Wendell v. Lavin

• Citation: 246 N.Y. 115,158 N.E. 42
• Parties: WENDELL v. LAVIN, County Treasurer.
• Decision Date: 20 July 1927
• Court: New York Court of Appeals

246 N.Y. 115

158 N.E. 42

WENDELL

v.LAVIN, County Treasurer.

Court of Appeals of New York.

July 20, 1927.

Application of William T. Wendell for a peremptory order of mandamus against John F. Lavin, as County Treasurer of the County of Albany. From an order of the Special Term, granting the motion for an order requiring payment to petitioner of salary as commissioner of jurors for the year 1926, the County Treasurer appeals directly, pursuant to Civil Practice Act, § 588, subd. 3.

Order reversed, and application denied.

Andrews, J., dissenting.

Appeal from Special Term, Albany County.

Robert E. Whalen, of Albany, for appellant.

Robert H. McCormic, of Albany, for respondent.

Albert Ottinger, Atty. Gen. (Wendell P. Brown, of Leonardsville, and Amos D. Moscrip, of Albany, of counsel), for the State.

CRANE, J.

Chapter 441 of the Laws of 1899 established the office of commissioner of jurors in and for the counties of Richmond and Queens, and in any other county of the state where the board of supervisors of the county by resolution so elected. The commissioner was to execute an undertaking, receive a salary, appoint assistants and clerks, and select the trial jurors, determining upon their qualifications and right to exemption. He was also, with the board appointing him, to prepare a list of grand jurors to be drawn by the county clerk. The appointment of the commissioner was to be made by the justices of the Supreme Court residing in the county and the county judge. From this act Albany county was specifically excluded.

By chapter 320 of the Laws of 1900 this exclusion of Albany county was stricken out, and the county was specifically made subject to the provisions of chapter 441 of the Laws of 1899. The board of supervisors of Albany county on May 8, 1900, passed a resolution pursuant to the above acts establishing the office of commissioner of jurors for that county. Thereupon and for each five years thereaftera board, composed of two justices of the Supreme Court, resident in the county, and the county judge, have appointed a commissioner of jurors, and the petitioner herein is now serving under such appointment.

The constitutionality of the applicant's appointment has now been challenged. It is said that, in so far as the act of 1899 gives the appointment of the commissioners of jurors to Supreme Court justices (that is, state officials, as distinguished from county officials), the act violates section 2 of article 10 of the state Constitution. The section reads 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.’

As the commissioner of jurors is not a constitutional officer, his appointment must be made by county, not state, authorities. The Legislature can select any county authority it pleases, but it is limited to county authorities, and cannot select a Supreme Court judge or state authority to make the appointment. However, if the commissioner of jurors' office is one created after the Constitution went into force and effect, the Legislature is not so limited, because the last sentence of section 2 of article 10 reads:

‘All officers, whose offices may hereafter be created by law, shall be elected by the people, or appointed as the Legislature may direct.’

[1] The applicant in this case, the present commissioner of jurors, claims that chapter 441 of the Laws of 1899 created a new office, an office coming into existence after the Constitution of 1894, and therefore the Legislature could provide for his appointment in any way it pleased. The appellant, on the other hand, contends that the commissioner of jurors for Albany county was not a new office; that it had existed prior to the Constitution of 1894; and that therefore the Legislature was restricted to county authorities in designating the appointive power. Is the office of the present commissioner of jurors a new office, within the meaning of this Constitution of 1894?

[2] This question must be answered, irrespective of the action of the public authorities for the last quarter of a century, and without in any way questioning their good faith. No one now or at any time has questioned the purpose or intention of the appointing powers. It is conceded that they have acted under a conscientious belief, not only in their power, but in their duty, to make the appointment of a commissioner of jurors according to the direction of the Legislature, as expressed in these laws of 1899 and 1900, made specifically applicable to Albany county. Nevertheless neither practice nor intentions can modify the express provisions of the Constitution. Sometimes the interpretation of a doubtful and obscure clause in an act of the Legislature, or in a Constitution, may be aided by the practice which has grown up under it; but plain and clear provisions of a Constitution require no such aid. They are to be enforced and brought to life, early or late, and must not be smothered by the accumulation of custom or violations.

