
    The People of the State of New York ex rel. Homer C. Holmes, Appellant, v. Cuthbert P. Lane and Others, as Board of Inspectors of the Village of Brockport, Monroe County, N. Y., Respondents.
    
      Powers of a police justice of the town of Sweden—a statutory provision giving him “ exclusive” jurisdiction, eliminated without prejudice to the residue of the act— what statutory powers are consistent with those of an inferior local court.
    
    The village of Brockport, containing a population of about 5,000 inhabitants, and comprising a part of the town of Sweden in the county of Monroe, was incorporated under the Village Law of 1870 (Chap. 291), section 17 of title 3 of which act, as amended by chapter 688 of the Laws of 1871, conferred power upon it to elect a police justice. Pursuant thereto the first incumbent of that office was duly elected in 1896, and resigned, and a dispute having arisen as to the liability of the town of Sweden for a part of the fees of the incumbent, to prevent a recurrence thereof, chapter 34 of the Laws of 1899 was passed, abolishing the office of police justice in the village of Brockport, and in lieu thereof creating that office for the town of Sweden, but requiring the official to maintain his office for the transaction of business in the village of Brockport. By this act the justice was vested with “exclusive jurisdiction to hear, try and determine charges of misdemeanor committed within said town and triable by a court of special sessions,” and also with “exclusive jurisdiction to take the examination of a person charged with the commission in such town of a crime now triable by a court of special sessions.” The Legislature evidently deeming that its act, in vesting such officer with exclusive jurisdiction, was in excess of its powers, passed chapter 123 of the Laws of 1899, which went into effect March 23, 1899, eliminating the word “exclusive” from chapter 34.
    Prior to that date and on March 21, 1899, the election for that year was held in the village of Brockport, previous to which the relator obtained a certificate duly signed for an independent nomination for the office of police justice of that village, and presented it to the deputy clerk of the village, who declined to file it. At the election, eleven ballots were cast under the written designation “for police justice.” Upon the refusal of the inspectors of election to count these ballots, the relator commenced this proceeding to compel a recount.
    
      Held, that chapter 34 of the Laws of 1899, in the provision conferring exclusive jurisdiction on the police justice of the town of Sweden, violated article 6 of section 17 of the State Constitution which makes the office of justice of the peace a constitutional one, and consequently prohibits the Legislature from supplanting him by any other officer;
    That the Legislature might establish “inferior local courts of civil and criminal jurisdiction,” even though in the execution of their duties such courts might act concurrently with the justices of the peace of a town, and thus in effect lessen the duties and emoluments which would otherwise belong to the latter officials;
    
      That the provision that the jurisdiction should be exclusive was an incident onty to the primary object of the enactment and could be stricken out without impairing the chief scope of the law or in anywise infringing on its usefulness, or it could be treated as surplusage, and the act remain in its integrity and subserve its every purpose;
    That the fact that both the lawful and unlawful parts of the statute were contained in the same section did not prevent the elimination of such vicious portion and the retention of the residue;
    That the provision of the law that “such police justice shall have all the power and authority and be subject to all the duties and liabilities of a justice of the peace in issuing warrants for the arrest of a person charged with the commissi jn of a crime or disorderly conduct in the county of Monroe,” did not give such police j ustice territorial jurisdiction co-extensive with that of a justice of the peace throughout the entire county of Monroe, but referred to the character of his office and the manner of executing his duties; which construction was sustained by the further provision that if a person was arrested for an offense committed outside of the town of Sweden, he should be taken before a magistrate of the town in which the offense was committed, to whom the papers in the case should be delivered;
    That, to make clear the significance of the further provision, “the same powers, authority and jurisdiction in all criminal actions and all proceedings as justices of the peace of such town now have,” the act must-be taken in its entirety and construed with reference to its purpose, i. e., to create a police justice in the town of Sweden;
    That, as inferior courts established by the Legislature are restricted to their respective localities, it was not to be assumed that the Legislature intended to transcend its functions by providing a court with a jurisdiction in plain excess of that permitted by the State Constitution;
    That the caption of the act, “ An act for the better administration of justice in the town of Sweden, county of Monroe,” was not, in that the act abolished the office of police justice in the village of Brockport and established a like office for the town of Sweden, in contravention of the State Constitution, article III, section 16, providing that “no privateer local bill, which maybe passed by the Legislature, shall embrace more than one subject, and that shall be expressed in the title,” as to accomplish the purpose of the title one office must be established and the other abolished, the two objects being germane to the main purpose, which is the test of constitutionality.
    Appeal by the relator, Homer 0. Holmes, from a judgment and order .of the Supreme Court in favor of the defendants, entered in the office of the clerk of the county of Monroe on the 6th day of April, 1900, upon the decision of the court, rendered after a trial at the Monroe Special Term, overruling his demurrer to a return made by the defendants to an alternative writ of mandamus. William F. Lynn, for the appellant.
    
