The purpose of this action, brought by the attorney-general of the state, is to test the right of the defendants to the offices heretofore held by the relators, as judges of the Court of Claims, by obtaining the judgment of the court upon the question of the constitutionality of chapter 856 of the Laws of 1911. That act purported to amend sections 263, 266, 268, 279 and 280 of the Code of Civil Procedure, which relate to the Court of Claims. Sections 263 to 281 constitute title III of chapter III of the Code and were enacted in 1897. (Laws 1897, chap. 36.) The effect of their enactment was, apparently, to create a Court of Claims, with a somewhat enlarged jurisdiction, (Sec. *Page 496 264), as the successor to what had been the Board of Claims, which had been created in 1883. (Laws 1883, chap. 205.) Section 263 provided for a Court of Claims, for the appointment of judges and for their tenure of office, and the other sections defined the jurisdiction of the court; authorized the establishment of rules of procedure and the appointment of officers; provided for the record, lien and execution of judgments; allowed appeals from judgments to the Appellate Division of the Supreme Court; fixed salaries and, generally, regulated the functions of the court upon the model of the existing higher law courts. The acts creating, and relating to, its predecessor, the Board of Claims, were expressly repealed by section 6 of the act of 1897 and the Court of Claims thereafter came into existence, with all the powers appertaining to the jurisdiction of a court established for the hearing and determination of claims against the state. It took its place, and continued, as one of the courts of record by the express provisions of section 2 of the Code of Civil Procedure and of section 2 of the Judiciary Law. Section 263 of the Code is amended by the act of 1911, now in question, so as to read that "The Board of Claims is continued and shall hereafter be so known and shall consist of three Commissioners who shall be appointed by the Governor, by and with the advice and consent of the Senate." The section, then, continues by providing for the succession of such commissioners to the then serving judges of the Court of Claims; for the tenure of their offices and for their successors; for the qualifications of appointees and for the compensation to be paid. It provided that, while the judges of the Court of Claims should constitute the new Board of Claims, until their successors should take office and for sixty days thereafter, for the determination of matters pending before them, "their offices shall be deemed vacant for the purpose of devolving all other powers and jurisdiction upon their successors." The amendment stated *Page 497 that "All provisions of this article" (meaning the article, or title, of the Code upon the Court of Claims) "applicable to the Court of Claims, its jurisdiction and procedure, shall hereafter apply to said Board, prescribe its jurisdiction and govern its procedure, except that the determination of the Board upon a claim shall be and be known as a determination instead of a judgment, but it shall have the same force and effect and be subjected to the same procedure as provided in this article for a judgment." The changes in the other sections of the title of the Code consist, merely, in abolishing the office of marshal; in requiring the attendance of all sheriffs and in diminishing the salaries to be paid.
It appears, upon a reading of the amendment of the sections, that, while the nomenclature of the tribunal and of its judges is changed, the organization of the court, its jurisdiction and procedure remain as they were. It shows, clearly, that the act was intended to deprive, summarily, the then serving judges of the Court of Claims of the offices, to which they had been appointed, and to provide for the appointment of others in their places. It is far from clear, in language, or by inference, that it was intended to abolish the court, as a court. It is not denied by the appellants that it was competent for the legislature to abolish the court and if that was the effect of the act, then, the terms of office of its judicial, and other, officers were, necessarily and validly, cut off. The power that existed in the legislature to create the office was equally effectual to abolish it; but the officers could not be unseated by legislation while the court, as a court, was continued.
The question, then, is whether the Court of Claims was abolished, at all. If it was not abolished, how was it competent for the legislature to declare the offices of the appellants vacant, when all that had been done was to change the names of the tribunal and of its officers? Why were they not, as judicial officers, protected against *Page 498 such arbitrary removal by the judiciary article of the Constitution of the state? In my opinion, the purpose of the legislature was not to abolish the offices, but to give them to other appointees. It was a transparent device to evade the constitutional mandate upon the subject of the removal of judicial officers. While the courts should, and will, not inquire into the motives of the legislative body, they will, in the discharge of their duty as conservators of constitutional rights, scrutinize its enactments and, if the purpose shall appear to be an evasion of a constitutional mandate, condemn them. (People exrel. Bolton v. Albertson, 55 N.Y. 50; Matter of Henneberger, 155 id. 420, 430.) Changes in the appellation of its officers, unaccompanied by any change in the jurisdiction or functions of the court, make very evident a colorable scheme to legislate the appellants out of office without appearing to violate the Constitution.
