People Ex Rel. Burby v. . Howland

49 N.E. 775, 155 N.Y. 270, 1898 N.Y. LEXIS 869

• Court: New York Court of Appeals
• Decided: March 8, 1898
• Status: Published

Opinions

Vann, J.

The question presented by this appeal is whether certain sections of chapter 22 of the Laws of'1896, entitled “An act to provide for the better administration of justice in the town of Port Edward, in the county of "Washington,” are in conflict with the Constitution of the state. By its first twelve sections this statute provided for the election at the annual town meeting in the year 1896 of a police justice to hold office for two years, with a salary of $300 per year, and declared that “ said office shall be one of the town offices of said town.” He was given the same jurisdiction in all criminal cases and proceedings as is possessed by justices of the peace in said town, and it was made his duty ■“ to hear, try and determine all criminal cases and proceedings which a Court of Special Sessions lias power to hear, try and determine.” On or before the fifth day of each month he was required to pay over to the supervisor of the town, for the use of the poor thereof, all moneys received by him for costs, charges, fees or fines in any proceedings before him for the month immediately preceding.

The next six sections provided for the election at the same time of a police officer “ as town officer of said town,” at a salary of $30 per month, with all the powers, duties and liabilities that constables of said town “have with regard to all criminal matters and all proceedings of a criminal nature.” All fees received by him were to be paid over once a month to the supervisor for the use of the poor of the town, and both he and the police justice were required to be resident -electors of the town. Sections 19 and 20 of said act areas follows:

Ҥ 19. The sheriff, under sheriff, deputy sheriffs, or constables elected or appointed in the county of Washington, or the village or town of Fort Edward, or any railroad officer or detective employed by any railroad company whose road extends into or runs through said county of Washington, shall not, as such, be compelled to serve within the town of Fort Edward, or village of Fort Edward, any summons, warrant, subpoena, commitment, order, notice, paper or process whatever, issued or directed by the police justice of said town, or village, or any justice of the peace residing or doing business therein, in execution of the laws of this state for the prevention of crime and the punishment of criminal offenders, or of the police laws or regulations of the state, or in any proceedings collateral to or connected with the execution of such general laws or regulations, or of the by-laws, rules, regulations or ordinances of said town, or of said village aforesaid; nor shall the- county of Washington, or any of the towns therein, or the village of Fort Edward, be chargeable with, or in any way liable to pay any such sheriff, under sheriff, deputy sheriff, constable, or railroad officer or detective, any fees for services rendered, or disbursements paid or incurred, under or by virtue of such warrants, subpoenas, commitments, order, notice, paper or process whatever.

“ § 20. Ho justice of the peace of the town of Fort Edward or police justice of said village shall be compelled to issue any summons, warrant, subpoenas, commitment, order, notice, paper or process whatever, for any criminal offense, within said town, nor shall the county of Washington, or any town therein, or the village of Fort Edward, be chargeable with, or in any way liable to pay any such justice of the peace, or police justice of such village, any fees for any services rendered, or disbursements paid or incurred, under or by virtue of any such warrants, subpoenas, commitments, orders, notices, papers or process whatever.”

The object of this act, as claimed by the appellants, is “the abolition of fees and the consequent saving to the taxpayers ” of the town of Fort Edward; but, as claimed by the respondents, it is the abolition joro tanto, and by an indirect method, of the office of justice of the peace in said town. The main question presented for decision is, whether the sections quoted above from the act of 1896 are in violation of article 6 of the Constitution of this state.

That article establishes the judiciary of the state the same as previous articles had established the legislative and executive departments of government. By its 17th section it provides that “ the electors of the several towns shall, at their annual town meetings, * * * elect justices of the peace, whose term of office shall be four years. * * * Justices of the peace and judges or justices of inferior courts not of record, and their clerks, may be removed for cause, after due notice and an opportunity of being heard, by such courts as are or may be prescribed by law. 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.”

It is provided by section 20 of the same article that “ no judicial officer, except justices of the peace, shall receive to his own use any fees or perquisites of office ; ” by section 22, that “justices of the peace and” certain other local judicial officers “ in office when this article takes effect, shall hold their offices until the exjfiration of their respective terms; ” and by section 23 that “ Courts of Special Sessions shall have such jurisdiction of offenses of the grade of misdemeanors as may be prescribed by law.” These provisions, except section 22, are not new as they are continued from the Constitution of 1846, which was not abolished, but was revised by the convention of 1894 and the subsequent action of the People. (See the Constitutions of 1777, § 28; 1821, art. IY, § 7; 1846, art. YI, §§ 11 and 17 ; 1 B. S. 110.)

