The opinion
Davis, J., dissenting.
It- is clear that the .board of commis sioners of taxes and assessments for the city and county of Hew. .York, created by ch. 302, of the Laws of 1859 (Sess. Laws, 1859.. p. 678), is a continuing and legally speaking, perpetual body. It is expressly declared by the act, that the persons to be appointed “ shall hold their offices for the term of five years,
and until others shall he appointed in their places”
so that there is no necessity for invoking the construction of courts, nor any general statute relating to continuance in office after a term shall have expired till a successor be appointed, in order to guard against a dissolution of the board by the expiration of the terms of the officers composing it.
The office of commissioner of taxes and assessments having been created by law subsequent to the Constitution of the State, it was competent for the legislature to direct the mode of appointment, subject to the provisions of the Constitution. (Const., art. 10, sec. 2;
The People
v.
Draper,
15 N. Y, 532, 538.) And where -a public office is created,
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which is
“new”
and not
“local”
in its character, as those terms are defined by this court in
The People
v.
Draper,
and no express direction as to the mode of appointment is given, there seems to be no reason to doubt that the power to appoint is devolved on the governor and senate, by force of the general provision of the Revised Statutes (1R. S., 116, sec. 4,) which declares that “ every officer, the mode of whose appointment is not prescribed by the Constitution, or is not or shall not be - prescribed by law, shall be nominated by the governor and appointed by him with the consent of the senate.” This provision was kept in force by the Constitution of 1846, except so far as repugnant thereto (art. 1, sec. 17), and must be regarded as a standing direction by the legislature of the manner of appointing all newly created officers, which the governor and senate can constitutionally appoint, where no other or different direction is given. This view is in no sense inconsistent with the theory of our government, and presents a mode of procedure orderly and consonant with law, to prevent the failure of official functions valuable to the public interests. ISTor do I question but that where the legislature have conferred a power of appointment for a special and particular occasion, which is exhausted by a single exercise, and yet provided for the continuance of the office by renewed appointments, the power thereafter to appoint, in the absence of any further legislative direction, would fall under the statute above cited into the hands of the governor and senate.. But the view I have taken of this case renders it unnecessary to discuss the question whether, under the Constitution, the power to appoint the tax commissioners could have been conferred directly upon the governor and senate. Certain it is that if this power could not have been directly given, it cannot be taken by indirection, under the statute above referred to. Besides, it is apparent that this question is at most a mere make-weight in the argument of the case, and not at all vital to its determination; for if the comptroller have the power, manifestly the governor has it not; and if the comptroller have not the power, his appointees
we for that reason i/ntiruders,
without regard to the question to whom
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the power in fact belongs. This brings us to the exact question in this case, which is, whether the power of appointment conferred by the act under consideration, upon the comptroller of the city of New York, is limited to a single term, and the vacancies that may occur therein, and exhausted when exercised to that extent; or is general, so that that officer may renew the appointment as often as the terms shall expire. The language of the act on this subject, is as follows:
“
Section 1. Immediately upon the passage of this act, there shall be appointed by the comptroller of the city of New York, three commissioners, who shall form a board and be designated commissioners of taxes and assessments, for the city and county of New York, who shall hold their office for the term of five years, and until others are appointed in their places. Any vacancy in said board of commissioners, from death or resignation, or otherwise, shall be filled by said comptroller for the balance of the term for which such commissioners are appointed.” *
This statute, as was said by Deuio, J., in
Weed,
v.
Tucker
( 19 N. Y., 433 ), of the act then under consideration,
“
is a part of the legal arrangements for carrying on the government and providing for the administration of justice among the citizens of the State, and is remedial in its character. In such cases the rule is, that if the words of a statute are not explicit, the sense is to be gathered from the occasion and necessity of the law, the defect in the former law and the designed remedy. It is to be so construed as most effectually to meet the beneficial end in view and prevent a failure of the remedy. It is to be construed liberally, in- contradistinction from a merely verbal construction—largely and beneficially— so as to suppress the mischief and advance the remedy. (Dwarris, 562, 614, 632.)” These remarks and the reasoning generally of the very clear and convincing opinion from which they- are quoted, bear more forcibly upon the question of the permanency of the board of commissioners, which, I conceive, under the phraseology of this act, can admit of no doubt; but they also guide us, in some degree, to the rule of construction to be.applied to the section under
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consideration. It is obvious that the power of appointment conferred by this section is given to the office of comptroller, and,not to the individual who happened at the moment 'of the passage of the law, to be the incumbent. The office of comptroller is a permanent one, "and to it a new duty was added by this act, which any incumbent was bound to discharge. If the person "then holding the office had died, or resigned, or been lawfully removed before any commissioners had been appointed, the duty to appoint would have fallen upon his successor, as one of the functions of his office. And so, clearly, any successor is subject to the obligation to fill vacancies that might occur during the term of the commissioners. The reasons for selecting the comptroller as the repository of this power of appointment are of little moment. It is enough for us to know that they were adequate to influence the mind of the legislature and lead it to impose upon a single officer the moral and political responsibility of making suitable selections for an office of such grave importance.
