138 Misc. 584 | N.Y. Sup. Ct. | 1931
There are two important questions involved herein: First, is the grant of power to the Appellate Divisions of the Supreme Court by chapter 500 of the Laws of 1930 (amending section 132 of the Code of Criminal Procedure) to investigate inferior courts and the judges thereof unconstitutional? Second, if not, is a referee appointed pursuant to the provisions of such statute authorized to employ an attorney at law to assist such investigation?
The respondents contend that the powers conferred on the Appellate Division of the Supreme Court by the act above mentioned conflict with article VI of the State Constitution in that the statute attempts to confer on the court powers that may not be granted to a judicial body. Section 17 of article VI of the State Constitution provides: “ Justices of the peace, justices of the Municipal Court of the city of New York, 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.” Section 2 of article VI of the Constitution provides: “ The several Appellate Divisions, except as hereinafter provided, shall have and exercise such original or appellate jurisdiction as is now or may hereafter be prescribed by law. * * * From and after the last day of December, eighteen hundred and ninety-five, the Appellate Division shall have the jurisdiction now exercised by the Supreme Court at its General Terms and by the General Terms of the Court of Common Pleas for the city and county of New York, the Superior Court of the city of New York, the Superior Court of Buffalo and the city of Brooklyn, and such additional jurisdiction as may be conferred by the Legislature.” Section 132 of the Code of Criminal Procedure, as it existed prior to the amend
It is plain that the statutory provisions relating to removal were enacted to carry out the constitutional mandate contained in section 17 of article VI, above quoted. The power of removal of a judicial officer seems to be one variously conferred by law on executive, legislative and judicial officers. Whether or not such power is properly a judicial function cannot be disputed in this instance because of the express constitutional requirement that a court exercise it.
The sole question involved is whether or not the addition of the power to investigate to the existing power to remove, conflicts with the constitutional provisions as to the power and functions of Appellate Divisions of the Supreme Court. The Court of Appeals of this State recently determined in the case of People ex rel. Karlin v. Culkin (248 N. Y. 465) that the Appellate Division of the Supreme Court had the right to institute a general inquiry into the conduct of attorneys at law in respect to certain alleged abuses. That inquiry had no express legislative sanction as has the present one. The court in that case, after reviewing extensively the history of the power of courts to regulate the professional conduct of attorneys, decided that the power to investigate alleged improper practices among such attorneys was a necessary incident to the power to remove them. It is said (at p. 477): “ Preliminary inquiry there must be, at least to some extent, before a decision can be reached whether to prosecute at all. * * * The power to inquire imports by fair construction the power to inquire by methods appropriate and adequate, and so by compulsory process if search would otherwise be thwarted.”
It appears logical that if as incidental to an inherent power to regulate the conduct of and removal of attorneys at law the Appel
The respondents claim that the limitation overridden here is that against the power of the Legislature to charge courts with other than judicial duties or such administrative duties as are reasonably incidental to such judicial duties. That such extra-judicial duties may not be imposed on the courts is a rule deeply imbedded in the law of this State. (See Matter of Richardson, 247 N. Y. 401, and cases cited.) In the last case the Court of Appeals reviewed an act of the Legislature authorizing the Governor to empower a justice of the Supreme Court to investigate the conduct of a borough president in the city of New York. The statute required such justice, when so designated, to conduct an inquiry and make his report to the Governor of the State. The power of removal of a borough president rests under the law on the Governor of the State. The court held that the act was unconstitutional in that it charged a justice of the Supreme Court with the mandatory performance of duties non-judicial. The basis of that decision was, however, that the investigation therein directed was not preliminary or ancillary to action unmistakably judicial. Mr. Justice Scudder, the investigator named in the Richardson case, was directed to return his report, not to a court for judicial action, but to the Governor for executive action. Such a duty is clearly distinguishable from that cast upon the investigating officer in the present case,
The remaining question as to whether or not the referee may hire an attorney at law to aid him in his investigation requires merely a construction of section 132 of the Code of Criminal Procedure, as amended. Such section provides that the reasonable expenses of the investigation as certified by the Appellate Division shall be a charge against the city within which the courts or justices under investigation exercise their duty. The language of the section, in relation to the expenses' of an investigation, differs from that in respect to the expenses of a proceeding for the removal of a particular justice. In the latter case only the expenses of the referee are made a public charge. In the former the reasonable expenses of the investigation are made such a charge. In Matter of King (130 N. Y. 602) the Court of Appeals held in a proceeding to remove a police justice in the city of Buffalo that there was no authority for certification of the cost of employing counsel. The statute there under consideration, in so far as it was held applicable, allowed only the reasonable expenses of the referee. In another clause in the same law the phrase “ reasonable expenses of the reference ” was used. The court expressly stated that it did not
In view of the fact that this investigation involves a broad inquiry into the conduct of twenty-two courts and approximately twenty-five magistrates, plus inquiry into the conduct of numerous attorneys, and the further fact that the matters under consideration require the examination of legal documents and the acts of lawyers and judges, it must be plain that the certifying body had the right to approve of the hire of attorneys to pass on the material pertaining to the inquiry. While it is true that in order to justify the assumption of power to control the public purse a clear warrant of law must exist, it is likewise true that such warrant of law can be granted in general as Well as in specific language. The language used in the present act is general, but it clearly justifies the right to certify as a reasonable expense the item here involved. It was stated on the argument that the respondents’ objection to paying the petitioner’s claim is based on their desire to avoid setting a precedent of liability on the part of the city of New York for counsel fees in this class of investigation. This attitude is commendable but the objection in the present case appears unwarranted. It is certified by the petitioner that his work consisted of “ examination of witnesses and investigation of complaints.” The petitioner states that he has worked regularly during fixed periods each day aiding counsel to the investigation and for such work the counsel to the referee has fixed his salary at $100 weekly. Payment for
As the parties stipulated upon the hearing before me that solely questions of law were involved and that the city chamberlain might be joined as a necessary party, the court will direct the issuance of a peremptory mandamus order for the payment of the charges involved herein.
Settle order on notice.