
    In the Matter of the Application of James Kane, Appellant, for an Order Directing the Issuance of a Peremptory Writ of Mandamus against William J. Gaynor, Mayor of the City of New York, Respondent, to Appoint the Petitioner Herein One of the Commissioners of Election of the City of New York, Representing the Democratic Party.
    Seeond!Department¡
    April 28, 1911.
    Election Law — election commissioners in New York city — discretions . ary power of- appointment in mayor —certificate by chairmen of county committees mandamus — constitutional law.
    While it is within the power of the Legislature in creating a new State office to confer a power of appointment, on some individual or association other than a public officer or body, such* a course is exceptional, and nothing,will be présumed-by the courts in that direction.
    The appointment of publijc officers contemplates a voluntary act on the part of. the appointing power, and it is -imp'ossible to dissociate the idea of discretion from the power. , . '
    
    The mayor of the city of ifew York is not required to appoint as election commissioners of that city those whose names have been certified to -.him by the chairmen of ijhe New York and Kings county committees of ,the two principal political parties.
    The purpose Of sections 190-196 of the Election Law is to provide for a bipartisan election board;in New York city, and the mayor is given full authority to appoint the poard. ,
    The power given- to the mayor by section.193 to “ appoint four persons as commissioners,” each cjf whom shall be a resident and qualified voter of New York city and not more than two of whom shall be of the same political opinion, is not curtailed in any way by section 194- providing that the respective chairmen.óf the-county committees of New York and Kings counties of each of I the two principal political parties shall make and file with the mayor! a certificate in a stated form certifying the name of one who is recommended as a fit and proper person to be appointed commissioner, j
    The purpose of section 194 ¡is to make provision for pointing out to the mayor persons who are ¡eligible so that there may be no pretext for violating the bipartisan- plan of the statute.,
    It is never the province of mandamus to control a discretionary power, and. one who has been certified by the chan-man of the Democratic committee of Kings county for the office of commissioner of elections is not entitled to the writ to compel his appointment by the mayor.
    The .provision-of the Statej Constitution that “all officers, whose offices may hereafter be created by law, shall be elected * ■* *, or appointed, as the Legislature may ¡direct.” contemplates that whoever is vested with the appointing power is to exercise discretion in making a choice. <■
    It is not competent for the Legislature to create an .office and vest the appointing power in the mayor of a city and then take from him the' discretion which is involved in the power pf appointment as that word is used in the State Constitution.
    Section 6 of article 2 of the State Constitution has no relation to’boards of election created for the purpose of performing in large cities duties, with. some additions, which are generally imposed upon county clerks and similar officers.
    Burr, J., and Jems, P. J., dissented, in part, with opinion.
    Appeal by the petitioner, James Kane, from an order of the Supreme Court,- made at the Kings County Special Term, and entered in the office of the clerk of the county of Kings on the 9th day of March, 1911, denying the petitioner’s motion for a peremptory writ of mandamus.
    The opinion delivered at Special Term is reported in Matter of Kane (71 Misc. Rep. 163.)
    
      Charles H. Kelby, for the appellant.
    
      Terence Farley [Louis H. Hahlo and Archibald R. Watson with him on the brief], for the respondent.
   Woodward, J.:

The petitioner applied to this court at Special Term for a peremptory, writ of mandamus to compel the respondent to appoint him to the office of commissioner of elections in the city of New York, and this application has been denied. The petitioner appeals to this court, and the question here presented is whether, under the provisions of section 194 of. the Election Law (Consol. Laws, chap. 17; Laws of 1909, chap. 22), the respondent was bound to appoint the petitioner, the latter having been recommended by the chairman of the Democratic county committee of Kings county, as provided in that section.

