In re Schultes

This appeal involves the title of the seven additional justices of the municipal court of the. city of New York appointed under the provisions of the Greater New York charter. The election law (section 5 of chapter 379 of the Laws of 1897) requires the county clerk of each county within the city of New York to publish as a part of the election notice received by him from the secretary of state a notice of the election of “each city, village and town officer who may lawfully be voted for at such [the next] election by the electors of such [his] county or any part thereof.” The Greater New York charter provided for the continuance, consolidation, and reorganization, under the name of “The Municipal Court of the City of New York,” of the district courts of the city of New York and the justices’ courts of the First, Second, and Third districts of the city of Brooklyn, and authorized the appointment by the mayor of seven additional justices of the said municipal court, two of whom should be residents of the borough of Brooklyn, three of the borough of Queens, and two of the borough of Richmond. The justices thus appointed were to hold office until December 31, 1899, their successors to be elected at the general election, of that year. In January, 1898, the mayor appointed seven persons as such justices, two of whom—John J. Kenney and Albert Reynaud—resided in the borough of Richmond. The petitioner, a resident and elector of that borough, applied for a peremptory writ of mandamus requiring the clerk of the county of Richmond to publish notice of the election of successors to said Justices Kenney and Reynaud, on the ground that their terms of office would expire on the 31st of December, 1898, and that their successors must be elected at the general election of that year. The application was denied, and from such denial the petitioner appeals.

It is conceded by both parties to this proceeding that the main decision turns upon the questions whether the charter, by its language, attempts to abolish or destroy such courts and officers, and whether the municipal court is a new local court of inferior jurisdiction. And in order to decide these questions we are compelled to make a more analytical statement of the constitutional and statutory provisions upon the subject. The Greater New York charter provides for the appointment and election of justices of the municipal court of the city of New York. Section 1 provides that all the municipal and public corporations and parts of municipal and public corporations, including cities, villages, and towns (but not including counties), within the counties of Kings and Richmond and certain parts of Queens, are “annexed to, united, and consolidated” with the old city of New York, and that all such corporations shall cease and determine, and all offices forming parts of such municipal and public corporations are abolished, with certain exceptions, not necessary to enumerate, and

“Sec. 17. The electors of the several towns shall, at their annual town meetings, or at such other time and in such manner as the legislature may direct, elect justices of the peace, whose terms of office shall be four years. * * * Justices of the peace and district court justices may be elected in the different cities of this state in such manner, and with such powers, and for such terms, respectively, as are or shall be prescribed by law; all pther judicial officers in cities, whose election or appointment is not otherwise provided for in this article, shall be chosen by the electors of such cities, or appointed by some local authorities thereof.

“Sec. 18. Inferior local courts of civil and criminal jurisdiction may be established by the legislature, but no inferior local court hereafter created shall be a" court of record. The legislature shall not hereafter confer upon any inferior or local court of its creation, any equity jurisdiction or any greater jurisdiction in other respects than is conferred upon county courts by or under this article. Except as herein otherwise provided, all judicial officers shall be elected or appointed at such times and in such manner as the legislature may direct.”

It is evident that the words “district court justices” refer exclusively to the district courts of New York, as there are no courts by that name in any other part of the state. The justices’ courts in Brooklyn were first created by chapter 125 of the Laws of 1849, and continued by chapter 583 of the Laws of 1888. The Greater New York charter contains the following provisions:

“Sec. 1351. On and after the first day of January, eighteen hundred and ninety-eight, the district courts of the city of New York and the justices’ courts of the First, Second and Third districts of the city of Brooklyn are hereby continued, consolidated and reorganized under the name of ‘The Municipal Court of the City of New York,’ which said court shall be a local civil court within the city of New York as constituted by this act, and shall not be a court of record or have any equity jurisdiction; but shall have the jurisdiction, powers, duties and organization hereinafter prescribed.”

“Sec. 1352. The said court shall be held by justices to be elected or appointed as follows:

“1. The justices of said district courts of the city óf New York and said justices of the peace in the First, Second and Third districts of the city of Brooklyn, in office on the first day of January, eighteen hundred and ninety-eight, shall continue for the remainder of the terms for which they were elected or appointed, and shall be called justices of the municipal court of the city of New York, and shall have all the powers and jurisdiction and be subject to all the duties-and requirements hereinafter prescribed for justices of said municipal courts.

