Long v. . Mayor, Etc., of City of New York , 81 N.Y. 425 ( 1880 )

The answer contains no denial of the allegations of the complaint, but sets up new matter. The plaintiff has demurred to the answer. For the purposes of the present inquiry, therefore, the allegations in each pleading are to be taken as true. It appears, then, that the plaintiff was elected and qualified as an alderman in December, 1869, and as such became a member of the common council of the city of New York. By the law then in force the term of that office was two years from the 1st of January, 1870, and the annual salary $4,000. He served until the first Monday of June, 1870, when he was superseded by an alderman elected in May, 1870, and his term of office ended by virtue of the provisions of a law entitled "An act to reorganize the local government of the city of New York," passed April 5, 1870 (Session Laws of 1870, chap. 137, vol. 1, p. 366), and which, so far as any question before us is concerned, took effect immediately (§ 36). The only question is as to the validity of the provisions of the act declaring the result above stated. For if that is valid, the plaintiff was not either de jure or defacto an incumbent of the office, and of course could maintain no action for its salary. It is claimed that the act in question shortens the duration of the plaintiff's term of office, so that the term declared by statute, in force when he was elected, to be for "two years," is made, by the act of 1870, a term for five months. We see no legal objection thereto. The office was not created by, or regulated in any manner by, the Constitution. The legislature had entire control over the matter. The office was created, its term was fixed by that body, and it could be changed by it. The law could be amended or repealed, and this was the effect of the provision of the act of 1870. A term ending at a time stated was substituted for a term limited to two years. The original term was thus shortened. The legislation was aimed at the office, not the incumbent. But however viewed, the act complained of was within the lawful exercise of power by the legislature, and within the principle frequently reiterated by the courts of this State, that a public office is not a grant, and that the right to it does not depend upon, or partake of the nature of, a contract. (Conner v. Mayor, etc., of New York, 2 Sandf. 355, 369; affirmed, 5 N.Y. 285; Smith v. Mayor, etc., 37 id. 518.)

The judgment should be affirmed, with costs.

All concur.

Judgment affirmed.