
    Matter of the Application of Jacob Brenner, as Commissioner of Jurors in the County of Kings to Compel the Delivery to Him of the Books and Papers Belonging or Appertaining to such Office of Commissioner of Jurors in the County of Kings, and now in the Possession of William E. Melody.
    (Supreme Court, Kings Special Term,
    June, 1901.)
    Office — Commissioner of jurors of Kings is a local officer and an aid to the court — Constitutionality of L. 1901, eh, 602 — Compulsory delivery of books and papers under Code C. P. § 2,471a,
    The commissioner of jurors of the county of Kings is not a county but is a local officer, aiding in the administration of justice within a prescribed territorial limitation by obtaining, under the supervision and direction of the court, qualified jurors for it.
    Where his office is not elective, he need not be appointed by the board of supervisors or other county authorities of Kings, as required in the case of county officers by article X, section 2 of the Constitution of 1894, and hence chapter 602 of the Laws of 1901 authorizing State officers, a majority of the justices of the Appellate Division of the Second Department, to appoint him, is constitutional.
    Where the incumbent of said office under a term unexpired, refused, upon the ground of the unconstitutionality of said act, to surrender the books and papers of the office to the appointee of a majority of the justices of said Appellate Division as required by said act, and the appointee proceeded under Code Civ. Pro., § 2471a, to compel a delivery of the same, and the allegations of his motion papers were not .denied by the incumbent nor any papers submitted by the latter other than a brief, the Special Term considered that all the allegations of the moving papers must be taken to be true and that the questions of the constitutionality of the statute and of the title to the office thereunder were directly involved.
    That, as the title of the applicant to the office was, under the statute clear and free from doubt, the relief asked by him should be granted notwithstanding the general rule that the title to an office is not to be tried upon such a motion.
    Application, under section 2471a of the Code of Civil Procedure, for an order compelling delivery of books and papers belonging to a public office. The facts appear in the opinion.
    H. W. Goodrich, for applicant.
    R. H. Elder, for respondent.
   Maddox, J.

The applicant was, pursuant to the provisions of chapter 602 of the Laws of 1901, on May thirteenth, appointed commissioner of jurors in the county of Rings by a majority of the justices of the Appellate Division, in the second judicial department, in which department said county is situated, and, having duly qualified, he thereupon demanded of the respondent, who theretofore lawfully held the office of commissioner of jurors for said county and was then exercising the functions and performing the duties thereof, the possession of said “ office * * * and all the books and papers appertaining thereto.”

The term for which respondent was appointed has not yet expired, but the provision of the act in question is that “ Upon the appointment and qualification of a commissioner of jurors in any county appointed under the provisions of this act the term of .-i commissioner of jurors in such county in office at the time of such appointment shall terminate and he shall turn over to the ■commissioner of jurors appointed under this act all books, papers, records and property in his possession or under his control as such commissioner of jurors,” and respondent, having refused to comply with such demand, justifies his action upon the ground that the act is unconstitutional, in that it contravenes the provisions of section 2 of article X of the Constitution, inhibiting the appointment of county officers by other than “ the board of supervisors or some other county authority,” contending that the office in question is a county office, and that the appointing board is not a county authority.

Petitioner now seeks an order, under section 2471a of the Code of Civil Procedure, directing the delivery to him as such commissioner of jurors of the books and papers belonging to the office. The respondent appeared on the motion, but, other than his brief, submitted no papers; no proofs in contradiction of the matters alleged in petitioner’s motion papers, and, hence, all the averments of fact therein contained must be taken as conceded, as true.

This is a summary proceeding, long known under our statutes (R. S. 124, 125, §,§ 50-53), to compel any person, including an incumbent of an office whose term is at an end, in whose possession the books and papers belonging to a public office may be, to deliver the same to the officer entitled thereto, to the end that the due and proper performance of official duties shall not be decayed or interfered with, and that public interests shall not be hazarded.

| The title to an office, as between contending claimants, should not be litigated or determined in such a proceeding as this, unless, as held by the Appellate Division, Mr. Justice Willard Bartlett writing, in Matter of Sells, 15 App. Div. 575, “ the undisputed facts presented upon the application show beyond substantial doubt or controversy that the * * * appointment of the person claiming the books and papers was void.”

The issue of title to a public office involves the right of the People of the State to be a party, and the right of the parties to a jury trial and that in an action in the nature of a quo warranto; consequently the relief sought for here can only be granted where the right of the applicant is clear and free from doubt. Matter of Baker, 11 How. Pr. 429; Matter of Carpenter, 7 Barb. 37; Morris v. Whelan, 64 How. Pr. 109; Matter of Bradley, 141 N. Y. 530.

Within his right and, indeed, within the line of his duty, the respondent, in his so refusing to comply with said demand, squarely presents the question as to the validity - of the act under consideration; he was at the time of the enactment a public officer and had taken, it is to be presumed, since that was required (Laws of 1858, chap. 322, § 5), the “usual oath of office;” had thereby obligated himself to support the Constitution and faithfully to perform the duties of his office, and if the statute in question offends the organic law, then it is his duty to refuse to deliver the “books and papers appertaining” to said office, for anything less would have been a failure on his part in the performance of his official duties and a violation of his oath to support the Constitution; his oath of office does not permit an acquiescence in that which is forbidden by law, and if the office of commissioner of jurors, as it existed prior to the act of 1901, is a county office, then that statute offends the constitutional provision before quoted (art. X, § 2), is void and “ 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.” Newton v. Shelby, 118 U. S. 442.

