19 Wend. 27 | N.Y. Sup. Ct. | 1837
By the Court,
On the 30th March, 1837, the court of common pleas of Albany county directed to be entered in their minutes the following order: “Edward Livingston having resigned the office of district attorney of the county of Albany, to take effect on the second Tuesday of June next, ordered, that his resignation of that office be accepted to take effect at that time.” And on the 8th April
Whether Mr. Livingston actually resigned the office, to take effect at a future time, or simply intimated an intention to resign, is a question of fact, in respect to which we have before us several conflicting affidavits ; the distinction between the two versions as given of what was said, is not marked or very striking; and unless great pains were taken to discriminate by the use of precise and accurate terms, it is not surprising that even intelligent and respectable men should differ about their import. There is no principle involved in the consideration of the question, and the decision of it can have no important or decisive bearing upon the rights of the relator, let it be decided either way; I shall, therefore, not stop to examine or weigh the facts in the affidavits. “ The county courts,” by the constitution, can remove these officers without cause; and a controversy with them upon the question whether a resignation actually preceded the appointment of a successor or not, must of course in -most cases be unprofitable. For the like reasons it will
The constitution of this state, art. 4, § 9, ordains, that “ the clerks of courts, &c. shall be appointed by the courts of which they respectively are clerks; and district attorneys hy the county courts.” The question presented in the case is to what court or courts does this provision of the constitu" tion refer ? Is it to the common pleas, to the general sessions of the peace, or to both 1 The statute, 1 R. S. 122, $ 33, sub. 5, provides that the resignation of district attorneys shall be made “ to the court which appointed them so that the question becomes material as well in respect to the resignation as the appointment. As originally reported and adopted by the convention, the clause in the constitution read as follows ; “ District attorneys by the courts of common pleas.” It was subsequently altered by the committee to whom was referred the new provisions complete, to be properly incorporated with those of the old constitution which had been untouched, by substituting the term county courts for courts of common pleas. The counsel for Mr. Cheever contends that the change of language did not alter the meaning.
No courts have been erected in this state, or ever existed under the colonial regulations, by the name given in the constitution, except a sheriff’s court, which could not have been intended. It would seem, therefore, to have been used with reference to no particular court existing at the
The first colonial governor, (R. Nicolls,) who took possession of the government in 1664, under the authority of the Duke of York, upon the surrender of the province by the Dutch, and held the same about three years, erected no courts of justice ; but assumed upon himself the decision of all controversies. His successor [Gov. Lovelace, 1667,] called to his assistance justices of the peace, and constituted a court called the assizes, which exercised jurisdiction both at law and in equity. Subordinate to this were town courts and sessions of limited powers- In 1683, during the administration of Governor Dorigan, the province was divided into twelve counties, and high sheriffs were appointed in each, with a view to the establishment of courts and the better government of the colony. An act was passed at the same time entitled “an act to settle courts of justice,” and which provided, 1. That a court should be held monthly in each town throughout the year for the trial of “ small causes and cases of debt and trespass, to the value of forty shillings or under,” and which were to be heard and determined by three commissioners without a jury. 2. That there should be held within every county in the province, a court of sessions once a year, for hearing and determining “as well cases and causes criminal, as cases and causes civilthat the judges of the respective sessions be composed of the justices of the peace, three or more of them, and all causes to be tried by the “ verdict of twelve men of the neighorbood ;” each court to have a clerk to “ draw, enter and keep the records of indictments, informations, declarations, pleas, judgments, &c. All process to be
The appellation “ county courts,” was probably taken from the constitution of 1777, having been used there in three instances. The 24th section provided that the “first judge of the county court,” &c. should hold his office during goocl behavior, &c. Section 25th, that the first judges of county courts should not at the same time hold any other office. And section 28th, that new commissions should issue to judges of county courts, &c. once in three years.
The powers being thus conferred upon the county courts in general terms, studiously avoiding the particular and well known names of any of those previously established and then existing in the several counties ; names given in the statute, whereby they were first instituted, and by which they have ever since been known to the law, it seems difficult, if not impossible, to hold that the courts of common pleas only were intended; especially, when we remember that the designation of those courts was stricken out of the clause as originally reported in the convention. And it is equally difficult, I admit, to believe that the courts of general sessions were exclusively referred to; for if so intended, as in the case of the common pleas, it would have been most natural and almost of course, to have referred to them by name. And yet the nature of the duties belonging to the district attorney would indicate greater fitness and propriety in conferring the power of appointment upon these courts than upon the common pleas, for he is an officer of the former; and the discharge of his official duties, so far as he is connected with the county courts, is confined to them. The general sessions have jurisdiction in all criminal offences “ not punished with death or imprisonment in the state prison for life.” 2 R. S. 208, § 5. And it is made the especial duty of the district attorney to attend the general sessions in the county for which he is appointed “ and to conduct all prosecutions for crimes and offences cognizable in such court.” 1 R. S. 383, § 89. The extent and weight of the jurisdiction thus conferred upon these courts abundantly assure their
Neither court, then, having been designated by name, and the reference to them being in such general terms as fully if not necessarily to comprehend both the common pleas and general sessions, I am of opinion the soundest and safest conclusion will be to interpret the clause as intended to include both. We thus avoid conjecture, which can only be relied on in selecting but one of them, and give full effect to the language used. If we have failed to catch the spirit and meaning of the convention, we have, at least, yielded our judgment to the force of their language, and the fair and natural import of the terms employed. There can be no difficulty in the execution of the power thus conferred upon the two courts, and which must have been well understood by that body; for since the erection of the court of common pleas, in 1691, both courts have been held in the several counties at the same time and place; and may have been held by the same officers. The judges empowered to hold the common pleas, always possessing authority to hold the general sessions. By the statute in force at the adoption of the constitution of 1821, three judges of the county were authorized to hold either court; though one of them together with two justices of the peace associated, might - hold the sessions. The constitution, however, I think, necessarily excludes these magistrates from participating in the appointment; as the county courts, within the meaning of the term as there used, must be held by the judges therein, also designated: judges who are to be appointed by the governor and senate, and who hold their offices for five years, unless sooner removed. The terms county courts and judges of the county courts, are used in several sections ; in some places for the purpose of designating the courts, and in others the officers, and then in art. 5, § 6, there is a provision that the “ judges of the county courts, &c. shall hold their offices for five years,” &c. A previous section, art. 4, § 7, had provided for their appointment by the governor and senate. The fair and reasonable infer
The main ground assumed against our views and conclusion in the case is, that the convention intended simply to designate the courts of common pleas by the term county courts; in other words, that it adopted what is supposed to have been the popular title of this court, instead of using the one under which it was erected and ever since has been known in the law. The statutes uniformly referred to it by the title of the court of common pleas, and this is its name in all process and proceedings. Its name in the "law must have been familiar to every member of the conventions of 1777 and 1821, especially to the professional members, and we cannot bring our minds to the conclusion, that if they had intended to refer to that court alone, they would carelessly have taken the cognomen by which it might have been known in the community, in preference to its legal statutory title; even were we to concede that such was its popular name to any extent, of which we have no satisfactory proof, either from our own experience or that of others. Mr. Butler, the present distinguished attorney general of the United States, was the first district attorney
Upon our view, the relator is entitled to his rule for a peremptory mandamus to the court of common pleas.