75 N.Y.S. 347 | N.Y. Sup. Ct. | 1902
Lizzie Behan was brought before me on habeas corpus on January 4, 1902, and discharged. She had been committed to await trial as a disorderly person, and had subsequently been admitted to bail and ordered to be discharged by Civil Magistrate Pligginbotham. The sheriff refused to recognize the order of the magistrate, whereupon I issued a writ of habeas corpus, and disposed of the matter as above stated, on the grounds indicated in my opinion in Dooley v. Murphy. It is proper that I should, by reference to some authorities, supplement that opinion, which was to the effect that the provisions of the revised charter for the election of city magistrates in Brooklyn are in violation of the constitution.
The clause of the constitution in question is the closing sentence of section 17 of article 6, and is as follows:
“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 pro*348 vided for in this article shall be chosen by the electors of such cities or appointed by some local authorities thereof.”
The question is whether the last clause of the above quotation merely requires all existing judicial officers in cities other than those specifically named to be chosen as there specified, or requires all other judicial officers in cities, whether then existing or thereafter to be created, to be so chosen if at all. If the first suggested meaning is the true one, then police justices in cities—officers then existing both in New York and Brooklyn—became constitutional officers, beyond the power of the legislature to abolish their office; for, though police justices are not named, they are included, if existing judicial officers are meant, and police justices in cities were continued by constitutional authority as much as justices of the peace in towns; the language requiring their election or appointment being not less imperative than that at the beginning of section 17 respecting justices of the peace in towns. But it was held in Koch v. City of New York, 152 N. Y. 72, 46 N. E. 170, that police courts in cities were “not even indirectly referred to” in section 17, and that the legislature had the power to abolish their office. It seems, therefore, to have been actually decided in the case cited that the last clause of section 17 did not even indirectly refer to existing judicial officers in cities, but to judicial officers in cities generally, without reference to whether they were then in existence, or should be thereafter created. Considering the care with which every expression may be supposed to be studied in the drafting of a fundamental law, it cannot be doubted that, had it been intended to restrict the provision to officers then existing, that would have been accomplished unmistakably by some appropriate word.
The only other suggestion which need be considered is that the city magistrate may be deemed a justice of a district court, within the meaning of the portion of section 17 above quoted. It will be noticed that while the charter provides for a municipal court, a city court, and courts of special sessions, it does not, in terms, create any court of which the city magistrate is a judge or justice. It creates the office of city magistrate, and vests in the incumbent certain judicial powers. This circumstance is at least remarkable. The city magistrate, in the exercise of his judicial functions, performs them exactly as a justice of the supreme court exercises the powers which he may exercise out of court. He does not hold a court, any more than a justice of the supreme court does when he signs an' order to show cause on the street, or any other order which he as a judge may make, or hears a contested motion which as a judge he may hear. A court is a well-recognized immaterial entity, which continues though the judge may die. The distinction is not fanciful. A proceeding before a justice of the supreme court upon the death of such justice abates, unless some provision of law exists for its continuance before some other justice. The city magistrate is not a justice of any court. He is merely a person vested with certain judicial powers. But even if the city magistrates in the Second division of the city could be called judges of a court which has no name, that court is not a district court, within the meaning of the constitution. The constitution
