People Ex Rel. Burby v. . Howland

The courts below have held that sections nineteen and twenty of chapter 22 of the Laws of 1896 are in conflict with the Constitution, and, therefore, null and void. That is the only question presented by the appeal. The act is entitled "An act to provide for the better administration of justice in the town of Fort Edward in the county of Washington."

There are two records and two appeals involving the same question. They were heard and decided below as one case, and may now be discussed and reviewed in the same way. The relator Ryan is a constable of the town of Fort Edward, and also a deputy sheriff. In December, 1896, he presented to the board of supervisors of Washington county a bill of $12.90 for fees charged by him in the arrest and detention of two parties charged with crime in the town of Fort Edward. The board rejected the claim and refused to allow the same on the ground that, by the terms of the two sections of the act above mentioned, it was not a legal charge against the county or the town.

The relator Burby is one of the justices of the peace of the town of Fort Edward, elected in March, 1894, to fill a vacancy in an unexpired term ending the last of December, 1896. He presented to the town board, in the month of November, 1896, a bill of $24.75 for fees in proceedings before him as justice in certain criminal cases, which the board refused to allow on the ground that, by the terms of the two sections above referred to, the claim was not a legal charge against the town. On looking into the bill it will be seen that a large part of it consists of items for fees and services in the arrest and examination of persons charged with being what are there styled "state tramps." The courts below have held that both the justice and the constable were entitled to peremptory writs of mandamus requiring the boards to audit and allow the bills, although the sections of the statute above referred to declare that they are not legal charges against the town or the county.

The nineteenth section enacts that no constable or deputy sheriff shall be required to serve any criminal process in the town, and that neither the town nor the county should be in any way chargeable for such services, or bound to pay the same.

The twentieth section provides that no justice of the peace should be required to issue any criminal process in cases within the town, and that neither the town or county should be chargeable with any fees or services rendered by a justice of the peace in criminal cases. All that the legislation in question did was to relieve the justice and the constable from all obligation to perform any duties in criminal cases arising in the town, and, having relieved them from the duties, deprived them of the right to charge the town or the county with fees for services which it was not their duty to perform.

The courts below have held that the legislature has no power to do this, since the Constitution stands in the way. On looking into the opinion of the learned judge at Special Term, and then into that of the learned judge who spoke for the Appellate Division, it is quite difficult to identify the particular constitutional provision which they supposed had been violated by the legislature in this case. The learned judge at Special Term was apparently of the opinion that the two sections violated that provision which forbids the legislature from passing any private or local bill decreasing the fees or allowances of public officers, while the learned judge at the Appellate Division virtually held that the sections were void because they practically abolished the ancient and constitutional office of justice of the peace in the particular town in question.

The act in question contains twenty-three sections, and in order to properly consider the questions presented by this appeal the general scope and purpose of the act, as a whole, must be kept in view. It provides for the election of a police justice in the town to be paid a salary of three hundred dollars per year, and confers upon him the same jurisdiction in criminal cases as the justices of the peace of the town. It provides that the fees charged and received by him in criminal cases shall be paid over to the supervisor and not applied to his own use.

It then provides for the annual election of a police officer at a fixed compensation, with power to serve all criminal process, and requires him to serve all process issued by the police justice in criminal cases, and that the costs and fees therefor chargeable by law shall not be retained for his own use, but must be paid over to the supervisor.

It appears, therefore, that this rural town, with a population of six thousand people all told, and a territory ten miles in length and three or four miles wide, was provided with adequate machinery for administering the criminal law and preserving the public peace. The legislature decided that both economy and efficiency would be promoted by concentrating the duties of examining magistrate and conservators of the peace in this town in two persons, and relieving the justices of the peace and constables from all duties in that regard. That it was not a wanton or arbitrary interference with the local affairs of the town, appears from a very significant affidavit by the supervisor of the town and chairman of the board of supervisors of the county, which appears in the record and is not denied or questioned. The origin and purpose of this legislation is there clearly stated. It is shown that the statute was passed at the request and solicitation of a large majority of the people of the town, not only for the purpose of better conserving the cause of law and order, but of reducing the burden of taxation, by putting an end to the ill-considered and ill-advised action of justices of the peace and constables in soliciting and procuring tramps and vagrants to be arrested and committed for maintenance to the county jail for the sole purpose of enabling the justices and constables to present bills for services against the town or county, and that this practice had become such a grievous abuse that upon more than one occasion the Supreme Court had instructed the grand juries to inquire into the same. Moreover, he states that after the act became a law, and at a public meeting of the voters of the town, a resolution was unanimously passed thanking the senator and assemblyman representing the town in the legislature for their aid in procuring the enactment of the law. All this, however, counts for nothing, unless the legislature had power to pass the bill and to enact the sections in question. It only shows that the will of the People, however flagrant may be the abuse which they attack, or however laudable the reform which they advocate, must be subordinated to the restraints of the fundamental law.