The act of 1911 neither, in terms, abolishes the Court of Claims; nor repeals the act of 1897, which created it. There is nothing which suggests such a legislative intent; for all there is of it is to be found in the language that "the Board of Claims is continued and shall hereafter be so known," etc. All else in the act leaves the tribunal as it was, in organization, jurisdiction, powers and functions. The Board of Claims, which is sought to be "continued," was not in existence. There was none to continue. It, undoubtedly, was careless legislation to declare a court continued, which had ceased to exist; but the legislative intent that there should be a new court of record was clear from, and was effectuated by, the elaborate provisions made by the statute. Its predecessor in jurisdiction, the Board of Claims, was abolished by the repeal of the statutes under which it existed and acted and in its place arose by the force of the statute a judicial, organized tribunal, having the attributes, and exercising the functions, of a court technically of record. The difference between the legislation of 1897 and of *Page 499 1911 is apparent, at a glance; forasmuch as the latter effected none of those things, which in the former abolished a tribunal of quasi-judicial powers and erected in its place a court of law. The Board of Claims had been created in 1883, (Laws 1883, chap. 205), and by the act creating it the state boards of audit and of canal appraisers had been expressly abolished. What jurisdiction these bodies had exercised of claims against the state was vested in the new tribunal and that jurisdiction was somewhat enlarged. There were lacking, however, various features which characterize a court of law, not only in the limitations upon its jurisdiction, but, also, in the exercise of its functions and in the mode of enforcing its determinations, or awards. Therefore it was that, in 1897, a Court of Claims was created and the statutes under which the Board of Claims had existed were expressly repealed by section 6 of the statute. A new and important court was evolved and was established; which was made a court of record and to which a title of the Code of Civil Procedure was devoted. It was deemed to be invested with a broader jurisdiction of claims against the state, than was possessed by the Board of Claims, (see section 264 of Code), and it was distinguished from its predecessors in the possession of the characteristic features and powers of a court of law. (Spencer v. State of N.Y.,187 N.Y. 484; Remington v. State of N.Y., 116 App. Div. 522.) Being such a court, its members were judicial officers, exercising by virtue of their offices judicial powers; the removal of whom from office was expressly provided for in article VI of the State Constitution. Section 11 of that article reads: "Judges of the Court of Appeals and Justices of the Supreme Court may be removed by concurrent resolution of both houses of the Legislature, if two-thirds of all the members elected to each house concur therein. All other judicial officers, except justices of the peace and judges or justices of inferior courts not of record, may be removed by the Senate, on the recommendation *Page 500 of the Governor, if two-thirds of all the members elected to the Senate concur therein. But no officer shall be removed by virtue of this section except for cause," etc. The term "judicial officers" is of wide import and "includes judges and justices of all courts and all persons exercising judicial powers in virtue of their office." (Settle v. Van Evrea, 49 N.Y. 280, at p. 284.) Such a provision, in substance, protecting the judiciary against arbitrary removal by the legislative, or executive, department, was, with wise and admirable prescience, inserted by the makers of the Constitution of 1846 and adopted by the People. By this section of the judiciary article a procedure is prescribed for the removal from office of a judicial officer, which shall be for cause shown and after a hearing before a tribunal, whose character insures careful and just consideration of the cause alleged. It was foreseen that the judiciary department of the government would constitute a wholesome check upon any legislative invasion of rights secured by the Constitution and it was intended to safeguard the independence of judges in this way. It was essential that judicial officers should be protected against arbitrary removal for political purposes, or in submission to popular censure, too often founded in an ignorance of the reasons controlling the performance of the judicial duty. When charged with misconduct in office, their fitness to remain was to be determined by the tribunal provided for in the Constitution. Until the People withdraw this safeguard of an independent judiciary, the courts should firmly uphold it, in all its integrity, and interpose it according to the presumed and fair intent of the instrument. It must be presumed that its framers understood the force of the language used and, as well, the People, who adopted it as a part of the fundamental law of their government. In prescribing the mode of removal of "all other judicial officers, except justices of the peace and judges, or justices, of inferior courts, not of record," the *Page 501 reference is to all exercising judicial powers by virtue of their office, who, not being judges of the Court of Appeals, or justices of the Supreme Court, are members of an existing constitutional court, or of one that might be legally created under the Constitution. I think it plain, from the language and from the context, that the reference is to courts of law and not to quasi-judicial tribunals.
