Gertum v. Supervisors of Kings Cnty.

• Decision Date: 10 April 1888
• Citation: 16 N.E. 328,109 N.Y. 170
• Parties: GERTUM v. SUPERVISORS OF KINGS COUNTY.
• Court: New York Court of Appeals Court of Appeals

109 N.Y. 170

16 N.E. 328

GERTUM

v.SUPERVISORS OF KINGS COUNTY.

Court of Appeals of New York.

April 10, 1888.

Wm. J. Gaynor, for appellant.

John B. Meyenborg, for respondents.

RUGER, C. J.

By section 1, c. 335, Laws 1886, the town of New Lots in Kings county was annexed to, merged in, and made a part of, the city of Brooklyn, and declared thereafter to constitute a part of that city, to be known as the ‘twenty-sixth ward’ of such city, and to be thereafter, except as in the act otherwise provided, ‘subject to and governed by the same laws, ordinances, rules, and regulations, and entitled to the same rights, privileges, franchises, and immunities,’ as the said city of Brooklyn. By section 7 it was further provided ‘that the supervisor of the town of New Lots, and the several justices of the peace of said town, duly elected, qualified, and acting, at the time this act shall take effect, shall continue to hold their offices for the terms for which they were respectively elected,’ and that ‘the terms of office of all other officers * * * shall cease and determine at the time this act shall take effect.’ By section 16 the act was declared a public act, and made to take effect August 1, 1886.

That this statute was within the constitutional power of the legislature to enact, and that it accomplished the extinguishment of the political organization known as the ‘town of New Lots,’ and merged the administration of the municipal affairs of the territory formerly comprising such town in, and subjected it to, the control of the city of Brooklyn, as provided therein, is not denied, nor can it be successfully disputed. Section 9, art. 8, and section 3, art. 3, present Constitution; People v. Morris, 13 Wend. 325;People v. Morrell, 21 Wend. 562. It is claimed, however, that the relator, who was elected in April, 1886, to fill a term as justice of the peace for such town commencing January 1, 1887, was not deprived of his office by virtue of such statute. It is by the constitution expressly made the duty of the legislature to provide for the organization of cities and incorporated villages, and this power can be exercised only by the creation of such bodies from territory previously existing under some other form of civil government than that intended to be created. It seems unreasonable to suppose that the framers of the constitution intended, by its provision relating to the terms and election of justices of the peace in towns, to thwart the exercise of this beneficial power, and compel the continued retention of a town organization for such territory, for the mere purpose of furnishing a place for a superseded and unnecessary officer. Such officers are the incidents only of the political existence of towns. They are provided and created for the town, and it is quite absurd to say that they continue in office after the town has ceased to exist. While the constitution provides that towns shall elect justices of the peace whose terms shall continue for four years, there is nothing in this provision that requires the indefinite preservation and perpetuation of town organizations to enable such officers to serve out their terms, or forbids a change if, in the judgment of the legislature, the welfare and prosperity of the community requires it. This provision cannot be construed as a limitation upon the power of the legislature to create cities and villages. It is undoubtedly beyond the power of the legislature by direct legislation to abolish the office of justice of the peace in towns, or shorten their terms of office so long as the town exists; but they have an unquestioned right to alter and change the limits of their jurisdiction, or abolish the town organization altogether, provided it be done in good faith, and for proper constitutional objects. The whole force and effect of the provision in relation to justices is satisfied by enforcing it, so long as there is a town organization in existence authorized under the constitution to elect justices of the peace, and requiring the performance of their functions in the government of the town. The effect of this legislation was, therefore, not only to deprive the territory in question of the privilege of thereafter electing justices of the peace, or other town officers, but by destroying its independent corporate existence,-to abrogate its right to have justices of the peace, or other officers peculiar to town organizations, except so far as they were temporarily preserved by the act.

At the time of this legislation the town of New Lots possessed four justices duly elected, qualified, and acting in such capacity, aside from the relator, and under the law was entitled to no greater number. Section 1, tit. 1, c. 5, 1 Rev. St. (7th Ed.) 338, 345. The relator had been elected to fill a prospective term, but he was not, at the time of the passage of the act, a justice of the peace of that town, and, before his term commenced, the political existence of the town had been abrogated. His complaint, therefore, is not strictly that he has been legislated out of office, but that the town organization has not been continued so that his office might be preserved. The four acting justices, one of whom...