Plaintiff's intestate was a justice of the Municipal Court of the City of New York. He took office for a term of ten years on January 1, 1930. He died in December, 1933. When he was elected and when he took office the salary of the justices of that court was fixed at $12,000 per year. In 1932 the Board of Estimate and Apportionment reduced the salary for 1933 to $10,840 a year, pursuant to the purported power conferred by chapter 637 of the Laws of 1932. At the time of decedent's death the amount of salary withheld from him over his due protest noted upon the payrolls was $996.60. This action is brought to recover that sum. The authority of the statute is pleaded as a defense. The reply is that the statute contravenes section 19 of article VI of the State Constitution, the first sentence of which reads as follows: "All judges, justices and surrogates shall receive for their services such compensation 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." The contention of the city is that (1) the Municipal Court is not a constitutional court; and (2) protection against salary reductions extends to judges and justices of constitutional courts only.
For the purpose of the immediate discussion I accept the city's definition of a constitutional court as one *Page 260 established or continued by the Constitution, as contra-distinguished from a court whose establishment or continuance is left to legislative discretion. It follows, and for the same purpose I assume, that the Municipal Court is not a constitutional court. I am thus brought to the essential question: Does the constitutional bar against the diminution of judicial salaries apply literally to "all judges, justices and surrogates," or does it apply only to all judges, justices and surrogates of constitutional courts?
The genesis and history of the constitutional provision, as well as the classic statement of the reasons underlying it, are clearly and for the most part accurately stated in the opinion of the trial court in Matter of Gresser v. O'Brien (146 Misc Rep. 909, at pp. 912-918). They need not be repeated here. It is sufficient to say that from 1846 to January 1, 1926, when the present judiciary article took effect, the constitutional bar against diminution of salary applied only to judges, by whatever term known, of constitutional courts. The Constitution of 1894, as originally adopted and as it continued to read down to 1909, provided in section 12 of article VI as follows: "The judges and justices hereinbefore mentioned shall receive for their services a compensation established by law, which shall not be increased or diminished during their official terms." (With an exception immaterial here.) "The judges and justices hereinbefore mentioned" were judges and justices mentioned in the preceding eleven sections of article VI. They were the judges of the Court of Appeals, the justices of the Appellate Division and the justices of the Supreme Court. A similar inhibition applicable to county judges or surrogates was contained in section 15 of article VI. In 1909 an ill-starred amendment of section 12 was adopted which eliminated the increase or diminution clause, fixed in terms the salary of Supreme Court justices, and left the judges of the Court of Appeals dependent upon the doubtfully applicable provision of section 9 of article X relating to the salaries of State officers. *Page 261
With that background, the Judiciary Constitutional Convention of 1921 entered upon its work, which it understood to be in the nature of amendment rather than of entire revision. "It was the duty of the convention," says its report to the Legislature, "to suggest no constitutional changes which were not deemed necessary because of some clearly disclosed and definite evil or abuse, or because likely to clarify the meaning and intent of existing provisions, or because tending to promote efficiency and expedition in the administration of justice, certainty and security to litigants, and satisfaction and confidence on the part of the public." (Legislative Document [1922], No. 37, p. 7.) And in dealing with matters of style and arrangement, the same report says: "The convention concluded that it should suggest no more amendments or readjustments than seemed reasonably necessary and practically desirable. A change of language might well be construed as some evidence of a change of intent, and thus create litigation" (p. 9). The report then takes up section by section the draft of the Constitution which the Convention had framed. With reference to section 19 the report says: "A number of general provisions are consolidated in the new section 19, which were heretofore in other sections, and which method rendered it difficult to ascertain readily the various constitutional provisions applicable to all judges (p. 29).
