This action is in the nature of quo warranto, brought by the attorney general upon his own information, pursuant to section 1948 of the Code of Civil Procedure. The action is primarily against certain persons alleged to have usurped and entered into the office of city magistrates in the boroughs constituting the Second division in the city of New York. Pursuant to section 1954 of the Code, the persons who claim to have been elected to said offices, and rightfully entitled thereto, are also made defendants.
The complaint proceeds upon the theory that under section 1392 of the Revised Charter of New York City, enacted in 1901, there was a valid election in the fall of that year, at which certain persons were elected to the office of city magistrates in the boroughs of Brooklyn, Queens, and Richmond, who are prevented from discharging the duties thereof and receiving the emoluments belonging thereto by the unlawful usurpation of said office by the defendants above named. Said defendants, by their answer, challenge the constitutional validity of said charter provisions, and allege their own legal incumbency of said office pursuant to legal appointments made prior to said election. To this answer the plaintiffs interposed a demurrer on the ground that it is insufficient in law.
For the purposes of administration of criminal justice, the greater city of New York, under its original charter, enacted in 1897, was divided into two divisions. In the first division were the boroughs of Manhattan and the Bronx; in the second the boroughs of Brooklyn, Queens, and Richmond. Section 1390. When said charter went into effect, the office of city magistrate was in existence in the former city of New York, having been established by chapter 601 of the Laws of 1895. Section 1392 of said charter provided that the city magistrates in office when it took effect should continue to hold their office until the expiration of their respective terms, and should be known as the city magistrates of the First division; that their successors should be appointed in the same manner, and have the same powers and duties, as provided by said chapter 601, Laws 1895. The act just referred to provided that such magistrates should be appointed by the mayor for terms of 10 years. On account of the different conditions which prevailed in the boroughs of Brooklyn, Queens, and Richmond, the charter provisions relating to the office of city magistrate in these boroughs were more elaborate than those above summarized.
Section 1392 of the revised charter provides: ‘At the general election to be held in the borough of Brooklyn in the year nineteen hundred and one, there shall be elected in each congressional district, as then constituted in said borough, one city magistrate, and in the territory constituting the borough of Brooklyn there shall be elected two city magistrates at large, and the terms of office of all said city magistrates so elected shall commence on the first day of January nineteen hundred and two and continue for six years thereafter.’ In the boroughs of Manhattan and the Bronx the city magistrates were to be appointed by the mayor, as before. Under this provision city magistrates were elected in the borough of Brooklyn at large and by congressional districts, as therein provided. This contest, as above stated, is between the defendants, who claim to have been thus elected, and the four answering defendants, who claim to hold said office by appointment.
The constitutional provision which the said appointed magistrates invoke in support of their claim that the amendment of the charter in 1901 is unconstitutional is the last clause of section 17 of article 6, which reads as follows: ‘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 term of office shall be four years. In case of an election to fill a vacancy occurring before the expiration of a full term, they shall hold for the residue of the unexpired term. Their number and classification may be regulated by law. Justices of the peace and judges or justices of inferior courts not of record, and their clerks, may be removed for cause, after due notice and an opportunity of being heard, by such courts as are or may be prescribed by law. 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 other 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.’
If the office is to be filled by appointment, the agency by which that is to be accomplished is broadly, yet clearly, designated. If the officer is to be elected, the power of appointment is as plainly excluded. If this is not the fair and reasonable construction of this provision of the constitution, then it is within the power of the legislature to authorize the employment of both methods at the same time, in the same territorial or civil division or in different divisions, either to suit the caprice of a day or the exigencies of a political condition. If judicial officers of the same grade, performing the same duties in the same local division, may be appointed in part and elected in part at the same time, we shall not have long to wait for such use of the power as will serve the selfish ends of the designing few at the expense of the public weal. If magistrates may at the same time be appointed in the boroughs of Manhattan and elected in the borough of Brooklyn, why may they not be elected in one part of a borough and appointed in another? And if this may be done, what becomes of the system by which two boards of magistrates are created in the two divisions of the Greater New York, designed to promote unity and cohesion in the administration of criminal justice in the city at large? Under the charter of 1897 there was uniformity of tenure, jurisdiction, and method of selection.
