26 Wend. 599 | N.Y. Sup. Ct. | 1841
After advisement the following opinions were delivered :
The question presented by the writ of error in this case is, whether the twelfth section of the act to incorporate the city of Rochester, providing for the appointment of justices of the peace in that city by the common council is unconstitutional and void. See Statutes of 1834, p. 286. And this depends upon the true construction of the seventh section of the fourth article of the constitution as originally adopted, when taken in connection with the fourteenth and fifteenth sections of the same article. The case of the People ex rel. the Attorney-Gene
The act of 1834, however, under which the plaintiff in error in this case was appointed, presents the constitutional question directly for decision, for being subsequent to the Revised Statutes, if the provision for the appointment of the justices in Rochester by the common council is not unconstitutional, it repealed the provisions of the Revised Statutes relative to the appointment of justices in cities to this extent. The same remark may also be made in reference to the act for the incorporation of the city of Utica, the fifth section of which act gives the election of justices, to the people of the several wards of the city. Statutes of 1832, p. 18.
The section of the constitution under which this question arises, as it was originally adopted, read as follows: “ The governor shall nominate, by message in writing, and with the consent of the senate, shall appoint, all judicial officers, except justices of the peace, who shall be appointed in manner following,” &c.; the residue of the section going on to provide for the appointment of justices of the peace in towns only. This was followed by two other sections in the same article: the one providing for the appointment of the special justices and the assistant justices in the city of New-York; and the other directing that all officers theretofore elective by the people, should continue to be elected; and that all other officers, whose appointment was not otherwise provided for by the constitution,
Previous to March, 1818, the number of justices of the peace in each county was unlimited, and a general commission of the peace issued, from time to time, for each county, in which commission were included the names of all the justices of the peace who were appointed by the governor and council for the county, without reference to the location of such justices within a city or within a town, provided they lived within the county. In this commission was generally included the names of the county judges, giving to them a distinct appointment as justices of the peace, in addition to the office of judge which they held under the commission of the pleas. In addition to; this the mayors and aldermen of all the cities were ex officio justices of the peace, and authorized to act as such in criminal matters; and in some cities they were authorized to try. civil suits as justices, ex officio. The act of March, 1818, to limit the number of judges and justices, prohibited the council of appointment from commissioning more than four justices in any town, in addition to those who were also appointed judges of the common pleas; but left the number to be appointed for a
If we look into the proceedings of the convention, for the purpose of ascertaining the probable intentions of that body in relation to the exception of all justices of the peace from the clause giving the appointment of other judicial officers to the general appointing power, I think the construction I am disposed to give to these provisions will be still more apparent. The committee on the appointing power, of which the late president, Van Burén,Swas chairman, originally reported this seventh section substantially as it now stands, after taking off what is italicised by the revisers in their second edition of the statutes, giving to the governor and senate the appointment of all judicial officers except justices of the peace. Two other sections then intervened, and after those a section providing for the election of justices of the peace for each town, not exceeding four. Then came a provision for the appointment of officers in the city of New-York, which was subsequently
Courts ought not, except in cases admitting of no reasonable doubt, to take upon them to say that the legislature has exceeded its power, and violated the constitution, especially where the legislative construction has been given to the constitution by those who framed its provisions, and cotemp oraneously with its adoption. In this case, therefore, I cannot say that the provision in the charter of the city of Rochester, providing for the appointment of the justices by the common council, was unconstitutional and void. On the contrary, I think the legislative construction of the provision of the constitution in question, is most in accordance with the probable intention of the framers of that instrument.
I must therefore vote to sustain the law, and to reverse the decision of the supreme court declaring it unconstitutional.
The 12th section of the charter of the city of Rochester, requires the common council of that city to appoint a justice of the peace for each ward therein; and, agreeably to that direction, the plaintiff in error was duly appointed a justice of the peace for the fifth ward.
