The third Appellate Division unanimously affirmed an order of Special Term denying an application of Thomas Allison, as commissioner of jurors in the county of New York, for an order compelling the delivery to him of the books and papers appertaining to such office, and now in the possession of Charles Welde. The ground for the decision was that chapter 602 of the Laws of 1901, in so far as it attempts to confer upon the justices of the Appellate Division of the Supreme Court in the first department power to appoint a commissioner of jurors in and for *Page 433 the county of New York, offends against § 2 of article 10 of the Constitution, and is, therefore, void.
This decision seems to be justified by the language of the Constitution, and it is certainly required by the decision of this court in Matter of Brenner (170 N.Y. 185), which affirmed the position unanimously taken by the same Appellate Division. The Brenner case considered the same statute, one of a series of enactments upon our statute books, made general in form in order to avoid offending against a very different constitutional provision than that now before us, but in substance and spirit special, and entitled "An act to provide for the appointment of a commissioner of jurors and to provide for a special jury in civil and criminal actions in each county of the state having a population of one million or more, according to the last preceding federal census." (Ch. 602, Laws of 1901.) In effect, therefore, the act provided for commissioners of jurors for the counties of New York and Kings. The justices of the Appellate Division of the first department appointed this relator for the county of New York, while those of the second Appellate Division appointed Jacob Brenner for the county of Kings.
The question relating to Brenner's appointment came first to this court, where it was decided that the office of commissioner of jurors in the county of Kings was, at the time the Constitution of 1894 went into effect, a county office, and that chapter 602 of the Laws of 1901 transferred the power of appointment from the local authorities to the justices of the Appellate Division of the Supreme Court in the second judicial department, which is a state authority, and so that act violated § 2, article 10 of the Constitution, which in terms restricts the power of the legislature to appoint to existing local offices, or to provide for appointment thereto by central or state authority.
The only differences between the Brenner case and this one are that in the Brenner case the appointment was made by the justices of the Appellate Division in the second department, while in this case it was made by the justices of that *Page 434 court in the first department, and in the Brenner case the office of commissioner of jurors in the county of Kings at the time chapter 602 of the Laws of 1901 went into effect was a county office, while in New York it was a city office in name, the county and city territorially being the same. Therefore, chapter 602 attempted to continue in the county of Kings a county office as such, but in New York to continue an office by law termed a city office as a county office — certainly not a change of substance, but a change in name only.
The statement already made, that the decision in the Brenner case required the decision made by the Appellate Division in this one, needs no other support than the brief analysis I have made of the so-called distinguishing features.
I should omit further discussion, inasmuch as the Brenner case carefully considers every proposition involved, were it not that a suggestion has been made which perhaps should not be allowed to pass unnoticed.
It is said this court may hold that a new office has been created, and, therefore, the legislature has power to provide not only the method of appointment, but to provide that it may be made by other than local authority. Stated in other words, the position is that — while there was a commissioner of jurors exercising the functions of that office within the territory of New York, and the act under consideration provides for the exercise of similar functions within the same territory — nevertheless it may and should be called, by courts charged with the responsibility of preventing violations of the Constitution, a new office. If such a decision were possible it would open a very convenient avenue for defeating the will of the people as expressed in the constitutional provision under consideration; but this court closed the door against any scheme looking toward the undermining of this constitutional provision, and depriving it of the power of accomplishing the result intended, in Devoy v. Mayor, etc., of New York (36 N.Y. 449). To that and to the cases following it reference will be made.
In Devoy's case the question decided was whether the clause *Page 435 in the act of the 15th of April, 1857, transferring to the metropolitan police board the power to appoint clerks to the police courts of New York, was unconstitutional and void, that power having been long prior to the act vested in the mayor and board of aldermen. The clause was held to be unconstitutional, this court saying: "Our views on this subject were expressed with great clearness by Judge DAVIES, who delivered the opinion of the court in the case of the People v. Pinckney. `It is manifest that the officer to be appointed, to be within the power reserved to the legislature, must be an officer of the new district or division, and not merely local in the scope and performance of his duties and functions, and therein superseding some existing local officer. He must be a district officer, in the sense of his functions and authority, and not merely in name, with no powers and duties beyond a previously organized locality.' (32 N.Y. 382. ) Our public statutes furnish conclusive evidence that the office of police clerk, in the city of New York, is not a new creation of the lawmaking power. It existed long before the Constitution, and there has been no substantial change, either in the official title or in the functions and duties of the incumbent."
