177 A.D. 663 | N.Y. App. Div. | 1917
We are met at the threshold of the case by the claim that the statute (Greater N. Y. Charter [Laws of 1901, chap. 466], § 1534) is unconstitutional because it is said to confer non-judicial functions upon justices of the Supreme Court. The statute authorizes a justice of the Supreme Court in the first or second
The end and object of the proceeding is the taking of testimony regarding alleged wrongful acts of city officers, for publicity, and for the information of a city department. A proceeding which has this end and object is nota judicial proceeding. All the power and authority conferred by the act, except, perhaps, the power to punish for contempt, may be and often is intrusted to commissioners and boards, which are in no sense judicial tribunals. Instances of this are the powers conferred on the commissioners of account, civil service commissions, public service commissions, the Banking Department and the board of aldermen. It is not related to any judicial action. Analogous statutes, known as the Anti-Monopoly Laws, being chapter 383 of the Laws of 1897, and chapter 690 of the' Laws of 1899, which are now contained in the General Business Law (Consol. Laws, chap. 20 [Laws of 1909, chap. 25], §§ 340-346,
The end and object of all civil judicial proceedings is the enforcement or protection of a right, or the redress or prevention of a wrong. So the Supreme Court of the United States in Gordon v. United States (117 U. S. 697) refused to entertain an appeal from the Court of Claims because that court did not pronounce an enforcible judgment, but its decisions were practically advisory only.
But the fact that proceedings have such end and object does not alone make them judicial. This end, which we may for convenience call a judgment, must be reached in a judicial manner. There must be parties, and opportunity to be heard,
A proceeding may be of a judicial nature, and involve the exercise of judicial functions, but fall short of being a judicial proceeding: Such is the proceeding authorized by the statute under consideration. It does not result in any judgment or determination. It is simply an administrative investigation, and its sole validity is in its relation to the city government.
But I think it does not follow that the power cannot be conferred on a justice of this court. Our Constitution divides governmental powers into three branches; by its terms it confers one, the legislative, on the Senate and Assembly; another, the executive, upon the Governor and Lieutenant-Governor, and it then continues and creates courts and provides for the exercise of judicial powers. Undoubtedly these governmental powers are distinct in their very nature. Their separation is essential to freedom, and a union of the three in one person or body leads to tyranny. These principles have been vigorously set forth by our Court of Appeals (People ex rel. Burby v. Howland, 155 N. Y. 270; Village of Saratoga Springs v. Saratoga Gas, etc., Co., 191 id. 123), but are nowhere more tersely expressed than in a resolution of the Circuit Court of the United States, composed of Chief Justice Jay and Justices Cushing and Duane, in refusing to perform as a court certain non-judicial functions attempted to be cast upon it by Congress. The resolution is as follows: “That by the Constitution of the United States, the government thereof is divided into three distinct and independent branches, and that it is the duty of each to abstain from, and to oppose, encroachments on either. That neither the legislative nor the executive branches, can constitutionally assign to the judicial any duties, but such as are properly judicial, and to be performed in a judicial manner.” (Foot note to Hayburn’s Case, 2 Dall. 409.) The resolution passed in 1792 is equally true to-day, and of our State as well as the United States Constitution. A purely legislative or executive function cannot be cast on the courts, for that would violate the provisions of the Constitution vesting the
Although this proceeding itself cannot be called a judicial one, yet judicial methods are used, and judicial powers incidentally invoked; and, bearing in mind the duty of the courts to sustain acts of the Legislature, if by any reasonable interpretation that can be done, I am led to the conclusion that the act casting on the justices of this court the power to order such examination does not violate either the letter or the spirit of the Constitution.
It is obvious that without the authority of such a statute, no justice could call before him the heads of departments of the city government and private persons, to be questioned either in aid of the administration of the city government or to satisfy public curiosity. It is, therefore, a special statutory power, and can be exercised only ‘ ‘ in such cases, under such circumstances and in the manner in which the statute directs.” (Warren v. Union Bank of Rochester, 157 N. Y. 259,) The affidavit on which the order is based must show the conditions under which the statute- authorizes the proceedings to be brought. We are brought thus to a consideration of the meaning and scope of the act and an analysis of the affidavits.
After long public agitation, a comprehensive law was passed (Laws of 1911, chap. 777) involving radical changes of the franchises of the New York Central railroad all along the west side of the city from Dyckman street to Battery park; removal of the tracks from the streets at grade, electrification of the road, granting by the city real property and rights to the railroad company, and acquiring from the railroad company real property and rights. The proposition required an agreement with the railroad company. Pursuant thereto long-continued investigations have been had, plans and profiles showing the contemplated work have been drawn and exhibited, a proposed contract drawn by the corporation counsel, and the whole matter is pending before the board of estimate and apportionment. It
It is clear that the statute gives no authority to summon the mayor for examination. If that had been the intent of the Legislature it would have been expressly so declared, especially as it is provided that the mayor may initiate the proceedings. In specifying the persons who may be summoned the act enumerated certain officials, beginning with a member of the board of aldermen and descending through the official scale to a clerk of a bureau, and then follows the general words, “or other officer of the corporation or person.” The application of the doctrine ejusdemgeneris prevents the word “officer” from including the mayor, and his official position prevents his designation by the word “person.”
It is objected to the motion that the Appellate Division cannot entertain it because it is not authorized by section 1348 of the Code. That section is limited to motions to review orders in actions and special proceedings, and this is neither one nor the other. The Constitution (Art. 6, § 2) provides that from and after the last day of December, 1895, the Appellate Division shall have the jurisdiction now exercised by the Supreme Court at its General Terms, and such additional jurisdiction as may be conferred by the Legislature. The Legislature cannot, therefore, curtail its jurisdiction, although it may extend it. It is necessary, then, to consider what jurisdiction the General Term of the Supreme Court exercised on December 31, 1895. This has been the subject of judicial determination, and it has been held that the General Term and Special Term were
It is true that ordinarily the Appellate Division will not entertain such motions, but will remit the applicant to the Special Term, but I think in this case it may be done without establishing' any dangerous precedent. The motion for the alternative writ is pending before the court. It requires consideration of the same questions as -presented in the motion to vacate. In the interest of economy of time and labor, there is no reason why the two motions should not be entertained together.
The motion for an alternative writ of prohibition is denied, without costs, and the motion to vacate the order for the examination of the mayor and others is granted, and that order vacated and set aside, without costs.
Jenks, P. J., Thomas, Stapleton and Rich, JJ., concurred.
Order for an alternative writ of prohibition denied, without costs, and motion to vacate the order for the examination of the mayor and others granted, and that order vacated and set aside, without costs.