The office of justice of the peace came down to us from remote times. It existed in England before the discovery of America, and it has existed here practically during our entire history, both colonial and state, at first with criminal jurisdiction only, but for more than two centuries past with civil jurisdiction also. (1 Col. Laws, 226, Act of May 6, 1691; 2 Col. Laws, 964, Act of Dec. 16, 1737; 3 Col. Laws, 1011, Act of Dec. 7, 1754; 4 Col. Laws, 296, Act of Dec. 16, 1758; 5 Col. Laws, 209, Act of Feb. 16, 1771; Law Dict. tit. Justice of the Peace, Tomlins, Burrill, Black and Anderson.) It exists in every state of the Union and is regarded as of great importance to the people at large, as it opens the doors of justice near their own homes, and not only affords a cheap and speedy remedy for minor grievances as to lights of property, but also renders substantial aid in the prevention and punishment of crime. The office as it now exists in towns was established by the Constitution, which does not in express terms say what a justice of the peace shall be. As, however, the office was well known when the Constitution was adopted, it is presumed that the framers thereof and the People meant to establish it as an office with such civil and criminal jurisdiction, within the limitations of that instrument, as the legislature saw fit to confer upon it. As it has always had criminal juris diction, and was an existing office with such jurisdiction when each Constitution was adopted, it is at least doubtful whether the legislature has any power to deprive it of criminal jurisdiction altogether, since that would tend to partially abolish the office as it had been known for time out of mind. A constitutional office cannot be abolished by legislation having that result as a direct object, although it has been held that, under the provision of the Constitution authorizing the legislature to create cities and villages, it may abolish a town altogether, even if the effect is to deprive a justice of the peace of his office. (Matter of Gertum, 109 N. Y. 170.) The court, however, was careful to bound such legislation by the limitation of good faith and a proper constitutional object. Thus, Chief Judge Bugeb, in delivering the opinion, said: “ It is undoubtedly beyond the power of the legislature, by direct legislation, to abolish the office of justice of the peace in towns, or shorten their terms of office so long as the town exists, but they have an unquestioned right to alter and change the limits of their jurisdiction, or abolish the town organization altogether, juovided it be done in good faith, and for proper constitutional objects. The whole force and effect of the provision in relation to justices is satisfied by enforcing it, so long as there is a town organization in existence authorized under the Constitution to elect justices of. the peace and requiring the performance of their functions in the government of the town.”

