
    In the Matter of the Application of George Scott Towne, Respondent, for a Peremptory Writ of Mandamus against Eugene H. Porter, as Commissioner of Health of the State of New York, Appellant.
    
    Third Department,
    November 11, 1908.
    Public health — constitutional law — statute authorizing State Commissioner to appoint local health officers — municipal corporations — reappointment of local officer in anticipation of vacancy. '
    As neither the election nor the appointment of the health officer of a village is provided for by the State Constitution, he must, by virtue of section 2 of article 10, be elected by the electors of the Village or appointed by the authorities thereof. Hence, section 20 of the Public Health Law, requiring the State Commissioner of Health to appoint such officer on the nomination of the local board of health, is unconstitutional, and being unable to act, mandamus does not lie to compel him'to approve a nomination.
    Where a municipal officer is appointed in anticipation of a vacancy, the appointment is good only if the appointing officers are still in office when the vacancy occurs. Hence, where a village board reappointed a health officer in anticipation of the expiration of his term, and prior to such expiration the membership of the hoard was increased, the new board has the power of appointment although it contains a majority of the prior hoard.
    As section 20 of the Public Health Law does not prescribe the method by which an increase in the membership of a village board of health shall he made, any act showing an intention to increase the membership is sufficient,, as the election ■ of additional members.
    Appeal by the defendant, Eugene H. Porter, as Commissioner, etc., from an order of the Supreme Court, made at the Albany Special Term and entered in the office of the clerk' of the county of Albany on the 21st day of August, 1908, granting a peremptory writ of mandamus. *
    This is a proceeding to compel the defendant, as Commissioner of Health of the State, by mandamus, to approve the nomination of the relator as health officer of Saratoga Springs, and certify it-to the State Civil Service Commission for non-competitive examination. The court at Special Term has directed the issuance of such writ, and from the order making such direction the defendant has appealed. The facts, briefly .stated, are as follows :
    On April 19,1904, one Dr. Moriarta was appointed health officer of the village of Saratoga Springs for the term of four years. That term expired April 19,. 1908. By section 4 of the village charter (Laws of 1866, chap. 220, as amd. by Laws of 1895, chap. 247, § 2) members of the different municipal boards and commissions and such other officers as are provided for by law are made officers of the. village. On April 1, 1908, the Saratoga board of health consisted of three members, Fitzpatrick, McCarthy and Rourke. On that day at a special meeting of the board it nominated. Dr. Moriarta for the position of health officer for another term of four years, and certified his nomination to the State Commissioner of Health. At a meeting of the board of trustees of the village held on April 6, 1908, which was the first meeting held after the annual election of the village in that year, three new members, Bloom, Connors and Maines, were elected as members of the board of health, one in place of McCarthy whose term expired the next day. The effect of this election, if valid, was to increase the number of members of the board of health from three to five. On April seventh this new board of health nominated the relator," Dr.. Towne, as health officer, and certified his nomination to the State Commissioner. The two old members declined to vote, as they had previously voted for Dr. Moriarta. The nomination of Dr. Towne was certified to the defendant by the new board, but he refused to approve such nomination on the ground that he had already appointed Dr. Moriarta health officer for another term. This proceeding followed.
    
      Edgar T. Brackett and Alec H. Seymour, for the appellant.
    
      John A. Slade, for the respondent:
   Chester, J.:

*The theory on which this writ has been' issued is that the respondent performs under the law a ministerial duty with respect to the competency and qualifications of a local health officer; that the appointment of such officer "is made by the local board of health and that the act of the respondent in appointing Dr. Moriarta is void.

Of course, we cannot in this proceeding determine the validity or invalidity of the title of Dr. Moriarta to the office, as he is not" a party. Nor is the proceeding instituted for that purpose.

Yet the question of the right of the local board to proceed to the nomination of the relator, Dr. Towne, at the time it did, is involved and indirectly included in that is the question of the validity or invalidity of the acts of the local board on April first in relation to Dr. Moriarta.

The board of health on April 1,1908, as then constituted, assumed to nominate Dr. Moriarta as health officer for another term of four years. At that time there was no vacancy in the office, as the term he was then holding had not expired, and did not expire until April nineteenth.

It was held in People v. Fitzgerald (180 N. Y. 269) that an appointment to office in anticipation of a vacancy therein is good only in case the officer making the appointment is still in office when the vacancy occurs.