While it will not be questioned that it is within the power of the Legislature, in creating a new State office, to confer a power of appointment on some individual or association other than a public officer or body (Sturgis v. Spofford, 45 N. Y. 446, 450), such a course is exceptional, and nothing will be presumed in that direction. The appointment of public officials is generally looked upon as involving the executive power; it clearly contemplates a jvoluntary act on the part of the appointing power (Marbury v. Madison, 1 Cranch [U. S.], 137, 155), and it is impossible to dissociate the idea of discretion from the power. To appoint without discretion would be a mere ministerial act, and entirely jtakes away the essential element of .an appointment, which is but a substitute for an election, the. Constitution providing that “All other" officers, whose election or appointment is ndt projvided for by this Constitution, and all officers, whose offices may hereafter be created hy law, shall be elected by the people, j or' appointed, as the Legislature, may direct.” (Art. 10, § 2.)An election contemplates- a free choice of public officers, and án, appointment, being a mere substitution for an election, must necessarily involve the same idea, and we are not to look jto the Legislature, to direct anything which is inconsistent with this fundamental element of an appointment.. If there it should be expressed is anything of the- kind in the statute in clear and unequivocal language; we ought not to read anything into the statute for the. purpose of producing such a result: Tried by this test, is there anything in- the Election Law which requires the mayor of the city of New York to appoint jan election commissioner who has been designated by the chairman of the Democratic county committee of Kings county; where is the direction of the Legislature that he shall become a mere ministerial officer) doing the bidding of a voluntary organization?

Section 190 of the Election Law provides that “There shall be a board of elections! in every city'of the first, class in this State which does, or shall, contain within its boundaries one or more counties. The saill board shall consist of four persons to be known and designated as commissioners of elections.” Section 191 of the same act provides that “All such commissioners of elections shall be appointed by the mayor of the city, and shall hold office for a term of two years, except ‘as hereinafter provided.. Each of the said commissipners of elections shall be at the time of his appointment a resident and a qualified voter of such city. "x" * * | A commissioner of elections may be removed from office byj the governor for cause in the sanie manner as a sheriff. Any vacancy in the office of commissioner of elections shall be filled by the mayor of the city within five days after the vacancy has been created, and the person appointed to fill such vacancy shall hold office during the remainder of the term.” These provisions are clearly broad enough to cover the city of New York, which is a city of the first class containing “ within its boundaries one of more counties, ” and the power of the mayor to fill the offices thus created is full and complete, as well as'for the filling of vacancies, and then section 192 provides for the organization of boards, etc., and section 193 provides: “ The mayor of the city pf New York shall appoint four persons as commissioners of elections for the full term of two years beginning at twelve o’clock noon of January first in each odd numbered year, each of whom shall be a resident and qualified voter of the city of New York and not more than two of whom shall belong to the same political party or be of the same political opinion on State or national politics.”

Clearly, up to this point there is no limitation upon the power of the mayor to appoint, except that the appointees shall be resident voters of the city, and “not more than two of whom shall belong to the same political party or be of the same political opinion on State or national politics,” section 196 of the act declaring it to be the “intention of this article, and said intention is hereby declared, to secure in the appointment of the members of the board of elections established by this article, equal representation of the two political parties which at the general election next preceding such appointment cast the highest and the next highest number of votes for governor, and of which the committees arid chairmen of committees have been duly elected as such under and in pursuance of the provisions of article three of this chapter relating to primary elections.” Here we have a clear exposition of the purposes of the statute; it is to provide for a bi-partisan election board in the city of New York, and the mayor is given full authority to appoint such a board; nothing whatever is said about any one sharing in this responsibility, by advice or consent, or by way of nomination. The real question, then, is whether these provisions of the statute are modified, so as to practically take this appointing power, so fully declared, from the mayor, and vest it in the chairmen of the two dominant political parties in the city of New York. If such a modification of the power of selection was intended, we should naturally expect it to be fully and clearly stated, and yet nowhere within the limits of séction 194 of the Election Law is there any suggestion that any one other than the mayor is to have the power of appointment or of nomination, and the legitimate purposes of the statute may be fully'served and promoted by giving to the language its obvious meaning. Section 194, in which, if at all, the power' contended for by the petitioner must be found, reads as follows: .