      T. 8. Dean, for the respondents.
   Spring, J.:

The village of Brockport was incorporated pursuant to the Village Law, containing about 5,000 inhabitants, and comprises a part of the town of Sweden, in the county of Monroe. The population of the town is about 6,000. By the original Village Law (§ 17, tit. 3, chap. 291, Laws of 1870, as amd. by chap. 688, Laws of 1871) the trustees of any village containing a population of 3,000 or upwards may direct the election of a police justice with “ the same power and jurisdiction in criminal cases which justices of the peace now by law have.” This section was amended by chapter 169 of the Laws of 1891, fixing the population requirement for a police justice in any village at 2,000 or upward. The act of 1875, chapter 514, applies “ to any incorporated village in this state, in which no provision now exists for the election of a police justice.” And chapter 308 of the Laws, of 1876, referred to by the counsel, and which provides for exclusive jurisdiction, was an amendment of the act of 1875. This could not have referred to villages within the General Village Act, for specific provision was therein made for the election of these officials. (See, also, Code Grim. Proc. § 75, which is general in its scope.) Therefore, up to 1897, police justices in villages incorporated under the general act did not possess exclusive jurisdiction in criminal cases, but executed their functions concurrently with the justices of the peace of the town in which they respectively resided. Chapter 414, Laws of 1897, which constitutes chapter 21 of the General Laws, and is a codification of the statutes relating to villages, in section 182 purports to vest the police justice of a village with exclusive jurisdiction in criminal cases committed within the village limits. Where the offense was committed outside of the village, but in the county “ including any portion of such village,” the jurisdiction of the police justice is made co-extensive with that of a justice of the peace in issuing warrants for arrest, but the person arrested must be taken before a magistrate of the town in which such offense is charged to have been committed.” Section 50 of this act provides expressly for the continuance of the office “ in every village in which it is now . established,” and also vests the electors of the village with the power to abolish the office.

There was no police justice in the village of Brockport until 1896, when one Matson was duly elected to that position and continued in its incumbency for a time and resigned, whereupon Theodore S. Dean was duly appointed his successor and qualified and was acting in that capacity in 1899. Some controversy arose over the adjustment of the fees of the incumbent in regard to the liability of the town of Sweden for a portion thereof. To prevent the recurrence of that difficulty, chapter 34 of the Laws of 1899 was passed and became a law February 28,1899. This act abolished the office of police justice in the village of Brockport, and in lieu thereof created the office for the town of Sweden, but required the official to maintain his office for the transaction of business in said village of Brockport. This officer was vested with “ exclusive jurisdiction to hear, try and determine charges of misdemeanor committed within said town and triable by a court of special sessions,” and also with “ exclusive jurisdiction to take the examination of a person charged with the commission in such town of a crime now triable by a court of special sessions.” (§ 3.) Evidently appreciating that the vesting of “ exclusive ” jurisdiction in this officer was in excess of the power of the Legislature, and to that extent, at least, unconstitutional, chapter 123 of the Laws of 1899 was enacted and became a law March twenty-third of that year. This act corresponds with the previous act except that the word “ exclusive ” was eliminated and another sentence for a like reason. The regular town meeting of the town of Sweden occurred on March 7, 1899. The relator in this proceeding received his party nomination for police justice at the Democratic caucus, and was opposed by a nominee of the Republican party, and their names appeared regularly upon their respective tickets. The Republican nominee received a majority of the votes and thereafter duly qualified, and since that time has been engaged in the performance of his official duties.

The annual election of said village of Brockport was held on the 21st day of March, 1899, two days before chapter 123 became a law. Prior to said election and agreeable to the provisions of the Election Law, the relator obtained a certificate duly signed for an independent nomination for the office of police justice of the village of Brockport, and presented the same to the deputy-clerk of said village requesting that he file the same, which the latter declined to do on the ground that said office had been abolished, and the tickets voted contained no official designation and no candidate for that office. In the usual blank column of the tickets the name of the relator was written in under the designation, also in writing, “for police justice,” on eleven of the ballots cast at said election which the inspectors thereat refused to count. This proceeding was thereupon commenced for the purpose of compelling said inspectors to reconvene and recount said ballots and certify to the election of the relator as police justice of the village of Brockport.

The foundation for the proceeding by the relator rests for its maintenance upon the hypothesis that chapter 34 of the Laws of 1899, vesting the police justice of the town of Sweden with exclusive jurisdiction, nullifies that act and that the abolition of that office for the village of Brockport provided for in said act, falls with the residue of the same to which it is subsidiary. The office of justice of the peace is a constitutional one (N. Y. State Const, art. VI, § 17), and the Legislature possesses no power to abridge the scope of that functionary or by indirection to supplant him by another officer. (People ex rel. Burby v. Howland, 155 N. Y. 270.)

