1907. (People v. Board, 129 N. Y. 369; Minor v. Happerset, 21 Wall. 162; High on Ex. Leg. § 643; 23 Am. & Eng. Ency. of Law, 628, n. 2; People v. Ryder, 12 N. Y. 436; People v. Perley, 80 N. Y. 625.) Removal by the governor did not have the effect of disqualifying defendant and, therefore, he was a perfectly eligible candidate, and the aldermanic election conferred upon him a perfect title to his office. (People v. Albertson, 55 N. Y. 56; People v. Draper, 15 N. Y. 561; Rathbone v. Wirth, 150 N. Y. 467; People v. Mosher, 163 N. Y. 41; People v. Tax, 174 N. Y. 431; Dillon on Mun. Corp. 9; Matter of Guden, 171 N. Y. 529; People v. Hurlburt, 24 Mich. 103; Barker v. People, 3 Cow. 686; People ex rel. Devery v. Coler, 173 N. Y. 118; Rex v. Richardson, 1 Burr. 538; People v. Dorthy, 20 App. Div. 318.)

Edward R. O'Malley, Attorney-General (Ezra P. Prentice of counsel), for respondent. Public office involves the ideas of tenure and duration as well as rights, powers, duties. and emoluments. The defendant was removed from the office of borough president for the remainder of the term for which he had been elected. (People v. Nostrand, 46 N. Y. 375; Matter of Oaths, 20 Johns. 492; Matter of Hathaway, 71 N. Y. 233; U. S. v. Hartwell, 6 Wall. 385; People v. Duane, 121 N. Y. 367; Mechem on Public Officers, § 1; Thurston v. Clark, 107 Cal. 285; U. S. v. Germaine, 99 U. S. 508; Hall v. Wisconsin, 103 U. S. 5; Aufmordt v. Hadden, 137 U. S. 310; Wardlaw v. Mayor, etc., 29 J. & S. 174; Olmstead v. Mayor, etc., 10 J. & S. 481.) The purpose of the removal section of the charter was to remedy the public evil of the continuance in office of an unworthy official. The court should construe the charter so as to effectuate the legislative purpose and obviate the evil which was the occasion of the enactment of the removal section. The charter must, therefore, be so construed as to hold the attempted appointment of the defendant to fill the unexpired term from which he had been removed illegal, null and void. (Sturgis v. Spofford, 45 N. Y. 446; People ex rel.

Opinion of the Court, per HISCOCK, J.

N. Y. Rep.] Mitchell v. Sturges, 27 App. Div. 387; Cons. Laws, ch. 47, § 38; People ex rel. Wood v. ex rel. Wood v. Lacombe, 99 N. Y. 43; Mead v. Stratton, 87 N. Y. 493; Matter of O'Neil, 91 N. Y. 516; Tonnelle v. Hall, 4 N. Y. 140; Delafield v. Brady, 108 N. Y. 524; Dibble v. Hathaway, 11 Hun, 571; People ex rel. T. T. St. R. R. Co. v. Comrs. of Taxes, 95 N. Y. 554; Burch v. Newbury, 10 N. Y. 374; Oswego Starch Factory v. Dolloway, 21 N. Y. 449.) If the charter is construed to confer upon the members of the board of aldermen the power to appoint the defendant to fill out the unexpired portion of the term from which he has been removed by the governor, the constitutional and legislative policy of this state, which confers upon localities the power of appointment or election. of local officers, but preserves accountability to the state by conferring upon the governor the power to remove, will be nullified. (Const. of N. Y. art. 10, §§ 2, 7.)

Nelson S. Spencer for committee of citizens.

HISCOCK, J. Section 382 of the charter of New York (Chapter 466 of the Laws of 1901) by its own terms and by reference to other constitutional and statutory provisions. relating to removal of county officers, provided for the removal of the defendant by the governor on charges after an opportunity to be heard in his defense, and no claim is made that all provisions for the trial and protection of the defendant were not observed in the proceeding which resulted in his removal. It is, however, somewhat argued that the provisions purporting to confer upon the governor the power of removal of defendant conflict with what are commonly known as the Home Rule provisions of the Constitution, and are, therefore, invalid. We are so agreed that this argument is not well founded, that the provisions under which the governor proceeded are constitutional and valid, and that they do not violate either the letter or the spirit of those provisions which secure and guarantee the principles of local self-government, that it does not seem necessary to discuss them.

Assuming, therefore, that the removal of the defendant was

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[Vol. 196.

entirely valid, I shall proceed to a discussion of the other questions presented for our consideration and which relate to the validity of his subsequent appointment.

