We are unable to agree with the prevailing opinion which pronounces unconstitutional *Page 90 section 1392 of the charter of Greater New York as amended in 1901 (Chap. 366 of the Laws of 1901) on the ground that it is in violation of article six, section seventeen, of the Constitution.
We are of opinion that the legislature, in amending this section of the charter, derived its power from article six, section eighteen, of the Constitution, which reads: "Inferior local courts of civil and criminal jurisdiction may be established by the legislature, but no inferior local court hereafter created shall be a court of record. The legislature shall not hereafter confer upon any inferior local court of its creation, any equity jurisdiction or any greater jurisdiction in other respects than is conferred upon county courts by or under this article. Except as herein otherwise provided, all judicial officers shall be elected or appointed at such times and in suchmanner as the legislature may direct."
This section of the Constitution contemplates and authorizes, among other things, the establishment by the legislature of courts possessing criminal jurisdiction.
The material portions of section seventeen read as follows: "Justices of the peace and district court justices may be elected in the different cities of this state in such manner, and with such powers, and for such terms, respectively, as are or shall be prescribed by law; all other judicial officers in cities, whose election or appointment is not otherwise provided for in this article, shall be chosen by the electors of such cities, orappointed by some local authorities thereof."
If, as is contended, the closing language of the section just quoted covers the establishment by the legislature of inferior local courts of criminal jurisdiction, it is impossible to give force or effect to section eighteen. If it was the intention of the framers of the Constitution to cover by section seventeen the establishment of inferior local courts of civil and criminal jurisdiction, section eighteen is surplusage.
The reading of these two sections together makes it apparent that the framers of the Constitution were dealing in section seventeen, so far as cities are concerned, with courts of *Page 91 civil jurisdiction only. In construing these sections, we refer to the proceedings of the constitutional convention of 1868, in which sections seventeen and eighteen were amended and, as amended, have been incorporated in the Constitution of 1894, with a slight amendment not affecting any question herein involved.
Section seventeen as it existed under the Constitution of 1846 provided that "The electors of the several towns shall at their annual town meeting, and in such manner as the legislature may direct, elect justices of the peace, whose terms of office shall be four years." The other provisions of this section related to the filling of vacancies and the removal of justices.
Section eighteen provided that "All judicial officers of cities and villages, and such other judicial officers as may be created herein by law shall be elected at such times and in such manner as the legislature may direct."
It will be observed that section seventeen related to the election of justices in towns, while section eighteen related to judicial officers in cities and villages.
Under the amendment of 1868, section eighteen was made general, applying to all of the state, and was no longer limited to cities and villages, but provided that inferior local courts of civil and criminal jurisdiction may be established by the legislature, and except as herein otherwise provided for, shall be elected or appointed at such times and in such manner as the legislature may direct.
Section seventeen was then amended so as to extend to cities as well as towns by inserting the provision to which we have already referred.
It appears from the proceedings of the convention in 1868 that section seventeen had been amended so as to provide that "Justices of the peace and police justices shall be elected in the different cities of this state in such manner, and with such powers, and for such terms, respectively, as shall be prescribed by law." (Journal, p. 1093; Debates, p. 3732.)
Subsequently, Mr. Murphy moved to reconsider the vote *Page 92 by which the article on judiciary was adopted, for the purpose of enabling him to move the substitute, as follows: "Justices of the peace and district court justices shall be elected in the different cities of this state in such manner and with such powers and for such terms respectively as shall be prescribed by law; all other judicial officers in cities, whose election or appointment is not otherwise provided for in this article, shall be elected or appointed by some local authorities of such cities respectively." This amendment was carried. (Journal, pp. 1164, 1165.)
In the debates upon this amendment Mr. Murphy said: "It will be recollected that I proposed an amendment which was adopted, to this section, providing that justices of the peace and police justices shall be elected in the different cities of this state in such manner and with such powers and for such terms respectively as shall be prescribed by law. When I drew that amendment I supposed that justices of the district courts in the city of New York were really justices of the peace and were included within that denomination as expressed in the amendment; but it appears they are considered otherwise. I wish to amend that amendment by inserting after the words `justices of the peace' the words `and district court justices.' I have submitted my amendment to the gentlemen interested in this question in the city of New York, and I believe all others who have taken any particular interest in this question and with their assent I have modified the original amendment so as to read as follows."
Mr. Verplank then stated: "I desire to know, as the section now stands, what becomes of police justices?" And, further, "I would like to ask the gentleman from Kings (Mr. Murphy) why he moves to strike out the election of police justices by the people of the cities where they reside?" To which Mr. Murphy answered, "In order to save the district court justices in the city of New York, which are entirely of civil jurisdiction."
Then Mr. Verplank further stated: "The police justices of the city of Buffalo have been elected for a great many years, *Page 93 and there never has been any complaint on the subject, and I know no reason why the election of these officers should be changed and made subject to appointment by the legislature." To this Mr. Murphy replied: "It does not follow that it shall be." Mr. Comstock answered: "It will be left just where it is."