The legislature seem to have had two objects in view.in making provision for the appointment of the commissioners : first, to designate the officer to appoint; second, to enjoin upon him the duty to make the appointment without delay. It is because .these objects are mingled in a single sentence that the chief difficulty of construction arises. If the sentence be divided and transposed, the difficulty in a great degree vanishes. “ There shall be appointed by the comptroller of the city of Hew York, three commissioners, who shall form a board and be designated commissioners of taxes and assessments for the city and county of Hew York, who shall hold their office for the term of five years and until others are appointed in their places. Any vacancy in said board of commissioners shall be filled by said comptroller for the balance of the term for which such commissioners are appointed.”
These are the words which confer the power, and they give a general power to appoint commissioners, and tp keep the board they constitute filled. The office established is a perpetual one, and the persons appointed to it
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are to constitute a board which is permanent. The- primary object is to keep that board full, either by filling vacancies or by appointment to fall terms. The duty is put upon the comptroller to appoint three persons to fill a perpetual office—-that is, to keep three persons appointed by him, in that office, either by filling vacancies or by original appointments, so that the office shall at all times be filled-. The term of each incumbent is limited; but that fact does not restrict the authority to appoint. The number of commissioners is limited; but that fact has no effect upon the authority and duty to keep that number full. The terms of commissioners- appointed to fill vacancies, are to expire coeval with the full terms; but that fact, so far from restricting the power to appoint, only shows that it is the policy of the law that an opportunity shall occur to renew the entire board as often as once in five years. “ The manner of the enactment (to quote again from
Weed
v. Tucker, 19 N. Y., p. 426), is not essentially different from that ordinarily used, when the design is to establish, in perpetuity, an official or administrative agency for carrying on a portion of the public business. Examples to prove this may be found upon the most cursory examination of the Constitution and statutes of the State. The cases are quite common where the first appointment is alone provided for, and there is no express statement that it is to be repeated at fixed periods, or from time to time, as the exigencies of the case may require; yet the permanent nature of the duties, and their connection with the administrative policy of the State, show that it was not a temporary exigency which was intended to be provided for, but the establishment of a permanent system respecting that portion of the public business.” (And see the examples mentioned by Denio, J.,
ubi sup.)
These remarks fortify the view that if the section read as it is above transposed, there would be little ground for saying that the power given to the comptroller was not general and unlimited as to the number of appointments.
But does the phrase “ immediately upon the passage of this act,” which in.the law precedes the direction to appoint,
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operate to limit the authority to appoint tci full terms, to a single occasion ?
To follow out the transposition, these words, should be read after the portion of the section above quoted, and as an inde-* pendent sentence. “ Such commissioners shall be appointed immediately after the passage of this act.” Thus read, it seems to me, the intent of this phrase would obviously be not to limit the authority to appoint to a single occasion, but to enjoin its exercise forthwith.' It is apparent that the legislature thought the duty should be promptly performed, and, therefore, required an appointment to be made
“
immediately.” Hence, it is argued that, as no subsequent appointment for full terms could be made immediately, nor before the expiration of five years, the power is limited to what was required to be forthwith done. But this language seems, to me, entitled to no such force, since it can be referred to an intent to have the first commissioners appointed without delay, and since it is obvious that the board to be created is a perpetual one, clearly designed always to be kept filled by commissioners to be appointed by some officer.
If a law create a permanent office, to be filled by an officer to be appointed for a fixed term, and direct the governor to nominate and appoint such officer
“ immediately after, the passage of the aotf
it seems to me quite erroneous to say that the intent, would be manifest to restrict the power of the governor tú a single appointment; or, in other words, that the law contained a declaration of legislative will that the governor should never appoint but once. It would require in such case some negative language, or words of express limitation, to induce courts to hold that the office must fail or the first appointee hold in perpetuity, because the executive was, in legal effect, forbidden to renew the appointment.
In this case there are no words indicating clearly any intent to restrict the authority of the comptroller to appoint the commissioners, to a single exercise. On the contrary, it seems to me the power is not only given in general terms, but a command is superadded to set about its exercise with speed. “
Qui haeret i/n litera haeret i/n cortieef
is a maxim
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to be borne in mind, in construing this statute, by all who would not unnecessarily convict the legislature of setting afloat upon a sea of doubt and litigation, the title t.o offices of great practical usefulness and public interest.
Rote by the Reporter.—The court did not pass upon the question discussed by Davies, J., whether the governor and senate had authority, under the Revised Statutes, to appoint commissioners of taxes and assessments, in case of vacancies not otherwise provided for, as it was not deemed material to the determination of the case before them.
Denio, Oh. J., and Brown, J., concurred in this opinion.