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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, whether he will accept such recommendation or not. Giving this construction to the statute, we give effect to every word and line of the act. We give to the word "appointment" its common, everyday 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 use his discretion in making an appointment, or it is not an appointment in the spirit of our institutions. As we have already pointed out, the appointing power is a substitute for election, and no one would pretend that the voters of a community could be 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 all 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 chairman of a political organization. The Legislature, it is true, might have made the choice to depend upon the joint action of 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 discretion

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 of 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, 57 N. E. 88, 79 Am. St. Rep. 552.

• 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 effecting 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 an election," 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 elections, poll clerks, and ballot clerks (sections 353, 354, 355, 356, Election Law), 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 elections, ballot clerks, etc., and which are referred to in the constitutional provision now under consideration.

The order appealed from should be affirmed, with $10 costs and disbursements.

HIRSCHBERG and RICH, JJ., concur. BURR, J., concurs in result in separate memorandum, with whom JENKS, P. J., concurs.

BURR, J. 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 respect 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 "the mayor is given full authority to appoint such a board" (the board 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 naught the clear provisions of the statute. The scheme therein contained is perfectly plain and simple. In effect, it is not unlike the provisions of 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 names of individuals who will be 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 purposes of appointing a successor to the former incumbent, until such successor is duly appointed and has qualified, such incumbent would hold over and be entitled to discharge the duties of the office, and receive the salary incident thereto. Laws 1909, c. 51 (Consol. Laws, c. 47) § 5; People ex rel. Lovett v. Randall, 151 N. Y. 497, 45 N. E. 841; De Lacey v. City of Brooklyn (City Ct. Brook.) 12 N. Y. Supp. 540.

LAKE SHORE & M. S. RY. CO. v. MAHLE et al.

(Supreme Court, Special Term, Erie County. March, 1911.)

EMINENT DOMAIN (§ 231*)-COMMISSIONERS TO TAKE PROPERTY-DECEASED COMMISSIONER.

Code Civ. Proc. § 3370, provides that, after the testimony in each case is closed, the three commissioners in condemnation proceedings or a majority of them, all being present, shall determine without unnecessary delay the compensation to be paid, etc. General Construction Law (Consol. Laws, c. 21) § 41, provides that, if one of such persons as are charged with a public duty shall have died, a majority of the whole number shall be a quorum, and that a majority of a quorum, if not less than a majority of the whole number of such persons, may perform such duty. Held, that two surviving commissioners in condemnation proceedings could continue the work of the commission after the death of one of them pending the hearing, though no such power is specified in the condemnation law.

[Ed. Note. For other cases, see Eminent Domain, Dec. Dig. § 231.*]

Condemnation proceedings by the Lake Shore & Michigan Southern Railway Company against Jeremiah Mahle and another. Motion by plaintiff for the appointment of another commissioner in place of one deceased. Motion denied.

M. Spratt, for the motion.

A. B. Ottaway, opposed.

BROWN, J. By a judgment of condemnation three commissioners were appointed to appraise defendants' damages occasioned by plaintiff taking certain lands for railroad purposes. The three commissioners viewed the premises, and thereupon the plaintiff took possession and materially altered the conditions and situation of the same. Pending a hearing to take testimony, one commissioner died, and plaintiff moves for the appointment of a new commissioner in place of the decedent. The plaintiff contends that it is entitled to the judgment and opinion of three commissioners as to defendants' compensation. The defendants contend that an important item of their evidence is the general appearance, condition, and situation of the premises obtained by a view thereof by the commissioners; that, one commissioner having died, it is now impossible for a new commissioner to obtain that view; and that they would therefore be prejudiced by the appointment of a new commissioner. The defendants also contend that the surviving commissioners, being a majority of the original commission, have power and authority to complete the work of the commission, and that the appointment of a new commissioner is unnecessary for any purpose.