The Court of Claims is not mentioned in the Constitution; but it does not, necessarily, follow that the legislature was without authority to create it. That body exercises all the powers of state sovereignty; except as the People, in granting those powers, through a constitution, have imposed restrictions. It possesses all the general powers of legislation and has jurisdiction of all subjects upon which its legislation is not prohibited. (Sill v. Village of Corning, 15 N.Y. 297; Koch v. Mayor, etc., of N.Y., 152 id. 72.) In the language of Chief Judge DENIO, in People ex rel. Wood v. Draper, (15 N.Y. 532, at p. 543), "plenary power in the legislature for all purposes of civil government is the rule." It must be conceded that the legislative body is, impliedly, restricted by the judiciary article from erecting another court with the original and general jurisdiction of the Supreme Court, or with the appellate jurisdiction of the Court of Appeals; as, otherwise, the judicial system of the Constitution might be subverted. But, conceding this restraint, it would be lifted for the creation of another court of law, if a reason, or a necessity, for such should be apparent in the Constitution. The legislative body would be, impliedly, authorized, in the exercise of its discretion, to provide for such a court. A necessity for another tribunal did arise when, by the constitutional amendment of 1874, it was declared that "the Legislature shall neither audit nor allow any private claim or account against the State, but may appropriate money to pay such claims as shall have been audited and allowed according to law." (Art. III, section 19.) The *Page 502 state could not be sued in its courts and the justice of providing for some mode of adjudging claims against it was felt and found expression in the amendment. The legislature, mindful of the constitutional mandate, subsequently, created a board of audit and, in 1883, superseded that tribunal by a Board of Claims. As it was said in Quayle v. State of N.Y., (192 N.Y. 47, at p. 53), it was "intended to confer on the boards power to adjudicate those claims, which lay beyond the auditing power of the comptroller, and for the allowance of which the only method, previous to the constitutional amendment, had been direct action by the Legislature." The Board of Claims did not satisfy the demand for a court of law, in which claims against the state could be enforced. It was but a quasi-judicial tribunal, with attributes similar to those of an ordinary state board; whose awards had not the force of the judgments of a court. This led, in 1897, to the creation of the Court of Claims; which was invested with all the powers and attributes of a court having jurisdiction to hear and determine claims held against the state, or held by the state against the claimant. Its jurisdiction was regarded as increased over that possessed by the Board of Claims, (Code Civ. Proc. section 264; Remington v. State of N.Y.,116 App. Div. 522), and there was nothing lacking to make it a court of law with general jurisdiction of a class of claims, to which the jurisdiction of the Supreme Court did not extend. Thus, the legislature had, progressively, reached the point, where permission was granted to sue the state upon private claims held against it and, thereby, had given the fullest effect to the constitutional provision for securing the allowance of claims "according to law." It is true that the legislature might have conferred jurisdiction upon the Supreme Court to hear and determine claims against the state; but that is no reason for holding that it was without power to create a court with that peculiar jurisdiction. The question is whether the legislature was forbidden to do so; for where no prohibition, *Page 503 express, or necessarily implied, is found in the Constitution, the legislature, in exercising the powers of state sovereignty granted to it, can provide such agencies for the administration of the law as it shall judge suitable. (Sill v. Village ofCorning, supra, at p. 300.) In inquiring whether the act creating a Court of Claims was constitutional, it may be said, in the language of Judge VANN, in Koch v. Mayor, etc., of N.Y., (152 N.Y. at p. 75), "it is for those who question its validity to show that it is forbidden." The legislature could not create other courts with like jurisdiction