Gertum v. Supervisors of Kings County

By section 16 the act was declared a public act, and made to take effect August 1, 1886.

That this statute was within the constitutional power of the legislature to enact, and that it accomplished the extinguishment of the political organization known as the town of New Lots, and merged the administration of the municipal affairs of the territory formerly comprising such town in and subjected it to the control of the city of Brooklyn, as.provided therein is not denied, nor can it be successfully disputed. Section 9, article 8, and section 3, article 3, present Constitution; People v. Morris, 13 Wend., 325 ; People v. Morrell, 21 id., 563.

It is claimed, however, that the relator, who was elected in April, 1886, to fill a term as justice of the peace for such town, commencing January 1, 188T, was not deprived of his office by virtue of such statute. It is by the Constitution expressly made the duty of the legislature to provide for the organization of cities and incorporated villages and this power can be exercised only by the creation of such bodies from territory previously existing under some other form of civil government than that intended to be created. It seems unreasonable to suppose that the framers of the Constitution intended by its provision relating to the terms and election of justices of the peace in towns, to thwart the exercise of this beneficial power and compel the continued retention of a town organization for such territory for the mere purpose of furnishing a place for a superseded and unnecessary officer. Such officers 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 for 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 if, in the judgment of the legislature, the welfare and prosperity of the community require it.

The provision cannot be construed as a limitation upon the power of the legislature to create cities and villages. It is undoubtedly beyond the power of the legislature, by direct legislation, to abolish the office of justice of the peace in towns, or shorten their terms of office so long as the town exists, but they have an unquestioned right to alter and change the limits of their jurisdiction, or abolish the town organization altogether, provided it be done in good faith and for proper constitutional objects. The whole

At the time of this legislation, the town of New Lots possessed four justices, duly elected, qualified and acting in such capacity, aside from the relator, and under the law was entitled to no greater number. See sec. 1, title 1, chap. 5, 1 K. S. [7th ed.], 338, 345. The relator had been elected to fill a prospective term, but he was not at the time of the passage of the act a justice of the peace of that town, and before his term commenced the political existence of the town had been abrogated. His complaint, therefore, is not strictly that he has been legislated out of office, but that the town organization has not been continued, so that his office might be preserved.

The four acting justices, one of whom the relator expected to succeed, were expressly authorized to serve out their respective terms, but as their several terms expired, the office which each filled became extinct as the logical consequence of the political destruction of the town. This result would seem to follow as a matter of course from the provisions of section 12, of the same title, which provides that, “justices of the peace must reside in the town for which they were chosen, and shall not try a civil cause in any other town,. except in cases otherwise provided for by law,” p. 348. In the earlier cases in this state some discussion and difference of opinion arose over the question whether justices of the peace were county or town officers. Ex parte McCollum, 1 Cow., 550 ; People v. Garey, 6 Cow., 642 .

These differences grew out of the mode adopted by section 7, article 4, of the constitution of 1821, for the selection of such officers by the board of supervisors and the county judges, and the jurisdiction which they possessed in a limited degree over the county at large, but the foundation .for such differences was removed by the amendment to this constitution adopted in 1826, which required that such j nstice should thereafter be elected by ballot in the severaTtown's in such manner as the legislature should direct. The constitution of 1846 substantially continued this mode of election.

The section of the Revised Statutes above referred to was enacted for the purpose of carrying into effect the provisions of the amended constitution of 1831, and specially restricted the number of justices of the peace to four in each town, and required their residence in the town for which they were chosen.

Under the present provisions of law no doubt can arise but that justices of the peace are town officers, and have no existence as public officers independent of town organizations, and so it has been frequently held. People v. Garey, supra; People v. Morrell., 31 Wend , 563. Cases in which the autonomy of the town is preserved as where it is transferred from one county to another without a change of name, or even where a town is divided and the name of the original town is preserved for a portion of the territory, manifestly have no application to the case of a town which has ceased to remain such and whose government has been wholly merged in an inconsistent and different municipal organization. In the latter case the legislature has in the exercise of unquestioned constitutional power, hnnulled the existence of the corporate entity to which the office of justice pertains under the constitution, while in the former they have retained such entity, and its constitutional rights therefore remain unimpaired.

The questions involved in this case seem to have been so fully covered and exhaustively discussed in the case of The People v. Morrell (supra), that nothing seems necessary to be added to what is there said. In that case the legislature enacted that the county of Montgomery should be divided, and a certain portion of its territory thereafter be known as the county of Fulton, with the powers • and duties of other counties. By this division, the first judge of the original county who resided in one of the towns set off to the county of Fulton, ceased to be a resident of Montgomery county, and it was claimed that his office, although it was 'provided for,' and its term fixed by the constitution, had become vacant on account of his non-residence in the county for which he was appointed, and it was so held by the court. The head note states the point decided as follows: “When a county is divided, and two separate and distinct counties formed out of it by act of the legislature, to one of which a new name is given, whilst the other it is declared shall be and remain a separate and distinct county by the name of the county as it existed previous to the division, the judges of the county courts appointed previous to the division, who happen to reside in that portion of the territory distinguished as a county with a new name, under the operation of the act requiring judges of county courts to reside within the county

The act in question seems specially intended by its terms to exclude the relator from the number of justices who were authorized to continue in office for their unexpired terms, and there is no rule of construction which requires a court to change words or interpolate expressions into an act to give it a different meaning from what its language plainly and unequivocally imparts.

The order of the general term should be affirmed with costs.

All concur.