Crane, Ch. J.
The Constitution of the State of New York recognizes two classes of courts ■ — ■ constitutional courts, and inferior local courts of civil or criminal jurisdiction. The constitutional courts are those which are created or continued by the Constitution and, as to these, the Constitution gives certain power and jurisdiction as well as defining the nature and extent of the office. The inferior local courts are left to the creation, control and regulation of and by the Legislature.
Beginning with the judiciary article, in effect January 1, 1926, known as article VI of the Constitution, we find provision made for the continuance of the Supreme Court, with general jurisdiction in law and in equity, subject to such appellate jurisdiction of the Court of Appeals as may be prescribed by law.
The term of office of a Supreme Court justice is fourteen years.
The Court of Appeals is continued, and the term of the judge fixed at fourteen years. Its jurisdiction is specifically detailed.
The County Court is next provided for, as appears in section 11:
“
The existing county courts are continued, and the judges thereof now in office shall hold their offices until the expiration of their respective terms.” Some are to be elected for six years, others for fourteen years.
The Constitution in section 12 even provides for the special county judge.
Then comes the Surrogates’ Courts, which are specifically provided for in section 13 of this article:
“
The existing surrogates’ courts are continued, and the surrogates now in office shall hold their offices until the expiration of their respective present terms.” Some are to be chosen for six years and others for fourteen years.
We find also this article of the Constitution covers the Courts of General Sessions and also the City Court as they are constituted in the city of New York. Section 14 reads:
“
The court of general sessions in and for the city and county of New York is continued with its present jurisdiction, under the name of the court of general sessions of the county of New York,” The term shall be fourteen years.
Section 15: “ The city court of the city of New York is continued, and, from and after the first day of January in the second year following the adoption of this article, it shall have the same jurisdiction and power throughout the city of New York, under the name of the city court of the city of New York, as it now possesses within the county of New York and the county of Bronx.”
These are the judicial offices created or continued by the Constitution, and beyond the power of the Legislature to control or regulate, except as that power is given to it expressly or impliedly by the Constitution.
As to justices of the peace, the Constitution (§ 17) provides that: “ The electors of the several towns shall, at their annual town meetings, or at such other time and in such manner as the legislature may direct, elect justices of the peace, whose term of office shall be four years.” Every other judicial officer in this State is a creature of the Legislature, whose office may be abolished at any time, and whose duties, as well as his office, are under the regulation and control of the Legislature. Thus, by section 17 of this judiciary article, we have this provision,
following the enumeration of the above judicial offices and courts: “All other judicial officers in cities, whose election or appointment is not otherwise provided for in this article, including all judicial officers holding courts of special sessions, magistrates’ courts, or other inferior local courts of criminal jurisdiction in the city of New York, shall be chosen by the electors of such cities, or appointed by some local authorities thereof as may be prescribed by law.”
And again, in section 18 we have this:
“
Inferior local courts of civil and criminal jurisdiction may be established by the legislature, but no such inferior local court which has been created since the first day of January, one thousand eight hundred and ninety-five, or is hereafter created shall be a court of record. All inferior local courts now or hereafter established may be regulated or discontinued by the legislature.”
The Municipal Court of the City of New York is thus an inferior local court of civil jurisdiction, created by the Legislature. Nowhere do we find in the Constitution any provision for its creation, continuance or even existence. The Legislature having created it, may abolish it at any time or transfer its jurisdiction to any other tribunal. To regulate it, both as to tenure of office as well as to any other circumstance and condition, is a power specifically given by the Constitution, and this power includes the right at any time to change or modify the compensation of its judges. Surely if the Legislature has power to abolish the court and is given specifically plenary power to regulate it, as the whole includes the part, so this power must permit of the decrease or increase in salary.
That the Legislature may do this thing, unless controlled or restricted by the Constitution, is conceded. Therefore, it is sought to make the Municipal Court of the City of New York a constitutional court. This cannot be done without thwarting the clear intent and purpose as well
as the express phraseology of this fundamental charter of State government. That section 9 has in it these words: “ All other judicial officers, except justices of the peace, justices of the municipal court of the city of New York, and judges or justices of inferior courts not of record, may be removed by the Senate, * * * ” does not make the Municipal Court a constitutional court by this mere mention of it any more than it does all other inferior courts within the possibilities of propagation.
