N. Y. 216) the court held that members of the board of aldermen were constitutional officers and the filling of vacancies in that office was governed by the section of the Constitution above quoted. Therefore, under this section of the Constitution, as construed by the Court of Appeals, Dowling, at the time he was made vice-chairman of the board, was a constitutional officer. He had been elected by the qualified voters of the seventh alder-manic district. His term of office was two years, which was neither increased nor diminished by the fact that he was made vice-chairman of the board of aldermen. As an incident to and connected with his selection as vice-chairman, in case of a vacancy, he became its acting president, but in doing so he did not cease to be a constitutional officer. He was still a member of the board of aldermen, the office to which he had been elected. The words “elective officers,” as used in the Constitution, relate to officers selected by the qualified voters of the State, or some political subdivision of it, as distinguished from officers selected in another way. One selected to discharge the duties of an elective office, in case of a vacancy, can only hold such office or discharge the duties connected with it, until the next ensuing general election—no matter how such selection is made — whether by the Governor, mayor or board of aider-men. This, it seems to me, the constitutional provision clearly contemplates — its purpose being to enable the qualified voters to select their own officers.

When, therefore, McAneny resigned, Dowling, solely by reason of his selection as vice-chairman, became clothed with the powers to perform the duties of the president, but he only possessed such powers until the next ensuing general election, when it will be for the qualified voters of the city to say who shall be president of the board of aldermen.

If this view be correct, then it follows that the order is right and should be affirmed.

Clarke, P. J., Soott and Smith, JJ., concurred; Dowling, J., dissented.

Dowling, J. (dissenting):

I dissent upon the ground that the action taken by which Alderman Dowling became vice-chairman of the board of . alderman was an election, and not an appointment; that when, by operation of law (Greater New York Charter [Laws of 1901, chap. 466], § 23), upon the resignation of President McAneny, Dowling became invested with the power to perform the duties of president of the board of aldermen, he was not “ appointed ” to the latter position, but succeeded to it by reason of his incumbency of his prior elective position. There being, as I view the situation, no “appointment ” to office and no “person appointed ” thereto, the provisions of article 10, section 5, of the Constitution do not apply, and it was not necessary to fill a vacancy in the office of president of the board of aldermen at the ensuing general election.

I, therefore, favor reversing the order appealed from and granting the relief sought by petitioner.

Order affirmed, with ten dollars costs and disbursements.  