
    People ex rel. Weller, Resp’t, v. Charles De Kay Townsend, App’lt.
    
      (Court of Appeals,
    
    
      Filed June 1, 1886.)
    
    1. Officers—Surrogate—Term of, where elected to fill vacancy.
    Alexander Hagner was elected surrogate of the county of Queens, in November, 1879, for a term of six years, from January 1, 1880, but died April 8, 1880, and was succeeded by Garretson, under an appointment from the governor "for and during the time limited by the constitution and the law,” who served until January 1, 1881. Defendant then entered the office by virtue of election, and on January 1, 1886, relator demanded possession under an election in November, 1885. Held, that defendant was elected to the office in 1880, for the full term of six years from the first of January succeding.
    3. Same—Term of surrogate and county judge governed by same
    RULE.
    That it is impossible, by legislative enactment, to sever the modes of selection, or the terms of office of the surrogate and county judge save ih the counties of New York and Kings.
    3. Same—Law 1871, chapter 859, § 5, as amended 1881, chapter 613.
    That the act of 1881 providing that a vacancy happening in the office of county judge shall be filled for a full term of six years at the next general election thereafter, operates both to fix the status of a surrogate thus elected, and to repeal any prior legislative provisions, if any there were, repugnant thereto.
    4. Same.
    
      Held, also, that the words “where such officer shall be elected to fill a vacancy ” refer simply to the contingency out of which the necessity of an election arises, and do not attempt to limit the term for which the officers named were to be elected.
    Appeal from judgment of general term, second department, affirming judgment of supreme court in favor of plaintiff.
    
      John E. Parsons, for appellant. H. E. Sichels, for respondent.
   Ruger, C. J.

The only question presented by this appeal is whether the defendant, who was elected surrogate of Queens county at a general election in November, 1880, is entitled to a full term of six years from January 1, succeeding his election, or is limited to filling out the unexpired term of his predecessor. Alexander Hagner was elected surrogate of the county in November, 1879, for a term of six years from January 1, 1880, but, after holding the office about three months, died April 8, 1880, and was succeeded by Garret J. Garretson under an appointment from the governor “ for and during the time limited by the constitution and the law,” and Garretson duly qualified, and discharged the duties of the office until January 1, 1881. The defendant then entered the office by virtue of his election, and continued to discharge its duties until January 1, 1886, when the relator demanded possession, claiming under an election held in November, 1885, at which he received a majority of the votes cast for surrogate. This election was invalid unless the term to which the defendant was entitled by virtue of his election expired on December 31, 1885.

The office of surrogate, as it now exists, was created and organized under the judiciary article of the constitution adopted in 18'70, and the statutes passed to effectuate the constitutional intent. The portions of the constitution relating’to the present inquiry read as follows. Article six, section fifteen, provides:

“ The existing county courts are continued, and the judges thereof in office at the adoption of this article shall hold their office until the expiration of their respective terms. Their successors shad, be chosen by the electors of the counties f’or the term of six years,” " The county judge shall also be surrogate of his county, hut in counties having a population exceeding forty thousand the legislature may provide for the election of a separate officer to he surrogate, whose term of office shall be the same as that of county judge.”

In order to carry into effect these provisions, the legislature passed chapter 859 of the laws of 1811, which, among other things, provided for the election of county judges in each of the counties of the state (except New York and Kings) upon the expiration of the terms of office of the existing incumbents, and for the election of separate officers as surrogates, at the option of the boards of supervisors of the respective counties whose population exceeds 40,000. Under these provisions nearly one-half of the counties of the state elected to avail themselves of the privilege of choosing separate officers as surrogates, and the duties of the offices of county judge and surrogate throughout the state were thereafter distributed among three classes of persons, viz.: Those who performed the duties of both county judge and surrogate; those who discharged those of county judge alone, and those who acted as surrogate only. The scheme of the constitution whereby the duties of both surrogate and county judge were, in a majority of the counties of the of the state, united in the same person, rendered it imperative that their terms of office should be identical, and furnished an obvious reason for the requirement relating thereto contained in that instrument. In the case of county judges who perform the duties of surrogate, they are, by force of the constitution, none the less county judges, although they also act as surrogate, and are affected by all legislation applicable to county judges or surrogates; but, in the case of separate officers elected as surrogates, their terms of office must conform to those of all county judges, as the result of the fundamental law declaring that they “shall be the same as the county judge.”

In view of the circumstances, it will be seen how impossible it is, by legislative enactment, to sever the mode of selection, or the terms of office of one of these classes from the other, save in the counties of New York and Kings, which are in this respect excepted from the operation of the constitution. It may occur that the competency of persons to. fill the respective offices of surrogate and county judge may differ, and might require one to cease to serve in one capacity, whereas he could lawfully continue to act in the other; but this does not seem to us to present any obstacle to the enforcement of the constitutional provision as to the identity of their respective terms of office. People v. Carr, 100 N. Y., 236.

