
    Sill against The Village of Corning.
    The constitution has not deprived the legislature of the power to provide for the organization of inferior local courts, of civil and criminal jurisdiction in villages. Brown, J., contra; Selden and Comstock, Js., concurring.
    The act of March 5, 1852, providing for the election, by the people of the village of Corning, of a Police Justice, with authority to hear and determine actions for penalties imposed by the by-laws of that village, is within the constitutional powers of the legislature, Brown, Comstock and Selden, Js., dissenting.
    The second section of that act regulates the mode of pleading “ in any action brought before said Police Justice, to recover a penalty imposed for the violation of any by-laws or ordinances of said village,” and the third section requires him to keep an office, “ and attend to all complaints which may bo brought before him.” Held, That these provisions, recognizing and sanctioning his jurisdiction in such actions, are equivalent to an express grant of authority.
    
      The respondent, the Village of Corning, prosecuted the appellant before the police justice of that village, and recovered a judgment against him for two penalties of $2-5 each, for selling ardent spirits to be drank on his premises, being a grocery or provision store, contrary to a by-law of the village. On the trial the defendant refused to appear, except to take exceptions to the'jurisdiction, and the judgment was recovered upon an ex parte trial. The by-law imposing the penalty, and the breach of it were sufficiently proved. The defendant, the present appellant, sued out a certiorari to the Supreme Court, where the judgment of the magistrate was affirmed, and he then appealed, to this court..
    
      George T. Spencer, for the appellant.
    
      George B. Bradley, for the respondent.
   Denio, C. J.

The village of Corning was incorporated pursuant to the provisions of the general act “ to provide for the incorporation of villages.” (Laws 1847, ch. 426.) The charter was twice amended. (Laws 1851, 612; Laws 1852, 48.) The questions presented by the case are, First. Whether the trustees had authority to pass the by-law for the violation of which the defendant was prosecuted ; and Secondly. Whether the magistrate had jurisdiction of the prosecution.

The general law for the incorporation, of villages, authorizes the trustees, of the corporations which maybe organised, to make by-laws to carry into effect the provisions of the act, “ and of other laws- applicable to such village,” “ and to prescribe penalties not exceeding twenty-five dollars for any violation of any such by-law;” but it is added that “ no such by-law shall prescribe any penalty for any act that shall be prohibited and for doing which a penalty shall be prescribed by the laws of the state.” (§57, subd. 25 ) The general power seems sufficient; but an objection is

made by the defendant’s counsel, that the Revised Statutes prohibit, under a penalty, the same identical act which the by-law in question is leveled against. (1 R. S., 680, § 16.) This objection would be fatal if the case rested upon the general act; but the amendment of 1851 provides that “ the trustees shall have power to regulate or prohibit the sale of intoxicating liquors as a beverage in said village ” (§4.) and also to pass, ordinances regulating taverns, groceries, ordinaries, victualing or eating houses or establishments, and petty groceries, &c. (§ 6, subd. 10.) These enactments are a repeal pro tanto of the prohibitory clause quoted from the general act; and they fully warranted the making of the by-law under consideration.

It is argued that the legislature had no constitutional power to provide for the appointment of a police justice in a village, with jurisdiction to try and determine civil actions In support of this position it is maintained that the sixth article of the constitution makes express provision for all the courts of justice which it permits to be established in the state. The fact that a series of courts, from the court of impeachments down to the courts of justices of the peace, are required to be organized, by a necessary implication, as it is argued, excludes the power to create other courts, except in the single instance of city courts, provided for in section fourteen of that article. By that provision it is declared that “ Inferior local courts of civil and criminal jurisdiction, may be established by the legislature in cities; and such courts, except in the cities of New-York and Buffalo, shall have a uniform organization in such cities.” And this provision, according to the argument I am considering, greatly strengthens the implication, that except in cities no new courts can be created by the legislature. I am of the opinion that the provision respecting the higher courts, whose jurisdiction pervades the whole state, is exclusive in its character, and that no other courts of the same jurisdiction can be added by the legislature.

Thus, there can be no Court of Impeachments, nor any Court of Appeals, or Supreme Court, nor I think-,- any county courts, except those which the constitution has made provision for; and it would be an evasion of the clear constitutional implication to create courts of the same general character and jurisdiction, though differing in some particulars. Nor could the legislature create local courts in cities, except in New-York and Buffalo, without giving them an uniform organization. I do not, however, see any prohibition against providing for the organization of local courts in villages. There is nothing in terms prohibitory of new courts in the constitution. It is not anywhere said that the judicial authority of the state shall be vested in the courts for which the constitution provides, though such phraseology is made use of in regard to the legislative power. (Art. 3, § 1; see Barto v. Himrod, 4 Seld., 483.) It is by the application of reasonable principles of construction that we are able to say that no tribunals fulfilling the general purposes of the constitutional courts, expressly provided for, can be erected. The maxim, expressio unius est exclmio alterius, applies directly to this case in that aspect; but that rule has no application to the case of local tribunals established for the purpose of redressing a certain description of grievances in particular limited localities. 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. The eighteenth section of the sixth article favors the conclusion at which I have arrived. It declares that “ all judicial officers in cities and villages, and all such judicial officers as may be created therein by law, shall be elected,” See. But without reference to this clause I am of opinion that upon the general principles which I have stated, the legislature was not precluded from providing for the organization of a local court in this village, having the power to hear and determine actions for penalties imposed by the by-laws of the village.