It is thus apparent that section seventeen was framed for the purpose of providing for the election of justices of the peace in towns, and also for district court judges or justices and other judicial officers in cities whose jurisdiction was limited to civil cases, leaving the organization of criminal courts to the provisions of section eighteen.
This is rendered clear beyond dispute from the proceedings of the convention just quoted, in which the provision for electing police justices was stricken out of section seventeen. It is true section eighteen also provides for inferior local courts of civil jurisdiction as well as criminal, but this section having been made general so as to apply to the whole state, as well as to cities, inferior local courts may be established in villages or towns. It also covered existing conditions in other cities where courts had been established having both civil and criminal jurisdiction. By the provisions of this section judicial officers shall be elected or appointed at such times and in such manner as the legislature may direct. Here we have no limitation upon the power of the legislature. It may divide cities into districts and provide for the election of justices in such districts by the electors thereof, or may provide for their election by the municipality at large, or by appointment.
The concluding provision of section seventeen, to the effect that all other judicial officers in cities whose election or appointment is not otherwise provided for in this article, shall be chosen by the electors of such cities or appointed by some local authorities thereof, was evidently inserted to meet existing conditions in the city of New York and other cities of the state in which Superior City Courts and courts of Common Pleas were in existence, having civil jurisdiction only. This provision was not intended to apply to courts *Page 94 having criminal jurisdiction only, as it would be in conflict with section eighteen, which provides that the judicial officers of such courts shall be elected or appointed at such times and in such manner as the legislature may direct.
This construction is in accord with the case of Curtin v.Barton (139 N.Y. 505), which involved the constitutionality of chapter 342 of the Laws of 1892, establishing in the city of Syracuse a court called "The Municipal Court of the City of Syracuse." The contention was that this act was unconstitutional. It is unnecessary to consider the various provisions of the act in question. It is enough for our present purpose to call attention to the fact that the third section provides for the election of judges at the annual charter election to be held in the city next preceding the close of the term of the governor's appointees and thereafter as the term which was fixed at six years should expire. The next section provides for vacancies, and in the several sections following the powers and duties of the judges, and the several subjects to which the jurisdiction of the court was to extend, are specified and enumerated.
Judge O'BRIEN, writing the opinion of the court, said (at page 509): "None of these provisions are material to the question involved in the appeal except the twelfth section, which provides that `The said court shall have the same jurisdiction over the persons of defendants as is now possessed by justices' courts of towns, pursuant to the provisions of section 2869 of the Code of Civil Procedure, and for the purpose of conferring jurisdiction of the person the said city of Syracuse shall be deemed a town and the said court a justice's court thereof.' The most serious objection to this act grows out of the provision authorizing the governor to appoint the first judges. The court was so organized when the judgment under review was given, and it is claimed that the legislature had no power to appoint or provide for the appointment of the judges. The solution of the question depends upon the construction to be given to section nineteen and the last clause of section eighteen, article six, of the Constitution." *Page 95
It should be observed that this opinion was written before the adoption of the Constitution of 1894, and section eighteen referred to in Judge O'BRIEN'S opinion is present section seventeen and section nineteen is present section eighteen of article six of the Constitution.
Judge O'BRIEN continues: "If the words `all other judicial officers in cities,' contained in the last clause of section eighteen (17), are applicable only to officers and courts existing when the Constitution went into effect, and if it can be held that this court could have been legally constituted and the judges clothed with their official character under section nineteen (18), then the legislature clearly had the power to provide for the appointment of the judges by the governor and senate. It may be difficult to construe these provisions in such a way as to give both full effect and in a manner as would exclude any doubt that the intention of the framers of the Constitution had been ascertained and enforced. There is no doubt, however, in regard to the power of the legislature to establish an inferior local court of civil and criminal jurisdiction in a city under section nineteen (18). The only question here being as to the power to appoint the judges or confer this power on the governor. We do not deem it necessary to decide that question in this case."
The precise point, to which we call attention, is that it was held that there was no doubt in regard to the power of the legislature to establish an inferior local court of civil and criminal jurisdiction in a city under section nineteen (18), the only question for decision being the power to appoint judges and to confer that power upon the governor. This latter question was not decided.
It seems to have been taken for granted that present section seventeen of the Constitution related to existing courts, and that the Municipal Court of the city of Syracuse was organized under present section eighteen.
