103 N.E. 140 | NY | 1913
The relator is the brigadier-general commanding the Fourth Brigade of the National Guard of the state of New York, whose headquarters are in Erie county. On the 8th day of April, 1913, the Hon. CHARLES H. BROWN, one of the justices of the Supreme Court in the eighth judicial district, caused to be served upon General Welch the following communication in writing:
"To Brigadier-General Samuel M. Welch, Fourth Brigade, National Guard, State of New York:
"SIR. — Whereas I am satisfied that breaches of the peace, tumults, riots, and other violations of the law are *307 almost continually occurring within the City of Buffalo, Now, therefore, I, Charles H. Brown, Justice of the Supreme Court of the State of New York, by virtue of the authority vested in me under the Military Law of the State of New York, do hereby call upon you for aid in the suppression of such breaches of the peace, tumults and riots. — Dated April 8, 1913
"(Signed). "CHARLES H. BROWN, "Justice of the Supreme Court."
In compliance with this call for aid, General Welch assembled three regiments of his command in Buffalo for riot duty, and they remained there engaged in active service from the 9th to the 12th day of April, 1913, when they were relieved from further duty in the premises pursuant to a written direction from Mr. Justice BROWN addressed to General Welch on the last-mentioned date. The present proceeding was instituted to compel the county treasurer of Erie county to execute a certificate of indebtedness, under section
The claim is resisted on the ground that the action of Judge BROWN was violative of two provisions in the State Constitution: (1) That which makes the governor the commander-in-chief of the military forces of the state (Art. IV, § 4); and (2) that which prohibits justices of the Supreme Court from holding any other office or public trust (Art. VI, § 10).
As to the first ground, it should be observed that Judge BROWN did not undertake any of the functions of a military commander. The statute empowered a justice of the Supreme Court in a given emergency to call for aid; and finding the emergency to exist, he called for it. "In case of any breach of the peace, tumult, riot or resistance *308 to process of this state, or imminent danger thereof, a justice of the supreme court, a county judge or recorder, or city judge of a city or sheriff of a county, or mayor of a city, may call for aid upon the commanding officer of National Guard or Naval Militia stationed therein or adjacent thereto; such call shall be in writing." (Military Law, § 115; Cons. Laws, ch. 26.) All that Judge BROWN did was to set the military branch of the government in motion, to assist in the suppression of a riot, after judicially ascertaining the fact that rioting was going on in the city of Buffalo. In no proper sense, as it seems to me, can his action be deemed a usurpation of the constitutional prerogatives of the governor as commander-in-chief. The call was not even in the form of an order; it contained no directions as to what troops were to be assembled, or how many, or where. It merely declared that a condition existed which military assistance was needed to suppress; and it requested that such assistance be afforded. This is very far from the exercise of military command. That remained in the hands of Brigadier-General Welch, subject at all times to the control of the governor, who was informed of the call and all that was done thereunder.
Section 10 of article VI of the Constitution provides that the judges of the Court of Appeals and the justices of the Supreme Court shall not hold any other office or public trust. The judicial construction given to this constitutional prohibition shows that it does not forbid the legislature from conferring upon a Supreme Court justice authority to issue such a call for military aid to suppress a riot as was issued in the present case. It does not prohibit the exercise of a function which is "merely transient, occasional or incidental." (People ex rel.Washington v. Nichols,
Section
The disposition of this case by the courts below was clearly right and the order appealed from should be affirmed, with costs.
CULLEN, Ch. J., WERNER, CHASE, COLLIN, CUDDEBACK and HOGAN, JJ., concur.
Order affirmed.