
    D. Walker Wear, Respondent, v. Frank H. Truitt, as Mayor of the City of Binghamton, N. Y., and Others, Appellants.
    Third Department,
    May 3, 1916.
    Municipal corporations — Second Class Cities Law, section 180, construed— police justices — city of Binghamton — criminal branch of City Court continued — taxpayer’s action.
    Section 180 of the Second Class Cities Law, providing that if, under general or local laws there now exists or shall hereafter be established in the city a court of criminal jurisdiction known as the Police Court, it shall have the jurisdiction and powers hereinafter provided, was not intended to establish new courts, but merely to prescribe the jurisdiction and powers of such local criminal courts as are already in existence by virtue of previous city charters.
    Hence, when the city of Binghamton, having obtained a population of 50,000 inhabitants, automatically became a city of the second class, the former City Court, having a city judge clothed with civil and criminal jurisdiction, was not abolished and the new charter did not require the election of a police justice or the establishment of a separate Police Court.
    Section 74 of the Code of Criminal Procedure regulating the jurisdiction of police justices was not effective to create a court of criminal jurisdiction known as the Police Court in the city of Binghamton.
    Where a police justice for the city of Binghamton was illegally elected owing to a misapprehension as to the effect of the Second Class Cities Law, a taxpayer may maintain an action to have a tax levied to pay the salary declared illegal and void, and to restrain the collection of the same.
    Appeal by the defendants, Frank H. Truitt, as mayor, and others, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Broome on the 1st day of February, 1916, overruling a demurrer to the complaint on the ground that it did not state facts sufficient to constitute a cause of action.
    
      Maurice JE. Page, for the appellants.
    
      Robert S. Wickham, for the respondent.
   Howard, J.:

Under the charter of the city of Binghamton, prior to January 1, 1908, the criminal jurisdiction of the city was administered by a recorder who presided over a Recorder’s Court. (Laws of 1888, chap. 214, tit. 4, §§ 3-5, as amd. by Laws of 1897, chap. 717.) The civil jurisdiction was, by separate act, vested in a City Court. (Laws of 1899, chap. 337, as amd. by Laws of 1902, chap. 532.) By chapter 751 of the Laws of 1907, which was a complete revision of the charter of the city of Binghamton, the office of recorder was abolished and the two courts were practically merged in one. (§ 371; Id. tit. 15.) Under this consolidation of the two courts the city judge became clothed with civil and criminal jurisdiction quite similar to that of a justice of the peace, only somewhat enlarged. In the fall of 1915 the Secretary of State' filed with the clerk of the city of Binghamton a certificate showing that the city had reached a population of upwards of 50,000 inhabitants and had, therefore, become a city of the second class. (Consol. Laws, chap. 53 [Laws of 1909, chap. 55], § 4; Const, art. 12, § 2.) This brought into operation in Binghamton, to take effect January 1, 1916, the Second Class Cities Law (Consol. Laws, chap. 53; Laws of 1909, chap. 55). It seems to have been assumed that the new charter required the election of a police justice; and, accordingly, the defendant Harry C. Walker was voted for at the general election on November 2, 1915, and was declared elected to the office of police justice. The city authorities have incorporated in the tax budget an item of $1,500 to pay the salary of this supposed official, and the plaintiff, a taxpayer, brings this action to have this item declared illegal and to have the city authorities restrained from collecting the same, and for other relief. The defendants have demurred to the complaint on the ground that it does not state facts sufficient to constitute a cause of action. The demurrer has been overruled. An appeal brings the question before us.

Did the Second Class Cities Law require the election of a police justice % The answer to this question depends upon the construction which may be placed upon section 180 of that statute. That section reads as follows: “ Jurisdiction of police court. If, under the general or local laws, there now exists or shall hereafter be established in the city a court of criminal jurisdiction known as the police court, it shall have the jurisdiction and powers hereinafter provided.” And the question now arises whether, under the charter of the city of Binghamton, in effect just prior to January 1, 1916, there existed “in the city a court of criminal jurisdiction known as the police court.”

The very language of section 180 implies that there may be . courts of criminal jurisdiction not known as Police Courts; and it is common knowledge that there are such courts.