Having provided for vacancies in the offices of judges of the Court of Appeals and the Supreme Court, the Constitution, by section 16, provided for other vacancies created in the constitutional judicial office by saying:
“
Vacancies occurring in the office of county judge, special county judge, surrogate, special surrogate, judge of the Court of General Sessions of the city of New York, or justice of the City Court of the county of New York, shall be filled by appointment by the governor by and with the advice and consent of the Senate if the Senate be in session,” etc. Clearly, the courts which this article VI created and continued by constitutional mandate were those which I have specified, and did not include the inferior local courts of civil and criminal jurisdiction created by the Legislature, of which the Municipal Court of the City of New York is one.
Therefore, when section 19 of article VI provided for the compensation of judges it had reference to those judges whose office had been created or continued by the article itself. Unnecessary was it to give such power in the Constitution to the Legislature as it had such power anyway. It could create such local courts as it desired unless restrained by the Constitution, and pay the -judges any given compensation.
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Crane, Ch. J.
The Constitution of the State of New York recognizes two classes of courts ■ — ■ constitutional courts, and inferior local courts of civil or criminal jurisdiction. The constitutional courts are those which are created or continued by the Constitution and, as to these, the Constitution gives certain power and jurisdiction as well as defining the nature and extent of the office. The inferior local courts are left to the creation, control and regulation of and by the Legislature.
Beginning with the judiciary article, in effect January 1, 1926, known as article VI of the Constitution, we find provision made for the continuance of the Supreme Court, with general jurisdiction in law and in equity, subject to such appellate jurisdiction of the Court of Appeals as may be prescribed by law.
The term of office of a Supreme Court justice is fourteen years.
The Court of Appeals is continued, and the term of the judge fixed at fourteen years. Its jurisdiction is specifically detailed.
The County Court is next provided for, as appears in section 11:
“
The existing county courts are continued, and the judges thereof now in office shall hold their offices until the expiration of their respective terms.” Some are to be elected for six years, others for fourteen years.
The Constitution in section 12 even provides for the special county judge.
Then comes the Surrogates’ Courts, which are specifically provided for in section 13 of this article:
“
The existing surrogates’ courts are continued, and the surrogates now in office shall hold their offices until the expiration of their respective present terms.” Some are to be chosen for six years and others for fourteen years.
We find also this article of the Constitution covers the Courts of General Sessions and also the City Court as they are constituted in the city of New York. Section 14 reads:
“
The court of general sessions in and for the city and county of New York is continued with its present jurisdiction, under the name of the court of general sessions of the county of New York,” The term shall be fourteen years.
Section 15: “ The city court of the city of New York is continued, and, from and after the first day of January in the second year following the adoption of this article, it shall have the same jurisdiction and power throughout the city of New York, under the name of the city court of the city of New York, as it now possesses within the county of New York and the county of Bronx.”
These are the judicial offices created or continued by the Constitution, and beyond the power of the Legislature to control or regulate, except as that power is given to it expressly or impliedly by the Constitution.
As to justices of the peace, the Constitution (§ 17) provides that: “ The electors of the several towns shall, at their annual town meetings, or at such other time and in such manner as the legislature may direct, elect justices of the peace, whose term of office shall be four years.” Every other judicial officer in this State is a creature of the Legislature, whose office may be abolished at any time, and whose duties, as well as his office, are under the regulation and control of the Legislature. Thus, by section 17 of this judiciary article, we have this provision,
following the enumeration of the above judicial offices and courts: “All other judicial officers in cities, whose election or appointment is not otherwise provided for in this article, including all judicial officers holding courts of special sessions, magistrates’ courts, or other inferior local courts of criminal jurisdiction in the city of New York, shall be chosen by the electors of such cities, or appointed by some local authorities thereof as may be prescribed by law.”
And again, in section 18 we have this:
“
Inferior local courts of civil and criminal jurisdiction may be established by the legislature, but no such inferior local court which has been created since the first day of January, one thousand eight hundred and ninety-five, or is hereafter created shall be a court of record. All inferior local courts now or hereafter established may be regulated or discontinued by the legislature.”
