People v. . Fitzgerald , 180 N.Y. 269 ( 1905 )

I concur with Judge VANN in his discussion of the first two questions presented by this appeal. I differ from him, however, as to the third question.

The power of the legislature over the official terms of municipal officers is plenary, except as limited by the Constitution. The Constitution provides that as to such officers in certain cities their official term must end with the close of odd numbered years. But there is no direction as to what time such official term shall begin. Probably if the legislature had been aware that its direction that the term of the mayor of the city of New York should contine to twelve o'clock noon on the first day of January in an even-numbered year was unconstitutional and invalid, it would have enacted that the term of the incoming mayor should commence at twelve midnight on the thirty-first of December previous. But the courts have no power to supply such a defect in legislation. It does not, however, at all follow that the outgoing mayor continued in office as a holdover until his successor's term began. The constitutional power conferred on the legislature to provide for filling vacancies in office applies only where office is vacant by some casualty such as the failure of the new officer to qualify, his death or resignation. It has no application whatever when the office is vacant simply because the legislature has so regulated official terms that it cannot be filled by the electors or the proper appointing power. Any other rule would enable the legislature to set at naught the mandates of the Constitution and — while it is settled law that it cannot extend the term of an elected local officer — enable it by deferring the election or qualification of a successor to practically extend such term by authorizing him to continue in office as a holdover.

This doctrine was held in the case of People ex rel. Burger v. Blair (21 App. Div. 213; affirmed by this court on opinion below, 154 N.Y. 734).

It follows that though there was a hiatus between the expiration of the term of the old mayor and the beginning of that of the new, the old mayor had no power during that period to discharge the duties of the office, and his appointment of defendant as justice of Special Sessions was void.

GRAY, O'BRIEN, BARTLETT and WERNER, JJ., concur with VANN, J.; CULLEN, Ch. J., concurs in memorandum; HAIGHT, J., absent.

Judgment affirmed.