People Ex Rel. Swift v. . Luce

97 N.E. 850, 204 N.Y. 478, 1912 N.Y. LEXIS 791

• Court: New York Court of Appeals
• Decided: February 27, 1912
• Status: Published

Opinions

Cullen, Ch. J.

This action is in the nature of quo warranto brought by the People to oust from office the defendants, who were appointed commissioners of the Board of Claims under chapter 856 of the Laws of 1911, and to reinstate the relators as judges of the so-called Court of Claims which the act referred to purported to abolish.

The only question involved is the constitutionality of this act of the legislature. . The history of the disposition of private claims against the state is as follows: The state, being sovereign, is immune from suit except in the Supreme Court of the United States at the instance of another state under the provisions of the Federal Constitution. Claimants had, therefore, to rely on the sense of justice of the legislature. By chapter 321 of the Laws of 1870 jurisdiction was conferred on the canal appraisers to hear and determine certain classes of claims arising from the use and management of the canals; but the great mass of claims against the state were submitted to and passed on directly by the legislature, which provided for their payment. By an amendment to the Constitution made in 1874, which is now reproduced in section 19 of article 3 of the present Constitution, it was enacted that the legislature “ shall neither audit nor allow any private claim or account against the State, hut may appropriate money to pay such claims as shall have been audited and allowed according to law.” Thereupon it became necessary, unless the state was either to violate its obligations or was willing to surrender its immunity and subject itself to suits in the courts like other litigants, for the legislature to create some hoard or tribunal which could pass upon and audit claims against it. Hence, in 1876 (by ch. 444) it was enacted that the comptroller, secretary of state and state treasurer should constitute a state board of audit with power to hear all private claims and accounts against the state, except such as were then heard by the canal appraisers, to administer oaths and take testimony in relation thereto, to determine the justice and amounts thereof, and to allow such sums as should be equitable. ■ The hoard was authorized to establish rules as to the forms and methods of procedure before it. In 1883 (by ch. 205) the canal appraisers and the state hoard of audit were abolished and the Board of Claims constituted, to consist of three commissioners to be appointed by the governor and to hold office for the term of six years. The board, was given jurisdiction to hear, audit and determine all private claims against the state, and it was also enacted that it should have jurisdiction of all claims on the part of the state against any person making a claim against the state and should determine such claims or demands both on the part of the state and the claimant; and if it found that the demand of the state exceeded that of the claimant, it should award such excess in favor of the state against the claimant. It will thus he seen that the jurisdiction conferred on the Board of Claims was of the broadest character. It included every private claim against the state and author ized the determination of set-offs or counterclaims by the state against the claimant.

Chapter 36 of the Laws of 1897 enacted that the Board of Claims should be continued and thereafter known as the Court of Claims. The act provided for the procedure by and before it and assimilated the procedure to that in regular courts, but it did not add one iota to the jurisdiction formerly possessed by the Board of Claims. Indeed, it was impossible that the jurisdiction of the Board of Claims, so far as the subject-matter of private claims by or against the state, could be increased, for already it was universal. Jurisdiction to determine public claims against the state was not conferred upon the Board of Claims (Bd. Suprs. of County of Cayuga v. State of N. Y., 153 N. Y. 279), nor was it ever conferred on the Court of Claims, except in some special case by act of the legislature. One must not be misled by the fact that special laws were passed referring cases to the Board of Claims. Such were not rendered necessary because of any limitation on the jurisdiction of that board, but because such claims were not legal ones, but rested solely on morals and equity, and, therefore, were not enforceable until recognized by the legislature. Examples of cases of this character are to be found in Cole v. State of N. Y. (102 N. Y. 48) and O'Hara v. State of N. Y. (112 id. 146). By chapter 692 of the Laws of 1906 the terms of the judges then in office were extended ten years from the date of the act, and it was provided that they should continue in office until their successors were appointed and qualified.

The statute of 1911 (Ch. 856), already mentioned, amended section (363 of the Code of Civil Procedure so that there was no longer any authority for a Court of Claims, but the Board of Claims was continued to be composed, instead of judges, of three commissioners. The judges of the Court of Claims, then serving as such, were to be known as commissioners. Them terms were abrogated and their successors directed to be appointed by the governor within sixty days after the passage of' the act. The appellants challenge the-validity of this act of 1911, claiming that the Court of Claims was a court of Jaw, and the judges thereof judicial officers who, under the provisions of section 11 of article 6 of the Constitution, could be removed only by the senate with the concurrence of two-thirds of its members on the recommendation of the governor. It is not denied that if they do not fall within this provision the legislature may shorten or abrogate their terms the same as those of other officers whose tenure is not prescribed by the Constitution. We are of the opinion that the section does not apply. It cannot be extended so as to include any but judges of courts of law. There are many quasi-judicial officers in the state as to whom there is no pretense that they fall within the constitutional provision. The canal appraisers were such, as were the members of the board of audit. So also are the public service commissions (People ex rel. C. P., N. & E. R. R. R. Co. v. Willcox, 194 N. Y. 383), the members of town boards of audit, supervisors acting as members of a board of audit of claims against a county, assessors and tax commissioners. The question is, therefore, whether the Court of Claims — so denominated by the legislature — was in reality a court within the constitutional provisions, or only an auditing board and a quasi-judicial body.

