Article VI, section 17, of the State Constitution reads: "All other judicial officers in cities, whose election or appointment is not otherwise provided for in this article, including all judicial officers holding Courts of Special Sessions, Magistrates' Courts, or other inferior local courts of criminal jurisdiction in the city of New York, shall be chosen by the electors of such cities, or appointed by some local authorities thereof as may be prescribed by law."
This court decided in People v. Dooley (171 N.Y. 74) that the Legislature could adopt one or the other of these methods for the selection of the judges who came within this provision of the Constitution, but that the Legislature could not adopt both; in other words, that a magistrate could not be elected in one portion of the city, and appointed in another. The words of this court, which are also applicable to Municipal Court justices, are as follows: "The mandate of the Constitution is that judicial officers in cities, whose election or appointment is not otherwise provided for, shall be chosen by the electors of such cities or appointed by some local authorities thereof. This language is plain and unequivocal. It presents two distinct alternatives. Either may be *Page 254 chosen. It must be one or the other. If the office is to be filled by appointment, the agency by which that is to be accomplished is broadly, yet clearly designated. If the officer is to be elected, the power of appointment is as plainly excluded. If this is not the fair and reasonable construction of this provision of the Constitution then it is within the power of the legislature to authorize the employment of both methods at the same time, in the same territorial or civil division, or in different divisions, either to suit the caprice of a day or the exigencies of a political condition. If judicial officers of the same grade, performing the same duties in the same local division, may be appointed in part and elected in part at the same time, we shall not have long to wait for such use of the power as will serve the selfish ends of the designing few at the expense of the public weal."
The case now before us comes squarely within the condemnation of this decision. By the New York City Municipal Court Code (Laws of 1915, ch. 279) the city of New York is divided into Municipal Court districts, with specified boundaries. Municipal Court justices are to be elected for terms of ten years by the electors of the several Municipal Court districts at the general election to be held in years at the end of which the respective terms of said justices shall expire. There shall be a president justice selected by the Mayor from among these elected justices. These Municipal Court justices by virtue of their office may administer oaths, take depositions and acknowledgments within the city of New York, and certify the same in the same manner and with like effect as justices of other courts of record. Their full powers are designated by the act.
The Legislature has added by chapter 430 of the Laws of 1929, taking effect the ninth of last April, section 4-a, permitting the mayor to appoint temporary justices. Under this act we may have two Municipal Court justices in the same district, one elected, and the *Page 255 other appointed. In fact, if we consider a constitutional question from the viewpoint of what may be done, we may have two justices in any number of districts, one of whom is appointed, and the other elected. The section reads: "If any justice is physically or mentally disabled so as to be unable to perform his duties, the mayor shall have authority to appoint a temporary justice who shall be a resident of the same district as the justice so disabled for a period not to exceed thirty days, upon the certificate of the president of the board of justices setting forth that owing to such disability the public interest requires the temporary appointment of a person in the place of the justice or justices thus disabled. Upon a similar certificate the mayor shall have authority at the expiration of such temporary appointment to renew such appointment from time to time for a period not exceeding thirty days. Any temporary justice appointed pursuant to the provisions of this section shall be a member of the same political party as the justice to whose office he has been appointed."
While it is not at all likely that the Mayor will abuse this power, yet a constitutional power is always judged by that which may be done, and not by that which is likely to occur. Temporary designations may, therefore, be continued indefinitely.
An act which permitted the election of Municipal Court justices in Manhattan and the appointment of them in Brooklyn would clearly be unconstitutional. Yet we have here an act providing for the election of Municipal Court justices who, upon the certificate of a justice elected in another district, may be supplanted by an appointed officer. And these displacements or duplications may take place without number.
We need not discuss what is meant by physical or mental disability, or the extent to which the tired mind and exhausted body may justify the certificate for leave of absence. These are matters entirely within the judgment *Page 256 of the Legislature, and we have nothing to do with them. We are dealing here simply with a question of power under the Constitution, as interpreted by this court in the Dooley case. These temporary justices taken from the bar and not elected, while serving would have the full power not only of trying cases and disposing of judicial matters, but also of performing all other administrative matters provided in the Municipal Court Act.
I, therefore, dissent.
CARDOZO, Ch. J., POUND, LEHMAN, KELLOGG and O'BRIEN, JJ., concur with HUBBS, J.; CRANE, J., dissents in opinion.
Ordered accordingly.