sider an act of the legislature extending the term of an elected officer, and Judge FOLGER'S opinion in that case presents with great force the public considerations which require the condemnation of such legislation. It was regarded as subversive of the principles of the elective system and contrary to the true interpretation of the Constitution. The act of 1896 is in effect an attempt on the part of the legislature to appoint to office, and by its fiat, without the concurrence of the electors, to protect the present incumbent in the possession of an office for a term for which he never has been elected, unless, indeed, the wholly inadmissible claim of the appellant can be maintained, that the electors voted for the present district attorney for a term, to be thereafter fixed by the legislature, of two or four years. This contention ignores the plain meaning of the constitutional provision, and also one of the canons of construction applicable as well to Constitutions as to statutes, that provisions prescribing power or giving authority are to be construed, in the absence of a clear intention to the contrary, as conferring power or authority to be exercised in respect to the future, and not as to transactions already consummated. Having reached the conclusion that the act of 1896, so far as it assumed to fix the term of the present incumbent of the office, was invalid as an exercise of the power conferred by the Constitution upon the legislature to fix the term of office of the district attorney, it remains to consider whether, in the absence of legislation, the Constitution itself fixed the term of the present incumbent. We are of opinion that, until the legislature acted, the terms of county officers elected in the counties of New York and Kings must be deemed to be two years, which, as to future cases, may be extended to four years if the legislature shall so prescribe. The legislature had the option to prescribe either one or the other of the two periods. But not having exercised it, the minimum period should be taken as the duration of the term. This construction gives effect to the constitutional provision requiring elections for municipal officers and county officers in New York and Kings counties to be held in an odd numbered year. It fixes the term at the only period which with certainty was included within the intention of the electors, and prevents any hiatus in the incumbency of county offices. It enforces the public policy that the term of office of an elected officer shall be fixed before the election. It renders fixed and stable the terms of office and prevents an exercise of legislative power in legislating an incumbent in or out of office upon partisan considerations. It leaves to the legislature the unrestricted right to prescribe for the future the duration of the term at the minimum or maximum period. While the construction we adopt is not free from doubt, it is most consistent with the principles of the elective system and the uniform policy upon which the courts have acted in dealing with analogous conditions. It is to be observed that sheriffs, county clerks and registers are in the same category as district attorneys in art. X, sec. 1, of the Constitution. If the act of 1896 was a valid exercise of legislative power, then the sheriff and register of Kings county to be elected this fall may have a two or four years term as the legislature may hereafter prescribe, for up to this time no legislation has been enacted prescribing the duration of their terms. Every consideration of public policy demands that no such demoralizing condition of the public service should be permitted and we are all satisfied that the Constitution does not require it. That part of the act of 1896 which prescribes a term of four years for the office of district attorney, from and after December 31, 1899, is separable from the other provisions and is, we think, a valid fixing of the terms of this officer to be elected in that and subsequent years. The term of the officer to be elected this year will be two years, terminating December 31, 1899. The statutory and constitutional authority for holding an election for district attorney in Kings county the present year is ample. The statute prescribes that a general election shall be held in November of each year. The Constitution, article XII, sec. 3, prescribes that elections for the offices mentioned therein "shall be held on the Tuesday succeeding the first Monday of November in an odd numbered year." Whatever officers are to be elected may be voted for at the ensuing election. We concur in most of the views and in the conclusions in the opinion below, and the order appealed from should, therefore, be affirmed. All concur. Order affirmed. See also Indianapolis Brewing Co. v. Claypool, 149 Ind. 193, supra, on the power of the legislature to fix the term of an office. THE PEOPLE EX REL. KINGSLAND V. PALMER. Court of Appeals of New York. January, 1873. Appeal from an order of the General Term of the Supreme Court in the first judicial department, reversing an order of special term denying a motion for a writ of peremptory mandamus and directing that a writ issue. ALLEN, J. The objections made on behalf of the appellant to the order appealed from will be noticed in their order. 