It is contended that all of the magistrates of criminal courts in a city must be either appointed or elected; that the legislature cannot provide for the election of a part and the *Page 96 appointment of the others. We find no authority for this contention in the Constitution. On the other hand, it is in direct conflict with the provision of section eighteen, that judicial officers may be elected or appointed at such times and in such manner as the legislature may direct. The legislature in its wisdom may provide for both elective and appointive magistrates, as the exigencies of the case may demand. This power has frequently been exercised by the legislature in the selecting of non-partisan boards in cities, as for instance, in the city of Buffalo. Its revised charter of 1891 provides for a board of public works to consist of three members, who shall hold their offices for three years, one of whom shall be elected by the people and the other two appointed by the mayor, but the commissioners so appointed were not to be adherents of the same political party. The evident intention of the legislature was that some skilled and experienced engineer should be kept upon the board, which could be better accomplished by the appointing power than by resorting to an election in which any person may be a candidate. The commissioners of public works are city officers and they must be elected or appointed pursuant to the provisions of section two of article ten of the Constitution, the provisions of which are substantially the same as the concluding provisions of section seventeen of article six. We see no objection to non-partisan legislation of this character. In many respects it is more commendable than much of the legislation that is designed for partisan purposes; consequently we are of the opinion that the Constitution does not deprive the legislature of the power to provide for the election of certain city officers and the appointment of others.
It is argued that this construction would tend to deprive electors of their constitutional rights by permitting officers elected in a certain district to exercise their functions in another locality or portion of a city. We are of opinion that no such result follows. In the Constitutions of 1846, 1868 and 1894 it is provided that justices of the Supreme Court elected in a certain district could exercise their functions in any *Page 97 county of the state. We have here the recognition, by the framers of the Constitution, of the principle that an officer may be elected in one locality and exercise his functions in another.
A constitution is not supposed to deal with details, but general principles, and it is a familiar rule of construction that where the letter of the Constitution is in conflict with the intention of its framers, the latter will prevail.
It is clear that the framers of the Constitution contemplated situations which might arise in the future when the legislature should be free to provide for appointment or election in districts or cities at large, as might seem proper. The situation that confronted the legislature when amending the charter of the city of New York in 1901 well illustrates the wisdom of the framers of the Constitution in this respect. The city of New York, containing three millions and a half of inhabitants, is made up of the entire counties of New York, Kings, Richmond and Queens and a portion of the county of Westchester. The boroughs of Manhattan and the Bronx constitute the first division and the remaining territory the second division of the greater city. In dealing with the election of magistrates the legislature saw fit to provide that they should be appointed by the mayor of the city in the first division and elected by districts in the second division, with details to which reference need not now be made.
The situation presented in this enormous center of population is not to be regulated by the policy that might prevail in a country village or town or a city of insignificant population. It cannot be properly said that the qualified electors in the boroughs of Manhattan and the Bronx are deprived of their constitutional rights by allowing the duly elected mayor to appoint magistrates in that division of the city. The mayor is placed in power by the electors and represents them in the act of appointment. On the other hand, there were many cogent reasons that rendered an election of magistrates in the borough of Brooklyn, and ultimately in the other territory contained in the second division, desirable and proper.
One other point should be alluded to. Section 1392 of the *Page 98 city charter, as amended in 1901, provided as follows: "The City Magistrates in office in the second division on the first day of January, 1901, who were police justices in the former city of Brooklyn in office on the thirty-first day of January, 1898, shall hold their office until their successors are elected at the general election to be held in the year 1901, but all city magistrates in the borough of Brooklyn, appointed after January thirty-first, 1899, who were in office on January first, 1901, shall hold office until their successors are elected at the general election to be held in the year 1907."
The mayor having been advised that this extension of time was unconstitutional, appointed under compulsion of mandamus in June, 1901, six persons to the office of city magistrate, in the borough of Brooklyn, to fill the vacancies caused by the expiration of the original terms of office of the former police justices of Brooklyn on April 30th, 1901.
In the certificates of appointment, in obedience to the writ of mandamus, and in view of the situation, the terms of office of such new appointees were designated as expiring on December 31st, 1901.
It is now claimed that the mayor, in making these appointments, was exercising his power under section 1392 as it stood prior to the amendment of 1901, and that the legal effect of his action was to vest in each of the appointees a term of ten years.
While we are of opinion that the extension of time contained in the amended section was constitutional, nevertheless, if the contrary is assumed, it is impossible, in view of the surrounding facts, to legally hold that the mayor was exercising his general powers of appointment. He was compelled to his action by the writ of mandamus, and his certificates disclose upon their face the precise nature of the power that he exercised under the command of the court.
The cases cited to sustain the contrary view have no application to this situation, and if the statutory extension of time is to be deemed unconstitutional the appointments were absolutely void. *Page 99
We have to say in conclusion that it seems to us a most unfortunate and unnecessary result that persons who have been neither elected nor appointed to the office of city magistrate, should be declared entitled to this responsible position for a term of ten years by the judgment of this court.
The order appealed from should be reversed.
PARKER, Ch. J., GRAY and O'BRIEN, JJ., concur with WERNER and CULLEN, JJ.; BARTLETT and HAIGHT, JJ., dissent.
Ordered accordingly.