
    The People ex rel. Hiram Sinkler, Resp’t, v. Irving C. Terry, Superintendent, etc., App’lt.
    
    
      (Court of Appeals,
    
    
      Filed January 17, 1888.)
    
    1. Justice of the peace of the village of Canton—Laws 1845, chap. 192, as amended bt Laws 1859, chap. 70, and Laws 1870, chap. 263, is constitutional.
    By Laws 1845, chapter 192, which originally incorporated the village of Canton, as amended by Laws 1859, chapter 70, section 2, it was provided that “The officers of said village shall be five trustees,. * * * one justice of the peace, with * * • * all the poweis of justices of the peace elected by towns at.town meetings, in relation to crimes and misdemeanors, and to oaths and' acknowledgements, and also in civil actions in which all the parties shall be residents or inhabitants of said village.” By Laws 1870, chapter 263, it is provided that the justice should have “ the usual powers of justices of the peace of towns in relation to crimes," etc., Held, that the law was constitutional.
    2. Same—The court is local and inferior to a justice of the peace OF TOWNS.
    
      Held, that the act confines the jurisdiction of the justice to the vmage instead of the town of Canton, and within that village as to crimes, etc., he has the same jurisdiction that justices of the peace have in towns; that the jurisdiction which the justice exercises is inferior to that of a justice of the peace of towns, because it is more limited in area, and also m kind in civil cases; that the statute provides for the creation of both an inferior and a local court.
    8. Same—Said officer not the officer named in constitution, art. ' 6, § 17.
    The officer named in the act, although called a justice of the peace, is not the officer named in article 6, section 17, of the constitution, and whose election is therein provided for.
    4, Same—When art. 6, § 18, of constitution dabs not prohibit election OF, IN VILLAGES.
    The provision in the constitution, art. 6, § 18, for electing justices of the peace in towns and cities docs not thereby prohibit their election in villages so long as the officer thus elected by a reduced constituency is not in reality a justice of the peace of the town and exercising in all respects the same jurisdiction.
    6. Legislative power to establish inferior and local courts—Constitution, art. 6, § 19.
    By article 6, section 19, of the constitution there is an express^ grant of power to the legislature to establish any where in the state in villages as well as in cities or towns inferior and local courts.
    
      6. Jurisdiction of court, not name of magistrate, makes it inferior.
    Where an inferior and local court is otherwise thus established, the act creating it is not rendered void, because the magistrate elected is called in the statute a justice of the peace of the village. It is not the name but the jurisdiction of the court which is material
    7. Statutes—Construction of—Rules—When unconstitutional.
    In construing a statute which is susceptible of two constructions, one of which will render it valid and the other void, and both are reasonable, that construction which renders the act valid will be adopted. A statute to be held unconstitutional must plainly be at war with the fundamental law.
    8. Election—Invalidity of—Proof of.
    Where a criminal endeavors to escape punishment on the allegation that the person acting as a magistrate was not elected, because of some alleged technical defect in ballots, although he received a majority of all the votes, the party setting up the invalidity of the election should be held to strict proof of all the material facts.
    9. Same—Evidence of—When sufficient to make magistrate de facto officer.
    On the trial of the action there was evidence showing that the. official canvass of the ballots at the village election of officers at the time and village in question, showed the whole number of ballots cast of which, “ For Justice,” Henry E. Seaver, received a majority. On this official canvass were affixed ten different ballots among which were ballots for the different officers of the village included therein, “ For Police Justice, Henry E. Seaver,” and, also, “ For Police Justice, Almerone Z. Squires.” There was an office (justice of the peace of the village corporation), judicial in its character, to be filled. After the election and by virtue of it, and under its authority, Henry E. Seaver for the only office voted for, immediately entered upon the discharge of the duties of the office mentioned and described in the statute, and his holding of the office was disputed by no one. Held, that Henry E. Seaver, was de facto magistrate.
    On the 15th day of April, 1886, one Hiram. Sinkler was arraigned before Henry E. Seaver, justice of the peace of the village of Canton, charged with assault in the third degree. He pleaded guilty, and was sentenced to imprisonment in the Onondaga county penitentiary, for the period of four months. On the 25th day of June, 1886, Percy M. Sinkler, mother by adoption of the said Hiram Sinkler, presented to Mr. Justice Tappan a petition for a writ of habeas corpus to inquire into the cause of the said Hiram Sinkler’s detention,alleging that the conviction and commitment were void, in that Mr. Seaver was not a justice of the peace nor. a magistrate of any kind for the following reasons:
    
      First. That said Seaver was not voted for for the office of justice of the peace of the village of Canton, but received 162 votes for the office of police justice, and that at the time of the charter election, at which he claimed to have been elected, there was no such office as police justice.
    