The remaining question is whether jurisdiction has really been conferred upon the magistrate to try the defendant on the complaint which was preferred against him ; and this is the most difficult point in the case. We must lay aside what is said, respecting a police justice, in the amendment of 1851. Those provisions were a plain violation of the constitution, for they authorized the trustees to appoint the justice; while the section of the constitution just referred to positively requires that all such officers in cities and villages should be “ elected, in such times and in such manner as the legislature shall direct.” The mode of appointment provided for being illegal, all the provisions conferring jurisdiction were equally void. The amendment of 1852 declared that a police justice should be elected in the village of Corning, but it did not, by reference or otherwise, adopt the provisions of the act of 1851, respecting the jurisdiction of the magistrate contained in that act. Though these provisions were in themselves nugatory, on account of the unconstitutionality of the mode of appointment of the officer, whose jurisdiction they attempted to define, it would have been competent for the legislature, when it provided a mode of appointment not forbidden by the constitution, to have transferred these provisions respecting jurisdiction to the new officer. But such is not the effect of the language made use of. The enactments of the former year respecting the police justice are not noticed, probably on account of their unconstitutionality; and the legislature begin anew with the declaration that “ there shall be elected in the village of Corning a police justice,” &c. (§1.) We must therefore look to the act of 1852, alone, for the powers of the officer. The name of police justice would not of itself suggest the idea of authority to try a civil action to recover a penalty, as that class of officers have not ordinarily any jurisdiction in civil cases. But the act does clearly contemplate that the police justice is to possess the jurisdiction in question. The second section declares that “ In any action brought before said' police justice to recover a penalty imposed for the violation of any of the by-laws or ordinances of the said village, it shall only be necessary to state in the complaint the title and section,” &c. The evidence of the existence of the by-law is then provided for; and the next section requires the police justice to keep an office in the village, and “ attend to all. complaints which may be brought before him at. all reasonable hours,” &c. Other sections of the act confer jurisdiction upon the justice to cause arrests to be made in criminal cases; but what has been quoted is all that it contains respecting the jurisdiction in actions for penalties. It is clear enough that the legislature contemplated the exercise of this jurisdiction, although the authority is not directly conferred. I think we are warranted in carrying out the obvious intention of the act, though it is expressed thus incidentally. There are no provisions, either by reference to other statutes or otherwise, as to the form and manner of conducting the suits for penalties, except so far as the substance of the complaint is given in section two ; but I am of opinion that if jurisdiction is sufficiently conferred, the general rules of law applicable to all courts will enable the magistrate to administer justice in those cases without difficulty. The judgment ought to be affirmed.

Johnson, Paige, Shankland and Bowen, Js., concurred in this opinion.

Brown, J. (Dissenting.)

The design of the legislature to create a court of justice for the village of Corning, with limited civil jurisdiction, is plain enough. The main question involved is one of legislative authority. That alone I propose to examine.

The law-making power of the state recognizes no restraints and is bound by none, except such as are imposed by the constitution. That instrument has been aptly termed a legislative act by the people themselves in their sovereign capacity, and is therefore the paramount law. Its object is not to grant legislative power, but to confine and restrain it. Without the constitutional limitations the power to make laws would be absolute. These limitations are created and imposed by express words, or arise by necessary implication. The leading feature of the constitution is the separation and distribution of the powers of the government. It takes care to separate the executive, legislative and judicial powers, and to define their limits. The executive can do no legislative act, nor the legislature any executive act, and neither can exercise judicial authority. That has been entrusted to the courts created in the sixth article, and to such other inferior tribunals as the legislature see fit to establish in certain municipal corporations, designated in the latter clause of the fourteenth section of the same article. The legislature cannot create another court with the appellate jurisdiction of the Court of Appeals, or with the general original jurisdiction of the Supreme Court, or a series of courts with the special and limited jurisdiction of the county courts. If it could, the whole judicial fabric organized under the sixth article, would be superseded and subverted. New tribunals of justice, usurping and exercising the same power and jurisdiction, would effect this result substantially, without the formal abrogation of those now in being. The legislature are nowhere forbidden to exercise this power in express words. Nevertheless, it cannot be done; because the power has already been exerted by the people themselves in their sovereign capacity. Having proceeded, in the sixth article of the fundamental law, to establish the various courts and to define their jurisdiction, there is an implied prohibition that the legislature shall not do for them what they have already done for themselves.

This is not a question of the power of the legislature to pass laws of general application, acting immediately upon the rights of persons or of things, or the remedial process by which those rights are enforced and protected. The organic law has, with few exceptions, omitted to prescribe any rules of that nature. The point in controversy is upon the power of the legislature to organize new courts for the administration of justice outside of the incorporated cities, in addition to those enumerated in the sixth article.

