In re Haase

The only question to be determined upon this appeal is whether or not the respondent Haase is the chamberlain of the city of Elmira, and, therefore, entitled to the books and papers of that •office. His claim that he is is based upon his appointment by the common council March 23, 1903, and upon the alleged unconstitutionality of the Laws of 1903, chapter 8, so far as it provides for the extension of the term of office of the appellant to the 31st day of December, 1903.

It has been repeatedly held that a statute extending the term of office of a local officer was equivalent to. an appointment to office by the Legislature, and Was, therefore, void as counter to the home Tule provision of the Constitution, article 10, section 2. (People ex rel. Fowler v. Bull, 46 N. Y. 57; People ex rel. Williamson v. McKinney, 52 id. 374; People ex rel. Le Roy v. Foley, 148 id. 677 ; People ex rel. Lovett v. Randall, 151 id. 497 ; People ex rel. Eldred v. Palmer, 154 id. 133.)

Nor is it seriously contended by the appellant that this principle is not firmly established in the law of this State, but it is insisted in his behalf that while a law extending his term of office, standing alone, may be beyond the legislative power, yet here such extension was a mere incident of constitutional legislation -and can, therefore, be upheld. It is urged that the real object of the amendment was to change the date of the municipal election from' March to November and to make it concurrent with the general election, and that the extension of the term of office was simply an incident to such general purpose and should be upheld with the rest of the act. But that proposition carried to its conclusion is that a law unconstitutional as to a minor or incidental part, but constitutional in its principal features, should nevertheless be upheld as a whole— the *245maximum of good and constitutional legislation with the minimum of bad. I cannot give my assent to that doctrine. The Special Franchise Tax cases (People ex rel. Metropolitan St. Ry. Co. v. Tax Comrs., 174 N. Y. 417, revg. 79 App. Div. 184) are cited as authority for the proposition. I do. not so understand those cases. While it was in effect said in their course through the courts that the act brought in question there, so far as it authorized the assessment of special franchises by the State Board of Tax Commissioners, was an immaterial invasion of the Constitution, and that to declare it valid required only a minor or unsubstantial infraction of the organic law, the decision finally rested upon the conclusion that the act was not an invasion or infraction of the Constitution at all. The cases are, therefore, not an authority for the appellant’s contention. More than this, the case of People ex rel. Fowler v. Bull (supra) is an authority against it. In that case there was brought in question an act (Laws of 1866, chap. 217) extending the term of office of the justice and of the clerk of the District Court in the eighth judicial district of the city of ¡New York, which extension was but an incident of a general scheme to make the terms of office of all the justices and clerks of all the districts expire at the same time, and the act, so far as it provided for an extension of the term of office, was held to be unconstitutional and void.

The Constitution (Art. 10, § 2) secures to cities the selection of their own officers, and the legislative act in question here, so far as it assumes to extend the term of office of the appellant, being an infringement of a right so secured, cannot stand.

The appellant having been, on March 12, 1900, appointed chamberlain for a fixed term of three years, his term of office expired March 12, 1903, and at the close of that day his office was vacant for the ‘ purpose of choosing a successor. (Public Officers Law [Laws of 1892, chap. 681], § 5 ; People ex rel. Lovett v. Randall, supra.)

The charter, in its provisions relating to city officers, their election and appointment, provided for “ one chamberlain *' * * who shall be appointed by the mayor and common council.” (Laws of 1894, chap. 615, § 4, as amd. by Laws of 1895, chap. 371, § 1.) It also provided that “ the mayor and aldermen o'f the city shall constitute the common council thereof.” (Laws of 1894, chap. 615, *246§ 20.) These provisions of the charter were not affected by the amendments made by Laws of 1903, chapter 8. It was the duty, therefore, of the common council, constituted as it was of the mayor and aldermen, to appoint a successor to Lowman as chamberlain when his term of office expired. The common council were, therefore, acting within the law when they passed the resolution which they did on March 23, 19Ó3, appointing Haase, the relator, city chamberlain, to succeed Lowman. The resolution- appointing Haase did not assume to fix the term for which he was appointed, nor is the question presented for our determination on this appeal. It is sufficient for us.to hold that he was lawfully appointed, and, he having duly qualified as required by law, is entitled to the books and papers belonging to the office.

The order should be affirmed, with costs. '

All concurred ;■ Parker, P. J., and Chase, J., in result; Smith, J., not sitting.

Order affirmed, with costs.