[3, 4] This therefore brings us to the question whether vacancies did exist in the office of alderman in the two aldermanic districts in question which the qualified voters in those districts had the right to fill at the late election. It is contended on behalf of the petitioners that the office of alderman of the city of New York is a constitutional office.

In the consideration of this question it may not be improper to divide the subject into two parts, the first of which would naturally fall under the head of a review of the offices of alderman of the city of New York and supervisor of the county of Kings in their historical bearings, and the second would be the ascertainment of the constitutional recognition and treatment of the offices and the judicial construction of such treatment. I regret exceedingly that the very limited time which I have been able to devote to the historical treatment of the question at issue (less than 48 hours) does not admit of as full an exposition of the subject as its interest and importance demand, but this is to be regretted the less as the subject has been so admirably treated by Chancellor Walworth (People v. Mayor of New York, 25 Wend. 9), by Chancellor Kent (Notes on the Charter of the City of New York, 1836), and by Surrogate Fowler (infra).

It may, however, not be amiss to note that from the earliest period in the history of the city of New York there have been officials bearing the title of aldermen who were elected by the qualified voters of the city and who exercised the law-making power on behalf of the inhabitants of the city. It is true that the territory now embraced in the aldermanic districts as to which this question has arisen was not originally embraced within the limits of the city of New York as those limits existed before the enactment of the Greater New York Charter; but the legislative power and functions of the board of supervisors in the county of Kings were for all practical purposes similar to those vested in and exercised by the board of aldermen of the former city of New York, and upon the formation of the present city of New York all of the powers and duties of the several boards of supervisors theretofore existing in any of the territory of the city of New York, and not transferred to or devolving upon administrative departments, bureaus, commissions, officers, or other functionaries were vested in the board of aldermen of the city of New York (section 1586 of the Greater New York Charter).

As will hereafter be noted, the office of supervisor in the county of Kings was established or recognized as existing as early as the year 1691. In respect of the aldermen of the city of New York, we find that although from the year 1621, when the States General of Holland made a grant of the country to the West India Company, and in 1624, when the first government of New Amsterdam was established by the appointment of Peter Minuet as director, with a council of five, in whom the supreme executive and legislative authority in the colony was placed, there were various abortive attempts on the part of the colonists who were sent over from Holland to settle in "the new and unknown world" to obtain some measure of self-government in regard to their local affairs, it was not until the year 1652 that the directors of the company granted to New Amsterdam a municipal gov150 N.Y.S.-4

ernment consisting of "one schout, two burgomasters, and five schepens to be elected by the citizens in the manner usual in this city of Amsterdam." The model furnished by the city of Amsterdam consisted of a board or college, and in this was vested the right to make all city laws and ordinances (O'Callahan, Hist. p. 210). The right, however, of the municipal body so constituted for New Amsterdam to frame laws for the city was not immediately allowed, and it was not until 1656 that the burgomasters of Amsterdam issued conditions for the settlement of New Amsterdam according to an agreement with the West India Company whereby it was provided that the "fortified place allotted for the residences of the colonists, whether we call it a city or town, respecting the police or administration of justice, and especially the matter of descents, shall be regulated in the same manner as here in Amsterdam." Hoffman's Treatise on the Corporation (1st Ed.) pp. 15 to 20.

Immediately after the conquest of New Amsterdam by the English, August 27, 1664 (O. S.), Colonel Nicolls, Deputy Governor of the Duke of York, by an ordinance declared:

"That the inhabitants of New York, New Harlem and all other his majesty's subjects inhabiting upon the island commonly called and known by the name Manhattan Island, are and forever shall be accounted, nominated and established as one body politique and corporate under the government of the mayor, aldermen and sheriff."

Judge Fowler, in his Notes and Observations accompanying the Grolier Club reprint of the Laws of New York, says (page 121):

"This ordinance is now known as the first charter of the city of New York, but it was so meager that it came to be regarded as a confirmation of prior municipal franchises and privileges. In 1673-1674 the city was again under the control of the military forces of the States General, and a quasi civil authority of the Dutch type was restored under the former designation of schout, burgomasters, and schepens. Fifteen months later the city was ceded again to the English under the treaty of Westminster. They proceeded to revive the English civic administration. In 1683 the city was divided into wards."