We think it was the latter. The legislature was without power to create a new court with statewide jurisdiction. In the leading case of Sill v. Village of Corning (15 N. Y. 291, 299), which arose under the Constitution of 1846 providing for a Supreme Court which “shall have general jurisdiction in law and equity,” it was expressly declared that “The provision (of the Constitution) respecting the higher courts, whose jurisdiction pervades the whole state, is exclusive in its character, and * * * no other courts of the same jurisdiction can be added by the legislature.” In 1869 the judiciary article of the Constitution was amended. By that amendment the superior local courts of the cities of New York, Buffalo and Brooklyn were recognized and continued with the powers and jurisdiction they then had and such further criminal and civil jurisdiction as might be conferred on them by law. Despite this broad language, it was held that the legislature could not confer upon these courts jurisdiction throughout the state, as that would trench upon the powers and jurisdiction of the Supreme Court. (Landers v. Staten Island R. R. Co., 53 N. Y. 450; People ex rel. Ryan v. Green, 58 id. 295.) It is even more plain under the Constitution of 1894 that the higher courts there enumerated are intended to be exclusive, because not only the city courts above mentioned, but the Courts of Oyer and Terminer, General Sessions and Circuit Courts were abolished, and it certainly was not contemplated that the legislature should be empowered to create any similar courts though with different names. As said by Judge Vann (Koch v. Mayor, etc., of N. Y., 152 N. Y. 72, 78): “ The theory was to simplify the judicial system by reducing the number of high courts and to embed those retained so thoroughly in the fundamental law that they could not be changed or abolished without amending the Constitution.”

It is sought to withdraw the so-called Court of Claims from the general rule thus declared on • the ground that the Supreme Court had not jurisdiction of claims against the state. That fact does not affect the principle involved. The Supreme Court had not jurisdiction solely because of the immunity of the defendant from suit, not because it did not have jurisdiction of such a cause of action. Of the constitutional provision that the Supreme Court shall have general jurisdiction in law and equity, it was said by Mr. Justice Daniels in de Hart v. Hatch (3 Hun, 375, 380): “ The terms used are so comprehensive, that they include all cases of every description in law and equity, from the most important and complicated to the most simple and insignificant, and they imperatively and positively establish the court with that extended jurisdiction.” In that case it was held that the statute which authorized the Supreme Court to remand to the Marine Court of the city of New York any case of assault and battery, slander and the like was unconstitutional, and that neither the action of the legislature, nor of the courts, nor of both combined, could deprive the suitor of his right to try his case in the Supreme Court. This case has been twice cited with approval by this court. (People ex rel. Mayor, etc., of N. Y. v. Nichols, 19 N. Y. 582; State of N. Y. v. County of Kings, 125 id. 312.) The same principle was decided in Alexander v. Bennett (60 N. Y. 204). If a claim is made litigable at all, that is to say, if made the subject of a suit or litigation in a court of law, then under the express provision of the Constitution the jurisdiction of the Supreme Court attaches at once. It is true that the prosecution of small claims in the Supreme Court may be made unprofitable by provisions as to allowance of costs, but if the suitor is willing to subject himself to that penalty, he can prosecute any and every claim in that court. Nor if it were conceded that a new cause of action has been created would that empower the legislature to withdraw the cause of action from the Supreme Court and constitute another court for its determination. Doubtless the legislature may create new causes of action, but when created the jurisdiction of the Supreme Court attaches. Since the Constitution of 1894 a right of action has been given to prevent the use of one’s portrait for advertising purposes. When created, the right could be asserted and prosecuted in the Supreme Court. No further legislation was requisite. It would hardly be contended that if the legislature should abrogate the law now prevailing which renders the auditing boards of towns and counties the tribunals in which the determination of the greater portions of claims against those municipalities is now vested, and subject such municipalities to suits in all cases the same as private corporations, that new courts could he constituted to try such suits. The principle of the case suggested and of the advertisement cases cannot be distinguished from the case at bar.

