
    William E. Melody, Plaintiff, v. William W. Goodrich et al., Defendants.
    (Supreme Court, King’s Special Term,
    May, 1901.)
    Injunction. — Justices o£ the Appellate Division cannot he restrained by a justice of the Supreme Court from the performance of a judicial act — Code C. F., § 605.
    A justice of the Supreme Court has no power temporarily to enjoin . the justices of the Appellate Division of his department from proceeding under an act (L. 1901, chap. 602) directing them as such justices to appoint a commissioner of jurors for a county within the department, the ground of the injunction being the alleged unconstitutionality of the act.
    Such an injunction is improper for the further reason that the justices of the Appellate Division are State officials and an application to a justice of the Supreme Court for an injunction against them is forbidden by Code O. P., § 605, requiring the application to be made at a term of the department.
    
      Plaintiff is commissioner of jurors and a taxpayer in Kings county and here seeks to enjoin the defendants, as justices of the Appellate Division, from appointing a commissioner of jurors in Kings county under the provisions of chapter 602 of the Laws of 1901, challenging the constitutionality of the act in question.
    This motion is to continue pendente lite an injunction heretofore granted herein.
    R. H. Elder, for plaintiff.
    F. S. Black and H. W. Goodrich, for defendants.
   Maddox, J.

The character of this application can he fully appreciated only when we consider the possible consequences to flow from one branch of the court restraining or attempting to restrain, by continuing pendente lite a temporary injunction, the action or conduct of judicial officers of the same court and who constitute an appellate division thereof.

Plaintiff seeks not to stay the hands or conduct of litigants, but the performance of a duty cast upon “ the justices of the Appellate Division of the Supreme Court ” by legislative enactment, and in justification thereof asserts the unconstitutionality of the act vesting that duty.

By the statute in question those charged with the duty of making the appointment therein provided for, in so doing will act in their judicial capacity, not individually but as the justices of the Appellate Division of the Supreme Court in this department for that is the plain reading of the law.

I express no opinion upon the constitutionality of the act; that is unnecessary in view of the conclusion I have reached, and, in my opinion, the propriety of so doing here might well be questioned, or there is no presumption that a judicial officer will give, ■or attempt to give, effect to or act under a law which is violative of the Constitution, nor yet do that which is, either expressly or inferentially, forbidden by the organic or statute law of the State. That the contrary obtains needs no citation of authority.

If this law offends the Constitution, then the defendants as justices of the Appellate Division of the Supreme Court ” must so determine; that duty, as well as that calling for the appointment of a commissioner of jurors, is devolved upon them, for, as is well said in Norton v. Shelby County, 118 U. S. 442, “An unconstitutional act is not a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is, in legal contemplation, as inoperative as though it had never been passed.”

Again, the defendants, as justices of the Supreme Court, are State officers, and the application for the temporary injunction was clearly within the inhibition of section 605 of the Code of Civil Procedure, and the order of May first, in so far as it undertook to enjoin the defendants as such justices, was and is a nullity.  