Opinion
Submitted February 11, 1932
Decided March 3, 1932
Appeal from the Supreme Court, Appellate Division, First Department.
Arthur J.W. Hilly, Corporation Counsel ( William E.C. Mayer, Willard S. Allen and J. Joseph Lilly of counsel), for appellants.
Samuel D. Smoleff for respondent.
This is a taxpayer's action to restrain the payment of salary to the defendant Swift, a member of the Board of Health of the city of New York.
Section 1549 of the Greater New York Charter (Laws of 1901, ch. 466) provides as follows: "Any person holding office, whether by election or appointment, who shall, during his term of office, accept, hold, or retain any other civil office of honor, trust, or emolument under the government of the United States (except commissioners for the taking of bail, or register of any court), or of the State (except the office of notary public or commissioner of deeds, or officer of the national guard), or who shall hold or accept any other office connected with the government of The City of New York, or who shall accept a seat in the legislature, shall be deemed thereby to have vacated any office held by him under the city government. No person shall hold two city or county offices, except as expressly provided in this act; nor shall any officer under the city government hold or retain an office under the county government, except the office of supervisor, or when he holds such office ex officio, by virtue of an act of the legislature; and in such case shall draw no salary for such ex officio office."
The defendant Swift was appointed on March 6, 1929, a member of the Board of Health of the city of New York, and took and subscribed the statutory oath of office. At that time he was a trustee of Hunter College of the city of New York (Greater N Y Charter, § 1140), a member of the Hunter College Teachers' Retirement Board (Greater N.Y. Charter, § 1146, subd. B 1), and a member of the Board of Higher Education of the city of New York (Laws of 1926, ch. 407), and these offices he retained or attempted to retain after his appointment to the Board of Health. The judgment under review decides that the effect of his assumption of the new office was not merely a forfeiture of the old ones, but a forfeiture of the new one too ( 231 App. Div. 597, 604).
The offices occupied by Swift in the educational system were offices "connected with the government of the City of New York" within the meaning of the statute. True indeed it is that education is a State or governmental function. This does not mean that one fulfilling such a function is invariably a State as distinguished from a city officer ( Lewis v. Board of Education, 258 N.Y. 117; Matter of Hirshfield v. Cook, 227 N.Y. 297; Public Officers Law, § 2; Cons. Laws, ch. 47). A member of the police force fulfills a State or governmental function ( Maxmilian v. Mayor, 62 N.Y. 160; Wilcox v. City of Rochester, 190 N.Y. 137), yet this does not mean that membership in the police force is not an office connected with the government of the city ( People ex rel. Bolton v. Albertson, 55 N.Y. 50). One has only to read the names of the departments of the city government in the table of contents of the charter in order to see that the functions of many of them are State and governmental as well as municipal and local.
We think the result of an acceptance by Mr. Swift of the new office of member of the Board of Health was to terminate his tenure of the offices previously held. We are unable, however, to give our assent to the conclusion of the courts below that he not only lost what he had previously held, but never effectively acquired what was given in exchange for them. The thought back of the statute is that a member of the city government shall not hold more than one office at the same time. We strain the statute to the breaking point when we interpret it as meaning that by the mere acceptance of the new office he vacated the old ones, and yet also by retaining the old ones vacated the new.
The judgment of the Appellate Division and that of the Special Term should be reversed, with costs in the Appellate Division and in this court, and the motion denied with ten dollars costs.
CARDOZO, Ch. J., POUND, CRANE, LEHMAN, KELLOGG, O'BRIEN and HUBBS, JJ., concur.
Judgments reversed, etc.