“At least five days before the first day of January'in each odd-numbered year, the respective chairmen of the county committees within the counties of New York arid Kings of each of the two political parties which at the general election last pre- ' ceding the date of such certificate cast the highest and the next highest number of votes for governor, shall each respectively make and file or cause ‘to be filed with the mayor of the city of New York, a certificate in substantially the following form, each of which four certificates shall certify the name of a person who is a resident and qualified voter of the city of New York and who is recommended as a fit and proper person to be appointed a commissioner of elections for the term of two years beginning with the first day of January next ensuing:

“ To Honorable.......:., .
“ Mayor of the City of New York.
“I, ........, chairman of the county committee of the ........ party, for the county of ........, do hereby, in accordance with the provisions of section two hundred and four of the Election Law, certify that in my opinion and in the opinion of the said committee,........, a resident and qualified elector of .the borough of........, city of New York, is a fit and proper person to;be appointed a commissioner of elections, and I do hereby recommend him for appointment to said office. In witness whereof, I have made and executed this certificate, this .... day of......, 19...” This section then provides that the certificate shall be duly acknowledged.

There are some ambiguities in this section. Is each chairman of a county committee Of a dominant party to make four certificates? The section does not say so; it says that the “respective chairmen * * * • of the two political parties * * ' * shall each respectively make and file * * * a certificate in substantially the .following' form, each of which four certificates shall certify the name of a person who is a resident,” etc. Is each chairman to make two certificates? The section does not say so; it provides that each shall respectively make and file or cause to be filed with the mayor, * * * a certificate in substantially the following form,” and the form given only provides for the recommendation of one person, and there is no provision for making and filing any other'certificate, unless this is to be inferred from the provision that ‘ each of which four certificates shall certify the name of a person,” etc. But there is no authorization of more than one certificate from each Of two political parties, and upon this review there is only .one certificate before us, which is that of James D. Bell, chairman of the Democratic county committee of Kings county, recommending the appointment of the petitioner, and there is no allegation or suggestion that any other certificate was made and filed with the mayor, though he is called upon to appoint four commissioners, not more than two of whom are to belong to the same political party. Probably the fair construction of this statute is that each chairman of a political committee of a dominant party shall make one certificate for each of the two places to be filled by the appointment of the mayor from his political party, but there is nothing in the statute which would prevent the chairman of the Republican county committee from certifying that the petitioner was a resident and qualified elector of the borough of Brooklyn, and that he was a fit and proper person to be appointed. The certificate is not required to allege that the person recommended is a member of the same political party as the chairman who recommends him, or that he is a member of either political party, yet the statute clearly requires the mayor, in making his- appointments, to confine his selections equally to each of the two leading parties, and the evident purpose of- the provisions of section. 194 was not ■ to further limit the appointing power, but to make provision for pointing out to the mayor persons who are eligible, to thé ¿nd that there could be no pretext for violating the bi-partisan plan of the statute! If each of the two leading parties pointed out to the mayor two men who were satisfactory tb the regularly constituted party organization, then there could he no reasonable excuse for -quibbling over the matter, and j if the mayor • went outside of these recommendations and' appointed other persons, he would assume the responsibility of a compliance with' the provisions ' of the statute that not ¡more than- two- of them should be a member of the same party. Had the statute provided that each chairman of-a dominant political-party should certify four members of his own party, so that there'would be room for the exercise of discretion in the selection, there might be some force, to the contention that it .was the duty of the mayor to make the appointment from among the names so certified in -behalf of each party, ,biit this would give no individual a right to a peremptory writ of.¡mandamus to compel his own appointment; the- most that could be done would' be to compel the mayor to act — to appoint some two of such persons, but it is never the province of mandamus to control a discretionary power. The'statute hajs,' however, made no such provision; the most that can be spelled out. of it is that. “ each of whicli four certificates ■ shall certify the name of a person * * * who ■ is , recommended [as a ■ fit and proper person to be appointed,” etc., and as [four persons are to be appointed, and no reference is made to 'any more than four certificates, it .is plain that the. whole purpose of section 194 of the Election Law is to impose the dirty of recommending two fit and proper persons from each of - the two leading political parties upon the chairmen of the county committees of such parties. All of the-language of the section jis consistent with a recommendation" for an appointment, while it is wholly lacking -in. any of the elements of an authorization of an appointment, by the chairmen of these committee^, ■ and- nowhere is there any express language calling upon [the mayor to make an' appointment from the names thus recommended. The language of ■ the section is that these chairmen shall each respectively make and file or caused to b^ filed with the mayor of the city of New York, a certificate j in substantially the following -form, each of which four certificates shall certify the name of a person who is á resident find qualified voter of the city of New York and who is recommended as a.fit and proper person to be. appointed a commissioner of elections, ” and the statutory form of the certificate provides that the person named “is a fit and proper person to be'appointed a commissioner of elections, and I do hereby recommend him for appointment to said office.” A statutory duty to recommend for appointment is not a command to the mayor to appoint such person so recommended; it is merely advisory, and is provided for the purpose of making certain that the mayor will have before him persons who are recognized as representatives of their respective parties, but the statute will be searched in vain for any provision which makes it the duty of the mayor to appoint these persons. If he did appoint such persons he would undoubtedly be relieved of all responsibility for the political character of such appointees, but this is far from holding that there is such a clear .legal obligation resting upon the mayor to appoint each person so certified as to entitle the petitioner to a writ of mandamus.