The first formal charter granted to the inhabitants of the city of New York was that conferred upon them by Governor Thomas Dongan on April 22, 1686. In the preamble to this charter it is recited:

"And whereas divers lands, tenements and hereditaments, jurisdictions, liberties, immunities and privileges have heretofore been given and granted or mentioned to be given and granted to the citizens and inhabitants of the said city, sometimes by the name of schout, burgomasters and schepens of the city of New Amsterdam and sometimes by the name of the mayor, aldermen and commonalty of the city of New York, sometimes by the name of the mayor, aldermen and sheriff of the city of New York, sometimes by the name of the mayor and aldermen of the city of New York and by divers other naues as by their several letters patent, charters, grants, writings, records and inmunities amongst other things may more fully appear."

This charter appointed six citizens to be "the present aldermen of the said city," and provided that they, with the mayor, recorder, and assistant aldermen, should constitute the common council of the said city, with power to make laws and ordinances for the government of the said city; and it was further provided that upon the feast day of St. Michael the Archangel yearly one alderman, one assistant alder

man, and one constable for each respective ward should be chosen by a majority of voices of the inhabitants of each ward. These provisions. were practically continued by the Montgomerie Charter of 1730.

By reference to the first edition of the Laws of the Colony of New York, printed by William Bradford in 1694, it appears, at page 43, that the mayor, aldermen, and commonalty of the city of New York for the time being in common council assembled were empowered to make ordinances regulating the laying out of new roads, for buildings, for regulating traffic and commerce, by providing for the "control and erection of buildings, streets, lanes, wharffs, docks, and allyes so that all impediments and obstructions that may retard the work may be removed." They were by the same act given powers of taxation, the removal of nuisances in the public streets of the city, the manner and order of paving the streets, regulation and placing of sewers, drains, and vaults, and to exercise the right of eminent domain for the acquisition of land required for public uses.

This important statute, which was passed by the Colonial Governor and Council with the representatives in General Assembly, was confirmed by the Privy Council on May 11, 1697. See Acts of Assembly, printed by Baskett, London, 1719, page 9. This act was unrepealed and unamended down to the time of the Revolution. See Van Schaack's Laws, vol. 1, page 8, printed in 1774.

The provisions of the Charter of the City of New York were, as is well known, expressly preserved in the first Constitution of the state of New York which went into effect under the Convention Ordinance of May 8, 1777, section 36 of the Constitution providing:

"That nothing in this Constitution contained shall be construed to affect any grants of land within this state, made by the authority of the said king or his predecessors, or to annul any charter to bodies politic by him or them, or any of them, made prior to that day, and that none of the said charters shall be adjudged to be void by reason of any nonuser or misuser of any of their respective rights or privileges between the 19th day of April, in the year of our Lord one thousand seven hundred and seventy-five, and the publication of this Constitution."

And so the right of the inhabitants of the city of New York to elect their aldermen became, by the adoption of the state Constitution, a constitutional right which the Legislature cannot impair.

Turning now to the history of the board of supervisors, we find that the county of Kings was erected by an act passed by the Colonial Legislature November 1, 1683, which contained this provision:

"Kings county to contain the several towns of Bushwick, Bedford, Brooklyn, Flatbush, Flatlands, New Utrecht and Gravesend, with the several settlements and plantations adjacent."

This act appears from the transcript of the journal in Documents. Rel. to Col. Hist. N. Y. III, 304, to have been received by the Board of Trade October 17, 1684. On May 13, 1691, an act was passed providing for the annual election in each respective town of two freeholders, who were empowered to assess a rate upon the inhabitants within their respective towns and deliver that rate upon a certain day “to a certain freeholder which shall be likewise chosen in each respective town aforesaid to supervise and examine the public and necessary

charge" of each respective county. This act was repealed by an act of the General Assembly passed October 18, 1701, which transferred the powers of the supervisors to the justices of the peace of the respective counties, but the repealing act expressly preserved the right of the common council of the city of New York to raise and levy the necsary public charges yearly and every year. By an act passed on the 19th of June, 1703, it was again provided that supervisors should be elected in each respective town. This act conferred the usual powers upon the board of supervisors in relation to the public expenses and funds, and it contained a provision that in case of a vacancy occurring by death. or resignation or otherwise the inhabitants of the town or county should proceed to a new choice for the remaining part of the year. This act was confirmed by the privy council May 20, 1708 (see Baskett, p. 69), and it continued in force until the Revolution.