By section 27, 2 Rev. St. (1st Ed.) p. 555, pt. 3, c. 8, tit. 17, it was provided that, whenever three or more persons are authorized by law to perform any act, such authority may be exercised by a majority of such persons, upon a meeting of all the persons so empowered, unless special provision is otherwise made. In People v. Palmer, 52 N. Y. 83, the Court of Appeals, in discussing the effect of the death of one commissioner and the disqualification of another upon the power of the remaining three commissioners to act, said in referring to the above statute, "By death or disqualification of a portion of the commission the number of its members is reduced, and all do meet when all who are living and qualified to act come together," and the court held that a majority of the original commission could act, although the other commissioners had died or become disqualified.

It was held in Matter of Merriam, 84 N. Y. 609, that, where a body of officers are vested with authority to discharge public functions, death, absence, or disability of one of them does not deprive the remainder of the power, provided there is left a sufficient number to confer together, citing Gildersleve v. Board, 17 Abb. Prac. 206. In the Gildersleve Case the provision noted in the Matter of Merriam reads:

"Provided there is a sufficient number to confer together, and, in view of the possibility of division of opinion, to decide upon what course is to be adopted; and if the power is confided to two persons, and one of them dies, the other cannot act alone (Pell v. Ulmar, 21 Barb. 500), because there can be no conferring together in such a case. If the public duty is in

*

129 N.Y.S.-19

trusted to three, and one dies or is disqualified, I doubt if the others can act alone, as, in the event of division of opinion, there can be no decision."

The doubt suggested of the power of two surviving commissioners to act, because of the possibility of their disagreeing, is removed by the provision of section 3370 of the Code of Civil Procedure, which provides:

"After the testimony in each case is closed they (the three commissioners), or a majority of them, all being present, shall, without unnecessary delay ascertain and determine the compensation which ought justly to be made by the plaintiff to the owners of the property appraised by them."

It thus appears that a majority of three commissioners may act, all being present. If the statute means all three commissioners being present, then the surviving commissioners cannot act. If the statute means, as was stated in People v. Palmer, 52 N. Y. 83, that only those who are living are required to meet, then the two surviving commissioners can act. The apparent difficulty is easily solved by reference to section 41 of the general construction law (Consol. Laws, c. 21), wherein it is provided that, if one of such persons charged with a public duty shall have died, a majority of the whole number of such persons shall be a quorum of such body, and a majority of a quorum, if not less than a majority of the whole number of such persons, may perform and exercise such duty. So it appears that the two surviving commissioners have ample power to continue the work of the commission. There is no power specified in the condemnation law for the appointment of a successor to a deceased commissioner, and under the authorities above cited there is no necessity therefor.

Motion denied.

(70 Misc. Rep. 583.)

KIRKLAND v. NASSAU ELECTRIC R. CO.

(Supreme Court, Special Term, Kings County. February, 1911.)

1. INFANTS (§ 33*)-ALLOWANCE FOR SUPPORT-APPLICATION TO SURROGATE. All applications for allowances for an infant's support from trust funds should be made to the surrogate after the appointment of the general guardian.

[Ed. Note. For other cases, see Infants, Dec. Dig. § 33.*]

2. INFANTS (§ 33*)—ALLOWANCE FOR INFANT'S SUPPORT.

While the Supreme Court has the amplest jurisdiction in the matter under Code Civ. Proc. § 2842 et seq., the surrogate's powers relating to guardians and wards are complete, and the best interests of an infant will be subserved by remitting applications for allowance for his support from trust funds to the surrogate.

[Ed. Note.-For other cases, see Infants, Dec. Dig. § 33.*]

Action by Spencer Kirkland against the Nassau Electric Railroad Company. Application for the payment of trust funds to an infant for his support. Application remitted to surrogate.

Moses T. Barrows, for the motion.

KAPPER, J. [1] I have repeatedly stated, and so state again in this case, that there should be a general guardian of the infant's prop

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