It was the evident purpose of the Legislature, as indicated by section 180, not to establish Police Courts in cities .of the second class, but only to define the jurisdiction and powers of such courts in case they were already in existence, or should thereafter be established by other laws. This purpose is made certain when we scan the history of the Second Class Cities Law from its inceptive draft in 1898 as the “White Charter” (Laws of 1898, chap. 182) to its final form in 1909 (Consol. Laws, chap. 53; Laws of 1909, chap. 55). The original scheme of the law, so far as relates to the judiciary, was to establish a City Court in each city of the second class, and also a Police Court. (Art. 10.) The plan of establishing a City Court ivas early abandoned by amendment to the original law (Laws of 1899, chap. 581), but the provision requiring the establishment of a Police Court was continued until the revision of 1906, known as the Uniform Charter of Cities of the Second Class. (Laws of 1906, chap. 473, § 180 et seq.) Just prior to this revision the section which required the establishment of a Police Court (Laws of 1898, chap. 182, § 390, as amd. by Laws of 1899, chap. 581) read as follows: “ There shall be a court of criminal jurisdiction, to be known as the ‘police court,’ with the jurisdiction and powers hereinafter provided. There shall be one justice of the court.” This section was mandatory, and, in any city coming under the operation of the statute, now known as the Second Class Cities Law, the criminal jurisdiction was vested in a Police Court. But the Legislature grew more inclined, apparently, as the subject was further considered, not to interfere with the local courts of the cities coming, from time to time, under the statute, now known as the Second Class Cities Law, and this inclination culminated in 1906 by the repeal of the command to establish Police Courts and the enactment of section 180, which prescribes the jurisdiction and powers of Police Courts, only in case there are such courts already in existence or in case they shall thereafter be established.

As we have seen, there was no Police Court in Binghamton separate and distinct from the City Court, prior to January 1, 1916. There was no court “known as the police court;” that is, none knowm to the city charter. It might have been so known on the streets, but that is immaterial. In drafting their new charter in 1907, for consideration by the Legislature, the citizens of Binghamton deemed it wise and expedient, it would seem, to amalgamate the criminal court with the civil court. The Recorder’s Court, the independent, separate court of criminal jurisdiction, was abolished. This plan of amalgamation, suggested by the citizens, was adopted by the Legisture and became a law and, therefore, it may be assumed that this scheme wdiich was styled the “ department of judiciary ” is the one most acceptable to the residents of the city of Binghamton. It was the clear policy of the Legislature to allow the local courts of each new horn city of the second class to remain intact, free from interference. It refrained in the last revised draft of the Second Class Cities Law from establishing a Police Court and only undertook to define the jurisdiction of those already or thereafter established. If the City Court is to be split in twain and a separate, distinct tribunal created, that would amount to the establishment of a new court and would be an interference with the present plan and a complete disarrangement of the “ department of judiciary ” as established and in operation in Binghamton when the Second Class Cities Law took effect.

Our attention has been called to section 74 of the Code of Criminal Procedure which reads: “§ 74. Jurisdiction. Police justices have such jurisdiction, and such only, as is specially conferred upon them by statute. The courts held by police justices are called police courts, and courts of special sessions are also called police courts, and are so designated in different parts of the Code.” It may be observed that the City Court of Binghamton was neither a Court of Special Sessions nor a court held by a police justice. This section seems to undertake to define the jurisdiction of police justices rather than to formulate a definition for Police Courts. But after prescribing the extent of the jurisdiction of police justices the remainder of the section seems calculated to-provide for the indiscriminate characterization of courts held by police justices, as well as to those known as Special Sessions, as ‘1 police courts. ’’ Perhaps this was to avoid repetition in phrasing other sections of the Code of Criminal Procedure and perhaps also to avoid misinterpretation of other sections. But whatever may have been its purpose we do not consider it a sufficient authority for holding that there was in the city of Binghamton, prior to January 1,1916, “ a court of criminal jurisdiction known as the police court.”

The judgment overruling the demurrer should be sustained.

Interlocutory judgment unanimously affirmed, with costs, with usual leave to defendants to plead over on payment of costs; Lyon, J., not sitting.  