      Second. That the law attempting to create a justice of the peace for the village of Canton, is unconstitutional and void, for the reason that it undertakes to make an additional justice of the peace, with criminal jurisdiction, for the town of Canton, contrary to the eighth section of the sixth article of the constitution. That this had been previously held by Mr. Justice Tappan in the case of one Joseph Mouse.
    
      Third. That Seaver was not a justice of the peace of the town of Canton, as by the commitment of the relator he purported to be.
    Thereupon the writ was granted, directed to Irving C. ■ Terry, superintendent of said penitentiary, returnable before Justice Tappan at his chambers in Potsdam.
    Thereafter. the said Terry produced the relator before Justice Tappan and averred that he held him in custody by virtue of Mr. Seaver’s commitment.
    On traversing the return, the relator alleged as a further .ground of unconstitutionality of the statute creating Mr. Seaver’s office, that a justice of the peace is a town officer, to be chosen by the whole town, whereas the act in question allowed the corporation of the village of Canton, a different locality from a town, to elect a justice of the peace.
    Upon the hearing, counsel for the people objected to the admission of any evidence as to the locality of the election of the officer or as to the constitutionality of the statute ■creating the office, upon the ground that no inquiry could be made therein under habeas corpus. The objection was overruled.
    The relator conceded that the village of Canton was part ■of the town of Canton; and the relator’s offense was committed within the corporate limits of the village. The charter of the village is contained in chapter 70 of the Laws of 1859, as amended by chapter 263, of the Laws of 1870, which named among other officers of the village, a justice ■of the peace, and defined his powers as follows:
    “The said justice of the peace shall have the usual powers ■of justices of the peace of towns in relation to crimes and misdemeanors, and to oaths and acknowledgments, and also in civil actions, in which all the parties shall be residents or inhabitants of said village.”
    The relator proved by the clerk of the village that according to the return of the canvassers Mr. Seaver received a majority of the votes cast “for justice.” To the return were affixed ten different ballots, upon some of which were the words, “For police justice, Henry E. Seaver,” and upon others “For police justice, Almerone Z. Squires,” but none marked “justice of the peace.” Mr. McMonagle, the attorney for the relator, swore that he cast a ballot for Mr. Seaver for “police justice;” that he did not think of the particular designation to give him; that he understood there was a police justice and supposed the legal designation of the office created by law was police justice; and that he voted for Mr. Seaver for the same office held by Mr. Squires before then.
    For the people, the sheriff of the county and the officer who arrested Sinkler testified that they knew Mr. Seaver; that. he was reputed to be and had acted as justice of the peace of tltfe corporation from the time of the election in January, 1886, down to and including the conviction of the relator.
    It was further proved that on the 12th day of January, 1886, the clerk of the village certified to the county clerk the election of Mr. Seaver as a justice of the peace for the full term; that on the 14th day of January, 1886, Mr. Seaver took the oath of office and filed the same with the county clerk; and that on the same day he gave a bond conditioned in the usual form and approved by the supervisor of the town of Canton.
    Thereupon Mr. Justice Tappar made an order wherein it was “Adjudged that the commitment signed by Henry E. Seaver, justice of the peace, is void and irregular; also that said Seaver was no magistrate whatever; and also that the act of 1870, chapter 263, creating the office of justice of the peace is unconstitutional and void, and directing the discharge of the relator.
    From this order the people appealed to the general term of the third department, where the order of the justice was affirmed, Mr. Justice Lardón writing the opinion (see N. Y. State Rep., vol. 5,. page 120), on the ground that a justice of the peace is an officer of the constitution, and that an officer so designated, whether with greater or less power, cannot exist as allowed by the constitution. The people then appealed here.
    
      Ledyard P. Hale, assistant district attorney, for. the people, app’lts; John C. Keeler, for relator, resp’t.
    
      
       Reversing 5 N. Y. State Rep., 121.
    
   Peckham, J.

The relator claims that the section of the act providing for the election of a judicial officer in the village of Oanton is unconstitutional, because: (1) the section does not confine the jurisdiction of the officer to the village of Canton, and (2) if it did so confine it, there is no' power in the legislature to provide for the election of a justice of the peace in villages.

