Sherman Croswell New York (State). Legislature.

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elected. In counties having a population exceeding forty
thousand, wherein there is no separate Surrogate, the
Legislature may provide for the election of a separate
officer to be Surrogate, whose term of office shall he six
}^ar.3. When the Surrogate shall be elected as a sepa-
rate officer his salary shall be established by law, pay-
able out of the county treasury. No County Judge or
Surrogate shall hold office longer than until and in-
cluding the last day of December next after he shall be
seventy years of age. Vacancies occurring in the office
of County Judge or Surrogate shall be filled in the same
manner as like vacancies occurring in the Supreme
Court. The compensatjion of any County Judge or Sur-

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Art. 6, §§ 16, 17. Constitution. 263

rogate shall not be increased or diminished during his
term of office. For the relief of Surrogates' Courts the
Legislature may confer upon the Supreme Court in any
coimty having a population exceeding four hundred thou-
sand, the powers and jurisdiction of Surrogate*, with
authority to try issues of fact by jury in probate cases.

[Some of the provisions of this section are contaiuod In
section 15 of article VI of the amended constitution of
1846.1

Collateral Inheritance tax law confers no power upon sur-
rogate prohibited by the constitution. (Matter of McPher-
son, 104 N. Y. 306.)

Local judicial officers. — § 16. The Legislature may,
on application of the board of supervisors, provide for
the election of local officers, not to exceed two in any
county, to discharge the duties of County Judge and of
Surrogate, in cases of their inability or of a vacancy, and
in such other cases as may be provided by law, and to
exercise such other powers in special cases as are or may
be provided by law.

[Section 16 of article VI of the amended constitution of
1846, amended.]

Under this section the legislature has power to authorize
a special county judge to take a recognizance. (People v.
Main, 20 N. Y. 434. And see for a general discussion of
this section. People ex rel. v. Townsend, 102 id. 430.)

Justices of the peace; district court justices. — § 17.

The electors of the several towns shall, at their ^TjWjjji
town meetings, or at such other time and in
ner a«s the Legislature may direct, elect Ju:




264 Clerk's Manual.

Peace, whose term of office shall be four years. In case
of an election to fill a vacancy occurring before the ex-
piration of the full term, they shall hold for the residue
of the unexpired term. Their number and classification
may be regulated by law. Justices of the Peace and
judges or justices of inferior courts not of record, and
their clerks may be removed for cause, after due notice
and an opportunity of being heard by such courts as
are or may be prescribed by law. Justices of the Peace
and District Court Justices jnay be elected in the differ-
ent cities of this State in such manner, and with such
powers, and for such terms, respectively, as are or shall
be prescribed by law; all other judicial officers in cities,
whose election or appointment is not otherwise provided
for in this article, shall be chosen by the electors of such
cities, or appointed by some local authorities thereof.

[Section 18 of article VI of the amended constitution of
1846, amended.]

This section does not apply to police Justices in New York
city, and they may be appointed. (Wenzler v. People, 58
N. Y. 516; People v. Morgan, 5 Daly, 161; affirmed, 58 N. Y.
679.) And the legislature may abolish or abridge the tenure
of oflSce of a police justice. (Coulter v. Murray, 15 Abb.
[N. S.J 129.)

Legislature cannot provide for election of justices of the
peace in any other manner or by any other locality than is
prescribed In constitution. (Geraty v. Reld, 78 N. Y. 64.)

This section does not prevent annexing towns to cities,
and in effect ending the term of a justice of the peace.
(Gertum v. Supervisors of Kings, 109 N. Y. 170.)

An act of legislature extending the term of a district
court Judge is unconstitutional. (People ex rel. v. Buil, 46
N. Y, 57.)



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Art. 6, § 18. Constitution. 265

Legislature may confer powers of justices of the peace of
towns upon justices In cities. (Ostrander v. People, 29
Hun. 513.)

A justice of the peace in a town Is a constitutional officer
whose office cannot be abolished, directly or indirectly.
(People ex rel. Burby v. Rowland, 155 N. Y. 270.) (1898.)

The criminal jurisdiction of a justice of the peace may be
limited as to a village, and the provision oi the general
village law conferring upon police justices exclusive juris-
diction of misdemeanors in the village, is constitutional.
(People ex rel. Saloom v. Whitney, 32 App. Div. 144.)
(1898.)

(See also People ex rel. Ryan v. Supervisors, 155 N. Y.
295.) (1898.)

