People ex rel. Gilbert v. Wemple — 12 N.Y.S. 10

Majority

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People ex rel. Gilbert v. Wemple.

(Supreme Court, General Term, Third Department.

December 12,1890.)

Headnote

Justices op Supreme Court—Retirement—Compensation.

Const. N. Y. art, 6, § 18, provides that no person shall hold the office of justice of the supreme court longer than the last day of December next after he shall be 70 years of age, and that “the compensation of every justice * * * whose term of

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office shall he abridged, * * * and who shall have served as such justice ten years or more, shall be continued during the remainder of the term for which he was elected.” Held, that the “ten years or more” need not be a part of the abridged term to entitle the retiring justice to a continuance of his compensation, and that a justice who had served 17 years continuously, when his second official term of 14 years, 9 of which had expired, was abridged, because of his having attained 70 years, was entitled to the full compensation for the remaining 5 years of his term.

Appeal from special term, Columbia county.

This is an application by Jasper W. Gilbert to enforce the payment to him by the comptroller of $6,000 due him for arrears of compensation as a justice of the supreme court whose term of office had been abridged pursuant to the constitution. From an order directing a peremptory mandamus, the comptroller appeals. The following is the opinion of Judge Edwards of the special term:

“On January 1, 1883, the relator had served as a justice of the supreme court for the period of 17 years, continuously, when his second official term of 14 years, 9 of which had expired, was abridged by reason of his having attained the age of 70 years. His compensation for the remaining 5 years of his term has been paid to him, except the annual sum of $1,200 provided by section 1, c. 541, Laws 1872, which the respondent declines to pay on the ground that the provision of the constitution, which continues the compensation of a justice whose term of office has been abridged by limitation of age, is inapplicable to one who has served fewer than 10 years of the abridged term. It is now settled that the $1,200, of which payment is sought to be enforced, is part of the compensation provided by section 13, art. 6, of the constitution, (People v. Wemple, 115 N. Y. 302 , 22 N. E. Rep. 272 ,) and the only question for our consideration is whether the relator is within the provisions of that section. The portions of the section which are here material read as follows: ‘The official terms of the said justices * * * who shall be elected after the adoption of this article, shall be fourteen years from and including the first day of January next after their election; but no person shall hold the office of justice * * * longer than until and including the last day of December next after he shall be seventy years of age. The compensation of every * * * justice of the supreme court, whose term of office shall be abridged, pursuant to this provision, and who shall have served as such justice ten years or more, shall be continued during the remainder of the term for which he was elected.’ Must the • ten years or more ’ be a part of the abridged term to entitle the retiring justice to a continuance of his compensation? This is the sole question to be answered, and its proper determination must be sought for in the language of the section cited. In the interpretation of statutes it is a primary rule that the intent is to be ascertained, but it is also fundamental that, so far as possible, the intent must be derived from the language employed. When this is free from ambiguity or contradiction, it is self-interpreting, or, more accurately speaking, needs no interpretation. When the words used have a definite and obvious meaning, we are not at liberty to resort to these artificial rules of construction which wisdom and ingenuity have been compelled to devise by reason of the infirmity and obscurity of language.

“The words must be accepted in their plain import, and we are not permitted to add to or take from the language employed in order to extend or restrict the operation of the statute to what we might conceive to have been the legislative intent. With the familiar principle in view, let us see whether the language of this section is not so plain, so free from doubt, as to need no extrinsic aids of construction. Concededly, the apparent meaning of the first and second clauses is that the official term of a justice of the supreme court shall be 14 years, and, in case he shall become 70 years of age during such term, he shall not hold the office longer than until the following last day of

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December; that is, his term is thereby abridged. Unless the framers of this section have chosen inapt words to express their idea, their intent is clearly discoverable in the language of the following clause, which explicitly declares that the compensation of a justice of the supreme court whose term has been abridged shall be continued during the remainder of the term for which he was elected, in case he has served as such justice 10 years or more. But it is claimed that this clause should be construed as if it read ‘ ten years or more of such term;’ that is, 10 years or more of the term abridged. Why should it be so construed? The import of the words used is plain, and why should we add to them to change the signification? The language is not ‘who shall have served ten years or more of such abridged term,’ but is ‘ who shall have served as such justice ten years or more.’ It seems to me quite clear that it is only by injecting into the clause the additional words which the respondent claims should be regarded as there that his contention as to its meaning can be sustained. Without these additional words it is obvious that the language means one thing; with them, it is equally obvious that it means another thing. The interpolation of such words into a statute as change the meaning and restrict its operation is a legislative and not a judicial function. Perhaps it would have been wiser if this clause had been so framed as to extend its beneficent provisions to those only who had served 10 years of the abridged term. However this may be, it is our province not to reform the law, but simply to declare italex seripta est. The motion for a writ of peremptory mandamus should be granted.”

Argued before Learned, P. ,J., and Landon and Mayham, JJ.

Charles F. Tabor, for appellant. Stephen B. Nash, for respondent.

Order affirmed on opinion of court below, with $50 costs and disbursements.

Cases cited

People ex rel. Bockes v. Wemple 115 N. Y. 302 N.Y. 1889-10-08 p. 11