People ex rel. Tiernan v. Marsh — 23 N.Y.S. 728

Majority

p. 728

(69 Hun, 123.)

PEOPLE ex rel. TIERNAN, Justice of the Peace, v. MARSH et al., County Supervisors.

(Supreme Court, General Term, Second Department.

May 8, 1893.)

Headnote

1. Repeal op Statute—Compensation op Justices op the Peace.

Laws 1866, c. 59, § 2, limiting the compensation of a justice of the peace in Richmond county to $300 a year, was repealed by Laws 1866, c. 692, fixing the fees of the justices of the peace for the state, and providing (section 11) that all inconsistent laws were repealed, except those locally applicable to villages and cities.

2. Same—Reinstatement.

Laws 1875, c. 283, authorizing the town auditors of Middletown, Richmond county, to audit claims of justices of the peace up to $300 which had accrued, subsequent to the abolition of the office of police justice, did not reinstate the section so repealed.

p. 729

Appeal from special term, Richmond county.

Application by Peter Tiernan, a justice of the peace of the town of Middletown, Richmond county, for a peremptory writ of mandamus to compel Nathaniel Marsh and others, as the board of supervisors of Richmond county, to audit and pay relator’s bill for $414.15 for his services as such justice in felony cases for 1892. From an order granting the writ, defendants appeal.

Affirmed.

Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.

William M. Mullen, for relator.

J. D. Van Hoevenberg, for defendants.

Section 2, c. 59, Laws 1866, is repealed. By this section justices of the peace and constables in the county of Richmond were limited to $300 per annum. By chapter 692 of the Laws of the same year a scale of fees for justices of the peace and constables was made for the state, and all laws inconsistent with this law were repealed, except laws locally applicable to villages and cities. The two acts cannot stand together, and the repeal of section 2 of the Laws of 1866 is therefore express by virtue of section 11 of the act, (chapter 692, Laws 1866.)

In 1871, by chapter 791, Laws 1871, the legislature, amended the village charter of New Brighton, a village in Richmond county, and in this act repealed in words chapter 59, Laws 1866, and the repeal was general, and not restricted by the language used in effecting the repeal. If the repeal was effectual, then chapter 283, Laws 1875,^[1] would not reinstate the section so repealed. It has been decided by Justices Gilbert and Cullen that the restrictive section in the Laws of 1866 was repealed by Judge Gilbert in the Kessner Case,^[2] and by Judge Cullen in the Gaggen Case.2 Justice Landon agrees, with these judges in this construction of the effect of the repealing words. The justices and constables in Richmond county have been paid according to the state rate of fees, even if the entire bill for services rendered exceeded $300." The order granting a mandamus should therefore be affirmed, with costs. AIT concur

1 Laws 1875, c. 283, authorized the town auditors of Middletown, Richmond county, to audit claims of justices of the peace,' up to $300, which had accrued subsequent to the abolition of the office of police justice.

2 Not reported.