Devoy v. . the Mayor, Etc., of New York

The officer, in whose right the respondents recovered, was appointed by the city authorities. The claims were well founded, unless the power of the mayor and aldermen to make the appointment was divested by the following provision in the twentieth section of the metropolitan police act. "The board of police shall appoint all court clerks, prescribed to the judicial districts in which police justices are elected, in the city of New York; and it shall designate the courts at which they shall do duty respectively." (2 Laws of 1857, 212, 213.)

The validity of this clause of the act depends on the question, whether the office of police court clerk in that city, existed at the time the present Constitution was adopted. If it did, the provision is in conflict with the second section in the tenth article of that instrument.

The duties of the office in question are strictly local. In respect to the members of the police force proper, there is an extension of jurisdiction beyond the bounds of the city and county, which makes them officers of a new civil division of the State; but we have held that, where there is no such extension of territorial authority, the office retains its local character, within the meaning of the Constitution. Our views on this subject were expressed with great clearness by Judge DAVIS, who delivered the opinion of the court in the case of The People v.Pinckney. "It is manifest that the officer to be appointed, to be within the power reserved to the legislature, must be an officer of the new district or division, and not merely local in the scope and performance of his duties and functions, and therein superseding some existing local officer. He must be a district officer, in the sense of his functions and authority; and not merely in name, with no powers or duties beyond a previously organized locality." (32 N.Y., 382.)

Our public statutes furnish conclusive evidence that the office of police clerk, in the city of New York, is not a new creation of the law making power. It existed long before the Constitution; and there has been no substantial change, either in the official title, or in the functions and duties of the incumbent. (Laws of 1833, 14, § 22; Laws of 1844, 471, § 14; Laws of 1848, §§ 8, 9; Laws of 1851, 958, § 9; Laws of 1852, 471, § 3; Laws of 1855, 502, § 1; Laws of 1857, 107, § 1; 2 id., 212, § 20.)

It follows from the principles settled in our former decisions, that the clause in the act of 1857, transferring the power of appointing the police court clerks to the board created by that act, is in conflict with the Constitution, and cannot be upheld. (People v. Pinckney, 32 N.Y., 382, 386; People v.Metropolitan Police Board, 19 id., 195, 199; People v.Draper, 15 id., 539.)

The repealing clause in the statute is applicable only to laws inconsistent with its operative provisions.

The judgments should be affirmed.

All the judges concurring, except HUNT, J., who was for reversal,

Judgments affirmed.