
    The People of the State of New York, Plaintiff, v. Thomas W. Fitzgerald and Appleton L. Clark, Defendants.
    
      New York city — appointment, by the mayor thereof, of a justice of the Court of Special Sessions who holds office “ until the thirty-first .day of December ” — the ma/yor whose term begins January first, and, not the mayor, whose term empires at midnight of December thirty-first, may make the appointment.
    
    Thomas W. Fitzgerald, in January, 1898, was appointed justice of the Court of Special Sessions of the second division of the city of New York to hold office “ until December 31st, 1903.” The appointment was made pursuant to section 1401 of the Greatfer -New York charter (Laws of 1897, chap. 378), which provides that the appointees shall “hold office until the thirty-first day of December” of certain specified years mentioned in that section, one of which was the year 1903, in which Fitzgerald’s term of office ended.
    December 39, 1903, Low, the then mayor of the city of New York, assumed to appoint one Clark to succeed Fitzgerald. On January 1, 1904, in the forenoon, • Low assumed to deliver another certificate of appointment to Clark. On the afternoon of January 1, 1904, McClellan, the then mayor of the city of New York, appointed Fitzgerald to succeed himself.
    Section 1406 of the Greater New Yoi;k charter provides that any vacancy in the office in question shall be filled by the mayor ‘ ‘ within thirty days after its occurrence.”
    Section 94 of the Greater New York charter provides that the mayor of the city of New York “shall hold his office for the term of two years commencing at noon on the first day of January after his election.”
    
      Held, that the word “until,” Used in that part of section 1401 of the Greater New York charter which-provides that the incumbent of the office in question should “hold office until the thirty-first day of December,” was a word of inclusion, not of exclusion, and that Fitzgerald consequently held office until midnight on the thirty-first day of December;
    That, even though the word “until” were construed as exclusive, Clark's • appointment on December 39, 1903, was void, as, under section 1406 of the charter, the vacancy could not be filled until after it occurred;
    That section 94 of the Greater New York charter, providing that the mayor’s term of office should commence at noon on the first of January after his election was in conflict with the’constitutional provision that the terms of municipal officers “shall expire at the end of an odd-numb'ered year; ”
    That, consequently, Mayor Low’s term expired at midnight on December 31, 1903, and that his attempt, oh the forenoon of January 1, 1904, to appoint Fitzgerald’s successor was ineffective;
    That the power to appoint Fitzgerald’s successor vested in McClellan.
    Laughlin, J., dissented.
    Submission of a controversy upon an agreed statement of facts, pursuant to section 1279 of the Code of Civil Procedure.
    
      
      John G. Milburn, for the defendant Fitzgerald.
    
      John S. Davenport, for the defendant Clark.
   O’Brien, J.:

This case comes before the court in the form of a submission of a controversy under section 1279 of the Code of Civil Procedure. The State, acting through the Attorney-General, is a party authorized to join in and agree to the submission under the provisions of subdivision 7 of section 52 of.the Executive Law (Laws of 1892, chap. 683), added by chapter 179 of the Laws of 1904. The actual controversy is between the defendants and relates to their rival claims to the office of justice of the Court of Special Sessions of the second division of the city of New York. The facts conceded by the submission, and which are material to the determination of the rights of the respective claimants, are as follows : The defendant Fitzgerald, in the month of January, 1898, was appointed justice of the court mentioned to hold office “ until December 31st, 1903; ” and he entered upon the discharge of the duties of that office and continued in office until the expiration of his term. The appointment was made pursuant to the provisions of section 1401 of the Greater New York charter (Laws of 1897, chap. 378) then in force which specifically provides that appointees to the Court of Special Sessions of the second division of the city of New York shall hold office until the thirty-first day of December of certain designated years, one of them being the year 1903, which was the year of the expiration of Mr. Fitzgerald’s term. On the 29th of December, 1903, Mr. Low, then mayor of the city of New York, appointed the defendant Clark a justice of the Court of Special Sessions for the second division of the city of New York “ for the term of ten years which ends on the 31st day of December, 1913, to succeed Thomas W. Fitzgerald whose term of office expires December 31st, 1903."

On receiving this certificate and on the 29th day of December, 1903, Mr. Clark took and signed the oath of office and it was filed the same day with the clerk of the city of New York. On the 1st day of January, 1904, at five minutes past ten o’clock in the morning, Mr. Low, claiming to act as mayor of the city of New York, made and delivered to Mr. Clark another certificate of appointment in which it is stated that the appointment is of Mr. Clark as “a Justice of the Court of Special Sessions of the Second Division of the City of New York, for the term of ten years which ends on the 31st day of December, 1913.” Mr. Clark again on January 1, 1904, took and signed the oath of office and filed the same with the clerk of the city of New York on the 4th of January, 1904.