That limitation, however, does not prevent the Legislature in the exercise of its prerogative from establishing “ inferior local courts of civil and criminal jurisdiction ” (N. Y. State Const, art. VI, § 18), even though in the execution of their duties such courts may act concurrently with the justices of the peace of the town and thus in effect lessen the duties and the emoluments which would otherwise belong to the latter officials. That results necessarily from the creation of an inferior court of like authority with that of the justice. The number of the justices is not prescribed by the Constitution, but is left to the Legislature to fix, and if that body should add to the number in each town the effect would be to abridge the revenues and duties of those already sitting. That result, however, does not impair the power of the Legislature. The pith of the legislative control is that it cannot endow an infei’ior local court with exclusive dominion where its official functions are identical with those of the constitutional official. This would ipso facto oust the justice of the jurisdiction inseparably connected with his office, and thus be violative of the powers impliedly guaranteed him by the Constitution. , lie would be superseded by another officer who would entrench upon his domain, not coiucidently with him, hut to his eviction. The attempt, therefore, to clothe the police justice of the town of Sweden with exclusive sway was in violation of the Constitution. It was the purpose of the act to provide a police justice for the town of Sweden, evidently expecting that his duties would be chiefly discharged in the village of Brockport, where the bulk of the population of the town resided, but to include within his jurisdiction the entire town. The provision that the jurisdiction should be exclusive was an incident to the primary object of the enactment, and this is evidenced by the prompt expurgation of the vitiating part by the Legislature when its attention was called to the vice in the act. The clauses pertaining to exclusive jurisdiction can be stricken out without impairing the chief scope df the law or in anywise infringing upon its usefulness. They can also be treated as surplusage and the act remain in its integrity and subserve every purpose to the inhabitants of the town which was within its purview. Where one part of an act is unconstitutional it does not necessarily invalidate the entire act. If the valid parts are separable from that which is unlawful and the general purpose of the Legislature can ■be effectuated, discarding the portion which is repugnant to the Constitution, the act will be sustained. (Matter of Village of Middletown, 82 N. Y. 196; Matter of N. Y. & L. I. Bridge Co., 148 id. 540, 553, 554 ; Duryee v. Mayor, 96 id. 477 ; Lawton v. Steele, 119 id. 226, 241; Cooley Const. Lim. *178.)

I quote from Duryee v. Mayor (96 N. Y. 492): “ When part only of a statute or a section is unconstitutional, that part only is void, unless the other provisions are so dependent and connected with that which is void, that it cannot be presumed that the legislature would have enacted the one without the other.” The fact that both the lawful and unlawful parts of the statute are contained in the same section does not preclude the operation of this principle of elimination of the vicious portion and the retention of the residue. The test is, can that which remains be executed and give full compass to the legislative intent ? As Cooley says in his Constitutional Limitations, at page 178: “ The point is not whether they are contained in the same section ; for the distribution into sections is purely artificial, but whether they are essentially and inseparably connected in substance. If, when the unconstitutional portion is stricken out, that which remains is complete in itself, and capable of being executed in accordance with the apparent legislative intent, wholly independent of that which was rejected, it must be sustained.” It is the policy of the courts always to sustain and give effect to a legislative enactment unless it plainly contravenes the fundamental law. (People ex rel. Sinkler v. Terry, 108 N. Y. 1.)

Again, it is urged that the act is unconstitutional, in that it gives jurisdiction to this local court, co-extensive with the Justice’s Court, throughout the entire county of Monroe. If such is the scope of the act it is to that extent at war with the organic law, for a local court is one confined in its jurisdiction to the precise locality, and its process is ineffective beyond it. (Geraty v. Reid, 78 N. Y. 64 ; People ex rel. Sinkler v. Terry, supra; Brandon v. Avery, 22 N. Y. 469.)

The office established is the police justice of the town of Sweden. The officer is authorized: (1) To hold a Court of Special Sessions in said town to hear, try and determine charges of misdemeanor committed within said town and triable by a court of special sessions.” (2) “ To take the examination of a person charged with the commission in such town of a crime not triable by a court of special sessions.” (3) To try persons for disorderly conduct where the offense was committed within the town. The statute is thus far very explicit in restricting jurisdiction to the town of Sweden. It then pi’ovides that such police justice shall have all the power and authority and be subject to all the duties and liabilities of a justice of the peace in issuing warrants for the arrest of a person charged with the commission of a crime or disorderly conduct in the county of Monroe.” That is, he must exercise his jurisdiction in the same manner within his restricted territory as a justice of the peace exercises like functions throughout the county of Monroe, referring, not to his territorial authority, but to the character of his office and the manner of executing his duties. (Curtin v. Barton, 139 N. Y. 505, 513, and cases there cited.)