If a new board of health came in existence on April sixth, that board, therefore, was exclusively vested with the power of nominating the health officer for the new term. ■

The respondent urges, however, that the number of the members of the board of health was not legally increased from three to five, and that as two, constituting a majority of the old board, remained in office after the seventh day of April, the nomination of Dr. Moriarta, made on April first, was valid. The claim that the number of members of the board of. health was not legally increased is based . upon the fact that no formal resolution was passed by the board of trustees of the village increasing the number, and that to simply go through the form of electing a sufficient number to make the membership consist of five instead of three was not effective to make a lawful increase in the membership. The statute authorizing the trustees to increase the number of members is section 20 of :the ■ Public Health Law, as amended by chapter 225 of the. Laws of 1907. • .That section does not prescribe the method by which the increase ■may be made and, therefore, it seems plain that any act on the part .of . the board showing their intention to increase the number is. sufficient. That intention was shown when they elected a sufficient number to increase the. membership to five. If that reasoning is correct, it also does away with the claim.„of the respondent that because two of the old members of the board were in favor-of the nomination of Dr. Moriarta, his nomination was as effective,'made on the first of April, as .if it had been made on the seventh.

We think, therefore, there was nothing in the way to prevent , 'the-new-board from nominating the relator as health officer on April, seventh.

The important .question presented for determination, however, t. is whether, the respondent as Commissioner of Health of the State is charged with ¿my duty under, the law with respect to the. appointínent or qualifications of the health officer in question.

Section 20 of the Public Health Law (Laws of 1893, chap. 661, as last amd. by Laws of 1907, chap. 225) provides in part as. follows: “The State Commissioner ef Health shall- appoint for each municipality except in the cities of the State on the nomination of the local board of health, a competent physician, not ,a member of the local board of health, to be the health officer of the munic- . ipality. ■ The term" of office of the health officer shall be four years and he shall hold office until the appointment of his successor. If a local board of health fails to nominate a physician for appoint^ ment to the position of health officer within thirty days after' the expiration of the term of office of the health officer, or if a vacancy in the office is not filled within thirty days, the State Commissioner of Health shall appoint a competent physician .to the position, or,, should a local board of rhealth nominate a physician for appointment; ...'to the position of health officer, who, in the judgment of the State Commissioner of Health, is not properly qualified for appointment to the. position, the Stpte Commissioner of Health shall notify the local ■ board o,f health of such fact, and thereupon such local board-of health shall within thirty .days from the date of such, notice ■ present t’o the State Commissioner of Health the name of another physician for appointment to the position'of health officer, failing in which,the State Commissioner of Health shall appoint a physician to the position.”

The constitutionality of the provision authorizing the State Commissioner of Health to appoint health officers in municipalities is challenged.

This provision was inserted in said section 20 by the amendment thereto made in 1903. (Laws of 1903, chap. 383.) Prior to that amendment the section provided that the appointment should be made by the local -board of health.' (See Laws of 1902, chap. 339.)

It is expressly provided in the statute that the office is local in character. In another provision of said section 20 it is provided that “ There shall continue to be local boards of health and health officers in the several cities, villages and towns of the State.” In section 21 of the Public Health Law (Laws of 1893, chap. 661, § 21, as amd. by Laws of 1907, chap. 189) it is provided that “Every such local board shall prescribe the duties and powers of the local health officer.” ■

It was held in Matter of Board of Health (43 App. Div. 236) that members of a board of health in a village were municipal officers, and it was stated that “ while a board of health enforces State laws, it does so only within the political subdivision of the State for which it is appointed.”

The Constitution, in section 2 of article 10, provides that “ 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 and villages, or of some division thereof, or appointed by such authorities thereof, as the Legislature shall designate for -that purpose.”

Neither the election nor appointment of health officers is provided for by the Constitution. The attempt in the provision quoted from the statute is to confer the appointment of these local officers upon a State officer. In People ex rel. Bush v. Houghton (182 N. Y. 301) it was held that the members of the board of health of the city of Oswego were local officers within the meaning of the provision of the Constitution quoted, and must be appointed by the local authorities. The same principle applies here. The constitutional provision is clear and explicit, and if lieed was given to its mandate, it was not within the power of the Legislature to confer upon the State Commissioner of Health the power of appointment of. these officers. If, as we have concluded, the provision .of the statute authorizing the respondent to appoint local-health officers is void, so also are the clauses contained in. the paragraph above quoted from section 20 of the Public Health Law devolving certain duties upon him with respect to the competency and qualifications of applicants for appointment, for these clauses Were clearly inserted therein for the sole' purpose of enabling him properly to exercise the power of appointment if he possessed it.

If these views are correct, the respondent has no duty under the law with respect to "the appointment, competency or qualifications of local health officers and, therefore, the writ inquestion was improp-. erly granted.

The order should be reversed, with costs, and the writ quashed, without costs.

All concurred.

Order reversed, with costs, and writ quashed, without costs.  