The term of office of a justice of the peace cannot be
abridged. (People v. Treacy, 46 App. Div. 216.) (1899.)

The legislature has power to adopt but one method of
selecting such judicial officers, either by election or appoint-
ment. It cannot direct the use of both methods In the
same city by enacting that they shall be elected in one por-
tion thereof and appointed in the other. Such officers if
elected must be chosen by all the electors of the city.
(People V. Dooley, 171 N. Y. 74.) (1902.) (People ex rel.
Joyce V. Guden, 75 N. Y. Supp. 347.)

Recorders and city judges In cities are not provided for
In the constitution and their terms of office are within the
control of the legislature. (People ex rel. Stupp v. Kemp,
83 App. Div. 554.) (1903.)

Inferior local courts. — § 18. Inferior local courts of
civil and criminal jurisdiction may be established by
the Legislature, but no inferior local court hereafter
created shall be a court of record. The Legislature shall
not hereafter confer upon any inferior or local court
of its creation, any equity jurisdiction or any
jurisdiction in other respects than is confoj^
County Courts by or under this article. Excoj.
otherwise provided, all judicial officers shalj




266 Clerk*s Manual.

or appointed at such times and in such manner as the
Legislature may direct.

[Section 19 of article VI of the amended constitution of
1846, amended. Tlie provisions that no such courts shall be
courts of record or possess equity jurisdiction are new.]


An act establishing within a village a court with inferior
and local jurisdiction, although he be named a justice of the
peace and is given similar powers, is valid. (People ex rel.
V. Terry, 108 N. Y. 1 ; Bocock v. Cochran, 32 Hun, 521.)

Act creating office of police justice in village is not void as
giving too broad territorial jurisdiction. (Village of Deposit
V. Vail, 5 Hun, 310.)

Legislature has power to confer upon a local inferior court,
whatever civil or criminal jurisdiction it deems best, subject
to constitutional restriction. (Anderson v. Reilly, 66 N. Y.
189.)

This section does not authorize the legislature to provide a
district for judicial purposes not bounded by town, county,
village or city lines. (People ex rel. v. Porter, 90 N. Y.
68.)

Jurisdiction is limited to localities for which such courts
were established. (Rockwell v. Raymond, 5 N. Y. Supp.
642. Legislature may prescribe the jurisdiction. (Connors
v. Hilton, 66 How. Pr. 144.)

Act giving exclusive jurisdiction to courts of special ses-
sions is valid. Jurisdiction is not exclusive unless specified.
(People V. Austin, 49 Hun, 396.)

Justices of the peace in Rochester possessing no criminal
jurisdiction are inferior local courts and may be abolished.
(People ex rel. v. Common Council of Rochester, 11 Hun,
241.) (As to municipal court of Syracuse, see Curtin v.
Barton, 139 N. Y. 505.)

The only limitation upon the jurisdiction of new magis-
trates created under this provision is that it be local and
inferior. (Brandon v. Avery, 22 N. Y. 469.)

The jurisdiction of a local court must be exercised within
the locality, and its process cannot be executed outside of it.
(Geraty v. Reld, 78 N. Y. 65; Hoag v. Lament, 60 id. 96;
Connor v. Hilton, 66 How. Pr. 144.)

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Art. 6, § 18. Constitution. 267

An act authorizing the city court of Mount Vernon to
authorize the service of its summons outside of the city,
held unconstitutional. (Pierson v. Fries, 3 App. Div. 418.)
(1896.)

The jurisdiction of a local court cannot be extended by
legislation so as to authorize service of process without its
territorial limits. (Baird v. Heifer, 12 App. Div. 23 (1896) ;
Ziegler v. Corwin, 12 App. Div. 60.) (1897.)

(See Armstrong v. Kennedy, 23 Misc. Rep. 47.) (1898.)

Although several of the above decisions hold that process
of a local court cannot be served without the municipality,
they were rendered under the language of section 19 of article
6 of the old constitution, which was much narrower than the
language of the above section. It is believed that the section
was expressly amended to obviate the effect of these de-
cisions, and that under this section process of a local court
may, if authorized by the legislature, be served anywhere in
the county.

The act creating the municipal court of the city of New
York is not unconstitutional because it extends the Jurisdic-
tion of that court over more than one county. It was not the
intention to restrict the territorial jurisdiction of inferior
local courts to that of county courts but rather to restrict
their jurisdiction as to subject-matter and persons and not
as to locality. (Irwin v. Met. St. R. R. Co., 38 App. Div.
253.) (1899.)

