Ward v. Curran , 266 A.D. 524 ( 1943 )

Per Curiam.

The office of Lieutenant-Governor has become vacant through the death of the Hon. Thomas W. Wallace. The question as to whether or not a successor should be elected at the coming general election is before this court. The Albany Special Term (Foster, J.), in a proceeding in the nature of mandamus, has determined that a Lieutenant-Governor should be elected at the general election to be held in 1943 and that the Secretary of State is directed to take appropriate steps in connection therewith. An appeal has been taken from that determination..

“ The legislature shall provide for filling vacancies in office, and in case of elective officers, no person appointed to fill a vacancy shall hold his office by virtue of such appointment longer than the commencement of the political year next succeeding the first annual election after the happening of the vacancy.” (N. Y. Const, art. XIII, § 8.) The Legislature thereunder, in the Public Officers Law, has enacted “ § 42. Filling vacancies in elective offices. 1. A vacancy occurring before October fifteenth of any year in any office authorized to be filled at a general election, shall be filled at the general election held next thereafter, unless otherwise provided by the constitution, or unless previously filled at a special election.” Thereunder the election of a successor is necessary unless the Constitution has made one unnecessary. It is asserted by the Attorney-General that the temporary president of the Senate has become Lieutenant-Governor under a constitutional provision, “ * * * the senate shall choose a temporary president to preside in case of the absence or impeachment of the lieutenant-governor * * * ” (N. Y. Const, art. Ill, § 9) and therefore that an election is unnecessary. He finds support for his position in section 41 of the Public Officers Law, which authorizes the Legislature, if in session, to appoint in the event of a vacancy in the office of Comptroller or of Attorney-General, but makes no mention of Lieutenant-Governor indicating, he says, a legislative construction that a vacancy in the latter office is filled under the constitutional provision earlier quoted (art. Ill, § 9). That constitutional provision has to do only with the duty of the Lieutenant-Governor to preside over the deliberations of the Senate. The Constitution provides in detail, also, as to the duties of the Lieutenant-Governor in the event of the absence or death of the Governor. However, he has state-wide duties other than to preside over the Senate and, when necessary, to act as Governor, which should be performed by an official elected in the State at large and not by one elected by the voters of a single senatorial district, as is the case of the temporary president of the Senate. This court in Matter of Wing v. Ryan (255 App. Div. 163, affd. 278 1ST. Y. 710) said “ It is a fundamental principle of our form of government that a vacancy in an elective office should be filled by election as soon as practicable after the vacancy occurs. ” Section 42, Public Officers Law, was enacted by the Legislature under a constitutional mandate to “ provide for filling vacancies in office.” It is not limited by section 41.

The chief duty of the Lieutenant-Governor is to preside over the Senate. The officer discharging that function should either be selected by the people or by the legislative body directly affected. Thus no one would question the wisdom of the constitutional provisions. The Comptroller and the Attorney-General head separate departments of the State government, with duties requiring continual attention, easily distinguishable from those performed by the Lieutenant-G-overnor. This provides a sufficient reason for the distinction. Under the constitutional provisions and statutes mentioned, the term of office of the appointed successors would end with the “ commencement of the political year next succeeding ” the election, and the period during which the temporary president of the Senate would discharge a portion of the Lieutenant-Governor’s duties would end at the same time.

The Legislature by chapter 303, Laws of 1847, determined that under the provisions in the 1846 Constitution, similar to those in the present Constitution, the temporary president of the Senate did not succeed to the office, of Lieutenant-G-overnor. The constitutionality of the 1847 Act was not passed upon by the courts.

The order should be affirmed, without costs.