That this is the correct construction of the statute, and that the .mayor is not limited to persons certified,' is clearly evidenced by the provisions of section 195 of the Election Law, which provides that in the event of a vacancy the chairman of the party committee in which the vacancy occurs, and in the district in which the vacancy shall exist, “ shall make and file or cause to be filed with the mayor of the city of New York, a certificate in substantially the form and executed and acknowl-' edged as above provided, certifying and recommending the name of a person, who is a resident and qualified voter of said city, as a fit and proper person to be appointed a commissioner of elections for the unexpired term of the commissioner creating such vacancy. At least two days’ time, after a vacancy has been created, for the making and filing of the certificate above provided for, shall be afforded by the mayor, before making any appointment to fill such vacancy, to the person upon whom the duty is imposed hereunder to make said certificate and file the same or cause the same to be filed.” No suggestion is made that the mayor must appoint such person; he must merely permit of a delay of two days for the filing of such certificate, the purpose being always to have one proper person pointed out by an authoritative representative of the party organization, leaving it to the mayor to determine in the exercise of the prerogative of appointment whethe'r-.he will accept such recommendation Or not. Giving this construction to the statute we give effect to every word and line óf the act; we give to the.word “ appointment” its common, every-day meaning — the exercise of a discretionary choice — and to the word “recommend”^ its full significance. The chairman of each political party names two men who are recommended for appointment, and the mayor, in the fulfillment of his obligation to make' the appointment, determines whether he will appoint those whom the party organization recommends or those who have been recommended to his attention through other channels.. Charged with the duty of appointment, with no limitation upon the use of that word, the mayor has no right to appoint any one against his own. judgment of the proprieties, for he must úse his discretion in making an appointment, or it is not an appointment in the spirit of our institutions. As wS have already pointed out, the appointing power is- a substitute for election, and no one would pretend that the voters of a community could he said to have had an election where they were limited in their balloting to four men for four positions, each of these four men having been designated by others. When the Constitution provides that “All other officers, whose election or appointment is not provided for by this - Constitution,, and ah officers, whose offices may hereafter be created by law, shall be elected by the people, or appointed, as the Legislature may direct,” it contemplates that whoever is vested with the' appointing power is to exercise the discretion of making a choice, and when the statute declares that the “mayor of the city of New York shall appoint four persons as commissioners,” etc., the duty of making a. choice was constitutionally vested in the mayor, and that duty precludes the idea of his being obliged to accept the recommendation of 'the ch-airnkan of a political organization. The Legislature, it is true, might have made the choice to depend upon the joint action óf the mayor and the chairmen of these political, committees; it might have made, it depend upon the advice and consent of these chairmen, or of one of them in the case of each party representative-. Indeed, it might have made the appointing power to vest in any officer, group of officers or citizens, but wherever the appointing power vested, it must be that appointing power which is a substitution of election, and it must involve the element of a discretionary choice. It is not competent for the Legislature to create an office and vest the appointing power in the mayor of a city and then take from that officer the discretion which is involved in the power of appointment, as that word is used and understood in the Constitution of this State. Once the power of appointment is pointed out, it carries with it the elements off the appointive power under the provisions of section 2 of article 10 of the Constitution, and the statute now under consideration having declared that the mayor shall appoint these commissioners of election, it is not the province of this court to. place such a construction upon subsequent provisions of the statute as shall defeat this power and make it rest in voluntary political organizations owing no legal duties to the State. (See, generally, People ex rel. Balcom v. Mosher, 163 N. Y. 32, 39.)