The limitation imposed upon the power of the legislature
to confer jurisdiction upon future inferior local courts re-
lates to the jurisdiction as to subject-matter and not as to
territory, non-resident parties defendant or foreign corpora-
tions. The municipal court of the city of New York is a
continuation and consolidation and re-organization of the
district courts of the old city of New York and is not a new
Inferior local court. (Worthington v. London Guarantee
Co., 164 N. Y. 81.)

The conferring of jurisdiction upon the municipal court
of the city of New York to entertain actions in which the
defendant is a corporation though it does not appp
Its legal residence is within the county is not
tional. Such jurisdiction having long been ex
Justices Qt the peace. (Dodge Mfg. Co. v. m




268 Clebk's Manual.

Case Co., 44 App. Div. 603 (1899.) ; Kantro v. Armstrong,
44 App. Div. 506.) (1899.)

Act appointing commissioners to audit certain outstanding
claims against the city of Syracuse does not violate this sec-
tion. (City of Syracuse v. Hubbard, 64 App. Div. 587.)
(1901.)

The legislature had power to confer jurisdiction upon the
municipal court of the city of N*w York in actions for the
recovery of money only against non-resident natural persons
having a place of business in the city. (Routenberg v.
Schweitzer, 165 N. Y. 175.) aOOO.)

Clerks of courts. — § 19. Clerks of the several counties
shall be clerks of the Supreme Court, with such powers
and duties as shall be prescribed by law. The Justices
of the Appellate Division in each department shall have
power to appoint and to remove a clerk, who shall keep
his office at a place to be designated by said Justices.
The Clerk of the Court of Appeals shall keep his office
at the seat of government. The Clerk of the Court of
Appeals and the Clerks of the Appellate Division shall
receive compensation to be established by law and paid
out of the public treasury.

[Section 20 of article VI of the amended constitution of
1846, amended. The clerk of appellate division is a new
office.]

No judicial officer, except justice of the peace, to re-
ceive fees; not to act as attorney or counselor. — § 20.
No judicial officer, except Justices of the Peace, shall re-
ceive to his own use any fees or perquisites of office;
nor shall any Judge of the Court of Appeals, or Justice
of the Supreme Court, or any County Judge or Surro-
gate hereafter elected in a county having a populatibn



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Art. 6, §§ 21, 22. Constitution. 269

exceeding one hundred and twenty thousand, practice as
an attorney or counselor in any court of record of this
State, or act as referee. The Legislature may impose
a similar prohibition upon County Judges and Surro-
gates in other counties. No one shall be eligible to the
office of Judge of the Court of Appeals, Justice of the
Supreme Court, or, except in the county of Hamilton,
to the office of County Judge or Surrogate, who is not
an attorney and counselor of this State.

[This section contains the provisions of section 21 of arti-
cle VI of the amended constitution of 1846. The remainder
of the section is new.]

The objection that a referee was disqualified because at
the time of his appointment he was a county judge of a
county having more than 120,000 inhabitants based upon
judicial notice alone is determined by the records of the last
official enumeration of the inhabitants of the state. (Adams
V. Elwood, 176 N. Y. 106.) (1903.)

The appellate division has not jurisdiction to suspend
from practice or remove from his office as attorney a sur-
rogate who practices law during his term of office in viola-
tion of this section. (Matter of Silltman, 88 App. Div. 102.)
(1903.)

Publication of statutes. — § 21. The Legislature shall
provide for the speedy publication of all statutes, and
shall regulate the reporting of the decisions of the
courts; but all laws and judicial decisions shall be free
for publication by any person.

[Section 23 of article VI of the amended constitution of
1846, amended.]

Terms of office of present justices of the
local judicial officers. — § 22. Justices of th




270 Clebk*s Manual.

other local judicial officers provided for in sections sev-
enteen and eighteen, in office when this article takes
effect, shall hold their offices until the expiration of
their respective terms.

[Section 25 of article VI of the amended constitution of
1846, amended.]

Aboliton of office of police justice in New York city, held
not in violation of this section. (Koch v. Mayor, 152 N. Y.
72 (1897) ; Stenson v. Koch, 152 N. Y. 87; Matter of Quinn,
152 N. Y. 89.)

Courts of special sessions. — § 23. Courts of Special
Sessions shall have such jurisdiction of offenses of the
grade of misdemeanors as may be prescribed by law.