Having in mind what is thus known of the purposes and attitude of the framers, and using accepted canons of interpretation, I can see no rational escape from the conclusion that the first sentence of section 19 of article VI makes the bar against diminution of salary applicable to every judge, justice or surrogate without regard to whether the court in which he sits is a constitutional court or not. The reasons may be briefly stated as follows:
(1) The language of the provision is clear and unambiguous. Taken by itself without reference to historical antecedents or to setting, its meaning is as clear as words *Page 262 can make it. Its application is all-inclusive. In dealing with a constitutional provision framed in language no clearer than that here in question, this court said: "In the construction of constitutional provisions, the language used, if plain and precise, should be given its full effect and we are not concerned with the wisdom of their insertion. As adopted by the People the intent is to be ascertained, not from speculating upon the subject; but from the words in which the will of the People has been expressed. To hold otherwise would be dangerous to our political institutions. * * * The latitude allowed in the construction of legislative acts is out of place, and would be unwise, when interpreting the fundamental law. * * * The Constitution, which underlies and sustains the social structure of the state, must be beyond being shaken, or affected, by unnecessary construction, or by the refinements of legal reasoning." (People v. Rathbone, 145 N.Y. 434, 438.)
Citations to the same effect could be multiplied. The rule of construction is so well settled and the reasons for it are so sound and clear that it is unnecessary to do so. When the mandate comes from the people and the people's representatives, limitations should not be read into the text of the Constitution by dubious construction. (Browne v. City of New York,241 N.Y. 96, 112.) Unless there are compelling reasons to the contrary, leaving no room for doubt, it is our duty to give effect to the language of the provision as it would have been understood in its ordinary sense both by the members of the Legislature, who by concurrent resolution proposed the present judiciary article to the people, and by the people themselves. We may not blind ourselves to the fact that the only judges and justices known to the great majority of the people are those who sit in the lesser courts of local jurisdiction, unnamed in the Constitution.
(2) If one considers the provision in question in connection with the other provisions of section 19, the same *Page 263 conclusion is reached. We know from the report of the Convention, above referred to, that section 19 was primarily framed to include various constitutional provisions theretofore found in other scattered sections, which were applicable to all judges. So we find the second sentence dealing with the election or appointment of "all judicial officers;" the fourth sentence with a general prohibition addressed to all judges; and the fifth sentence with another prohibition likewise addressed. Noscitur asociis. The other sentences of the section embracing provisions of limited application specifically name the judges to whom the provisions are or are not applicable. Had it been intended to limit the application of the first sentence, it is difficult to understand why the same method should not have been used. Furthermore, we may notice that the historic phraseology of this provision ("The judges and justices hereinbefore mentioned") was abandoned and for the first time there was used the all-embracing phrase, "All judges, justices and surrogates." We have it upon the word of the Convention itself that "a change of language might well be construed as some evidence of a change of intent."
(3) Again, if one considers the provision in its relation to the remaining provisions of article VI, the intent of the framers is made even more clear. It is idle to say that they had no thought of the existence of other than constitutional courts. One of the problems before the Convention was to simplify and consolidate, as far as possible, the entire system of courts. In doing so, it gave a place in the Constitution itself for the first time to certain inferior local courts in cities or parts of cities. (Matter of Adler v. Voorhis, 254 N.Y. 375, 378.) Moreover, in section 9 of article VI, providing for the removal of judicial officers, exception was made of justices of the peace, justices of the Municipal Court of the City of New York, and judges and justices of inferior courts not of record. Thus where it was desired to make an exception *Page 264 in the case of inferior courts, the article does so plainly and directly.
In the sections of article VI preceding section 19 provision had been made for a complete system of courts consisting of those specifically established or continued, being courts of major importance, and those inferior local courts of civil and criminal jurisdiction, including children's courts and courts of domestic relations which the Legislature was authorized to establish. Having thus provided for a complete system, section 19 followed immediately with its command that all judges, justices and surrogates should receive a compensation which should not be diminished during their respective terms in office.
It seems clear that the same considerations which theretofore had led to the protection of some judicial salaries were deemed applicable to all. Freedom from political or other dominance by threat against his economic security is perhaps even more necessary to the independence of the lesser judge than to that of one in higher place.
(4) Matter of Gresser v. O'Brien (146 Misc. 909; affd. without opinion, 263 N.Y. 622) was a mandamus proceeding, and not, as here, an action at law. (Matter of Black v. O'Brien,264 N.Y. 272.)
The judgment should be affirmed.
LEHMAN, HUBBS and FINCH, JJ., concur with CRANE, Ch. J.; CROUCH, J., dissents in opinion in which O'BRIEN and LOUGHRAN, JJ., concur.
Judgment reversed, etc. *Page 265