Moreover, it is to be observed that with the constitututional amendment forbidding the payment of private claims by the legislature, except “when audited or allowed according to law,” there was at the same time reported by the commission and adopted by the people another amendment found in the present Constitution as section 6 of article 7, which provides: “ ¡Neither the Legislature, canal board, nor any person or persons acting in behalf of the State, shall audit, allow, or pay any claim which, as between citizens of the State, would be barred by lapse of time. ” While I have no doubt that the legislature might at any time pass a statute waiving the state’s immunity, which would at once subject it to suits in the regular courts the same as other parties, it is plain from this enumeration of the persons who are forbidden to pay claims barred by the Statute of Limitations that the Constitution makers contemplated that legislative action would take the course of conferring the audit and allowance of claims, not on courts, but on auditing boards, for there is no mention in the provision either of court or judge. This is further made evident by the fact that in the constitutional convention of 1894 it was sought by some members to create a Court of Claims, but the suggestion failed to obtain the approval of the convention.

It is conceded in the brief of the learned counsel for the appellants that the Board of Claims was not a court. If so, and it was made a court by the statute of 1897 (Ch. 36), it was merely the legislative fiat changing the name of the body that effected this result, since, as already shown, the jurisdiction and powers of the Court of Claims were the same as those of the Board of Claims. Hence, if the Court of Claims, so named, was in reality a court, the Board of Claims must have been equally so, and indeed it is difficult to see why the board of audit and canal appraisers were not also courts. Their jurisdiction was the same-as that of the Board or Court of Claims, save in one respect. They were not given the power to decide counterclaims of the state against claimants. But this power was not conferred on the Board or Court of Claims because they were courts of law. It was simply because the legislature attached this condition to the auditing or allowance of claims against the state. It could not confer power on the Court or Board of Claims to adjudicate a claim made against any party who did not make a claim against the state. (State of N. Y. v. County of Kings, 125 N. Y. 312.) The legislature might, therefore, equally have imposed this condition on parties prosecuting claims before the board of audit or canal appraisers.

But if it were competent for the legislature of 1897, by a mere declaration to that effect, without changing in any respect the jurisdiction of the tribunal, to change the Board of Claims into a Court of Claims, it is difficult to see why the legislature of 1911 did not equally have the power to reverse the process and change the court into a board, for it is elementary that one legislature cannot bind its successors. ISTor is it profitable to quibble as to the difference in phraseology used in the two acts, that of 1897 and that of 1911. The legislature is master of its own diction, and if the intent of the legislature is clear, it is the duty of courts to give effect to it no matter how incongruous or how inaccurate maybe the language used to indicate that intent. The intent of the legislature is in each case perfectly plain — in 1897 to change the board into a court — in 1911 to change the court back into a board. With the motives that dictated the legislature in either case the courts are not concerned. Intent only is material. But the motives in the one case seem to have been about as praiseworthy as in the other; in the first to make the tribunal a court and extend the terms of its members so as.to put their tenure beyond the reach of their political opponents in case they should thereafter come into power; in the second, by the party then in power to regain the control and appointments to office which their adversaries had sought to place beyond their grasp. If, therefore, it should be assumed that under the constitutional provisions the legislature could at its election constitute either a court or an auditing board for the determination of claims against the state, it is plain that the legislature of 1911 had the same power to enact that such claims should be disposed of by a board as that of 1897 had to enact that they should be disposed of by a court. It has been expressly decided by this court, Judge Vann writing, that despite the constitutional provisions which lie at the foundation of the appellants’ argument, the legislature can abolish a court and create a new court in place thereof, though the effect of the legislation is to remove judges from office. (Koch v. Mayor, etc., of N. Y., supra.) A fortiori, it must have the same power to abrogate a court and institute in lieu thereof a board.

Reliance is placed by the appellants on the opinion rendered by this court in Quayle v. State of N. Y. (192 N. Y. 47, 52), where it was said: “ The creation of the Board of Audit, the Board of Claims and the present Court of Claims was rendered necessary by the constitutional amendment of 1874, which enacted that the legislature should neither audit nor allow any private claim or account against the state, but might appropriate money to pay such claims as should have been audited and allowed according to law.” This, it is claimed, is a declaration by this court that the Court of Claims was a court. Not so. It .was a mere matter of nomenclature, as appears not only by the sentence excerpted itself, but by subsequent discussion. The board of audit and Board of Claims were coupled with the Court of Claims as being tribunals of the same character. The legislature might create a court with the powers and jurisdiction of a police court in some insignificant village and call it the high court of chancery of that village. The name bestowed on the court would not make it a court of chancery, and equally as long as the court was really a police court, conferring upon it this grandiose title would not in any degree render the act creating it unconstitutional. In other words, the inquiry is always as to the thing, not as to its name. (People ex rel. Sinkler v. Terry, 108 N. Y. 1, 10.)

In the opinion of one of my associates it is stated that “The Court of Claims was invested with a broader jurisdiction of claims against the state than that possessed by the Board of Claims.” I have already said that the jurisdiction conferred on the court was in no degree greater than that possessed by the board, and to show that my statement is accurate I quote the sections of the statutes of 1883 and 1897 defining the jurisdiction of the respective tribunals created by those acts:

Board of Claims.