In People v. Raymond (37 N.Y. 428) it was held not to be competent for the legislature to create a new office, and vest the power of appointment in the governor and senate when the duties were the same as those of a former county officer made elective by the Constitution. The decision is in point as to the question now being considered, and a portion of the argument contained in the opinion, written by Judge GROVER, in which all of his associates concurred, can with propriety be referred to in connection with the discussion of the suggestion that a new office has been created. Judge GROVER said: "The plain intention of the section of the Constitution in question was to preserve to localities the control of the official functions of which they were then possessed, and this control was carefully preserved, consistent with the power of the legislature to make needful changes, by restricting the power of appointment of other officers to perform the same functions, *Page 436 to the people, or some authority of the locality. Any other construction would render the section in question, when applied to the cities of the state, substantially nugatory."
Here we have the key to the real meaning of this provision of the Constitution, which is, that the functions of local officers are to remain within the control of the local authorities. The Constitution did not aim at such a useless thing as preserving local control over an officer enjoying an ancient official title without its functions, while other officials appointed by other than local authority, under a new name, performed the duties which properly belonged to his office, and it has not been claimed that such was the intent of the constitutional provision since the case of People v. Raymond in any reported case in the state.
It was followed in Metropolitan Board of Health v. Heister (37 N.Y. 661), in which the court said, after quoting the constitutional provision: "This provision has been before this court on several previous occasions, and certain positions in relation to it may be conceded as settled. Its plain meaning, that all the local officers referred to, whose offices were in existence at the adoption of the Constitution, shall be elected or appointed by local authorities of which they are the representatives, has been fully sustained. So it has been held, that to change the name, or to divide up and partition the duties among several, or to take parts of the duties of several officers and combine them in one, will not be permitted. If the offices in question are county or city offices, and were in existence at the adoption of the Constitution of 1846, it is not competent to vest the appointment of incumbents in the governor and senate. It belongs exclusively to the local power to fill the offices, either by election or by appointment, as the legislature may direct."
In People ex rel. Bolton v. Albertson (55 N.Y. 50) the court took under consideration an act to create the Rensselaer police district, which provided for the establishment of a police force for the city of Troy and certain fragments of territory outside of the city limits. The act was held to violate the provision *Page 437 of the Constitution involved in this case, the object of which is, the court said, to secure to the several recognized civil and political divisions of the state the right of local self-government, and this right cannot be taken from them, and the incumbents disfranchised, by any acts of the legislature or any or all departments of the state government combined. The spirit with which a court should approach the consideration of a challenge of a statute, as offending against the constitutional provision in question, is clearly presented in the court's holding, that a thing within the intent of a constitutional enactment is for all purposes to be regarded as within the words and terms of the Constitution, and a legislative enactment evading the terms and frustrating the general and clearly expressed or necessarily implied purposes of the Constitution is as clearly void as if in express terms forbidden. In the course of the opinion the court said: "The Constitution cannot be evaded by a change in the name of an office, nor can an office be divided and the duties assigned to two or more officers under different names, and the appointment to the offices made in any manner except as authorized by the Constitution; and courts will scrutinize acts of the legislature and see that the Constitution is not evaded and its intent frustrated by a mere colorable change in the designation and title or the duties of an officer, when the appointment is taken from the locality, and will hold the act void unless the change is real and substantial."
It follows from the authorities to which reference has been made that the test by which to determine whether the office be new or old is, Are the functions to be exercised by the new officers new or old? If old, then the Constitution insists that the old control shall continue.
The order should be affirmed, with costs.
BARTLETT and VANN, JJ. (and WERNER, J., except as to the last ground stated in the opinion, as to which he expresses no opinion), concur with HAIGHT, J.; O'BRIEN and CULLEN, JJ., concur with PARKER, Ch. J.
Order reversed, etc. *Page 438