It is further provided that if a person is arrested for an offense charged outside of the town of Sweden, the defendant shall be taken before a magistrate in the town where the offense was committed, and the papers upon which the arrest was made shall be delivered to such magistrate. This prohibits the police justice from hearing or acting upon an offense committed outside of the town of Sweden. This also is in restriction of authority, as a Justice’s Court comprehends the county in its stretch, even in its criminal jurisdiction. (Code Grim. Proc. § 56; Barb. Cr. Law [2d ed.], 484 et seq.)

The section farther along, in defining the character of the office, prescribes “ the same powers, authority and jurisdiction in all criminal actions and all proceedings as justices of the peace of such town now have.” While the significance of these provisions is not clear, the act must be taken in its entirety and be construed with reference to the pivotal jrarpose of its enactment, and that is, to create a police justice in the town of Sweden. In Curtin v. Barton (139 N. Y. 509, supra) the Legislature had established the “ Municipal Court of the City of Syracuse,” a local court with civil jurisdiction. (Laws of 1892, chap. 342.) Its 12th section provides, 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 óf conferring jurisdiction of the person, the said city of Syracuse shall be deemed a town and said court a justices’ court thereof.” The court interpreted this language in conjunction with the entire statute, saying (at p. 513), “ 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 section twelve 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 has given to them the same construction.”

Baird v. Helfer (12 App. Div. 23) and Ziegler v. Corwin (Id. 60), which are recent decisions by this court, are not in hostility to this position. In the statute construed in those cases there was an unmistakable attempt by the Legislature to extend the jurisdiction of the Municipal Court of Rochester to the entire county of Monroe. There was no question of construction in either case like the present, but an enunciation of the doctrine that this endeavor was a bald excess of legislative power.

It is probable that the Legislature intended the Police Court of the town of Sweden to conform in its limitations to other courts of like character which have been frequently established throughout the State. The fact that these inferior courts are restricted to their respective localities is well settled, and it is not to be hastily assumed that the Legislature intended to transcend its functions by providing a court with a jurisdiction in plain excess of that permitted by the Constitution. The interpretation here sought to be given is not in discord with the chief purpose of the act, and if it can be consistently given, that course should be adopted, because, as was said in People ex rel. Henderson v. Supervisors (147 N. Y. 1, 16), “ a statute can be declared unconstitutional only when it can be shown beyond reasonable doubt that it conflicts with the fundamental law, and that until every reasonable mode of reconciliation of the statute with the Constitution has been resorted to, and reconciliation has been found impossible, the statute will be upheld.”

If, however, this be regarded a strained construction of this section, then the objectionable clauses can be stricken out without doing violence to the main design of this legislation. The expunging of whatever may extend the authority of the court beyond its territorial dominion would still retain the court in its efficiency, restricted as every local court is to the locality for which it was provided.

It is urged that the act is in contravention of section 16, article III of the Constitution, and which is that: “No private or local bill, which may be passed by the Legislature, shall embrace more than one subject, and that shall be expressed in the title.” That is, this act abolishes the office of police justice in the village of Brock-port and establishes a like office for the town of Sweden, and its title is: “An act for the better administration of justice in the town of Sweden, county of Monroe.” The village of Brockport comprises five-sixths of the people in the entire town, and it was deemed advisable to have one official vested with criminal jurisdiction extending throughout the town. The primary purpose, as expressed in the title, was to improve the administration of justice in the town, and, to accomplish that, one office must be established and another flecked out. These two objects are germane to the main purpose, to wit, the improvement of the administration of justice, and that is the test in construing this section. ( Van Brunt v. Town of Flatbush, 128 N. Y. 50; Curtin v. Barton, supra.)

The court say in the case last cited (at p. 513): “ The objection that the act contains more than one subject, and, therefore, violates article three, section sixteen 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, section twenty-five 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.”

The Legislature established the Police Court of the village of Brockport and possessed the power to abolish it. (Koch v. Mayor, 152 N. Y. 72, 80 ; Gould v. Mahaney, 39 App. Div. 426, 430.)

If like power was also given to the electors by chapter 514, section 50 of the Laws of 1897, that did not abrogate the authority of the Legislature. That body might vest in the electors of the village the power to terminate this office at will without divesting itself of like power. In any event the exercise of the power by the Legislature revoked the authority delegated to the electors. In Desmond, v. Crane (39 App. Div. 190), the official was a justice of the peace with jurisdiction co-ordinate with that of any other justice within the county, and the court was held not to be a “ local court” within the constitutional definition. That is the turning point distinguishing that case from the present one, where the court confessedly is an inferior court.

The interlocutory judgment should be affirmed and the writ dis missed, but without costs of this appeal, as the questions involved are novel.

All concurred.

Interlocutory judgment affirmed and writ dismissed, without costs of this appeal to either party, as the questions involved are novel.  