"2. The successors of the justices mentioned in the first subdivision of this section shall be elected by the electors of the districts for which said justices were elected or appointed respectively, as described and renumbered in sections thirteen hundred and fifty-nine, thirteen hundred and sixty and thirteen hundred and sixty-one of this act, at the general election to be held in the year at the end of which the terms of said justices shall expire.

“3. There shall be elected at the general election to be held on the first Tuesday succeeding the first Monday of November, in the year eighteen hundred and ninety-seven, as many justices of said municipal court as there shall be justices of the said district courts in the city of New York or justices of the peace of the said First, Second and Third districts, in the city of Brooklyn, whose terms expire at the end of year eighteen hundred and ninety-seven. Such justices shall be elected by the electors of the districts for which such justices whose terms expire in eighteen hundred and ninety-seven were elected or appointed, as described and renumbered in sections thirteen hundred and fifty-nine, thirteen hundred and sixty and thirteen hundred and sixty-one of this act.

“4. On or before the twentieth day of January, eighteen hundred and ninety-eight, the mayor of the city of New York shall appoint seven additional justices of said municipal court, two of whom shall be residents of the Fourth and Fifth districts of the borough of Brooklyn, three of whom shall be residents of the First, Second and Third districts of the borough of Queens, and two of whom shall be residents of the First and Second districts of the borough of Richmond, respectively. The justices so appointed shall hold office till the thirty-first day of December, eighteen hundred and ninety-nine, and their successors shall be elected at the general election to be held in the year eighteen hundred and ninety-nine, and shall be residents of the same districts as the justices appointed pursuant to this subdivision.”

The learned counsel for the appellant contends that the municipal court thus created is really only a continuation of the district and justices’ courts, and that the justices are still district court justices and justices of the peace in their respective localities; that the additional justices must be elected, and cannot be appointed to office by the local authorities, except in case of vacancies. He bases his contention on article 6, § 17, above quoted. But I think effect should be given to the fact already adverted to that the words “shall be elected,” in the constitution of 1846, were changed to the words “may be elected” in the constitution of 1895. It may be that those officers being recognized in the constitution of 1895, the incumbent justices of the peace in towns, who were then in office, cannot be legislated out of office so long as the town" exists, and no such attempt appears in the charter; but it by no means follows that their functions and duties and the method of their election may not be altered by the legislature to meet the necessities of changed conditions. Section 17 expressly confers upon the legislature the power to declare the “manner” of their election and their “powers” and “terms” of office. It was held in Gertum v. Board, 109 N. Y. 170 , 16 N. E. 328 , that justices of the peace in towns “are the incidents only of the political existence of towns. They are provided and created for the town, and it is quite absurd to say that they continue in office after the town has ceased to exist. While'the constitution provides that towns shall elect justices of the peace, whose terms shall continue four years, there is nothing in this provision that requires the indefinite preservation and perpetuation of town organizations, to enable such officers to serve out their terms, or forbids a change of local government, if, in the judgment of the legislature, the welfare and prosperity of the

It is apparently conceded by the appellant’s counsel that the legislature had the right to create a new court within certain limitations, and that, if the municipal court is a new court with such limitations, the legislature had the right to provide for the appointment of the seven additional justices thereof by the local authorities. It is to be observed that the argument of the counsel for appellant proceeds upon the use of the words “continued, consolidated, and reorganized,” in section 1351. We must therefore seek for the reason of such use. It is decided in this department, in the case of Petterson v. Welles, 1 App. Div. 8 , 36 N. Y. Supp. 1009 , that a justice of the peace in the city of Brooklyn is a justice of a “local inferior court,” within the meaning of article 6 of section 18 of the amended constitution. In People v. Howland, 155 N. Y. 270 , 49 N. E. 775 , it was held that the office of justice of the peace is a constitutional office, and therefore cannot be abolished by the legislature, either directly or indirectly, so long as the town exists; that the constitution does not prescribe the duties and powers of justices of the peace in towns, but leaves that to be done by general laws. The Greater New York charter neither legislates any justice of the peace or district court justice out of office, nor abridges their terms of office, but continues them, and extends their powers and jurisdiction. It had power so to do. With this purpose these officers were transferred into the new court created by the act. Such transfer worked them no injury, and it was clearly within the power of the legislature to take such action.

