Melody v. Goodrich (In re Brenner)

• Decision Date: 14 March 1902
• Citation: 170 N.Y. 185,63 N.E. 133
• Parties: In re BRENNER (two cases). In re MELODY. MELODY v. GOODRICH et al.
• Court: New York Court of Appeals Court of Appeals

170 N.Y. 185

63 N.E. 133

In re BRENNER (two cases).In re MELODY.MELODY

v.GOODRICH et al.

Court of Appeals of New York.

March 14, 1902.

Appeal from supreme court, appellate division, Third department.

In the matter of the application of Jacob Brenner, commissioner of jurors in the county of Kings, to compel the delivery to him of books and papers belonging to such office, and now in the possession of William E. Melody. From an order of the appellate division (73 N. Y. Supp. 689) which reversed an order of the special term committing the respondent to jail, petitioner appeals. Affirmed. And from an order of the appellate division affirming an order of the special term staying all proceedings committing the respondent to the Kings county jail until decision of appeal from such order, petitioner appeals. Appeal dismissed. And in the matter of the application of William E. Melody for a writ of mandamus against Bird S. Coler, comptroller of the city of New York. From an order of the appellate division affirming an order of the special term granting a peremptory writ of mandamus to prove a voucher for payment of salary due the petitioner, the comptroller appeals. Affirmed. And suit by William E. Melody against William W. Goodrich and others, justices of the appellate division of the supreme court, to restrain the appointment of a jury commissioner. From a judgment of the appellate division (73 N. Y. Supp. 741) affirming a judgment in favor of the defendants, plaintiff appeals. Affirmed.

Bartlett and Haight, JJ., dissenting.Frank S. Black and Henry W. Goodrich, for appellant in first and second proceedings.

Robert H. Elder and Charles H. Hyde, for respondent in first and second proceedings.

George L. Rives, Corp. Counsel (James McKeen, of counsel), for appellant in third proceeding.

Robert H. Elder and Charles H. Hyde, for respondent in third proceeding.

Robert H. Elder and Charles H. Hyde, for appellant in fourth proceeding.

John C. Davies, Atty. Gen. (Frank S. Black and Henry W. Goodrich, of counsel), for respondents in fourth proceeding.

O'BRIEN, J.

The order from which this appeal was taken reversed an order of the special term which directed that William E. Melody, then in possession of the office of commissioner of jurors of the county of Kings, be committed to the county jail until he should deliver to Jacob Brenner, the petitioner, the books and papers pertaining to that office; the latter claiming to have been appointed to the office under the provisions of chapter 602 of the Laws of 1901. The learned court below not only reversed the original order in favor of the petitioner, but denied his application for the books and papers. It was therefore a final order in a special proceeding instituted under section 2171a of the Code, and so reviewable in this court.

The appeal involves the question as to the constitutional validity of the statute above referred to, under which the petitioner was appointed; and the learned court below has held that it is in conflict with section 2, art. 10, of the constitution, and therefore void, This section contains a clear and very important restriction upon the power of the legislature to appoint local officers, and to provide for their appointment by any central or state authority. It provides as follows: ‘All county officers, whose election or appointment is not provided for by this constitution, shall be elected by the electors of the respective counties or appointed by the boards of supervisors, or other county authorities, as the legislature shall direct. * * * All other officers, whose election or appointment is not provided for by this constitution, and all officers, whose office may hereafter be created by law, shall be elected by the people, or appointed, as the legislature may direct.’ The scope and meaning of this constitutional provision has frequently been the subject of discussion in this court. It was said by Judge Allen in the case of People v. Alberson, 55 N. Y. 50, that the purpose and object of this section, as is very obvious, ‘was to secure to the several recognized civil and political divisions of the state the right of local self-government, by requiring that all county, city, town, and village officers whose election or appointment was not provided for by the constitution, save those whose offices might thereafter be created by law, should be elected by the electors of the respective municipalities, or appointed by such authorities thereof as the legislature should designate. As to offices known and in existence at the time of the adoption of the constitution this provision is absolute in its prohibition of an appointment by the general government or its authority, or by any body other than the local electors, or some local authority designated by law. * * * The constitution cannot be evaded by a change in the name of an office, nor can an office be divided, and the duties assigned to two or more officers under different names, and the appointment to the offices made in any manner except as authorized by the constitution; and courts will scrutinize acts of the legislature, and see that the constitution is not evaded and its intent frustrated by a mere colorable change in the designation and title or the duties of an officer, when the appointment is taken from the locality, and will hold the act void unless the change is real and substantial.’ This exposition of the scope and purpose of that part of the constitution has been steadily adhered to by this court. That it contains a sound and correct statement of the law on the subject is, we think, not open to question. Rathbone v. Wirth, 150 N. Y. 459, 45 N. E. 15,34 L. R. A. 408.

It is the first sentence of the section that is applicable to this case, and it is settled that the officers there mentioned and designated are those existing under actual laws of the state at the time the present constitution went into effect; that is, such county officers as existed under actual laws on and prior to January 1, 1895. It was not competent for the legislature to provide for the appointment of such officers after that date otherwise than by and through some county authority (People v. Draper, 15 N. Y. 532;People v. Pinckney, 32 N. Y. 377), and the restriction cannot be evaded by changing the name of the office, or by some colorable modification of the functions of the officer as they existed at the time of the adoption of the constitution (People v. Raymond, 37 N. Y. 428). If the commissioner of jurors of the county of Kings was a county officer at the time of the adoption of the present constitution, the slight modifications, if any, contained in the statute now under review, are immaterial, and the nature and character of the office has not been changed, but it still remains an old office, and not a new one. Whatever the nature and character of the office was at the time the present constitution went into effect, that is its nature and character now, since the substantial duties and functions of the officer were not changed by the recent statute, nor even his title. But it is not claimed in this case that the statute in question creates any new office, and it is admitted that the power to appoint to it, which is vested in the judges of the appellate division of the Second department, has been conferred upon a state, and not a county, authority by the statute now under consideration, and hence the law is in conflict with the constitution if the office of commissioner of jurors was at the time that the present constitution went into effect a county office. All the learned judges in the court below who have passed upon that question in this case held that it was, except the learned judge at special term, who granted the application; and he...