In this spirit do we approach the consideration of chapter 557 of the Laws of 1894, which became a law May 8 of that year. It is entitled:

‘An act to provide for a commission of jurors in counties containing cities of from ninety to ninety-six thousand inhabitants.’

It is conceded that Albany county contains such a city. Section 1 provides:

‘In every county except the county of Onondaga containing a city of not less than ninety or more than ninety-six thousand inhabitants, * * * the grand jurors for such county and the petit jurors for each city and village therein shall be selected by a person to be designated by the county judge, surrogate and county clerk of each such county and who shall be known as the commissioner of jurors.’

He must be a resident freeholder of the county and his appointment shall be filed with the county clerk. He is to complete the list of names which shall constitute the grand jurors for the county and the petit jurors for each city and village in the county. At such time and place as shall be designated in each city and village, the commissioner of jurors shall receive evidence of exemptions and shall mark ‘exempt’ on the list of the names of those persons found to be exempt. He may strike from the list any person whom he believes to be disqualified to act. A person not claiming exemption at the time and place designated is deemed to have waived it. The commissioner of jurors in each county is to receive a compensation to be paid by the county treasurer and raised by a tax by the board of supervisors.

Reading this act in connection with chapter 441 of the Laws of 1899, it will be readily seen that in the main they relate to the same office and same nature of work by a county official. Chapter 679 of the Laws of 1896 extended the powers of the commissioner of jurors, as designated in the act of 1894, so as to include the drawing of the petit jurors for the county, as well as for the cities and villages. As this act was passed after the Constitution of 1894, we will only consider the duties of the commissioner of jurors as they were in 1894. Albany county at that time had two cities, Albany and Cohoes, possibly three, Watervliet, and five or six villages. The commissioner of jurors, so designated by chapter 557 of the Laws of 1894, was charged with the duty of selecting the grand jurors for the county and the petit jurors for the courts to be held in each of these cities and villages. The method of selection was the same under this law as that described in chapter 441 of the Laws of 1899. Under both laws he was to determine the qualification of the jurors for the respective courts, and pass upon and certify to exemptions. The main difference consists only in the extent of the commissioner's jurisdiction. By the law of 1894 it was limited to selecting the grand jurors of the county and the petit jurors for the cities and villages. This left out the towns and petit jurors for the county.

The act of 1899 extended the commissioner's jurisdiction to all the trial jurors of the county, which of course included the cities, villages, towns, and county. This had previously been done by chapter 679 of the Laws of 1896, but as above stated, I am leaving this law out of consideration for the time being, as I am making a comparison merely between the law of 1894 and the law of 1899, as the Constitution going into effect January 1, 1895, came in between the two. Other features of this law of 1899 are that the term of office was fixed at five years, an undertaking was required, and an assistant and clerk given to the commissioner. Look as I will, I cannot possibly see how the commissioner of jurors under the act of 1899 was a different office to that under the act of 1894. By both acts he was designated the commissioner of jurors; his duty was to procure jurors; he was an official of the county, paid by the county. The later act extended the commissioner's duties to other local courts, provided additional help, a definite term, a few other details for procedure, and nothing more. None of these modifications or extensions of power or additional requirements made of the office a new office. The duties, powers, and privileges in the main were the same, and carried on by an official designated as the commissioner of jurors for the county.

Within all the authorities, chapter 441 of the Laws of 1899 did not create a new office of commissioner of jurors for the county of Albany; that is, one created after the adoption of the Constitution of 1894. People ex rel. Metropolitan St. R. Co. v. State Board of Tax Com'rs, 174 N. Y. 417, 67 N. E. 69, 63 L. R. A. 884, 105 Am. St. Rep. 674, where the cases are reviewed. See, also, Morgan v. Furey, 186 N. Y. 202, 78 N. E. 869;People ex rel. Simon v. Bradley, 207 N. Y. 592, 101 N. E. 766;...