First. As to the first ground. The village of Canton was originally incorporated by chapter 192 of the Laws of 1845. In 1859 the charter was amended by the passage of chapter 70 of the Laws of that year. The second section of this latter act provided that: “ The officers of said village shall be five trustees—one justice of the peace with powers hereinafter mentioned — the said justice of the peace shall have all the powers of justices of the peace elected by towns at town meetings in relation to crimes and misdemeanors and to oaths and acknowledgments, and also in civil actions in which all the parties shall be residents or inhabitants of said village, and shall hold such office for the term of four years from the first day of January next after his election.” By chapter 263 of the Laws of 1870, the section above cited was amended by reducing the term of office of the justice, and as to his powers providing that he should have “the usual powers of justices of the peace of towns in relation to crimes and misdemeanors, and to oaths and acknowledgments, and, also, in civil actions in which all the parties shall be residents or inhabitants of said village.

Under the constitution of 1846, it was provided by article 6, section 14, that “inferior local courts, of civil and criminal jurisdiction, may be established by the legislature in cities; and such courts, except for the cities of New York and Buffalo shall have an uniform organization and jurisdiction in such cities.”

While this provision was in force the village of Corning (which was incorporated under the provisions of the general act to provide for the incorporation of villages, being chapter 426 of the Laws of 1847), prosecuted one Sill before the police justice of that village for selling liquor contrary to a by-law of the village, and recovered the amount of the penalty provided for therein. Sill sued out a certiorari to the supreme court where the judgment was affirmed, and he then appealed here.

He contended that the legislature had no po vt er under the constitution to provide for the appointment of a police justice in the village with jurisdiction to try and determine civil actions; and it was argued that the article above quoted only allowed of such a provision by the legislature, in regard to cities, but this court held, Denio, Oh. J., writing the opinion, that the legislature was not prohibited from providing for the organization of an inferior local court in a village. Sill v. Village of Corning, 15 N. Y., 297. This decision was reaffirmed in Brandon v. Avery (22 N. Y., 469), where it was again stated that the only limitation under the constitution of 1846, as to the jurisdiction of new magistrates to be created by the legislature in cities and villages, is that it be, local and inferior. The first case above cited, was decided in June, 1857, and the second in December, 1860.

It may be assumed, therefore, that in 1859, it was known to the legislature that inferior local courts could be established in villages, and it was also known that justices of the peace with like power and authority through the whole town, as any other justice of the peace, but to be elected by a portion only of the electors of the town, could not constitutionally be provided for. With such knowledge on the part of the legislature the question is whether the language used by it in the section of the act under consideration, fairly and reasonably construed, imports that the jurisdiction of the officer elected by the electors of the village of Canton was to be co-extensive with that of the justices of the peace of the town of Canton elected under the provisions of the constitution, in which case the statute would be void, or whether such language did not mean that the jurisdiction thus described and provided for was to be exercised, and process to be served only, in the village of Canton ? In construing a statute which is susceptible of two constructions, one of which will render it valid and the other void, and both are reasonable, it is familiar that courts incline to and will adopt that construction which renders the act valid, rather than the one which avoids it. A statute to be unconstitutional must plainly be at war with the fundamental law. We think that a construction of this statute which confines the jurisdiction of the officer and the service of process to the limits of the village is not unreasonable nor erroneous. The legislature clearly did not intend to pass an unconstitutional act, or which is the same thing, provide for the creation of an officer with jurisdiction prohibited by the constitution. In the section of the act under consideration it states who the officers of the village shall be, and names a justice of the peace as among them, and then proceeds to define his jurisdiction.

As this legislation is designed exclusively for the village of Canton, and the officers named in the act are named as officers of the village, and as the powers and duties of all the other officers whose election is therein provided for, are to be exercised within the village, we think it highly reasonable to suppose that the duties of a justice were also to be thus exercised. The jurisdiction conferred upon him by the language used was meant to be confined to the village instead of the town of Canton. When the statutes said that he should have all the powers of justices of the peace elected by towns, etc., it was descriptive of the character of that jurisdiction which was to be exercised within the village. This reasoning has added force under the statute of 1870.

The second of the two cases above cited had then been reported some years, and the presumption of knowledge of both of them by the legislature is still stronger. The language used in the act of 1870 is substantially similar to the act of 1859, and should receive the same construction.

The act, we think, when properly and reasonably construed, confines the jurisdiction of the justice to the village of Canton, and within that village, as to crimes and misdemeanors, he has the same jurisdiction that justices of the peace have in towns.

This makes the court a local one. The jurisdiction which the justice exercises is inferior to that of a justice of the peace of towns, because it is more limited in area, and also in kind in civil cases, for in those he is so limited in the exercise of his jurisdiction that both parties must be residents or inhabitants of the village. The statute thus providing for the creation of both an inferior and a local ■court, is not open to the first ground of objection.