The Municipal Court of the City of New York is thus an inferior local court of civil jurisdiction, created by the Legislature. Nowhere do we find in the Constitution any provision for its creation, continuance or even existence. The Legislature having created it, may abolish it at any time or transfer its jurisdiction to any other tribunal. To regulate it, both as to tenure of office as well as to any other circumstance and condition, is a power specifically given by the Constitution, and this power includes the right at any time to change or modify the compensation of its judges. Surely if the Legislature has power to abolish the court and is given specifically plenary power to regulate it, as the whole includes the part, so this power must permit of the decrease or increase in salary.
That the Legislature may do this thing, unless controlled or restricted by the Constitution, is conceded. Therefore, it is sought to make the Municipal Court of the City of New York a constitutional court. This cannot be done without thwarting the clear intent and purpose as well
as the express phraseology of this fundamental charter of State government. That section 9 has in it these words: “ All other judicial officers, except justices of the peace, justices of the municipal court of the city of New York, and judges or justices of inferior courts not of record, may be removed by the Senate, * * * ” does not make the Municipal Court a constitutional court by this mere mention of it any more than it does all other inferior courts within the possibilities of propagation.
Having provided for vacancies in the offices of judges of the Court of Appeals and the Supreme Court, the Constitution, by section 16, provided for other vacancies created in the constitutional judicial office by saying:
“
Vacancies occurring in the office of county judge, special county judge, surrogate, special surrogate, judge of the Court of General Sessions of the city of New York, or justice of the City Court of the county of New York, shall be filled by appointment by the governor by and with the advice and consent of the Senate if the Senate be in session,” etc. Clearly, the courts which this article VI created and continued by constitutional mandate were those which I have specified, and did not include the inferior local courts of civil and criminal jurisdiction created by the Legislature, of which the Municipal Court of the City of New York is one.
Therefore, when section 19 of article VI provided for the compensation of judges it had reference to those judges whose office had been created or continued by the article itself. Unnecessary was it to give such power in the Constitution to the Legislature as it had such power anyway. It could create such local courts as it desired unless restrained by the Constitution, and pay the -judges any given compensation. The Constitution, moreover, in section 18 had recognized the power of the Legislature to create local courts, regulate or discontinue them. The compensation section, reading: “ All judges, justices and surrogates shall receive for their services such compensa
tian as is now or may hereafter be established by law, provided only that such compensation shall not be diminished during their respective terms of office,” has reference to those judicial officers created and continued by the Constitution, for it is only such that this article of the Constitution is dealing with generally. All other judicial officers, both as to creation, continuance, regulation and compensation are left entirely to the control and power of the Legislature.
Does it not seem somewhat strained to say that the Legislature may abolish the Municipal Court, may reduce the term of office to a week or a day, may create another court in its place and end the term of every judge (Schieffe
lin
v.
Goldsmith,
253 N. Y. 243), and yet cannot reduce his compensation? I can find nothing in the Constitution that limits the Legislature in this respect. The same reasoning adopted for the Special Sessions judge applies to the judge of the Municipal Court and, as to the former, this court has held that the Legislature could reduce his salary during his term.
(Matter of Gresser
v.
O’Brien,
263 N. Y. 622, affg. 146 Misc. Rep. 909.)
If the Municipal Court be a constitutional court beyond the power and control of the Legislature, then in no way can its jurisdiction be limited or controlled so as to take from it the functions which it now has, (See
People ex rel. Wogan
v.
Rafferty,
208 N. Y. 451.)
The line of cleavage between the constitutional and the legislative courts is clearly drawn by the Constitution of 1925, and it should not become blurred or obliterated by judicial interpretation.
Matter of Adler
v.
Voorhis
(254 N. Y. 375) is not in point. The statement that the Constitution has now given place to inferior local courts refers to those courts provided for in the Constitution, as above stated —the General Sessions and the City Court, and not to the Municipal Court of the City of New York. This case dealt with the time for holding elections, which was very materially changed by the new judiciary article.
Reference should be made to the rulings of the United States Supreme Court regarding this matter of inferior local courts under the Federal Constitution. In
Williams
v.
United States
(289 U. S. 553) it was held that the judicial power of the Court of Claims is not vested in virtue of article III of the Constitution, so as to bring its judges within the protection of that article as to tenure of office and compensation.
For these reasons the judgment should be reversed and the complaint dismissed, with costs in all courts.