It appears that the justices of the peace and the constables, like the silversmiths of Ephesus, were not satisfied with the new law. It damaged their business and reduced the opportunities for making money, and they appealed to the courts for protection, and thus far they have had it, since it has virtually been held that, after a justice of the peace or a constable has been once installed in office, the lawmaking power of the state is powerless to deprive them of the opportunity of earning fees from the town or county in looking after tramps and vagrants, and acting occasionally in the early stages of other cases of a criminal character. In this case the justice and constable volunteered to perform services which it was not their duty to perform, and yet, in defiance of the express mandate of the legislature and of the will of the town and county, they have been awarded compensation to the same extent and in the same way as if the legislature had never passed the act in question.

The claims of these two parties, when united, were less than thirty-eight dollars, though the costs awarded upon the application for the mandamus were fifty dollars, and it must be quite clear that the only importance that the case could ever assume is due to the fact that the parties and the courts below regarded it as involving an important question of constitutional law.

This brings us to the inquiry as to what provision of the Constitution has been violated by the legislature in the passage of this act.

1. It does not increase or decrease the fees or allowances of any public officer. The fees of a justice of the peace or a constable are just the same now in the town of Fort Edward as they were before the passage of the act. They have not been increased or diminished. The only change made is with respect to the persons entitled to receive them, and the uses to which such fees may be applied. The relators are affected by the act only in one respect, and that is that they cannot charge fees to the town or county when they volunteer to perform services in criminal cases, but the fees are still the same. The volume of the relators' business may have been diminished by this legislation, but the fees of justices of the peace and constables have not. If we inquire with respect to the amounts which a justice of the peace or constable may charge for any given service in the town of Fort Edward in criminal cases now, and find that they are the same as before the passage of the act, it must follow that the bill did not increase or decrease fees. The police justice and police officer created by the act are entitled to charge the same fees allowed before, and no more, but they must be paid to the supervisor for the benefit of the town, since these two officers are compensated by fixed salaries.

2. There is nothing in the body of the act not germane to the title. The two sections in question simply provide that justices or constables are relieved from all duties, and, therefore, may not charge fees to the town or county in criminal cases. That such provisions may properly be inserted in a private or local bill with such a title as that now before us, is too plain for argument.

3. The legislature had power to create the police court in the town under that provision of the Constitution which authorizes the creation of inferior local county of civil and criminal jurisdiction. (Const. art. 6, § 18.)

4. The act does not in any sense or in any degree abolish the office of justice of the peace. The act does not touch the power, jurisdiction or authority of the justice in the slightest particular. He may now do everything that he could have done before the act was passed. He can exercise every power now that he could then. In ancient times the office was an honorary one purely. There were no fees attached to it, and no civil jurisdiction. All that is found in statutes, and I suppose no one will deny that the legislature may repeal or modify the statutes.

The Constitution, while recognizing the office of justice of the peace, does not deal at all with either the jurisdiction or the fees. All that is left to the legislature, and it may increase or diminish either the one or the other, or both, at pleasure. This statute, therefore, does not in the slightest degree abolish or attempt, or even tend to abolish, the office of justice of the peace, unless, indeed, we hold that the office consists of what may be made out of it under the most favorable circumstances. The business of hunting down tramps and vagrants in the rural districts, in what are called hard times, is capable of being developed into a very high state of perfection, and if the justice and constable have a sort of vested right in what can be earned in that way, in the nature of property, beyond the power of the legislature, there must be certain guarantees in the Constitution that have never been discovered before.

