
    William E. Curtin, Resp’t, v. William E. Barton, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October 24, 1893.)
    
    
      1. Municipal count op Syracuse.
    If a court exists under the constitution and laws and has jurisdiction of' a case, any defect in the electiou or mode of appointiug the judge is not available to litigants. Such questions must be raised by some action or proceeding to which the judge himself is a party and where the issue as to-the validity of his election or appointment is directly involved.
    2. Same—Laws 1892, Ch. 842.
    Chap. 342, of the Laws of 1892, establishing the municipal court of. the-city of Syracuse, is constitutional, even though one of its sections provides-for the appointment of the judge-; by the.governor; as said section is separate from all the other provisions, and even if invalid, there still remain distinct enactments for the creation and existence of the court.
    3. Same.
    The legislature has the power to establish an inferior local court of civil and criminal jurisdiction in a city under § 19, of article 6, of the constitution.
    4. Same—Constitution, Ant. 3, § 16.
    Section 25 of said act establishing a local court abolished the office of justice of the peace in the city and repealed certain provisions in relation-to justice’s court. Held, that this did not constitute another or different subject than that expressed in the title.
    5. Same—Constitution. Ant. 3, § 17.
    Sections 14 and 15 provided that the provisions of the Code shall apply to the court and that it shall have the same jurisdiction as justice’s courts. Held, that these were not in conflict with art. 3, § 17, of the constitution.
    Appeal from judgment of the supreme court, general term, fourth department, affirming judgment in favor of plaintiff.
    
      Charles H. Peck, for app’lt; W. S. Andrews, for resp’t.
    
      
       Affirming 51 St. Rep., 942.
    
   O’Brien, J.

The judgment in this case was rendered in the municipal court of Syracuse, and the only ground upon which it is questioned here is the want of jurisdiction in that court to render it. The defendant’s counsel insists that the court has no legal existence or organization, as the statute upon which its powers and functions must rest is in conflict with certain provisions of the state constitution and, therefore, void. 'This presents a question of the gravest character, as it not only brings in question the power of the legislature, but the jurisdiction and very existence, in point of law, of at least one, and possibly many of the local courts constituting a part of the judicial system of the state.

The court in which this judgment was given has no powers except such as the legislature could and did confer upon it by the .act passed for the purpose of its creation. That statute is chapter •342 of the Laws of 1892, entitled “An act to establish a local •court of civil jurisdiction in the city of Syracuse, to be called the ‘ municipal court of the city of Syracuse,’ and to amend the -charter of said city.”

By the first section of the act it is declared that such a court, with such jurisdiction and power as thereinafter enumerated, is thereby established, and it is made the duty of the governor, as soon as the act took effect, to appoint two judges of the court, whose duty it should be to organize and hold the court as provided in the act. By the second section the judges were to enter upon their duties on the first day of January, 1898, one of whom was to hold office for five years and the other six years, the term of each to be designated by the governor when making the appointment, and they were required to take and file the constitutional oath of office before entering upon their duties.

The third section provides for the election of the judges at the annual charter election to be held in the city next preceding the close of the term of the governor’s appointees, and thereafter as the term, which was fixed at six years, should expire. The next section provides for vacancies, and in several sections following the powers and duties of the judges and the several subjects to which the jurisdiction of the court was to extend are specified and enumerated. None of the provisions are material to the question involved in the appeal except the twelfth section, which provides that “ said court shall have the same jurisdiction over the persons of defendants as is now possessed by justices’ courts of towns pursuant to the provisions of section twenty-eight hundred and sixty-nine of the Code of Civil Procedure, and for the purpose of conferring jurisdiction of the person the said city of Syracuse shall be deemed a town and said court a justice’s court thereof. ”

The most serious objection to this act grows out of the provision authorizing the governor to appoint the first judges. The court was so organized when the judgment under review was given, and it is claimed that the legislature bad no power to appoint or provide for the appointment of the judges. The solution of the question depends upon the construction to be given to section nineteen and the last clause of section eighteen, article six of the constitution. If the words, “ all other judicial officers in-cities,” contained in the last clause of section eighteen, are applicable only to officers and courts existing when the constitution went into effect, and if it can be held that this court could have-been legally constituted and the judges clothed with their official-character under section nineteen, then the legislature clearly had the power to provide for the appointment of the judges by the-governor and senate. It may be difficult to construe these provisions in such a way as to give both full effect and in a manner that would exclude any doubt that the intention of the framers of the constitution had been ascertained and enforced. There is-no doubt, however, in regard to the power of the legislature to establish an inferior local court of civil and criminal jurisdiction in a city under section nineteen, the only question here being as to the power to appoint the judges and confer this power upon-'the governor. We do not deem it necessary to decide that question in this case. This court will not enter upon an examination of the powers of the legislature to enact a given layr unless-it be necessary in order to determine questions appearing upon the record. If there are other questions in this case decisive of the rights of the parties, without questioning the power of the legislature to enact a statute, we will postpone the inquiry until the necessity for the examination is imperative. Doyle v. Metropolitan El. Railway Co., 136 N. Y., 505; 49 St. Rep., 746; People v. Rosenberg, 138 N. Y., 410; 53 St. Rep., 1.