[Section 26 of article VI of the amended constitution of
1846, without change.]

Section is not limited to oflfenses of the grade specified
created by statute after the adoption of such section. (Peo-
ple ex rei. v. Dutcher, 83 N. Y. 240.)

ARTICLE VII.

State credit not to be given. — Section 1. The credit
of the State shall not in any manner be given or loaned
to or in aid of any individual, association or corporation.

[Section 9 of article VII of the amended constitution of
1846, without change.]

The legislature may require insurance companies to de-
posit a fund with the state insurance department. (At-
torney-General V. North Am. Life Ins. Co., 82 N. Y. 172.)

Railroad grade crossing act does not violate this section.
(Matter of B. & A. R. R. Co., 64 App. Div. 257.) (1901.)

State debts, power to contract.— § 2. The State may,
to meet casual deficits or failures in revenues, or for
expenses not provided for, contract debts; but such
debts, direct or contingent, singly or in the aggregate,
shall not at any time exceed one million of dollars; and
the moneys arising from the loans creating such debts
shall be applied to the purpose for which they were ob*

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Art. 7, §§ 3, 4. Constitution. 271

tained, or to repay the debt so contracted, and to no
other purpose whatever.

[Section 10 of article VII of the amended constitution of
1846, without change.]

Neither the legislature or any state department can create
a debt or incur an obligation for or in belialf of the state,
except as to the amount and In the manner provided by the
constitution. (People ex rel. v. Supervisors of Kings Co., 52
N. Y. 556, 563.)

State debts to repel invasions. — § 3. In addition to
the above limited power to contract debts, the State may
contract debts to repel invasion, suppress insurrection,
or defend the State in war; but the money arising from
the contracting of such debts shall be applied to the pur-
pose for which it was raised, or to repay such debts, and
to no other purpose whatever.

[Section 11 of article VII of the amended constitution of
1846, without change.]

Limitation of legislative power to create debts. —

§ 4. Except the debts specified in sections two and three
of this article, no debts shall be hereafter contracted by
or in behalf of this State, imless such debt shall be
authorized by law, for some single work or object, to
be distinctly specified therein; and such law shall im-
pose and provide for the collection of a direct annual
tax to pay, and sufficient to pay, the interest on such
debt as it falls due, and also to pay and discharge the
principal of such debt within fifty years from the time
of the contracting thereof. No such law shall take ef-
fect until it shall, at a general election, have been sub-
mitted to the people, and have received a majority of
all the votes cast for and against it at such election.
On the final passage of such bill in either house of the
Legislature, the question shall be taken by ayes and
noes, to be duly entered on the journals thereof, and
shall be : " Shall this bill pass, and ought the same to



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272 Clerk's Manual.

receive the sanction of the people ? " The Legislature
may at any time after the approval of such law by the
people, if no debt shall have been contracted in pursu-
ance thereof, repeal the same; and may at any time, by
law, forbid the contracting of any further debt or lia-
bility under such law; but the tax imposed by such act,
in proportion to the debt and liability which may have
been contracted in pursuance of such law, shall remain
in force and be irrepealable, and be annually collected,
until the proceeds thereof shall have made the provision
hereinbefore specified to pay and discharge the interest
and principal of such debt and liability. The money
arising from any loan or stock creating such debt or
liability shall be applied to the work or object specified
in the act authorizing such debt or liability, or for the
payment of such debt or liability, and for no other pur-
pose whatever. No such law shall be submitted to be
voted on within three months after its passage or at
any general election when any other law, or any l^ill
shall be submitted to be voted for or against. The Leg-
islature may provide for the issue of bonds of the State
to run for a period not exceeding fifty years in lieu of
bonds heretofore authorized but not issued and shall im-
pose and provide for the collection of a direct annual
tax for the payment of the same as h'^reinbefore required.
When any sinking fund created under this section shall
equal in amount the debt for which it was created, no
further direct tax shall be levied on account of said
sinking fund, and the Legislature -shall reduce the tax
to an amount equal to the accruing interest on such
debt. The Legislature may from time to time alter the
rate of interest to be paid upon any State debt, which
ha,s been or may be authorized pursuant to the provi-
sions of this section, or upon any part of such debt,
provided, however, that the rate of interest shall not
be altered upon any part of such debt or upon any bond

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Art. 7, § 4. Constitution. 273

or other evidence thereof, which has been, or shall be
created or issued before such altei-ation. In case the
Legislature increase the rate of interest upon any such
debt, or part thereof, it shall impose and provide for
the collection of a direct annual tax to pay and suffi-
cient to pay the increased or altered interest on such
debt as it falls due and also to pay and discharge the
principal of such debt within fifty years from the time
of the contracting thereof, and shall appropriate annu-
ally to the sinking fund moneys in amount sufficient to
pay such interest and pay and discharge the principal
of such debt when it shall become due and payable.
[Amended by vote of People Nov. 7, 1905, and Nov. 2,
1909.]

