Opinion
Argued June 5, 1899
Decided June 13, 1899
Elihu Root and David J. Gallert for appellants.
John Whalen, Corporation Counsel ( Theodore Connoly and Terence Farley of counsel), for respondent.
George Walton Green, the relator, was a duly appointed and acting aqueduct commissioner in the city of New York under chapter 584 of the Laws of 1888. On the first day of January, 1898, he was removed from such office by the defendant, Robert A. Van Wyck, the mayor of the city of New York, without previous notice or hearing had on charges, and without the approval of the governor. It was to review these proceedings that the writ of certiorari was issued in this case.
The power of the mayor to remove the relator depends upon the construction that should be given to the statute.
Section 95 of the Greater New York charter provides that "At any time within six months after the commencement of his term of office the mayor, elected for a full term, may, whenever in his judgment the public interests shall so require, remove from office any public officer holding office by appointment from the mayor, except members of the board of education and school boards, and except also judicial officers for whose removal other provision is made by the constitution. After the expiration of said period of six months, any such public officer may be removed by the mayor for cause upon charges preferred and after opportunity to be heard, subject, however, before such removal shall take effect to the approval of the governor expressed in writing."
The removal in this case took place within the six months after the defendant became mayor of the city, and were it not for the fact that this statute is materially modified by another provision of the charter, it would furnish the mayor with ample power to make the removal; but upon pursuing the provisions of the charter we find that section 518 provides that "Nothing in this act contained shall be deemed or construed to repeal, or in any wise affect chapter 490 of the Laws of 1883, entitled `An act to provide new reservoirs, dams and a new aqueduct with the appurtenances thereto for the purpose of supplying the city of New York with an increased supply of pure and wholesome water,' or the several acts amendatory thereof, but the said act and its amendments shall remain in full force and effect, provided that the commissioners therein specified, shall not hereafter begin the construction of any new work, except such as may be properly and necessarily appurtenant to work, the construction of which has been begun before the date upon which this act takes effect. The term of office of the commission appointed and existing under the aforesaid act shall cease and determine on the first day of January, 1901, and thereupon all papers, documents and records in the possession of the aqueduct commission shall be delivered to the commissioner of water supply, who shall continue and complete, in the manner provided by this act, all work of every kind and description whatsoever left uncompleted by the said commission." It is quite apparent that, reading these two provisions of the charter together, it was the purpose of the legislature to preserve chapter 490 of the Laws of 1883, with all amendments made thereto, independent of the charter of Greater New York, until the year 1901, and the provision of section 518 to the effect that nothing in the charter contained shall be deemed or construed to repeal or in any wise affect such statute operates to except it from the provisions of section 95, which gives the mayor the power to remove. We are thus brought to a consideration of the statutes as they existed prior to the adoption of the Greater New York charter and which have been expressly preserved by it. By chapter 490 of the Laws of 1883, as amended by chapter 584 of the Laws of 1888, section 37, it is provided that "Any of said aqueduct commissioners appointed by the mayor, or his or their successor or successors, may be removed by the mayor, subject to the approval of the governor, in the manner provided for the removal of heads of departments of the government of the city of New York, by chapter 410 of the Laws of 1882." That chapter provided that the "Heads of all departments * * * may be removed by the mayor for cause, and after opportunity to be heard, subject, however, before such removal shall take effect, to the approval of the governor, expressed in writing." (§ 108.) If this was all the legislation there was upon the subject we should have no hesitancy in concluding that the mayor exceeded his jurisdiction and that he had not complied with the provisions of the statute in making the removal in question, but, by chapter 11 of the Laws of 1895, it was provided that "At any time within six months after the commencement of his term of office, the mayor of the city of New York, elected for a full term, may, at pleasure, remove from office any public officer now or hereafter holding office by appointment from the mayor of said city, except judicial officers for whose removal other provision is made by the Constitution. After the expiration of the said period of six months any such public officer may be removed from office in the manner heretofore provided by law." This act repealed all acts or parts of acts inconsistent with the act. It will be observed that this enactment is not in terms an amendment of the law of 1883, but that its terms are broad, covering any public officer now or hereafter holding office by appointment under the mayor of the city, except judicial officers, etc., and that it repeals any inconsistent statute, and we think that it must be held that this provision, in law, operated to amend the law of 1883 so as to permit the mayor, within six months after the commencement of his term, to remove at pleasure a commissioner appointed under the provisions of that act.
The act of 1895, with some slight change, has been incorporated into the charter, becoming section 95, to which reference has already been made. Under section 1608 of the Greater New York charter it is provided that "So far as the provisions of this act are the same in terms or in substance and effect as the provisions of the said Consolidation Act, or of other acts of the legislature now in force relating to or affecting the municipal and public corporations, or any of them herein united and consolidated, this act is intended to be not a new enactment, but a continuation of said Consolidation Act of 1882, and said other acts, and is intended to apply the provisions thereof as herein modified to the city of New York as herein constituted, and this act shall accordingly be so construed and applied." The effect of this provision is to continue the act of 1895 not as a new enactment but as a continuation of the existing law. So continuing it and construing it, it appears to give the mayor the power to make the removal in question.
The order appealed from should be affirmed, with costs.
PARKER, Ch. J., GRAY, O'BRIEN and MARTIN, JJ., concur; BARTLETT and VANN, JJ., dissent.
Orders affirmed.