When we consider the origin and history of the ancient and honorable office of justice of the peace, it occurs to me that it is now very much belittled, if not disgraced, by the contention that it is destroyed whenever the legislature attempts to interfere with the opportunities of the person who happens to hold it for the time being of making money out of it. When this case is stripped of all irrelevant argument and illustration, the only objection that can be urged against the statute in question is that and nothing more. The legislature has relieved the justice of a very small part of his duties, and has enacted that if he still insisted on performing them it should be without fees against the town or county as his predecessors in England did centuries ago. That this was not only a constitutional, but, under the circumstances, a just and reasonable, exercise of power, I cannot doubt. It is a mistake to suppose that the legislature is prohibited from abolishing the office of justice of the peace. In point of fact, numerous statutes have been passed abolishing the office, and they have been held to be constitutional. (Curtin v. Barton, 139 N.Y. 513.) There is scarcely a city in the state where the office of justice of the peace did not once exist, but has been abolished by some form of legislation. The only provision of the Constitution upon the subject is to be found in art. 6, § 17, which simply provides that the electors of the several towns shall, at their annual town meetings, or at such other time and in such manner as the legislature may direct, elect justices of the peace whose term of office shall be four years. There is nothing whatever in the statute in question which in the slightest degree interferes with the right of the electors of the town to elect justices of the peace at town meetings, or that changes the tenure of the office. The electors must still elect justices of the peace in the same way and for the same term. They may not have quite so much criminal business to do hereafter as they have had heretofore, but surely that is no reason for pronouncing a solemn act of the legislature void. Indeed, when all the reasons for holding the statute invalid are fully weighed and measured it is quite difficult to treat or consider them all seriously. It is claimed that this legislation was enacted for the purpose of insidiously undermining the office of justice of the peace in this particular town. There is nothing on the face of the bill that gives the slightest color to this assertion, and surely we ought not to attribute to the legislators a purpose or motive in the enactment of a law that is not disclosed by the statute itself. (WaterlooMfg. Co. v. Shanahan, 128 N.Y. 345.) The only purpose that the legislature had in the enactment of the statute was to relieve the taxpayers from claims upon the treasury of the town or county for services in colorable proceedings against tramps, vagrants and petty criminals — a business which, it seems, had been developed and enlarged to such an extent as to become an abuse and a scandal. This was the moving cause of the legislation according to the uncontradicted affidavit of the town authorities themselves, and they add that the statute, in its actual operation, has accomplished the purpose by correcting the abuses. The motive and purpose of the enactment was, therefore, not only legal, but laudable. But this court has nothing to do with the motives of the legislature. It is not for the courts to attribute improper motives to the legislature any more than it is for the legislature to attribute improper motives to the courts for their judicial action. The question is one of power, and nothing else. When that simple inquiry is divested of all sentimental considerations, and the question divorced from the vigorous rhetoric and specious argument in which it is beclouded, the proper solution depends upon the correctness of a few propositions that seem to me so plain that every professional mind must accept them.

1. The legislature had the power to provide for the election of a police justice and a police officer in a town containing a considerable village, to fix their salaries, and confer upon them the powers of a justice of the peace and constable in criminal cases. That was the main purpose of the bill, and no one seriously questions the validity of the law in that respect.

2. Having gone so far, did the legislature have the power to relieve the people of the town from all legal obligation to pay fees for services in criminal cases, or compensation to local officers other than the sum fixed and designated as salaries? That is the power which it has exercised in the two sections of this statute which it is claimed are invalid, and I am not aware of any suggestion at the argument, or in the printed brief, that casts the slightest doubt upon the existence of this power in a lawmaking body which is supreme, except so far as restrained by the Constitution.

3. May the legislature, when providing for the administration of criminal justice in a town by a police justice and police constable, divest or relieve justices of the peace from all legal obligation or duty to entertain complaints or issue process in criminal cases? Inasmuch as every duty that can be performed by a justice of the peace in criminal cases is imposed by some statute or law enacted by the legislature the conclusion would seem to be irresistible that the power which enacted the law may repeal it or modify it and the same power that imposed the duty can withdraw it.

If the legislature may lawfully exercise the powers specified in these three propositions then there can be no fair question with respect to the validity of the statute. That it does possess such power cannot, I think, be doubted, and to hold that the legislation in question abolishes the office of justice of peace is little less than asserting that an office is abolished whenever its pecuniary attractions are diminished by law. The particular justice who instituted this proceeding possessed after the passage of this statute every right and power as an officer that he possessed before, except the right to charge fees to the town or county in criminal cases, and to say that a statute which affects him to that extent only is void seems to me to be a proposition that cannot be seriously discussed, and I have discussed it only because able and eminent counsel who has presented the other view of the case has evidently the utmost confidence in the correctness of his position and, moreover, has impressed the court with the same view.