2. The next objection is that the accounts are not properly certified. The labors were performed between June 1, 1864, and February 28, 1866, and were certified after the latter date, by a single certificate, signed by all the commissioners in office at the time. One of the commissioners named in the act died October 10, 1863, and another ceased to be a resident of the state in 1864; and the last meeting of the commissioners he attended was July 12th of that year. The remaining commissioners united in the certificate. It is not claimed that the commission ceased to exist whenever a vacancy occurred, or that the power of the remaining commissioners was suspended until the vacancy should be filled. In People v. Nostrand, 46 N. Y. 375, the act under which the question arose (Laws of 1869, chap. 905) required vacancies to be filled, as they occurred, by appointment; and the court held that a vacancy existing, the power of the remaining commissioners was suspended until an appointment should be made. Here there is no provision for a vacancy, or for the appointment in place of any commissioner who should die, refuse to act, resign or remove from the State. The three commissioners still in office having joined in the certificate, the presumption is that the act was regularly done, and at a meeting of all. Downing v. Rugar, 21 W. R. 178. That those who gave the certificate could act, although the other commissioners had died or become disqualified, see the authorities cited by Judge Cowen, at page 182 of the case cited. A grant of power, in the nature of a public office to several does not become void upon the death or disability of one or more. Such a grant of power is not in the nature of a private franchise which, when granted to two, without words or survivorship, might not, by the rules of the common law, survive the death of one. But the policy of the law is to guard against the failure of a public service and therefore, by statute, it is provided that whenever any power, authority or duty is confided by law to three or more persons, and whenever three or more persons or officers are authorized or required by law to perform any act, such act may be done and such power, authority or duty may be exercised and performed by a majority of such persons or officers upon a uniting of all, unless special provision is otherwise made. 2 R. S., 555, S. 27. In certain cases a majority may act, when all have been notified to attend a meeting of those entrusted with the power. By death or disqualification of a portion of the commission the number of its members is reduced, and all do meet when all who are living and qualified to act come together. The order appealed from must be affirmed, with costs. All concur. Order affirmed. KREIDLER V. STATE. Supreme Court of Ohio. December, 1873. DAY, C. J. The prosecution was founded on section 13 of the act of March 8, 1831, "for the punishment of certain offenses therein named." S. & C. 429. The section enacts, "That if any person shall take upon himself to exercise or officiate in any office or place of authority, in this state, without being legally authorized," the person so offending shall, upon conviction thereof, be fined or imprisoned as therein stated. The material question in the case is, whether the mere fact of officiating in an office, without legal authority, is under all circumstances a crime under this section. The Probate Court proceeded upon the theory that it is. We think otherwise. For, to constitute the offense, a person must do something more than merely discharge the duties of an office without legal authority. He must "take upon himself" official functions in such sense as implied an assumption of the office without color of right. Therefore, to "take upon himself" the exercise of an office without being legally authorized, within the meaning of the section, is such an assumption of official authority as imports a willful usurpation of an office. This was what was intended to be punished, and nothing short of it comes within the strict sense of the statue. Otherwise, an officer de facto, acting in good faith, under color of right, not designing to "take upon himself" an office without legal right, might unconsciously commit a crime in doing what the law would recognize as a valid act. Nor does it follow that an officer who may be ousted from an office by proceedings in quo warranto is guilty of the criminal offense of usurping the office. It was held in Ohio v. Alling, 12 Ohio 16, that two common pleas judges, who continued to officiate after their office was terminated by a legislative enactment, which admitted of a reasonable doubt whether that was its legal effect, were de facto judges, and could not be regarded as "usurpers and intruders;" and their acts were held to be valid. It is clear, therefore, that they could not have been regarded as guilty of the crime of usurpation of office. In the case before us, Kreidler was undeniably lieutenant of police de jure until the 6th of May, 1869, and the question was whether he did not continue such, under the city ordinance, until his successor was qualified. He proposed to prove that he and the city authorities in good faith believed he did; and claimed that if he was not such officer de jure, he acted in good faith under color of right, and therefore could not be regarded as usurping, or intentionally taking upon himself to exercise an office without being legally authorized. The court refused to permit him to make the proof he offered, and denied that any circumstances other than a legal right to the office could shelter him from the crime for which he was prosecuted. Therein we think the court was in error, and that the judgment must, therefore, be reversed, and the cause remanded for a new trial. MCILVAINE, WELCH, STONE and WHITE, J. J., concurred. As to the effect on the official relation of the expiration of the term see Romero v. United States 24 Ct. of Cl. 331 supra. |