An examination of the sixth article will show that it was designed to furnish a complete and perfect judicial system suitable to the public exigencies at the time, with som 1 qualities of adaptation to the increase of the business and population of the state in the future. For the state ai-t large, it provided a court of appellate jurisdiction in place the Court for the Correction of Errors, and a Supremo Court with general jurisdiction in law and equity. For the counties, it provided county courts and courts of sessions with limited civil and criminal jurisdiction, and for the several towns, it recognized and retained the justices of the peace, with such inferior local jurisdiction as the legislature might confer upon them. At common law a justice of the peace had no civil jurisdiction and no judicial power. “ His commission empowers him singly to conserve the peace; and therefore, gives him all the power of the ancient conservators, at common law, in suppressing riots and affrays, in taking securities for the peace, and in apprehending and committing felons and other inferior criminals.” (1 Bl. Com., 354.) The authority of the legislature to confer civil jurisdiction upon this class of magistrates is not given in express words; hut it is to be implied from their, possessing this jurisdiction at the time the constitution of 1846 was formed, and from the language of the fourteenth, seventeenth and twentieth sections of the sixth article, and from that of section ten of the fourteenth article. The design of a complete adaptation to the exigencies of the state at the time. and to those which might arise thereafter, will be seen from the power given to the legislature by section sixteen, article sixth, to reorganize the judicial districts, and to increase or diminish their number from time to time, each having four justices of the Supreme Court, and to enlarge their number in a district to be composed of the City of New-York, where it was seen the business would concentrate and accumulate. Whenever new counties should be erected, they would each be entitled to a county court and a court of sessions, and when new towns, were created, they in like manner, would be entitled to the usual number of justices of the peace, with the customary civil and criminal jurisdiction. There was, however, among the civil divisions of the state, one class to which the system, had it stopped here, was not entirely appropriate; and that was the incorporated cities. It was perceived that the tendency of the population, the wealth, and the business of the state would be to concentrate in the cities and the great commercial and manufacturing centres then in existence, or which should come into existence thereafter. The constitution does not itself create inferior courts of justice for this class of communities, because their utility and necessity, and the nature of their powers and authority depended upon conditions which could not be known and prescribed in advance. It therefore entrusted their institution and organization, and the nature of their jurisdiction to the legislature, simply requiring that it should be inferior, local and uniform, and subordinate to the courts of general jurisdiction established for the state. Section fourteen of the sixth article confers this power, and declares 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 a uniform organization, and jurisdiction in such cities.” This provision, and that contained in section twenty-three in regard to tribunals of conciliation, contain the only grant of power to the legislature to establish courts of justice. Expressio unius est exclusio alterius is a canon of interpretation. In statutes, ordinances and written instruments, the express mention of one thing implies the exclusion of every other. So the grant of power to the legislature to erect inferior local courts, of civil and criminal jurisdiction, in cities, is an implied prohibition of the power to erect them elsewhere.

Any’ part of a town or towns, not included within any incorporated, village, and containing a resident population of not less than three hundred persons, may become incorporated as a village under the act of the 7th of December, 1847. If the authority which the legislature has exercised in respect to' the village of Corning really exists, all these small communities may become the seats of inferior courts of civil and criminal’ jurisdiction. The only color for the existence of this power is to be found in the eighteenth section of the sixth article, where it is said that “ all judicial officers of cities and villages, and all such judicial officers as may be created therein by law, shall be elected at such times and in such manner as the legislature shall direct.” The presence of the word villages, in this section, certainly does imply that there are judicial officers in villages, and that such officers may be created therein by law. Standing alone, however, in a section which relates exclusively to the election of certain officers, and not to the the erection of courts of justice, and unaided and unsupported, by any other words to be found in the instrument, it cannot be allowed the effect claimed for it. The express grant of the power, in respect to cities, must be construed into a prohibition of the same power in respect to villages.

It was said by the learned justice who decided the case at the special term, that “ a police justice of a city or village is nothing more nor less than a justice of the peace, restricted as to his powers and local jurisdiction.” I respectfully submit that there can be no such officer, out of the incorporated cities, as a justice of the peace restricted in his powers and jurisdiction. He is in every sense a town officer. He is so designated in the statute concerning the election of town officers. (1 R. S., 336.) He is to be elected by the electors of the town at the annual town meeting, and is to'hold his office for the term of four years, pursuant to the seventeenth section of the sixth article of the constitution. The police justice of the village of Corning is not denominated a justice of the peace, in the act which authorizes his election. He is not elected for the term of four years but for one year. He is not elected at the annual town meeting, by the electors of the town, but at the election held for the village of Corning, by the electors thereof, which is a part only of the town of Painted Post. Some of his powers are new" and anomalous, and unlike those of the justices elected under the constitution. He is just what the legislature designed he should be, a new officer, owing his existence, and deriving his jurisdiction exclusively from its power and authority.

The judgment and proceedings in the court below should be reversed.

Comstock and Selden, Js., concurred in this opinion.

Judgment affirmed.  