This appointment, purported to be made by virtue of a provision in the same section of the charter already referred to and which reads: "Any vacancy in the office of president caused by removal from the borough, or otherwise, shall be filled for the unexpired term by an election to such vacancy made by a majority vote of all the members of the board of aldermen then in office representing said borough." Whether that is material or not, it is conceded that the word "election" in this provision is equivalent to the word "appointment." The People insist in support of this action that the removal of the defendant deprived him of his office for its entire term and that he could not be appointed to the vacancy for the unexpired term under the provisions just quoted. The appellant, on the other hand, insists that such was not the case and that by such removal neither the board of aldermen was barred from appointing him nor he disqualified from accepting such appointment.

It occurs to the mind at once that if the appellant's theory is correct and the board of aldermen was authorized to appoint him to the vacancy just caused by his removal, the legislature has solemnly enacted a statute authorizing conspicuously inconsistent acts and absurd results. It has authorized the governor to try and remove a public official as unworthy to hold office and the board of aldermen to select him forthwith as a proper person to fill the resulting vacancy. It has provided that the action of one branch of the government forthwith may be nullified by that of another; that a public official who has been punished for inefficiency and maladministration of his office may be reimbursed for his loss by appointment to the very office of which he has been deprived and that the public service, supposed to be safeguarded and benefited by his removal, may be demoralized by his immediate reinstatement. In effect it has repealed the provision in the charter providing for removal of officials for

N. Y. Rep.]

Opinion of the Court, per HISCOCK, J.

cause by another provision in the self-same section authorizing the reappointment of the man who had just been dismissed.

Such results would so offend against the principles of an orderly and efficient administration of government as well as those of ordinary common sense that no one would be likely to defend them as a product of wise legislation. But it was urged by the learned counsel for the appellant on the argument that neither his client nor the courts are responsible for ill-considered legislation and that unwise legislative enactments do not justify unauthorized judicial amendments. If the legislature has actually ordained that such results as these should be permitted, their action is final. But the principle is equally true that the obligation rests on the courts to assume that legislation was not intended to beget absurdities and to exhaust the limit of legitimate construction before aflixing to it any such consequences. The principles ordinarily governing the interpretation of statutes command us to favor a construction which is most agreeable to reason and justice, to consider the entire statute and to give effect to every clause and part thereof, thus securing a consistent and harmonious whole, and to avoid a construction which would leave any provision of the statute without effect, or which would result in a virtual repeal by implication of one provision by another. It is, however, urged that such familiar rules are not here applicable; that if the statute is so construed as to prohibit the appointment of appellant, it must be because there is read into it by implication a disqualification after removal to hold office, and that such disqualification is in the nature of a fine, forfeiture or penalty and not to be readily implied. This consideration does not appear to be necessarily involved.

The decision of this case, it would seem, may be rested on the construction of the clause giving power to the board of aldermen to fill the vacancy caused by appellant's removal, rather than on any implication in the one authorizing removal, and if this is so, there will not be involved primarily and properly any question of appellant's disqualification for or forfeiture of the right of appointment to the vacancy. The question will

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[Vol. 196.

simply be one of the extent of and limitations upon the power of appointment which the legislature intended to confer, and will be subject to the ordinary rules of statutory construction. Those rules, as has been pointed out, require us to consider the entire scope and purpose of the statute, and to consider one provision in connection with the others. When we do this, we are not justified in believing that the legislature in providing for filling a vacancy overlooked or disregarded the proceedings just authorized which might lead to such vacancy, or that it intended to permit that to be undone under one clause which had just been accomplished under another one, or that it intended to clothe an appointing board with the power to fill an office with an appointee who had just been ousted there from because adjudged to be an improper person to hold it. On the contrary, it is not only reasonable, but legally justifiable to believe that in enacting the later provision the legislature had clearly in mind the earlier one, and that in giving the power of appointment it intended to authorize the appointment of proper persons and did not intend to include the power to select a person just found to be otherwise. This exception or limitation is to be understood.

If the proprietor of a business organization should direct one foreman to investigate the conduct of a workman and discharge him if found dishonest or incompetent, and should at the same time authorize another foreman to hire some one to fill the vacancy thus arising, I suppose this latter authority. would always and reasonably be construed as permitting the employment of some new competent man and never as meaning the immediate reinstatement of one just dismissed for cause.

But if we consider this case from the standpoint chosen by appellant and assume that its decision is dependent on the construction of the removal clause and that in order to succeed the People must maintain the proposition that appellant's removal deprived him of his office for its entire term and, therefore, of the right to be appointed to the vacancy although such result was not specifically expressed, I see no reason to shrink from this test or to be doubtful of the end to which it will lead.