Whatever may be said with respect to the power of the legislature to provide for the appointment of the judges, nothing can be-urged against its power to establish the court. Hor can it be doubted that the statute in- question does in part establish such court if the objections which are based upon other provisions of the constitution, hereafter noticed, are not good. The judges-were in part appointed by the governor, were in possession of the office engaged in discharging the duties under color of such appointment. They were, therefore, officers de facto, discharging-judicial duties under color of legal title, and such title can be questioned only by the stale under whose authority they were invested with the character at least of de facta officers. This principle is founded on considerations of public policy, and its maintenance is essential to the preservation of order, the security of private rights and the due enforcement of the laws. Moreover, it is sanctioned by abundant authority. Carpenter v. People, 64 N. Y., 483 ; State v. Carroll, 38 Conn., 449 ; Read v. Buffalo, 3 Keyes, 447; People v. Petrea, 30 Hun, 110. The incumbent of the office is not a party to this action. His title to the office is not in question directly, as in the cases where an action in the nature of a quo warranto is brought by the attorney-general or where he brings the suit himself to recover the salary. When a court with competent jurisdiction is duly established, a suitor who resorts to it for the administration of justice and the-protection of private rights should not be defeated or embarrassed by questions relating-to 'the title of the judge, who presides in the court, to his office» If the court exists under the constitution and laws and it had jurisdiction of the case, any defect in the election or mode of appointing the judge is not available to litigants. Such questions must be raised by some action or proceeding to which the judge himself is a party and where the issue as to the validity of his election or appointment is directly involved. It would be an unseemly proceeding derogatory to the dignity of the court and subversive of all respect for the orderly administration of justice to permit private litigants to enter'upon an inquiry as to the title of the judge, before whom the action is pending, to his office. Of course, if such an inquiry is permissible, the very judge whose official existence is in question must, in the first instance at least, determine it, and thus he is compelled to violate a fundamental principle in all proceedings of a judicial nature, which precludes a person from acting as a judge in his own case or in respect to a question in the result of which he has a personal interest.

If this judgment is void for the reason that the legislature had no power under the constitution to provide l'or the appointment of the judge by the governor and senate, so are all other judgments rendered since the court was organized. The principle of permitting private litigants to raise such questions would thus be productive of intolerable confusion and mischief and cannot be sanctioned. The defendant was summoned to appear in a court which had been established by law, whether the method of selecting the judge was valid or not. The judge was in possession of the office and engaged in the discharge of its duties and in the exercise of its power under the authority of a commission from the governor and an act of the legislature. So long as the government permits him to hold the office and to discharge its functions, the constitutional validity of his appointment is a question that does not concern the defendant.

The section of the statute which provides for the appointment of the judges is separate from all the other provisions, and, hence, even if invalid, there would still remain distinct enactments for the creation and existence of the court, and defining its powers and jurisdiction. There was, therefore, a court legally constituted, and a judge acting under color of authority, whose official acts were valid and binding as to the public and third parties until by some direct proceeding by the sovereign power he was ousted, or his commission adjudged to be void. The further point is made against the validity of the court that the court is not local, but its jurisdiction is extended by § 12 over adjoining towns into which process may be sent by the terms of the act. Without inquiring whether that objection would affect the jurisdiction of the court in this case, even if the language of the section was not open to any other construction, it is sufficient to say that, reading the whole act together, the intention to create a court, the jurisdiction of which should be confined to the limits of the city of Syracuse, is manifest. That construction being reasonable and in favor of the validity of the statute, it should be adopted, rather than the contrary. The words of § 12 are descriptive of the character rather than the territorial extent of the jurisdiction. That was fixed by the general words 'clearly indicating the purpose to create nothing more than a local city court. Words of the same import are to be found in other acts creating local courts, and this court lias given to them the same construction. Brandon v. Avery, 22 N. Y., 469 ; Geraty v. Reid, 78 id., 64: People v. Terry, 108 id., 1; 12 St. Rep., 773.

The objection that the act contains more than one subject, and, therefore, violates article 3, § 16 of the constitution, is also untenable. The only ground upon which this point is based is that whereas the general purpose of the act was to establish a local court, § 25 abolishes the office of justice of the peace in the city, and repeals certain provisions in relation to justices’ courts. The general purpose of the act was to establish a local court in place of that held before by justices of the peace, with somewhat more extensive jurisdiction. The abolition of the office of justice of the peace and of the inferior tribunal called a justice’s court was so connected with and pertinent to the whole scheme that it ■did not, within settled rules, constitute another or different subject. Harris v. People, 59 N. Y., 599 ; Wenzler v. People, 58 id., 516; Astor v. Arcade R. Co., 113 id., 93; 22 St. Rep. 1; Sweet v. City of Syracuse, 129 N. Y., 331; 38 St. Rep., 933.

In regard to the objection that as §§ 14 and 15 provide that the provisions of the Code shall apply to the court, and that it shall have the same jurisdiction over the person of the defendant us justices’ courts, the act is in conflict with article 3, § 17 of the constitution, which provides that “ no act shall be passed which shall provide that any existing law, or any part thereof, shall be applicable, except by inserting it in such act,” all that is necessary to say is that the current of authority in this court has settled the question the other way. People v. Banks, 67 N. Y., 568; People v. Squire, 107 id., 593; 12 St. Rep., 832; People v. Lorillard, 135 id., 285; 47 St. Rep., 823.

The conclusion, therefore, is, that the court was legally constituted, and the judgment should be affirmed.

Judgment affirmed, with costs.

All concur.  