The suggestion that this question is governed in any degree by the provisions of section 6 of article 2 of the Constitution seems to us without merit. The history of that provision and its language clearly indicates that its design was to provide for those local election boards which were familiar to all the people and were common to every voting district, and it has no relation whatever to boards of election created for the purpose of performing in large cities the duties, with some additions, which are generally imposed upon county clerks and similar officers. The language of the section is limited to “all laws creating, regulating or affecting boards of officers charged with the duty of registering voters, or of distributing ballots at the polls to voters, or of receiving, recording or counting votes at elections,” and "clearly none of these duties are cast upon the board of elections of the city of New York. These are the duties imposed by statute upon inspectors of election, poll clerics and ballot clerks (Election Law, §§ 353, 354.; Id. § 355, as amd. by Laws of 1910, chap. 428; Id. § 356), while the duties of the board of elections of the city of New York are to execute “ the laws relating to all elections held within their respective cities, except as otherwise provided by law.” The duties of election boards are the same in the city of New York as in other parts of the State ; they are “otherwise provided by law,” and the board of elections has nothing to do with the discharge of the duties which are prescribed for inspectors of election, ballot clerks, etc.,' and which jare referred to in the constitutional provision now under Consideration.

The order appealed frojm should be affirmed; with ten. dollars costs and disbursements.1

Hirsohberg and Rich, JJ., concurred; Burr, J., concurred in result in separate memorandum, with whom Jenks, P. J., concurred. . ! .

Burr, J. (concurring): |

I concur in the result in this case. I think that the mayor is not a mere ministerial] officer to register the will of a County committee, and to appoint as one of the commissioners of election any person designated by such committee, even although' such person may be eminently qualified for the position. Under the limitations hereinafter suggested, he is entitled to exercise his. own judgment in rfespect thereto. For that reason the relator cannot succeed in! this proceeding.

I do not'wish to be understood as assenting for one moment to, the- proposition contained. in . the opinion of Mr. Justice Woodward that “themjayor is given full authority to appoint such a board; ” (the boaijd of election commissioners) without “ any one sharing in this responsibility, by advice' or consent, or by way of nomination ”. To so hold seems to me to set. at ms of the statute. The scheme therein - lain and' simple. . In effect it is not unlike the provisions ofj many- other .statutes' which require that an appointment shall be made by one individual or body of. individuals, subject to] the approval of another individual or body of individuals. The fact that the approval precedes instead of succeeds the action of the appointing power makes no difference in the principle. The county committee in effect signifies to the mayor that it will approve of his appointment of a designated person. He may not choose to. make such appointment. Upon being advised of the fact, the committee must continue to propose the name's of individuals who will be naught the clear provisio: contained is perfectly p approved by it until one is proposed which the mayor is satisfied to appoint.

There is no force in the suggestion that this may lead to. a vacancy in the office. Self-interest would require the county committee to use its best endeavors to propose an acceptable person. It is impossible to conceive of a situation where the mayor of a great city could not, with full sense of his own responsibility as the appointing power, find from some of the persons thus designated one who possessed the requisite qualifications for the office as he viewed them. While after the expiration of a designated term the office may be deemed vacant for the purpose of appointing a successor to the former incumbent, until such successor is duly appointed and has qualified, such incumbent would hold over and he entitled to discharge the duties of the office, and receive the salary incident thereto. (Public Officers Law [Consol. Laws, chap. 47; Laws of 1909, chap. 51], § 5; People ex rel. Lovett v. Randall, 151 N. Y. 497; De Lacey v. City of Brooklyn, 12 N. Y. Supp. 540.)

Jerks, P. J., concurred.

Order affirmed, with ten dollars costs and disbursements.  