We come now to the question whether the municipal court is in fact a new court. It is easily differentiated from any of the courts referred to, and, indeed, from any court previously existing. The jurisdiction of district and justices’ courts was confined to cases where process was served within their respective cities or towns. The jurisdiction of the municipal court extends over three counties in whole, and partly over two others into any part of which its process runs. The jurisdiction of the district courts and of the justices’ courts in Brooklyn was limited to cases amounting to $250, and that of justices in the towns to $200. The municipal court has jurisdiction

It does not seem to be controverted that under section 20 of the public officers’ law a vacancy existed in the office of the seven additional justices, as in the language of that section either “a new office or an additional incumbent of an existing office” was created.

The constitution (article 10, § 5), provides:

“The legislature shall provide for filling vacancies in oflice, and in case of elective officers, no person appointed to fill a vacancy shall hold his office by virtue of such appointment longer than the commencement of the political year next succeeding the first annual election after the happening of the vacancy.”

But this section must be construed in connection with article 12, § 3, which provides:

“All elections of city officers including supervisors and judicial officers of inferior local courts, elected in any city or part of a city, and of county officers elected in the counties of New York and Kings, and in all counties whose boundaries are the same as those of a 'city, except to fill vacancies, shall be held on the Tuesday succeeding the first Monday in November in an odd-numbered year, and the term of every such officer shall expire at the end of an odd-numbered year. The terms of office of all such officers elected before the first day of January, one thousand- eight hundftd and ninety-five, whose successors have not then been elected, which under existing laws would expire with an even-numbered year, or -in an odd-numbered year and before the end thereof, are extended to and including the last day of

December next following the time when such terms would otherwise expire; the terms of office of all such officers, which under existing laws would expire in an even-numbered year, and before the end thereof, are abridged so as to expire at the end of the preceding year. This section shall not apply to any city of the third class, or to elections of any judicial officer, except judges and justices of inferior local courts.”

One provision is as controlling as the other, and it is a familiar rule that they must, if possible, be so construed that both shall stand. It is clear that the scheme of the constitution was to provide for the election of certain officers, including justices of inferior courts, in the odd-numbered years. To issue a writ compelling the election officers to publish a notice of the election of additional justices of the municipal court in the current year would be a clear disobedience of the mandate of article 12, § 3. In addition to which it may be said that there is no legislative provision for an election of these officers in 1898. There is provision for such an election in 1899. In People v. Bull, 46 N. Y. 57 , the court was construing the constitution of 1846, which contained a provision that “all judicial officers of cities and villages and all such judicial officers as may be created therein by law shall be elected at such times and in such manner as the legislature may direct,” and held that such “election must have been at such times and in such manner as the legislature might direct. It was as essential that he should be elected at the time and in the manner directed by the legislature as that he should be elected. An election at a different time, or in a different manner, was as invalid as a taking of the office otherwise than by election.” It is not even necessary, for the purpose of reaching our conclusion, to have decided, as we have done, that the seven additional justices were lawfully appointed, and this whether the act created new officers or additional incumbents of an existing office. We are clearly of the opinion that the municipal court of the city of New York, into which were incorporated the district courts of the former city of New York, and the justices’ courts of the former city of Brooklyn and of towns in the counties named in the act, was intended by the legislature to be, and is, a new inferior local court, not of record, and is not a mere continuance of the old court». The name of the court does not determine the question. The legislature had the right to create such new court, and to provide for the method of appointing or electing its justices, for the continuance of their terms of office, and for the time of the election of their successors. The legislature provided for the appointment of the-additional justices by the mayor, and for the election of their successors only at the general election of 1899, and they cannot be elected at the election of 1898.

The decision of the court of appeals in the Bull Case alone was sufficient authority for the order of the special term refusing to grant a peremptory writ of mandamus, and that order is affirmed, with $10 costs and disbursements. All concur.

I think that the municipal court of the city of New York, as constituted by the charter of that city (sections 1350-1384), is a new inferior local court, within the meaning of section 18 of article 6 of the amended constitution, and that the judges

The order should be affirmed.