In the afternoon of January 1, 1904, Mr. McClellan, then mayor of the city of New York, executed in writing and delivered to the defendant Fitzgerald a certificate of appointment to the office of justice of the Court of Special Sessions of the second division of the city of New York and in that certificate it is stated that Mr. Fitzgerald is appointed “ Justice of the Court of Special Sessions in and for the Second Division of the City of New York to succeed himself and until the 31st day of December, 1913, to take effect immediately.” Mr. Fitzgerald qualified on the day of his appointment, has since held and is now in possession of the office.. Mr. McClellan had qualified as mayor.of the city of New York by taking the oath of office on the 24th day of December, 1903, and such oath signed by him was filed with the clerk of the city of New York on the 24th day of December, 1903.

It will be observed from this statement of facts that the crucial question to be determined here is, whether Mr. Low while he held the office of mayor had the power of appointment to fill the vacancy which occurred by the expiration of the term of Mr. Fitzgerald. The solution of this question depends in the first place upon the ascertainment of the time at which the term of Mr. Fitzgerald, who was the incumbent on the 29th day of December, 1903, ended. If it ended during the mayoralty of Mr. Low, and the mayor was then authorized to appoint, then the appointment of Mr. Clark on the 29th day of December, 1903, would have been effectual; and if for any reason that appointment of December twenty-ninth were ineffectual and Mr. Low were still mayor of the city of New York until midday on the 1st day of January, 1904, then his appointment on January first would have conferred a hood title to the office on Mr. Clark.

According to the text of section 1401 of the Greater New York charter the justices of the Court of Special Sessions of the second division of the city of New York, as stated, are to hold office until the thirty-first day of December ” in the years mentioned in that section. The first question presented, therefore is whether the word “until” is to be construed as a.word of exclusion.

Standing alone and used in its ordinary acceptation we think it is exclusive; but read in connection with other sections of the charter and the evident intent of the Legislature to provide against vacancies occurring by lapses, we think it is to be construed as inclusive so as to have the justices appointed hold until the end of the day named which would be midnight on the thirty-first of December.

Apart, however, from this question, we think that even though we construe the word “ until ” as “ exclusive,” it would not help the defendant Clark. It was sought to appoint him on the 29th day of December, 1903, and again between midnight of the thirty-first of December and noon of January 1, 1904. With respect to the twenty-ninth of December appointment, section 1406 of the revised charter (Laws of 1901, chap. 466) provides that “any vacancy in said office shall be filled by the mayor of said city by appointment within thirty days after its occurrence.” The statute thus provides the time when the appointment shall be made and hence we do not think those authorities are controlling wherein appointments were made before the expiration of a term of office for an additional term, and where no statute specially stated the time when the appointment should be made. Thus with respect to the assignments of justices of the Supreme Court to act as justices of the Appellate Division by the Governor, neither at common law nor by any statute is there a requirement that the term of one justice of the Appellate Division should expire before another can be appointed; and, therefore, an appointment properly made before the term expires would be valid because there is no statute which restricts the right of appointment to the happening first of the expiration of the term. In other words, where an official having the right of appointment is. not by statute required to make it at any definite time, then if he should make it prior to the expiration of the term the appointment would be good assuming that the one making the appointment would be in office and would have the right to make it when the term actually expired. Where, however,. as here, the statute expressly prescribes the time when the appointment shall be made, an appointment prior to that time would be invalid. We think, therefore, that the appointment by Mayor Low on December twenty-ninth was ineffectual.

As to the second appointment made on January first by Mr. Low" before midday, it is true that section 94 of the revised charter provides that the mayor “ shall be elected * * * and shall hold his office for the term of two years commencing at noon on the first day of January after his election.” The two years would undoubtedly carry the term of the mayor to noon of January first, because the language is clear and unambiguous. The State Constitution (Art. 12, § 3), however, expressly provides that all elections of city officers shall be held on the Tuesday succeeding the first Monday in November in an odd-numbered year and the term of every such officer shall expire cut the end of an odd-numbered year.” Each year ends on December thirty-first at midnight; and we do not think the contention is sound which would fix on January first at noon as the ending of the year. Such a construction would be an arbitrary fixing of a time in conflict with the universal and generally accepted view of the time when the year ends. If we could by construction extend the year to January first at noon, why not with as much reason fix on the second or the third of January at noon ? We must, therefore, in the absence of language justifying a different'construction conclude that .in speaking of the end of the year the Constitution intended to fix it at that point of time which is generally and universally accepted as the date and point of timé that ushers out.the old year. The attempt, therefore, of the Legislature to extend the term beyond midnight of the old year (which would be the undoubted construction to be given to the language employed in section 94 of the revised charter), cannot be successful because violative of the constitutional provision. Wé think, therefore, that the appointment on the morning of January first was also ineffectual.-

Our conclusion is that Mr. Fitzgerald’s term did not expire until midnight of December thirty-first; that the mayor had no power to appoint a successor until the expiration of such term.; that the term of Mayor Low expired with that of Mr. Fitzgerald at midnight of December thirty-first, and it was not, therefore, within his power to make an appointment to the office in question; and that the mayor who was.legally in office after the expiration of Fitzgerald’s term was Mr. McClellan, who took office on January 1, 1904.