Suppose we hold this law to be constitutional and valid, will the office of justice of the peace in the town of Fort Edward be then abolished? Of course if the office of the relator in this case will be abolished so will that of all the other justices in the town in like manner, and the result must be, if the relator's contention is correct, that hereafter there can be no justices of the peace in the constitutional sense, in the town. If that be so, it must follow that the right to charge fees to the town and county in criminal cases is an essential part of the office itself, annexed to it by the Constitution in perpetuity and beyond the power of the legislature to change. I doubt if any one would seriously urge such a proposition, and yet it is what the relator's contention must really mean when analyzed. That office is abolished, or it is not abolished by this legislation, since it is impossible to conceive of any middle state between regular official existence and that statutory death which it is claimed that the legislature has inflicted upon these town officers in violation of the Constitution. But the truth is, as every one must know, that no law providing for the election of justices of the peace has been interfered with in the slightest degree. They will still continue to be elected just the same as if the act had never been passed, and they will still possess the same powers and be authorized to do precisely the same things that they always did, except to draw fees from the town or county for services that they are not required to perform. The town has elected another officer at a fixed salary to do the things that the relator has volunteered to do, so that, from whatever point we start, we come back again to the inquiry whether the legislature has power to reduce the business of a justice of the peace by relieving him from all duties in criminal matters and the town or county from all obligation to pay him should he elect to do the things which he is no longer required to do. When powers or duties are created solely by statute it would seem to be a plain and reasonable proposition that the same authority that originally granted the power or imposed the duty may recall it and relieve the officer from all obligation with respect to the duty thus imposed. The officer certainly can have no vested right in the exercise of a statutory power or the performance of a statutory duty.

It requires no argument to show that the people of a town, through an act of the legislature, may reduce the expenses of local government and lighten the burden of local taxation, but, in order to do that, they must necessarily reduce the business or fees of the officers to whom the taxes are paid. The act in question does that and nothing more, and, if the legislature has offended the Constitution, that is the head and front of the offending. I cannot bring myself to believe that this court is warranted in declaring such a statute, or any part of it, void. So much legislation of this character has been enacted that I fear such a decision would form a precedent that might be very troublesome hereafter.

There is scarcely a volume of the Session Laws in which legislation of this character may not be found. The sheriffs and county clerks are certainly constitutional officers in at least the same sense as a justice of the peace is. They were all formerly and most of them still are compensated by fees, but no one can doubt that this whole subject is within the scope of legislative power. The fees may be abolished and a salary, great or small, substituted in their place, and no one would claim that the office was abolished because its money value had been diminished. Can there be any doubt as to the power of the legislature to provide that fees in criminal cases shall be paid over to the town by the justice of the peace for the benefit of the poor, and a nominal salary substituted in their place? This would reduce his income in the same sense that the act in question does, but unless the justice had a vested right to all fees prescribed when he went into office the legislation would be valid.

But, whatever may be said about the justice, clearly the constable was not a constitutional officer, and he cannot complain, even if his office was abolished, though it certainly was not. The legislature could certainly dispense with his services as a peace officer if it thought proper, and provide that in case he elected voluntarily to perform services that he was not bound to perform, that then no fees should be chargeable for such services to the town or county. It has so declared in a separate and distinct section of the act, and how any provision of the Constitution was violated by such a law it is certainly very difficult to see.

The power and duty of the judiciary, when called upon to deal with the question of the validity of a statute, was well expressed by Judge ANDREWS in this court in these weighty words: "Only when required by the most cogent reasons, nor, indeed, unless compelled by unanswerable grounds, will a court declare a statute to be unconstitutional." (People v. Budd, 117 N.Y. 13. ) There has been, I think, a wide departure from this rule in dealing with the statute in question. The services of both the justice and constable having been performed long after the act in question took effect, their claims were not valid charges against the town or county, and the respective boards to which they were presented for audit and allowance properly rejected them.

The order of the Appellate Division and that of the Special Term, awarding the mandamus to the relators, should be reversed.

All concur with VANN, J., for affirmance, except O'BRIEN, J., who reads for reversal, and PARKER, Ch. J., and HAIGHT, J., who concur with O'BRIEN, J.

Order affirmed.