People ex rel. Ellithorpe v. Judges of the Superior Court

The jurisdiction of this court to entertain an .application of this kind is called in question by the respondents’ counsel. But there is no such limitation put upon its jurisdiction, which is declared by Art. 6 of the constitution to be general in law and in equity, subject only to the appellate jurisdiction of the court of appeals. If, therefore, there is any tribunal before which this proceeding could be maintained, it is the supreme ■court. People ex rel. The Mayor v. Nichols, 79 N. Y., 582 .

The relator, who is an honorably discharged soldier from the late civil war, was appointed crier of the superior court of Buffalo,

The relator’s rights are rested entirely upon chap. 119 of the Laws of 1888, approved April 10, 1888, to take effect immediately, which is an act relating to employees of the various cities and counties of the state, and is as follows: “ Section 1. No person holding a position by appointment in any city or county of .this state, receiving a salary from such city or county (unless he has been appointed for a definite term), who is an honorably discharged soldier, sailor or marine, having served as such in the Union army or navy during the war of the rebellion, shall be removed from such position, except for cause shown after a hearing had; but this provision shall not be construed to apply to the position •of private secretary, or chief clerk, or deputy of any official or department, or to any other person holding a confidential relation to the appointing officer. Sec. 2. All laws, or parts of laws, inconsistent with the provision of this law are hereby repealed.”

Prior to the enactment of this statute, and by § 301 of the Code ■of Civ. Pro., the judges of the superior court of Buffalo, or a majority of them, were required from time to time to appoint, and permitted at pleasure to remove, a crier of the court. It is contended by the learned counsel for the appellant that this section •of the Code was repealed by the act of 1888, already quoted ; but whether a provision of the Code of Civ. Pro. having a local .application only can be deemed to be repealed by such general words as are here used may well be doubted. But it is not necessary, for the decision of this case upon its merits, to enter upon that subject. For the intent of the legislature in this particular is clearly disclosed by chap. 243 of the Laws of 1888, taking effect May 8th of that year, nearly a month later than the act for the protection in office of honorably discharged soldiers and .sailors, by which the right of the judges of the superior court of Buffalo, or a majority of them, to remove at pleasure 'the crier of that court, is re-enacted with other provisions respecting salaries and the duties of the crier. If there is any inconsistency between the provisions of these two acts, that which was subsequently passed must be deemed to repeal the prior one. It is the last expression of the legislative will, and if repugnant to or irreconcilable with any previous act, it necessarily annuls the former, if both cannot stand together. Potter’s-Dwarris on Statutes and Constitutions, 155, and note; Smith v. People, 47 N. Y., 330 ; Black v. Scott, 2 Brock., 325 ; Cain v. The State, 20 Tex., 355 ; People ex rel. v. French, 51 Hun, 345 ; 20 N. Y. State Rep., 928.

Judgment appealed from should be affirmed, with, costs.

Dwight, P. J., and Corlett, J., concur.