[Section 2 of article VII of the amended constitution or
1846, amended by striking the words " the tenth and
eleventh sections " and inserting the words " sections two
and three."]

The canal law of 1851 authorizing the raising of a loan
to the state on certificates pledging the canal revenues for
payment of principal and interest and excluding in terms
any other liability on the part of the state than that con-
tained In the statute, with the provision that the state shall
not be liable, in any event, to make up any deficiency in tne
revenues, or to redeem the certificates, construed to create
a debt or liability of the state, if the certificates should
In no event or contingency be paid Is repugnant to this
section. (People v. Newell, 7 N. Y. 9.)

The act of 1872, chapter 700, authorizing, subject to the
approval of the people at the next general election, the
creation of a debt for purpose's therein named, violates this
section in providing for the creation of a debt for many
different objects. (People ex rel. Hopkins v. Board of Siper-
visors of Kings Co., 52 N. Y. 556.)

This section only relates to state finances and taxes, and
not to taxes for municipal improvements. (People ex rel. v.
Havemeyer, 3 Hun, 97 ; People v. Supervisors of Chenansro,
8 N. Y. 317 ; Darlington v. Mayor of N. Y., 31 id, '

And, therefore, the legislature may direct the issue ^
bonds to defray the expense of constructing highway
without the consent of the inhabitants of such tow/
pie ex rel. v. Flagg, 46 id. 401.)




274 Clerk's Manual.

Sinking fund, how kept and invested. — § 5. The sink-
ing funds provided for the payment of interest and the
extinguishment of the principal of the debts of the State
shall be separately kept and safely invested, and neither
of tliem shall be appropriated or used in any manner
other than for the specific purpose for which it shall
have been provided.

[Section 13 of article VII of the amended constitution of
1846, without change.]

Claims barred by statute of limitations. — § 6. Neither
the Legislature, canal board, nor any person or persons
acting in behalf of the State, shall audit, allow or pay
any claim which, as between citizens of the State, would
be barred by lapse of time. This provision shall not be
construed to repeal any statute fixing the time within
which claims shall be presented or allowed, nor shall it
extend to any claim duly presented within the time al-
lowed by law, and prosecuted with due diligence from
the time of such presentment. B\it if the claimant shall
be under legal disability, the claim may be presented
within two years after such disability is removed.

[Section 14 of article YII of the amended constitution of
1846, amended by striking out certain provisions probably
deemed obsolete.]

Under this section It Is not necessary to avoid the limita-
tions to show that presentatipn has been made to the board
of audit or its successor, the board of claims. Presentment
to the legislature or to any officer or body having Jurisdic-
tion to pay, allow or act upon the claim Is sufficient, if after
such presentation the same has been prosecuted with reason-
able diligence. (Corljlngs v. State, 99 N. Y. 491.)

This does not apply to a claim for services and materials
furnished state officers, which Is not enforceable In any
tribunal until It receives recognition from the legislature,
and the limitation does not begin to run until the enabling
act has been passed. (O'Hara v. State of N. Y., 112 N. Y.
146.)

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Art. 7, § 7. Constitution. 275

Where a meritorious claim against the state was barred
at the time of its submission to the board of claims by the
intervention of the general statute of limitations, the legis-
lature cannot confer power upon the board of claims to allow
or pass upon such claim. (Gates v. State, 128 N. Y. 221.)

The legislature has the right to enlarge the time in which
a claim in any particular case may be filed, provided it does
not itself audit or permit any other body to audit or allow a
claim which, as between citizens, is outlawed. (Parmenter
V. State, 135 N. Y. 134, citing Cole v. State, 102 id. 48, 53.)

Such limitation can only be said to run against the claim-
ant during the time which he would have been authorized to



Online LibrarySherman Croswell New York (State). LegislatureThe Clerk's manual of rules, forms and laws for the regulation of business ... → online text (page 19 of 45)