40 Barb. 408 | N.Y. Sup. Ct. | 1863
This action was tried before a police justice of the village of Whitesborough. It is objected that the act creating this officer and defining his powers and jurisdiction is unconstitutional. (Chap. 10, §§ 2, 3, 43, 44, Laws of 1859.) That act, (§ 43,) declares that “ the police justice shall have_ the same powers and jurisdiction, and be subject to the same duties and liabilities as justices of the peace in the town of Whitestown, and his judgments and proceedings may be reviewed in the same manner as is or may be provided in cases of judgments and proceedings of justices of the peace.”
It was held in Sill v. The Village of Corning, (15 N. Y. Rep. 297,) and in Brandon v. Avery, (22 id. 469,) that a police justice elected by the electors of an incorporated village may, by authority of the legislature, exercise jurisdiction in civil actions within the territorial limits of the village. In the latter case the charter was examined, and it was found to contain a provision that the police justice of the village of Illio'n shall in said village possess all the jurisdiction, power and authority, and be subject to the same requirements and duties in all respects, as is or may by law be vested in or required from justices of the peace of the town of German Flats. Comstock, Ch. J. in delivering the. opinion of the court, observed: “The difference between the office of police justice, as constituted by this statute, and that of a justice of the peace, is sufficiently marked by the absence in the former of a variety of powers and duties which appertain to the latter, and still more by the territorial restriction which confines the jurisdiction of the police magistrate to the limits of the village.” It is admitted that justices of the peace cannot be
Has he the same territorial jurisdiction ? It is provided by the act in question, (§ 43,) that he shall have the same power and jurisdiction, and be subject to the same duties and liabilities, as justices of the peace of the town of Whitestown, and that his judgments may be reviewed in the same manner, &c. The words are, that he shall have the same jurisdiction as a justice of the peace of the town of Whitestown. Unless these words are restricted by some other provision, the natural, and I think the necessary effect is, to constitute him a justice of the peace of the town of Whitestown. The same act gives him some additional powers, but I have looked in vain for any limitation of his general jurisdiction, to exercise all the powers and authority of a justice of the peace in civil and criminal cases. The forty-fourth section of this act prescribes that “he shall keep an office within said village, hear all complaints, hold courts and courts of special sessions, and conduct all other criminal business that may by law be done by a justice of the peace.” This is not an express denial of his right to hold courts elsewhere, but it makes it his duty to keep an office and hold courts in the-village. It is not equivalent to a declaration that he shall hold his office in said village. Nor is it the restricted language used in the charter of the village of Illion, (ch. 127 of Laws of 1854, §§ 7, 8,) where the police justice was authorized “in said village” to exercise the jurisdiction of a justice of the peace of the town of Herman Flats. I confess I do not appreciate the observation of the learned judge, in Brandon v. Avery, that there is a difference
The defendant cannot now object that the justice did not acquire jurisdiction of his person, or of the cause of action, by the service of process in a proper manner, or by reason of the non-residence of the defendant within the limits of the village of Whitesborough, if such residence was necessary to the jurisdiction. By not pleading in abatement to the jurisdiction the objection was waived. But this remark does not apply to an inherent defect in the jurisdiction of the justice. If he had not by law jurisdiction of the subject matter, or authority to hear and try civil actions, the consent of the parties could not confer jurisdiction, and his judgments are void; and the objection may be taken in any stage of the action, or upon any appeal from the judgment.
The justice was chosen by the electors of the village of Whitesborough, under the provisions of the charter of that village requiring a “police justice” to be elected annually, within the village. (Laws of 1859, p. 14, §§ 2, 3.) By the same charter the powers and jurisdiction of the justice so elected are declared to be the same as those of justices of the peace in the town of Whitestown, and his judgments and proceedings are to be reviewed in the same manner as in cases of judgments and proceedings of justices of the peace. And he is required to keep an office within the village and hear all complaints, hold courts and courts of special sessions, and conduct all other criminal business that may by law be done by a justice of the peace. (Id. p. 30, §§ 43, 44.) The police 'justice chosen by the electors of the village of Whitesborough is thus made a justice of the peace of the town of Whitestown, and exercises all his powers in the trial of civil actions as such justice, and under the authority thus conferred. This is in direct contravention of § 17 of article 6 of the constitution of this state, which directs that justices of the peace shall be chosen by the electors of the several towns, and shall hold
The judgments of the- county court and of the justice must be reversed.
Mullin, J. and Bacon, J. concurred.
Judgment reversed..
Allen. Mullin, Morgan and Bacon, Justices.]