“Said board shall have jurisdiction to hear, audit and determine all private claims against the state which shall have accrued within two years prior to the time when such claim is filed and wrhich shall not have been determined on the first day of June, eighteen hundred and eighty-three, nor be barred by any existing statute, and to allow thereon such sums as should be paid by the state. It shall also have jurisdiction of all claims, on the part of the state, against any person making a claim against the state, before said board, and shall determine such claim or demand both on the part of the state and the claimant; and if it finds • that the demand of the state exceeds the demand of the claimant, it shall award such excess in favor of the state against the claimant.” (L. 1883, ch. 205, sec. 7.)

Court of Claims.

“The court of claims possesses all the powers and jurisdiction of the board of claims. It also has jurisdiction to hear and determine a private claim against the state, .which shall- have accrued within two years before the claim is filed. It may also hear and determine any claim on the part of the state against the claimant, or against his assignor at the time of the assignment; and must render judgment for such sum as should be paid by or to the state. But the court has no jurisdiction of a claim submitted by law to any other tribunal or officer for audit" or determination. Where jurisdiction to hear and determine a claim is conferred upon the court by a special law, the liability of the state is not thereby implied, but such a claim is subject to defense and counterclaim by the state in the same manner and to the same extent as if presented under a general law.” (L. 1897, ch. 36, sec. 1, constituting section 264, Code of Civil Procedure.)

I have said that it would be profitless to discuss the phraseology of the two acts—that of 1897, declaring the Board of Claims a court, and that of 1911, declaring the court a board. Since, however, it is urged that the act of 1911 did not in terms repeal the statute making the board a court, the court is still in existence, it suffices to say that this argument is sufficiently answered by the quotation of the first sentence of the act of 1897, which, shows that the criticism is equally applicable to that statute. It did not abolish the Board of Claims, but on the contrary the act begins: “ The board of claims is continued and shall hereafter be known as the court of claims.” That it was not intended to create new officers, read the next sentence of the statute: “The court consists of the commissioners of claims now in office and thefi successors, (i. e., successors of the commissioners) who shall hereafter be known and designated as judges of the court of claims.” Where could there be a plainer declaration that the change was solely one of nomenclature? Assuming, however, that legislative fiat could change not only the name of the thing but the thing itself, and turn an auditing board into a court, why had not the legislature of 1911 an equal right to reverse the process ?

An appeal is made to maintain the constitutional safeguards giving the judiciary immunity from arbitrary removal by the legislature or the executive department. The principle is a vital one in our form of government and should be maintained in full .integrity. I have already endeavored to show that the relators were not judges of a court of law, and if they were not such, I do not understand there is any claim that they fall within the constitutional provision. But as an appeal is made to the ethical side of the question, let us see if that consideration supports relators’ claims. When the statute of 1911 was passed the official terms for which they were appointed had éxpired, and they held office solely hy virtue of an act of the legislature which arbitrarily extended their terms, and not under their appointments by the governor. (People ex rel. Fowler v. Bull, 46 N. Y. 57.) They were at that time as-much the beneficiaries of legislative interference as they now claim to be its victims. I have not discussed the validity of the act of 1906, as I did not deem it necessary in the view I took of the case. But if it is to be held that such legislation is valid, and that the legislature may create courts of record in addition to those authorized hy the Constitution, there is no reason why the legislature may not give the judges of a new court life tenures. In the constitutional convention of 1867, the question whether the judges of the various courts of record created by it should be appointed by the governor or elected •by the people was the subject of serious discussion, and the convention enacted (Art. 6, sec. 17) that it should be submitted to the vote of the electors of the state at the election of 1873 which mode should be adopted. The vote of the people was in favor of retaining the mode in «use — choosing judges by election. The power has never at any time been conferred on the legislature to appoint judges, nor has there ever been a suggestion in any constitutional convention to confer it. If such a power does exist, it is solely by virtue of the provisions of the Constitution (Art. 10, sec. 2) which prescribes that “All other officers, whose election or appointment is not provided for by this Constitution, and all officers, whose offices may hereafter be created by law, shall be elected by the people, or appointed, as the Legislature may direct.” Surely no one thought that this would give to the legislature the power to appoint judges of courts, nor can it do so, unless we can hold that the legislature may create courts of statewide jurisdiction, for the judges of the inferior courts provided for by the Constitution must necessarily be elected by the people or appointed by the local authorities. Therefore, the incumbency of the relators if they were judges was a violation of the spirit of the Constitution, if not, indeed, of its terms. ' If the act extending the terms of the relators was invalid, then the appointments of the defendants to their offices, whether they be called commissioners or judges, were entirely valid, because the offices of the relators had become vacant.

The judgment should be affirmed, with costs.