In the cases of county judges who are also surrogates, the termination of their competency as county judges would also render them incompetent to serve as surrogates, inasmuch as their right to act as surrogates is a mere incident to the office of county judge, and must terminate when their capacity to serve as county judge ceases. As to the separate officers holding the office of surrogate, the circumstance that they are authorized to continue to act as surrogate when a county judge would be ineligible to serve as such does not create any difference in their respective terms of office, or introduce any embarrassment in enforcing the constitutional scheme as to the identity of their terms of office. It would therefore seem that the language of the constitution had indissolubly wedded the official terms of all county judges and surrogates, and had thus placed the subject beyond the legislative power to effect any discrimination between these offices in that respect.

We are thus brought to the consideration of section five of the act of 1811, which it is claimed has that effect. It reads as follows:

“ Sec. 5. The separate officer elected and performing the duties of the office of surrogate, and the legal officer discharging the duties of county judge and of surrogate,' and elected at the election provided for in this act, shall enter upon their duties on the first day of January next after such election, and shall hold their office for the term of six years from said first day of January; hut when such officers shall he elected to fill a vacancy, then they shall enter upon the discharge of the duties of the office to which they have heen elected immediately upon the receipt of the certificate of such election.”

In this connection it is important to consider also the amendment of that act affected by chapter 613 of the laws of 1881, which is as follows:

“ Sec. 9. When a vacancy shall occur in the office of any county judge in any of the counties of the state (except New York and Kings), from any cause, before the expiration of term, the office shall be filled for a full term of six years at the next general election happening not less than three months after such vacancy occurs.”

Whatever provision may at any time be enacted by the legislature affecting the term of office of county judge must, if lawfully adopted, be, by force of the constitution, equally applicable to the office of surrogate. Thus the act of 1881 providing that a vacancy happening in the office of county judge shall be filled for a full term of six years at the next general election thereafter operates both to fix the status of a surrogate thus elected, and to repeal any prior legislative provisions, if any there were, repugnant thereto. Livingston v. Harris, 11 Wend., 329; People v. Bull, 46 N. Y., 57; Harrington v. Trustees, etc., 10 Wend., 541.

Although this amendment was adopted subsequent to the election under which the defendant claims, it became a law before the election of the relator, and must be regarded not only as a legislative interpretation of the act of 1811, but as determining the law of the land when the rights of the parties herein accrued. Whatever effect this amendment had upon the term of office of a county judge under the force of the constitutional requirement that the term of a surrogate shall be the same as that of a county judge, it cannot be questioned but that it had a like effect upon surrogates. The amendment, in terms, refers generally to the office of county judge alone, but this embraces not only those persons who are county judges, but also those who are also surrogates of their county. If the act of 1811 is susceptible of the construction placed upon it by the relator, we should have not only one term of office for a county judge and another for a surrogate, but also different terms for the same officer in respect to the several duties required to be discharged by him. A construction so absurd and repugnant to common sense should not be adopted if the statute is reasonably susceptible of any other meaning.

It is also well to premise that there are no considerations of public policy to be subserved, or special object to be accomplished, in preserving the periodicity of election in the case of these officers (as there was in the case of People ex rel. Mason v. McClave, 99 N. Y., 83), which requires the adoption of fixed consecutive periods for their election. The primary object of the constitution seems to have been to make the officers elective, and to give efficiency to the administration of their duties by enlarging the terms of their incumbents, and this seems to be best promoted by giving a legitimate effect to every constitutional election of such officers. In considering this question it is also important to observe that there is no express provision, either of the constitution or the statutes, which restricts the term of an elected county judge or surrogate to any other period than that of six years mentioned in the constitution, and the point presented is whether, in giving a construction to the statute of 1871, it shall be held by implication to have been intended to restrict the duration of the term in any case. The language of the section is susceptible of two constructions only, and they are presented by the respective parties hereto. The defendant claims that the words “where such officer shall be elected to fill a vacancy,” may be interpreted according to the popular signification of the language, and considered descriptive merely of the occasion for the election, and not as defining the term of office; while the relator insists that they define the Emit of the term. -Upon the success of this contention the relator’s case must stand or fall.