There is, in our cities, a variety of magistrates included under the general denomination of justices: as, special justices, assistant justices, marine justices, police justices, and justices of the justices court, besides those who have the ordinary jurisdiction of justices of the peace in the country. Two of these classes for the city of New-York, are provided for by the 14th section of the same article which directs that special justices, and assistant justices, in the city of New-York, shall be appointed by the common council of said city. There still remain four classes of city justi
Then follows the 15th section which provides that “ all other officers, whose appointment is not provided for by this constitution, and all officers whose offices may be hereafter created by law, shall be elected by the people, or appointed as may by law be directed.” This is a drag net collecting and securing all shreds and fragments, which, by accident or otherwise, may have escaped in the construction of the edifice. By it, the constitution threw upon the legislatures which were to follow it, the duty among other
I am aware that the reasoning of the supreme court in The People v. Kane, 23 Wend. 414, leads to a different conclusion. With great respect, it appears to me that the learned judge in this case, misquotes the section of the constitution in question, and misconstruction necessarily fol- ' lows. He adds the words “ in the several towns,” which are not in the constitution. This makes the exception, which in terms is unlimited, and which embraces every justice of the peace in the state, partial and qualified, embracing those in the towns only. The judgment of the court was in that case, unquestionably right, notwithstanding. Kane was appointed to office under the law of 1826, which was inoperative, not because it was in derogation of the constitution, but because it was repealed by the law of 1830, which prescribed a different manner of appointment. Statutes of 1826, p. 193; 1 R. S. 107, § 9.
I think the judgment of the supreme court should be reversed.
The question involved in the consideration of this cause is, whether the legislature has the constitutional right to direct the mode in which justices in cities shall be appointed 1
The seventh section of the fourth article of the constitution provides, that “ the governor shall nominate, and with the consent of the senate, shall appoint all judicial officers, except justices of the peace.” The remaining part of that section relates to the mode of appointing justices of the peace in the several towns, and has, by an amendment of the constitution, been abrogated. Hence it follows, that justices of the peace, although they may be judicial offi
Besides justices of the peace in the several towns, there are justices in the cities, denominated police justices, special justices, assistant justices, justices of the marine court, and justices of the justices court—six classes of justices, which were known and existed at the time the new constitution was adopted. It is not to be supposed that the convention, which framed the constitution, composed of men of the first distinction, representing every portion of the state, the cities as well as the country, would have suffered the appointment of so numerous and important a class of officers to pass unprovided for—and, indeed, they did not. The seventh section, which was afterwards amended, provided for the appointment of justices of the peace in the several towns; the fourteenth .section provides for the appointment of the special justices, and the assistant justices of the city of JYew-Tork; and the next succeeding section provides for the appointment or election of every officer then existing, and not otherwise provided for, and for the election or appointment of all officers, whose offices might thereafter be created by law. This construction of the constitution gives to the governor and senate the power of appointing all judicial officers, except justices of the peace; to the common council of the city of New-York the power of appointing special justices and assistant justices in that city; to the people the power of electing justices of the peace in the several towns; and to the legislature the power to direct by law the election or appointment of all officers not enumerated in that fundamental rule of action, and also of all officers whose offices might thereafter be created by law. This interpretation of the constitution mak.es that instrument plain, intelligible, and consistent, well worthy of the high character which its framers sustained for patriotism and superior wisdom. To my mind, it is very evident, that the exception in favor of justices of the peace is general, not limited to the town
The constitution in express terms denies to the governor and senate the power of appointing the most important class of justices of the peace. To confer upon the highest appointing power of the state, the power to appoint the minor officers, while the power to appoint the higher and more important officers of the same class is withheld from them, is inconsistent with the harmony which pervades every part of the constitution. Believing this to be the obvious meaning of the constitution, I have no hesitation in saying, that the legislature had power, when it granted a city charter to Rochester, to declare the mode in which the justices of that city should be appointed, and whatever that mode might be, whether by the governor and senate, or by the common council or by the people, that by complying with the provisions of the law the appointment becomes valid and constitutional.
In the case of The People v. Kane, which is submitted as part of the argument, in the discussion of this case, the decision of the supreme court was correct, but not for the reason assigned by the judge, that the law of 1826 was unconstitutional and void; but because it was repealed in 1830. Kane had been appointed in 1838 to the office of a police justice in the city of Albany contrary to law, or rather without law, and the case might have been decided without a constitutional argument onza law, which had been solemnly repealed. The governor and senate
In the case before us I shall vote for a reversal of the judgment of the supreme court.
On the question being put, Shall this judgment be reversed ? All the members of the court present at the argument of the cause, except Senators Hunter and Paige, voted in the affirmative; the two named members voted in the negative. Whereupon the judgment of the supreme court was Reversed.