One other consideration remains to be noticed. The charter amendment of 1901 not only provided that city magistrates in Brooklyn should be elected, instead of being appointed, but it also assumed to extend the terms of four city magistrates in office when it took effect. The terms of these officers expired on the last day of April, 1901, but the amendment purported to extend their terms until January 1, 1902. Section 1392. This provision was held to be unconstitutional in a decision which seems to have been acquiesced in by all concerned. Kelly v. Van Wyck, 35 Misc. Rep. 210,71 N. Y. Supp. 814. Upon a writ of mandamus commanding the mayor to appoint successors to the four magistrates whose terms expired on April 30, 1901, the four respondents herein were appointed. The certificate in each case recited the appointment to be ‘for the unexpired portion of the term which commenced May 1, 1901, and which ends December 31, 1901.’ The limitation of time expressed in these certificates was undoubtedly based upon the erroneous assumption that the charter amendment of 1901 (section 1392) was valid. Under the law of 1895 as amended in 1897, which was the law in force when the invalid amendment of 1901 was enacted, the term of the office of city magistrate is 10 years. No valid appointment can be made for any other term except in case of a vacancy occurring otherwise than by expiration of a term, in which event the person appointed to fill the same shall be appointed for the unexpired residue of the term.
A glance at the cases above cited will suffice to show that they cover the question here involved. In the Lord Case the governor of Michigan made an appointment to fill a vacancy in the office of probate judge created by the death of the incumbent who had been reelected, but died before the commencement of his new term. On the succeeding 1st of January, when said new term was to commence, the governor made another appointment upon the supposition that there was a new vacancy. The constitution provided that in case of a vacancy the governor is to appoint a person to continue ‘until a successor is elected and qualified.’ Under that provision it was held that the second appointment was void, and that the first was good ‘until a successor is elected and qualified.’
Section 17, as it existed under the constitution of 1846, provided that ‘the electors of the several towns shall at their annual town meeting, and in such manner as the legislature may direct, elect justices of the peace, whose terms of office shall be four years.’ The other provisions of this section related to the filling of vacancies and the removal of justices. Section 18 provided that ‘all judicial officers of cities and villages, and such other judicial officers as may be created herein by law shall be elected at such times and in such manner as the legislature may direct.’ It will be observed that section 17 related to the election of justices in towns, while section 18 related to judicial officers in cities and villages. Under the amendment of 1868, section 18 was made general, applying to all of the state, and was no longer limited to cities and villages, but provided that inferior local courts of civil and criminal jurisdiction may be established by the legislature, and, except as herein otherwise provided for, shall be elected or appointed at such times and in such manner as the legislature may direct.
It is thus apparent that section 17 was framed for the purpose of providing for the election of justices of the peace in towns, and also for district court judges or justices and other judicial officers in cities whose jurisdiction was limited to civil cases, leaving the organization of criminal courts to the provisions of section 18. This is rendered clear beyond dispute from the proceedings of the convention just quoted, in which the provision for electing police justices was stricken out of section 17. It is true section 18 also provides for inferior local courts of civil jurisdiction as well as criminal, but this section having been made general, so as to apply to the whole state, as well as to cities, inferior local courts may be established in villages or towns. It also covered existing conditions in other cities where courts had been established having both civil and criminal jurisdiction.
It is contended that all of the magistrates of criminal courts in a city must be either appointed or elected; that the legislature cannot provide for the election of a part and the appointment of the others. We find no authority for this contention in the constitution. On the other hand, it is in direct conflict with the provision of section 18 that judicial officers may be elected or appointed at such times and in such manner as the legislature may direct. The legislature, in its wisdom, may provide for both elective and appointive magistrates, as the exigencies of the case may demand.
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