Although the question made has, under the aspect presented by the various statutes relating thereto, been the occasion of quite conflicting views on the part of able jurists, and may not be entirely free from doubt, yet we think, when examined in the light of the controlling effect to be given to the constitutional provisions, it is still capable of a reasonably certain solution. All of those contingencies for which the constitution either expressly or impliedly provides must be governed by its provisions, and it is only in cases expressly delegated to the legislature for its action, or when the constitution is silent on the subject, that the legislative will is controlling. An examination of the constitution inclicates certain subjects affecting the question under consideration upon which its framers have clearly expressed their will, and which are decisive, as we think, of this appeal. Thus, express provisions declare that county judges and surrogates are to be elected, and, when elected, their terms of office are to commence on the first day of January next succeeding their election and to continue for six years therefrom. The language of the constitution is broad, plain and unequivocal. The successors of the judges then in office “shall be chosen by the electors of the counties for the term of six years.” Who are the “successors” of the judges then in office ? It confessedly does not mean the immediate successor alone, but, by universal acceptation, has been held to lay down the rule not only by which the constitutional term of all successors shall be determined, but also a permanent method for their selection. People v. Carr, 86 N. Y., 514. The language applies to all of the indefinite line following the original _ incumbents, and furnishes a controlling rule on the subject, except in the special cases where the constitution provides for the filling of vacancies. Whenever a successor to a prior incumbent is to be chosen by election, his term of office is fixed at six years by the express provision of the constitution. Section 16, article 6, of the constitution provided for certain vacancies in these offices by authorizing the legislature, on the application of the board of supervisors of any county, to provide for the election of special officers to discharge the duties of county judge and of surrogate in such counties in case of their inability, or of a vacancy; and in some of the counties of the state these provisions have been availed of, and the special officers so chosen necessarily fill any vacancy occuring in the offices to discharge the duties of which they were elected. In other counties, however, vacancies in the office of county judge and surrogate must be supplied according to the general provisions regulating the mode of filling them provided by the constitution and statutes; and the county of Queens is one of such counties.

In the case of elective officers the necessity for the existence of some continuous authority to fill vacancies temporarily, in order that the performance of their duties may not be too seriously interrupted, and the inconvenience and inadequacy of any system by which such power could be exercised by the people through the medium of popular elections except at regular periods, led to the adoption of that clause of the constitution which delegated to the legislature power to make provision for such cases. The entire scope and theory of the constitution, however, requires those offices, when vacant, to be filled by the people at their regular annual election when it is possible to do so; but, when a departure from that mode ’is rendered necessary by any circumstance, the power of selection is limited to the shortest space of time possible, and a return to the elective principle at the earliest opportunity is necessitated. The constitution, therefore, provides that the legislature shall make provision for the selection of persons to fill temporarily such vacancies as may' occur in public offices, but in the case of the adoption of any other mode than that of election such power is limited to the period of time intervening between the commencement of the political year next succeeding the first annual election after the happening of the vacancy and the occurrence of the vacancy. People v. Keeler, 17 N. Y., 371; section 5, article 10, Constitution.

In the exercise of this power, it was competent for the legislature to provide, as it did by section 5 of the act of 1871, for the selection of some person to fill the office of surrogate between the occurrence of a vacancy and the first day of January thereafter; and the designation, by such section, of the persons who had been theretofore elected as surrogate did not thereby enlarge his constitutional term, but provided simply a mode of filling out a term of limited duration over which the legislature had unquestionable constitutional authority. During the period intervening between the occurrence of a vacancy happening so that an election can be held at a regular general election, and the commencement of the next political year, the constitution gives the legislature unlimited power to indicate the mode of filling it, and it is competent to provide therefor by conferring power of appointment upon the executive department, or in such other mode as in its discretion it may deem wise and prudent.

After the death of Hagner, Garretson was appointed to fill the vacancy in the office “for and during the time limited by the constitution and the laws.” It was competent for the legislature to provide that his authority should terminate upon the election of a successor, and that such successor should serve as a locum • tenens to the first of January succeeding the occurrence of the vacancy. The legislature had not, however, the power to restrict the term of a duly-elected officer whose term of office had been fixed by the constitution, or to provide any other term for a surrogate than that belonging to a county judge. A reasonable construction of the act of 1871, therefore, requires us to hold that the words “ when such officer shall be elected to fill a vacancy,” refer simply to the contingency out of Which the necessity of an election arises, and do not attempt to limit the term for which the officers named were to be elected. To hold otherwise would bring the provision in conflict with the limitations upon the legislative power imposed by the constitution (Sage v. City of Brooklyn, 89 N. Y., 200), and create an unwarrantable distinction between the terms of office pertaining to county judges who perform the duties of judge and surrogate, and those who hold only the separate office of county judge.

The interpretation thus put upon the act of 1871 not only gives it legitimate effect, but avoids a conflict with constitutional provisions, and brings the offices of county judge and surrogate into harmony, in respect to filling vacancies therein by an election, with those of judges of the court of appeals and supreme court, and also with those of sheriffs, county clerks, registers, coroners, district attorneys, and most other elective officers mentioned in the constitution. Section 1, article 10, Constitution.

It is unnecessary for us to attempt to give a construction to section 2492 of the Code of Civil Procedure, inasmuch as the board of supervisors of Queens county has not attempted to exercise the authority conferred by that provision.

These views led to the conclusion that the defendant was elected to the office of surrogate of Queens county in 1880 for the full term of six years from the first day of January succeeding, and is entitled to hold such office during that period.

The judgment of the supreme and final judgment rendered for the defendant, with costs.

All concur.  