Hot only is the office itself placed beyond the reach of hostile legislation, but also the term thereof, the method of filling it, and, by implication, the method of removing an incumbent. As was well said by the learned Appellate Division in deciding this case, “ when the Constitution has fixed the term of office and prescribed the cause for which and the method by which an incumbent of snch office may be removed, such cause and method are exclusive, and it is beyond the power of the legislature to remove or suspend him from office for any other cause or in any other method. (Rathbone v. Wirth, 150 N. Y. 459, 475 ; Lowe v. Common wealth, 3 Metc. [Ky.] 237 ; Black’s Const. Law, 255.) ” The Constitution does not prescribe the powers or duties of justices of the peace in towns, but leaves that to be done by general laws, which, hitherto, have been uniform, apjdying alike to all justices of the peace in towns throughout the state. Their civil jurisdiction is prescribed by the Code of Civil Procedure, and includes most common-law actions where the sum claimed does not exceed two hundred dollars. (§§ 2861— 2864.) Their criminal jurisdiction, as committing magistrates, covers crimes of all grades, and as justices holding Courts of Special Sessions, crimes of the grade of misdemeanor. (Code Crim. Pro. §§ 56,62,147,156.) A justice of the peace in towns, therefore, may be defined as a constitutional judge elected by the People for a fixed term, protected from removal except by a judicial tribunal, on notice and for cause, with civil jurisdiction in most actions where the sum claimed does not exceed two hundred dollars, and with criminal jurisdiction to apprehend and commit for all crimes, and to try and convict in cases of misdemeanor. Does this define the position held by the relator as hampered and limited by the act of 1896 ? What does that act attempt to do with justices of the peace in the town of Fort Edward? While it does not directly or in terms take away from them the jurisdiction conferred by law upon such officers throughout the state, the effect is the same, so far as criminal jurisdiction is concerned, as if the office were absolutely abolished. ( Warner v. People, 2 Den. 272, 281.) In three respects, each of which is essential to effective jurisdiction, the office is attacked: 1. By expressly removing the duty to enforce the criminal law either as a magistrate or as a court. 2. By virtually prohibiting all peace officers from serving process or executing commitments. 3. By taking away all compensation for services rendered in criminal matters. This is done by legislation which discriminates in these respects against justices of the peace in one town in the entire state and cuts down the power of this constitutional office in that town alone, leaving it unaffected elsewhere. Thus a judicial officer, named .in the Constitution, elected for a term fixed by the Constitution, with jurisdiction to act conferred by general laws, and by those laws entitled to fees for his services, while not in theory deprived of the power to act, is practically prevented from acting by a special statute, the direct object of which is to accomplish that result. Can the legislature leave these officers with jurisdiction to act, and yet not only relieve them of the duty of acting, but virtually render judicial action impossible by preventing all executive officers from serving their process, and by depriving them of ail compensation for acting ? Is not this an interference with the office itself ? If a substantial part of the power of four justices of the peace out of several thousand in the state is taken away from them, are they still justices of the peace within the meaning of the Constitution ? Does not the prohibition against taking fees operate as a substantial abolition of criminal jurisdiction, and to that extent as an abolition of the office itself ? (Reid v. Smoulter, 128 Penn. St. 324.) Does not the taking away of the duty to act have the same effect ? Does not the withdrawal of compensation to peace officers for acting, as well as the abolition of their duty to act, render justices of the peace powerless to discharge their duties, and to that extent abolish the office ? While bare jurisdiction may exist, will it be exercised when it is no longer a duty, and, if exercised, it must be without compensation? (Commonwealth v. Mann, 5 Watts & S. 403, 409.) Can it be exercised when the peace officers are bound and hamstrung ? A judicial officer cannot serve his own papers, and if he is deprived of the right to compel executive officers to serve them, does he continue to be a judicial officer ? Even if criminal procfess were issued by a justice of the peace in the town of Fort Edward, no officer could be compelled to serve it, and, after a lawful judgment of conviction, the commitment of the offender might be of no avail for the want of some one to execute it. The hands of a constitutional judge are thus tied as completely as legislation can tie them, so far as the administration of the criminal law is concerned.

The Constitution created Courts of Special Sessions, and the legislature, by general laws, defined the criminal jurisdiction of those courts, authorized justices of the peace to hold them, and prescribed the compensation they were to receive therefor, yet, an act, applicable only to a single town in the state,virtually deprives these constitutional justices of the power to hold these constitutional courts, and takes from them the compensation to which, otherwise, they would be entitled by law. While the legislature has power to increase or diminish the jurisdiction of these officers generally, can it confer full judicial power upon all, and yet not only take away judicial duty from some, but even render judicial action by them practically impossible, without affecting the office itself \ If this can be done as to criminal actions, why can it not be done as to civil actions, also, and thus leave justices of the peace officers in name only ? It is conceded that the legislature cannot abolish the office directly, and, if not, can they do so indirectly ? Is there any difference between abolishing an office altogether and practically preventing the incumbent from discharging the functions thereof ? “ Every positive direction contains an implication against anything contrary to it, or which would frustrate or disappoint the purpose of that provision.” (People ex rel. Wood v. Draper, 15 N. Y. 543.) As was said by Judge Allen in an important case, “an act violating the true intent and meaning of the instrument, although not within the letter, is as much within the purview and effect of a prohibition as if within the strict letter; and an act in evasion of the terms of the Constitution, as properly interpreted and understood, and frustrating its general and clearly expressed or necessarily implied purpose, is as clearly void as if in express terms forbidden.” (People ex rel. Bolton v. Albertson, 55 N. Y. 50, 55.)