We have not overlooked the contention that this would leave an interregnum between midnight of December thirty-first and noon of January first, when there was apparently no mayor of, the city. If this contention could be supported, it would by no means be conclusive of the question. There are other portions of the revised charter which provide as to the officer who under such circumstances shall fulfill the duties of the office of mayor. However, we are not concerned as to whether there was or was not an officer who during such an interregnum could discharge the duties of mayor or whether the Legislature did or did not leave a lapse in the terms of the mayors, our conclusion as to the law being that Mr. Low’s term expired with Mr. Fitzgerald’s term at midnight on December 31,1903, and that the appointment could only be legally made by the mayor who after that time was in office. Mr. McClellan being concededly the mayor on January 1, 1904, when he appointed Mr. Fitzgerald to the vacant office of justice of the Court of Special Sessions of the second division of the city of New York, and Mr. Fitzgerald having properly qualified, it follows that Mr. Fitzgerald and not Mr. Clark was duly appointed to and is entitled to the office, and that there should be judgment accordingly in his favor.

McLaughlin and Hatch, JJ., concurred; Laughlin, J., dissented.

Patterson, J. (concurring):

I concur in the conclusion reached by Mr. Justice O’Brien in this matter, but only on the ground that Mr. Fitzgerald’s term of office did not expire until midnight of December 31, 1903; that Mayor Low’s term of office expired at the same time, and that hence there was no vacancy in the office of justice of the Court of Special Session's for the second division of the city of "New York that could be filled by Mayor Low. '

I do not concur in the view of Mr. Justice O’Brien that the power of appointment is restricted by the statute to one made after the expiration of the term of office of the justice. On. the contrary, I think that if Mr. Fitzgerald’s term had expired during the mayoralty of Mr. Low, an appointment made in anticipation of the expiration of the term would have been valid, but as the terms of office of Mr. Fitzgerald and of Mayor Low both expired at midnight of December 31, 1903, Mayor Low was powerless to appoint Mr. Fitzgerald’s successor.

Laughlin, J. (dissenting):

I agree with Mr. Justice O’Brien that the term of office of Mr. Justice Fitzgerald did not expire until midnight of the 31st day of December,-1903, but I am of opinion that the vacancy could be filled by an appointment in. advance, provided the official making the appointment remained in office at the time the vacancy arose.

I atii also of the. opinion that the provision of section 94 of the revised charter (Laws of 1901, chap. 466), that the term of office of the mayor shall expire at noon on the first day of January is not in conflict with the provision of section 3 of article 12 of the Constitution.' The primary purpose of this provision of the Constitution was to provide for the election of local officers in odd numbered years, in order to separate those elections from elections more directly involving the principles of the respective political parties. The provision ■ that the term of city officers “ shall expire at the end of an odd numbered year ” does not require a literal construction. This was inserted to the end that the election of the successor might occur in the odd numbered year, and to fix a time when the term of office should'expire in order to carry out that provision. If for convenience or to perpetuate a custom, the Legislature saw fit to provide that the term should expire a few hours after midnight of the last day of the odd numbered year, that would not be in conflict with the spirit and intent of this constitutional .provision. For all practical purposes the term of office would' still expire at the end of the year. The custom has prevailed from time immemorial in the office of the chief executive of the nation, of the State and of the mayors of cities for the outgoing official to be in his office at a- particular time to gre.et the incoming official and formally to turn over the affairs of office to" him.. This custom, it may be assumed, was known to the members of the Constitutional Convention who approved this constitutional provision for submission to the People. The provision of the revised charter for. the expiration of the term of office of the mayor at noon oñ the first, day of January was enacted subsequent to the adoption of the constitutional provision that the term of office of such an officer-should expire at the end of an odd numbered year. It is safe to say that more than half the members of the Legislature who participated in the enactment of this provision of the revised charter participated also in the deliberations of the Constitutional Convention that framed this constitutional provision.

I am of opinion, therefore, that the provision of the revised charter is constitutional and valid, and that the appointment of Clark by Mayor Low was lawful and that he is entitled to the office.

Judgment ordered for defendant Fitzgerald.  