People ex rel. Weller v. Townsend , 47 N.Y. Sup. Ct. 360 ( 1886 )

Barnard, P. J.:

Queens county has a population of over 40,000, and the office of surrogate, therein, is filled by a surrogate separately. Alexander Hagner was elected surrogate for six years, from January 1, 1880, and died in April, 1880.

In the fall of 1880, at the general election, Mr. Townsend was-elected surrogate. The question presented is whether the election was for a full term of six years or only to fill the residue of the term of Alexander Hagner. At the last general election (1885),. Augustus N. Weller was elected surrogate, and Townsend claims that there was no office then to fill. The case of The People ex rel. Rozenkranz v. Carr (86 N. Y., 512), although in some-of its features it resembles this one, has no relevancy. The office of surrogate in the city and county of New.York was subject to special laws and to a special constitutional provision in respect thereto, which controlled the case. It was held that the-special laws disposed of the argument, but the constitutional term was for six years in the city and county of New York. In this case the question must be met. By the Constitution the term of a county judge and surrogate is fixed at six years from the first of January next after the election of such officers. The legislature have power to provide for filling vacancies in these offices, but not for a longer period than the first of Januaiy, after the general election which is held after the happening of the vacancy. The argument for the respondent is that the constitutional term is six years, and that there is no vacancy after the commencement of the political year next after the happening of the vacancy, and that Mr. Townsend was, therefore, elected for six years, from January 1, 1880, and held the office until the end of 1886. The condition of the laws upon the subject is not satisfactory and justifies different conclusions, but I am led to the opinion that the office was vacant on tlie last day of December, 1885. The constitutional term is six years, but both the Constitution and the laws recognize a vacancy ra-the office. The legislature is given power to fill it and the limit of the power of withholding the question from the people is fixed. The legislature have passed no law providing for a filling of a vacancy in express terms, but by chapter 859, Laws of 1871, it was-provided that when a surrogate was elected to fill a vacancy, that the officer elected “ should enter upon the discharge of the duties of the office to which they have been elected immediately upon the receipt of the certificate of such election.” Both parties claim under this statute. Mr. Townsend, although he did not enter upon-the duties of his office until January 1, 1880, claims that such an entry upon the duties of the office after the election, was only filling-a vacancy up to January 1, 1880, when the full term commenced, and that it was within the power of the legislature to increase that, six years by the addition of the vacancy in the Hagner term. The construction seems to be a forced one. The system ,of our State government recognizes two terms of office, one for a full term and one to ñll a vacancy in sucb term. In some cases it is provided expressly that the election shall be for a full term even if the preceding incumbent had vacated his office before his full term expired. There are other cases where the same express rule is made, that the election shall be for the remainder of the term of the preceding officer. In respect to this office of surrogate the legislature has required that laws shall be passed to fill vacancies. The Laws of 1S71, which enacts that those officei’s who are elected to fill a vacancy shall at once enter upon the duties of the office, is more reasonably based upon a remnant of a term which remained from the old election of Ilagner than upon a legislative intent to add the part of the remnant between November and January, 1881. There was a vacancy in the office of surrogate of Queens county in April, 1880. The governor appointed a successor to hold according to law. By the Constitution this appointment could go no longer than 1st of January, 1881. There would then be a vacancy to be filled by popular election, and the legislature had provided that in such cases the newly elected officers should be let in at once after the election, •and Ur. Townsend should have done so by right.

My conclusion, therefore, is that the election of Mr. Weller as surrogate was good, and that the term of the respondent expired on the 31st of December 1885. It is the Ilagner term which was for 'the constitutional term of six years, and the portion left after his death is a vacancy in the Ilagner term. The office should, therefore, be given to the person who was elected in November by the people.

Pratt, J., concurred.