By article 29 of the first Constitution of the State (1777) above referred to, it is provided that:

"Supervisors

and all other officers heretofore eligible by the people shall always continue to be so eligible in the manner directed by the present or future acts of the Legislature."

By chapter 64 of the Laws of 1788 the counties of the state were divided into towns, and it was provided that the freeholders and inhabitants of each of the said towns for the time being respectively who are or shall be qualified by law to vote at town meetings shall forever hereafter have full power and authority, and they are hereby directed and required to assemble together and hold town meetings in their respective towns on the first Tuesday in April in every year, and then and there to elect and choose one supervisor. See the act printed in Louden, pp. 136 et seq., and Jones & Varick, vol. 2, pp. 319, 333.

Supervisors continued to be recognized as constitutional officers by the second Constitution of the state, effective December 31, 1822. See section 7, art. 4, and section 15 of that article, which provided that "all officers heretofore elective by the people shall continue to be elected."

This Constitution continued in force until the adoption of the Constitution of 1846, and it was said in People ex rel. Wood v. Draper, 15 N. Y. 532-539, that by the Constitution of 1846 all county offices which before its adoption had been filled by the votes of the people continued to be elective offices and the supervisors by article 10, section 2 of that Constitution were specifically mentioned and referred to. Section 23 of article 3 of this Constitution as amended 1874, provided:

"The Legislature shall, by general laws, confer upon the boards of supervisors of the several counties of the state such further powers of local legislation and administration as the Legislature may from time to time deem expedient."

The same provisions were continued in the Constitution of 1875 (article 10, § 2).

By the Constitution of 1894 (article 3, § 26) it was provided that: "There shall be in the several counties, except in cities whose boundaries are the same as those of a county, a board of supervisors to be composed of such members and elected in such manner and for such period as is or may

be provided by law. In any such city, the duties and powers of a board of supervisors may be devolved upon the common council or board of aldermen thereof."

And it was provided in article 10, § 5:

"The Legislature shall provide for filling vacancies in office, and in case of elective officers, no person appointed to fill a vacancy shall hold his office by virtue of such appointment longer than the commencement of the political year next succeeding the first annual election, after the happening of the vacancy."

It was further provided by section 6 of said article 10:

"The political year and legislative term shall begin on the first day of January."

In reference to the provision of the sections last quoted it was held in People ex rel. Howard v. Supervisors of Erie County, 42 App. Div. 510, 59 N. Y. Supp. 476, in a case where the facts were quite similar to those in the present proceedings, that the office of supervisor was an elective office, which must be filled by the qualified voters, and that where during his term of office a supervisor duly elected died, and the common council of the city of Buffalo, acting under the authority conferred by its charter, duly elected a successor in his stead, that such successor could not hold office after the 1st of January next succeeding the next general election, although under the provisions of the charter he would have had the right to hold such office for the balance of the unexpired term of the person in whose stead he was appointed. The Appellate Division of the Fourth Department, the late Justice McLennan writing, said:

"Article 10, § 5, of the Constitution provides as follows: The Legislature shall provide for filling vacancies in office, and, in case of elective officers, no person appointed to fill a vacancy shall hold his office by virtue of such appointment longer than the commencement of the political year next succeeding the first annual election after the happening of the vacancy.' The Constitution further provides that the political year shall begin on the 1st day of January. We think the two sections above referred to dispose of the question under consideration, and it follows that the section of the charter above quoted is clearly in contravention of the section of the Constitution."

The court further says:

"Article 12, § 3, of the Constitution, emphasizes the contention of the relator. That section, which provides for the election of supervisors and other officials in odd-numbered years, expressly exempts from its terms officials elected to fill vacancies. We think, considering the provisions of the Constitution above quoted, that it is apparent that it was the purpose of the framers of the Constitution to prohibit the Legislature from depriving the electors of a town or ward in a county of the right of having a voice in the selection of its supervisor for a longer term than until the next general election, after which the office of supervisor elected by such electors should become vacant by death, resignation or otherwise. If any other construction be given to the provisions of the Constitution, it would be competent for the Legislature, by prescribing a long term of office for supervisors of counties in case of vacancies, to reorganize such boards by appointment rather than by vote of the electors."

This decision was unanimously affirmed upon the opinion just referred to in the Court of Appeals (160 N. Y. 687, 55 N. E. 1099).