Thus we have here presented for consideration the situation contemplated in Matter of Sells, supra, and, notwithstanding that the impropriety of the court at Special Term in passing upon the constitutionality of legislative enactments upon the hearing of motions has been well recognized and is fully appreciated by the writer, the determination of the question of validity is essential to the decision of this application.

First, we have the presumption of constitutionality attaching to every legislative enactment, and the burden of showing constitutional contravention is upon those asserting the invalidity (People ex rel. Henderson v. Supervisors, 147 N. Y. 15), which must be conclusively established, that is beyond rational doubt; for the conflict with the Constitution, as Judge Peckham says, 44 must be manifest and unequivocal;” there must remain no room for reconciliation. N. Y. & O. M. R. Co. v. Van Horn, 57 N. Y. 477; People ex rel. Henderson v. Supervisors, supra; People ex rel. Carter v. Rice, 135 N. Y. 484; Pearce v. Stephens, 18 App. Div. 106.

Then again we have the presumption that judicial officers act within the limitations of the Constitution and that they do no act in violation thereof, that they do no illegal act. The appointing authority here were and are justices of this court, assigned to the Appellate Division thereof, and as such have also taken the usual oath of office. We cannot assume that they have not, before making the appointment of such commissioner, considered the question of the validity of the act under consideration, and have' determined the same, since they are required only to act under and in obedience to valid laws, not to void laws. Newton v. Shelby, supra.

But that determination is not final and binding here, for the reason that the respondent has not been heard, and this application may be made the basis for further proceedings against him in event of his failing to obey the order to be entered hereon, and consequently the question of constitutionality must be considered.

Was the office of commissioner of jurors for Kings county a county office? If it was, then this application must be denied,, since no new office has been created and the appointing power is not a county authority. Additional duties have been added to the office, but the office as it originally existed must be held as having been continued.

In answering the question we must determine the duties and functions of the office and then their character and relation to the county as a political division of the State. Prior to the act of 1858 (chap. 322), jurors in Kings county were, as in all other counties excepting ¡New York, drawn by the county clerk and summoned to attend by the sheriff of the county, and reference to the earlier provisions of law as to the summoning of jurors by the sheriff upon receipt of the writ of venire facias juratores is unnecessary here.

The duties as devolved, briefly stated, relates only to the entering in a book and the preparation of a list of the names of persons qualified for jury service, as returned by the assessors, and the preparation of ballots, giving the name, vocation and residence of each person, and the placing of such ballots in a box or wheel for subsequent, drawing (Laws of 1858, chap. 322, §§ 7, 8, 12, 13, 14; Code Civ. Pro., §.§ 1135-1140); attending with two-judicial officers, who had been previously notified, upon the drawings of the names of qualified persons from said box to serve as jurors (Laws of 1858, chap. 322, §§ 15-18; Code Civ. Pro., §§ 1140-1145); the summoning for attendance those so drawn (Laws of 1858, chap. 322, § 21; Code Civ. Pro., § 1146), and with two judicial officers to hear applications for remission of fines imposed upon delinquent jurors for nonattendance. Laws of 1866, chap. 821, § 3; Code Civ. Pro., § 1154.

And here it may be said, that upon the completion of each drawing of jurors in Kings county “ The judges must * * * close each box; and place upon the cover thereof, their seals.” Code Civ. Pro., § 1143.

There is no relation of any of the duties cast upon the commissioner, so far as I have been able to find after a most thorough research, and I have not been referred to any by counsel, to the affairs or government of the county. He exercises no function or duty whatsoever having any reference to or connection with the governmental affairs of the county, but he is an aid to the court, and, indeed, he performs functions most closely related to and essentially connected with the court and the administration of justice, though not in any sense of a judicial character.

The right to a jury trial as guaranteed by the Constitution and the Bill of Rights necessarily leads one to the conclusion that a jury is an essential part of a court of law and that a court of law without a jury is not constitutionally organized.

The term court ” in its general and enlarged sense comprehends within its purport both the justice and the jury, both being component parts of a court of law. Goddard v. State, 2 Yerg. (Tenn.) 104.

As said by Mr. Justice Gray, in Capital Traction Co. v. Hof, 174 U. S. 13: “ III. Trial by jury,’ in the primary and usual sense of the term at the common law and in the .American constitutions, is not merely a trial by a jury of twelve men before an officer vested with authority to cause them to be summoned and empanelled, to administer oaths to them and to the constable in charge, and to enter judgment and to issue execution on their verdict; but it is a trial by a jury of twelve men, in the presence and under the superintendence of a .judge empowered to instruct them on the law and advise them on the facts, and (except on acquittal of a criminal charge) to set aside their verdict if in his opinion it is against the law or the evidence. This proposition has been so generally admitted, and so seldom contested, that there has been little occasion for its distinct assertion. Yet there are unequivocal statements of it to be found in the books.”