When the main purpose of a statute, or of part of a statute, is to evade the Constitution by effecting indirectly that which cannot be done directly, the act is to that extent void, because it violates the spirit of the fundamental law. Otherwise the Constitution would furnish frail protection to the citizen, for it would be at the mercy of ingenious efforts to circumvent its object and to defeat its commands. The main purpose of sections 19 and 20 of the act under consideration was to so circumscribe justices of the peace in one town of the state as to prevent them from performing important official functions, and to divert the business confided to them by general laws to a new officer created by special act for the express purpose of doing that business. Thus it is made the duty of the new police justice to hear and determine all criminal cases which Courts of Special Sessions have power to hear and determine, and the j ustices of the peace of the town, although still authorized to hold those courts, are relieved of that duty, deprived of compensation if they discharge it, and are prevented from discharging it through inability to compel peace officers to obey their commands. The necessary effect of such legislation indicates its object, which was to silence the justices of the peace and transfer their duties to the police justice. We think it is not in the power of the legislature to enact that justices of the peace in the state of Hew York shall have certain powers and duties, except in the town of Fort Edward, and that there only they shall not have those duties, and if they voluntarily attempt to discharge them, shall have no power to enforce their judgments. If this can be done as to one judicial officer named in the Constitution, it can be done as to another, and the duties imposed generally upon justices of the Supreme Court throughout the state cannot only be altogether withdrawn as to certain justices, but the power to discharge them withdrawn also. The Code of Criminal Procedure declares that justices of the Supreme Court, justices of the peace and certain other judicial officers shall be magistrates, and important criminal powers are expressly conferred upon them, and, by implication, it is made their duty to exercise those powers in a proper case. (Code Crim. Pro. §§ 147,166.) The legislature can, of course, amend and change that statute by adding to or taking from those powers and duties, but can it so amend it as to declare that it shall not be the duty of justices of the Supreme Court residing in a cer tain district to act as magistrates, and that, if they do so act, peace officers shall not be compelled to serve their warrants or enforce their commitments? Without directly taking away the power, can the duty he withdrawn and the power so undermined as to make it practically useless, and the office still he left intact ?

The object of a written Constitution is to regulate, define and limit the powers of government by assigning to the executive, legislative and judicial branches distinct and independent powers. The safety of free government rests upon the independence of each branch and the even balance of power between the three. Unite any two of them and they will absorb the third with absolute power as a result. Weaken any one of them by making it unduly dependent upon another and a tendency toward the same evil follows. It is not merely for convenience in the transaction of business that they are kept separate by the Constitution, but for the preservation of liberty itself, which is ended by the union of the three functions in one man, or in one body of men. It is a fundamental principle of the organic law that each department should be free from interference, in the discharge of its peculiar duties, by either of the others.

Hothing is more essential to free government than the independence of its judges, for the property and the life of every citizen may become subject to their control and may need the protection of their power. Hot a contract is made except in reliance upon their ability to afford redress if it is violated. Men part with property upon the promise of their fellows, walk the streets by day and sleep in peace at night in the confidence that the silent and unseen power of the judiciary is always ready to protect their rights. Any legislation that hampers judicial action or interferes with the discharge of judicial functions is in conflict with the principles of the Constitution. Whenever a judge, however humble, is authorized by law to hold a criminal court, established by the Constitution, and to require executive officers to serve his warrants and enforce his judgments, the legislature cannot leave him the power to act, and withdraw from him the power of compelling obedience to his lawful mandates, without affecting his independence and depriving him of the essential powers of a judge.

Ou the 26th of June, 1896, the relator, upon complaint being made before him, issued a warrant and the offender was arrested, tried and sentenced to imprisonment. Thereupon the justice issued the usual commitment to a peace officer to take the person convicted to the county jail. But, according to section 19 of the act under consideration, he could not require that officer to obey the order, and the command of a judge to enforce a valid judgment became no more than a mere request to do so. He was thus obliged to coax those whom, if he was still a judge, he had the right to command, and the enforcement of a lawful judgment depended upon the good will of a constable. In other words, a judge, acting according to law in every respect, was by this legislation made dependent upon the favor of an executive officer in order to have his lawful commands obeyed. Is any argument necessary, under these circumstances, to show that the independence of the judge was destroyed \ The lawful command of a judge is the command of the People of the state of Hew York, in their oi-ganized capacity under the Constitution, and the legislature has no power to say directly or indirectly that such a command shall not be obeyed. While, in many cases, it can take away the jurisdiction of the judge altogether, it cannot leave him clothed with full power to render judgment and then prevent him from causing that judgment to be enforced by saying to peace officers that they need not obey his lawful commands unless they choose to do so. If such legislation is sustained, the independence of the judiciary and the freedom of the law will depend upon the generosity of the legislature.

While we hesitate, as every court should, to set aside a solemn act of legislation, yet it is our high prerogative to defend the Constitution, and to protect the humblest judge from interference with his judicial functions in violation of its command. That duty we now discharge by adjudging that sections 19 and 20 of chapter 22 of the Laws of 1896 are unconstitutional and void.

The order appealed from should be affirmed, with costs.