Second. As to the second ground, we think the constitution does permit of the election in villages of a judicial officer with inferior and local jurisdiction, even though he be named a justice of the peace. The argument against the constitutionality of such a law is this: The constitution (art. 6, § 18) provides for the election of justices of the peace in towns and also "in cities, but does not mention villages, and hence no justice of the peace can be elected for them, and as this act does provide for the election of a justice of the peace in a village, it is therefore void.

But we think the officer named in the act, although called a justice of the peace, is not the officer named in the constitution and whose election is therein provided for. He is not an officer with the same jurisdiction as a town justice of the peace, because as already shown, he is limited in the discharge of his duties to the village, and in civil cases to those where both parties are residents or inhabitants thereof; and of course he is not a justice of the peace of a city. In a city a justice of the peace may be elected with such powers and for such a term as shall be prescribed by law. Although the constitution does provide for electing justices of the peace in towns and cities, it does not prohibit their election in villages so long as the officer thus elected by a reduced constituency is not in reality a justice of the peace of the town and exercising in all respects the same jurisdiction. As was said by Denio, Ch. J., in Sill v. The Village of Corning (supra), “the state, as to subjects of a domestic nature, is a sovereign political power, and the legislature can provide such agencies for the administration of the law and the maintenance of public order as it shall judge suitable, where no prohibition expressly made or necessarily implied is.found in the constitution.”

In the case cited it was argued against the power of the legislature to provide for inferior courts in villages, because there was no positive grant of power in the constitution, and that instrument did provide for the creation of inferior local courts of civil and criminal jurisdiction in cities (art. 6, constitution of 1846), and hence as provision for such courts was made in cities the implication was conclusive that no such power existed in regard to villages. But the argument was not considered sound and was overthrown in the case cited. The maxim, “expressio unius est. exclusio alterius,” was not thought applicable to the case of local tribunals established for the purpose of redressing a certain description of grievances in particular limited localities.

Judge Demo further said, in substance, that there is no provision in the constitution which vests the judicial authority of the state in the courts named in the constitution, though such language is made use of regarding the legislative power, and it was by the application of reasonable principles of construction that the courts were able to say that no tribunals fulfilling the general purposes of the constitutional courts expressly provided for could be created. He then added what is quoted above as to the inapplicability of such reasoning to local tribunals. The argument in favor of the constitutionality of the act is strengthened by a reference to the nineteenth section of article 6, which went into fleet in 1870. That section says that “inferior local courts of civil and criminal jurisdiction may be established by the legislature.” Thus leaving out the provision in the old article (6) which limited the terms 'of that special grant of power to the establishment of such courts in cities; so that now there is the express grant of power to the legislature to establish anywhere ifi the state, in villages, as well as in cities or towns, inferior and local courts.

When an inferior and local court is otherwise thus established, we do not think the act creating it is rendered void because the magistrate elected is called in the statute a 'justice of the peace of the village. It is not the name in such case, but the jurisdiction of the court which is material, and so long as that is inferior and local, the name given to the person who is to preside in it is not generally important, certainly not in this instance. People v. Raymond, 37 N. Y., 428; People v. Albertson, 55 id., 50.

Again, under the constitution of 1846, the sixth article, section 17, provides for the election of justices of the peace in towns only, leaving out both cities and, villages. By chapter 125 of the Laws of 1849, section 15, it was provided that the common council of Brooklyn could divide the city into two or more districts, for each of which districts a “justice of the peace” was to be elected for four years, who was to have “the same jurisdiction within said city that justices of towns have by law in respect to the towns for which they have been elected, and they shall be deemed justices of the peace of the county of Kings.” Here we have the same position regarding those justices that exists in regard to the justices of the peace in Canton. The constitution then in words provided only for the election of justices of the peace in towns, while the legislature was creating them for cities. The constitution now provides for justices of the peace in towns and cities, while the legislature is said to be creating one for a village. _ If the justices of the peace in Brooklyn were upheld as judicial officers of a local and inferior court, we do not see why the same reason does not apply here. The justices of the peace elected under the Brooklyn act were declared to be valid officers whose jurisdiction was confined to the city of Brooklyn. Geraty v. Reid, 78 N. Y., 64.

The statute in that case did, in words, confine the jurisdiction of the justices to the city of Brooklyn, while in the one under consideration we hold that the clear implication from the whole act confines the jurisdiction of the justice to the village of Canton.