If as stated above, the jury is essentially a component part of a court of law, then is not the officer who prepares the jury lists, who participates with the justices in the drawing of jurors and summons in attendance those so drawn an aid to the court rather than a county officer?

The legislature has declared that the commissioner of jurors appointed, pursuant to chapter 369 of the Laws of 1895, in counties having a population of three hundred thousand or more, according to the then last preceding census, “ shall be an officer of the courts of record in such county,” but the • counties of Mew York and Kings are excepted from the provisions of that act. The duties of the commissioner under that act are the same as those provided by law for the commissioner of jurors for Kings county and a reason why the one should be “ an officer of the courts of record in ” his county and the other not, but a county officer, may well be asked for and, in my opinion, sought for in vain.

Reference being had to the various enactments for the appointment of such commissioners will prove instructive and they are entitled to some weight in determining the intention of the legislature as to the character of the office. In Mew York county the mayor of the city was for a long time one of the appointing power, then for a time had sole authority to appoint, and by the Greater Mew York charter it is provided (§ 118) that the mayor shall have the power to appoint a commissioner of jurors for the boroughs of Manhattan and The Bronx. In this county at one time the judge of the City Court of Brooklyn was one of the appointing board and it must be remembered that the commissioner, with the attending judicial officers, drew and summoned jurors for that court, though it was, as the name implies, of limited jurisdiction, being a superior city court. Likewise, the judges of that court were entitled to notice of drawings, to participate therein and also in the hearings upon remission of fines. In all the other acts for the appointment of such commissioners it will be seen that various appointing boards were created, and in some the justices of the Supreme Court residing in the county for which appointment was to be made, if there be -any, were included. It will thus be seen that the office has not been considered either a county or a city office, for in some instances a city officer has made or participated in making the appointment, and in others State officers, justices of the Supreme Court have been included in the appointing authority.

By the act creating the office of special commissioner of jurors in counties having a population of more than 500,000 (Laws of 1896, chap. 378), the power of appointment and removal was vested in the “ justices of the. Appellate Division of the Supreme Court in the department within which each county embraced ” thereby is situated. Here is language identical with that in the act under consideration, and there the duties cast on the commissioner related to drawing and summoning special jurors within the county.

There were but two counties for which such commissioners were appointed—New York and Engs. That act was assailed as being unconstitutional on several grounds and was sustained as a valid exercise of legislative power (People v. Dunn, 157 N. Y. 528), though the question raised here was not presented by counsel in that case.

By chapter 623, Laws of 1899, an act with which many of us are very familiar, the control of the court over the special commissioner and also the regular commissioner of jurors in this county was recognized, and, indeed, emphasized in most explicit language, for it provided among other things that “ The justices of the supreme court residing in any county having a special commissioner of jurors, * * * or a majority of them, may require such special commissioner of jurors to scrutinize and revise the general panel or list of trial jurors for such county, under their supervision and direction. * * * That no person shall be rejected as a juror until a list, * * * stating the cause of rejection of each, has been submitted to and approved by said justices; that any person failing to attend before said special commissioner, after having been summoned so to do, or refusing to be sworn or answer any pertinent question may be punished therefor by any trial justice of the supreme court sitting in such county, and that the regular commissioner of jurors, or other official with, that duty, shall continue to make up the general list or panel of jurors each year as heretofore, but under the supervision and direction of said justices.”

Gan a closer relation to the court in the detail of preparing the jury lists or panels and the drawing and summoning of jurors be well conceived than the performance of the duties devolved by the statutory provisions before quoted upon the commissioner?

The act providing for such special commissioner of jurors (Laws of 1896, chap. 378) has been repealed (Laws of 1901, chap. 601), and the duties of that office have been east upon the commissioner of jurors by the provisions of the act under consideration here. Chap. 602. Likewise the provisions of chapter 623 of the Laws of 1899 have been incorporated in section 1132 of the Code of Civil Procedure, as amended by chapter 600 of the Laws of 1901, and are now made expressly applicable to the commissioner of jurors in Kings county.

Indeed, assuming an extremely improbable, though not impossible case, if all the laws providing for the listing, drawing and summoning of jurors wére, for any reason, to become inoperative, it would then, in my opinion, be the duty of a court of law and the justice presiding thereat to cause the attendance of jurors or talesmen in the manner provided for and obtaining under the common law and by the common-law writ of venire facias juratores.

Except in Westchester county, the court now has, if an insufficient number of jurors attend, the right and power to command the sheriff to summon from the by-standers or from the county at large a sufficient number of qualified talesmen.

Eurther comment is. unnecessary, for it seems to me indisputable that the commissioner of jurors is not a county officer, but is. a local officer aiding in the administration of justice within a prescribed territorial limitation; he is an aid to the court in obtaining, under its supervision and direction,, qualified jurors for attendance in the courts of law. State v. Kendle, 52 Ohio St. 356; State v. Mounts, 36 W. Va. 179.

Motion granted.  