to that exercised by the Supreme Court; but, in establishing a court of law, which should have jurisdiction of claims against the state, it was acting in compliance with the Constitution. It provided that agency, which was most suitable, in its judgment, for procuring the allowance of a claim "according to law." In such a case, the absence of express authority constituted no restraint. The decision inKoch v. Mayor, etc., of N.Y., (supra), has no particular application to this case; inasmuch as what was there being considered in Judge VANN'S opinion was the constitutionality of an act of the legislature abolishing the office of police justice in the city and county of New York; whereby the terms of the incumbents of the office expired. The learned judge held that the abolition of the office carried with it, as a necessary incident, the termination of the official life of the justices in office. This doctrine is not, and cannot be, questioned; to the contrary, it is not inapplicable to the contention of these appellants, who claim that the act of 1911, in question, did not abolish the Court of Claims and, therefore, was invalid as affecting their tenure of office. Looking through the form of the act of 1911 to its substance, we find in it an amendment of sections of the title in the Code relating to the Court of Claims; whereby no other material change was effected than in the names of the court and of its judges, in the term of office and in the salaries. It re-enacts no provision of the *Page 504 statute relating to the Board of Claims, which statute had been expressly repealed by the act of 1897; it repeals no provision of the statute relating to the Court of Claims, nor, in terms, abolishes that court; it makes no change in jurisdiction, procedure, or practice, and shall we say that the court, heretofore established under the name of the Court of Claims, has been abolished and the former Board of Claims restored by a change in nomenclature? (People ex rel. Bolton v. Albertson,supra; Worthington v. London G. A. Co., 164 N.Y. 81, at p. 87.) I think not. An intent is clear to preserve the court and, under a colorable change in its name, to vacate the offices of its judges, that they may be given to others, presumably, of the same political faith as that entertained by the majority of the legislators by whom the amendment was passed. This will not do. If, as I have endeavored to show, the Court of Claims was constitutionally created, then the mandate of section 11 of the judiciary article of our Constitution may not be evaded in so transparent a guise. That article, in providing for the removal of "all other judicial officers," applied not only to the judicial officers named in, or authorized by, the Constitution, but, as well, to those of any court which the legislature might legally create. The argument in support of the constitutionality of the act of 1911, in question, is predicated upon a want of power in the legislature to create the Court of Claims, as a court of law, having a broad jurisdiction of claims against the state; while the argument against its constitutionality is that implied power was vested in that body, in the exercise of its discretion, to create just such a court of law as the Court of Claims for the purpose of adjudicating upon claims against the state. The latter argument commends itself to my judgment.
I have reached the conclusion that the act of 1911 is unconstitutional and, therefore, of no effect in attempting to vacate the offices of the relators. Portions might *Page 505 be valid legislation, if only changes in the name of the court, or in the appellation of its members, or in the number of its officers, or in the salaries, were intended; but I think the invalid parts so permeate the whole amendment as to make new legislation necessary for such changes.
For the reasons given, I advise that the judgment be reversed and that judgment be ordered in favor of the relators and against the defendants, adjudging chapter 856 of the Laws of 1911 to be unconstitutional and, therefore, invalid, and that the relators be restored to the possession and emoluments of their offices as judges of the Court of Claims.
HAIGHT, WILLARD BARTLETT and COLLIN, JJ., concur with CULLEN, Ch. J.; VANN and CHASE, JJ., concur with GRAY, J.; WERNER and HISCOCK, JJ., not sitting.
Judgment affirmed, with costs.