If it be said that the Brooklyn act could be sustained under the section of the constitution, as it then stood, providing for the erection of inferior and local courts in cities, it may be answered that the constitution as it stood when the act of 1870 was passed did not contain the provision for the establishment of inferior and local courts in cities, but the provision left out those words of limitation.

The Case of Sill, cited above, also shows that the power to establish a local and inferior court in villages existed under the old article, so that there is nothing in this argument of a special power for the establishmeet of local and inferior courts in cities only.

We think there is no evasion of the provisions of the constitution in either case, and that a local and inferior court established in a village for the purpose of therein redressing a certain description of grievances, is not an unconstitutional tribunal, although the officer who is to preside in it is called a justice of the peace.

Third.- But the relator claims that he is entitled to his discharge, even conceding the constitutionality of the act in question, and upon the ground that the magistrate who sentenced him was never elected to the office of justice of the peace and was not even a defacto officer.

The relator gave in evidence upon the hearing the official canvass of the ballots at the village election of officers from 1886 to 1887, showing the whole number of ballots cast, of which, “for justice,” Henry E. Seaver received a majority. On this official canvass were affixed ten different ballots, of which copies are set out in the return, and among which were ballots for the different officers of the village, including therein, “for police justice,HenryE. Seaver,” and also, “for police justice, Almerone Z. Squires,” and also ballot» which designated no judicial officer and named no candidate therefor.

It does not appear from this record that there were no ballots cast for Mr. Seaver, “for justice of the peace of the village of Canton.” The clerk of the village was called,, who swore that Mr. Seaver did not receive any votes for the office of justice of the peace that he knew of. He then stated what “the record said”—that Seaver had received 162 votes for “justice.” The clerk would not necessarily know all the ballots that were cast at the election, for he is not one of the canvassers, the trustee, or trustees presiding at the election being the officers to make the canvass. They are to state the office for which each person shall have been voted for, but it is obvious that this certificate of canvass was of an informal character, for it states only that the office voted for was “justice,” which is just as compatible with a ballot for “justice of the peace,” as it is for “police justice,” although two of the ballots affixed to the canvass have the office named as “police justice.” But as already stated there is neither certificate nor proof that the ballots affixed to the canvass were all the different kinds of ballots that were cast.

This reasoning may be considered somewhat strict; but we think in a case like this, where a criminal endeavors to escape punishment on the allegation that the person acting as a magistrate was not elected because of some alleged technical defect in ballots, although he received a majority of all the votes, the party setting up the invalidity of the election should be held to strict proof of all the material facts. The proof on the part of defendant showed that immediately after the election the village clerk made a certificate that Mr. Seaver was duly elected a justice of the peace for the full term, and on the same day he took the official oath to “ faithfully discharge the duties of the office of justice of the peace (corporation), according to the best of” his ability. On the same day he gave a bond, reciting" that it was given in compliance with chapter 107, of the Laws of 1878, requiring justices of the peace to give bonds, by which he obligated himself to pay over, etc., all money which he might receive by virtue of his office as justice of the peace; and such bond was approved by the supervisor of the town in which the village is situated.

It was then proved that Mr. Seaver was reputed to be a justice of the peace for the corporation, and that he had acted as such from the time of the corporation meeting in January down to and including the conviction of the relator. It was admitted that the offense of which he was convicted was committed within the limits of Canton. The warrant of commitment was signed by Seaver, with the addition under his name, “ justice of the peace.” A witness called for the relator swore that he voted for Seaver at the election for the office of “police justice,” and supposed the legal designation of the office created by law was “ police justice.”

It is not pretended that any law authorized the election of a judicial officer in the village, other than the act of 1859, as amended by the act of 1870.

Upon all these facts, we think that the magistrate was a de facto officer. It is not claimed that there was any otheracting magistrate, or that any other person than Seaver was elected to fill any judicial office, and the evidence on the part of the relator shows that, at least, one witness voted for Seaver for what he supposed was the legal designation of the office created by law. The whole facts in the case lead to the same inference as to the belief of all voters who voted that kind of a ballot. There was an office, judicial in' its character, to be filled, and it may confidently be asserted that the electors intended to fill the office established by the statute. After the election, and by virtue of it, and under its authority, the person receiving the highest number of votes for the only judicial office voted for, immediately entered upon the discharge of the duties of the office mentioned and described in the statute, and his holding of the office was disputed by no one.

We think no cause for discharging the prisoner was shown, and the order discharging him should be reversed and the prisoner remanded to the custody of the superintendent, who should recover costs against the relator.

All concur, except Andrews, J., not voting  