
    Harry N. Gould, Respondent, v. Mary Mahaney and James M. Mahaney, Appellants.
    
      City of Lochport— the jurisdiction of the justices of the peace therein extends to the entire county — constitutional law.
    
    Under section 76 of the revised charter of the city of Lockport (Laws of 1886, chap. 120), providing that the justices of the peace of that city elected under that act “ shall have the same territorial jurisdiction as if said city constituted a part of the town of Lockport,” the jurisdiction of such justices embraces the entire county of Niagara.
    The office of justice of the peace created by the revised charter is a new office, and not a mere perpetuation, with enlarged jurisdiction, of the office of justice of tiie peace existing under the original charter (Laws of 1865, chap. 365).
    The provision of section 18 of article 6 of the Constitution of 1869, empowering the Legislature to create courts of justices of the peace in cities, was not designed to permit the creation of an inferior court, whose jurisdiction should be confined to the city in which it existed.
    Appeal by the defendants, Mary Mahaney and another, from a judgment of the County Court of Niagara county in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 20th day of July, 1898, affirming a judgment of a justice of the peace of the city of Lockport.
    
      Henry M. Davis, for the appellant.
    
      William E. Lockner, for the respondent.
   Spring, J.:

The defendants, residing in the town of Pendleton, in the county of Niagara, were sued, at the instance of the plaintiff, a resident of the city of Lockport, in that county, before a justice of the peace of that city. The defendants did not appear, and judgment was recovered by default against them for the small'sum unpaid on a promissory note held by the plaintiff. The proof showed the defendants resided in the town of Pendleton, and the notice of appeal was accompanied with affidavits showing the summons was served on each defendant in that town. The contention of the defending appellants on this appeal from the judgment of the County Court is that the justice who issued the summons possessed no authority over the persons of the defendants, and that his judicial functions are confined to the city of Lockport.

The original charter of the city of Lockport was chapter 365 of the Laws of 1865. The office of justice of the peace of the city was recognized by that act, and with the probable design of making the jurisdiction of that official co-extensive with that of any of the justices of the peace within the limits of the county. (§ 12, tit. 2.)

It is not contended by the respondent’s counsel that the powers sought to be vested in these officials were authorized by the Constitution of 1846. Section 17 of article 6 of that Constitution provided for the election of justices of the peace of the various towns, but no provision was made for those officials in the cities. It is settled by authority that this omission- to create these officials prohibited their election in the cities. (People ex rel. Sinkler v. Terry, 108 N. Y. 1; Geraty v. Reid, 78 id. 64, 66.)

Section 18 of article 6 of the Constitution of 1869 supplied this omission. It provided : “Justices of the peace and District Court judges shall be elected in the different cities in this State in such manner and with súch powers and for such terms respectively as shall be prescribed by law.” The succeeding sections provided for local courts of inferior grade, also to be established by the Legislature. A radical departure was made by this Constitution from the preceding one. Two courts were authorized, of different jurisdictions ; one, that of justice of the peace, whose judge was of ancient existence and possessed powers of a general character, and, within its sphere, of extensive authority ; the other was purely and strictly local in its operations, and for the benefit of the people of the city in which the official resided. The failure to recognize the difference in the scope of these two courts has given rise to much litigation over their relative powers.

By chapter 120 of the Laws of 1886 substantially a new charter was provided for the city of Loclrport. By section 283 of this act three justices of the peace are provided for the city; and by section 76 the duties of these functionaries are prescribed as follows : “He shall have the same territorial jurisdiction as if said city constituted a part of the town of Loclrport.” Section 70 prohibited a justice of the peace from exercising “jurisdiction of any criminal matter arising within said city,” except in case the police justice is absent or unable to act. Section 277 in specific terms repeals all previous acts inconsistent therewith, and that was the effect of the enactment without the repealing clause. (Heckmann v. Pinkney, 81 N. Y. 211.)

Words similar to those engrafted in the original charter have been held to be merely descriptive of the character of the office and not to refer to its territorial jurisdiction. (Curtin v. Barton, 139 N. Y. 505, 513 ; Brandon v. Avery, 22 id. 469.)

The language of the revised charter, however, is unmistakable in its import, as the adjective “ territorial ” has been inserted, indicating the reference therein is to the extent of the jurisdiction. That addition marks the distinction between the original charter and the revised one, showing that, in the latter, the intent of the Legislature was- to make it certain that the jurisdiction of the official was to embrace the entire county.

The Constitution, therefore, required the election of justices of the peace in towns, prescribing the length of the term. In cities, the creation of that court, the prescription of its powers and the length of the term, were all committed to the Legislature. It was . obviously in attempted consummation of this authority that the Legislature provided the courts of justices of the peace with jurisdiction coterminous with the county boundaries. This provision in the act of 1886 was futile unless it was designed to provide for a judicial officer of like powers with that of every other justice of the peace within the county. The power to provide inferior courts for the exclusive use of the city was already ample. Inasmuch as there is no restriction in the Constitution upon the authority of the Legisture in its grant of power to the justices of the peace in cities, that body would be enabled to prescribe the same powers which are accorded to officials in towns.

It is contended that the addition to the Constitution of 1869, empowering the Legislature to create courts of justices of the peace in cities, was designed to permit an inferior court with jurisdiction confined to the city in which it existed. There was no necessity for such an amendment. The Constitution of 1846 and that of 1869, as well, granted explicit permission to the Legislature to organize these local courts. Either the intention' was to permit the establishment of justices of the peace, in cities, of the character of those officials throughout the State, or else the section is surplusage. The Constitution makers did not intend in one section to give warrant for the creation of inferior courts in cities, and then, in the very next section, solemnly reiterate this authority. In ascertaining the intent of the authors of the law it is often instructive to refer to their discussion at the time of its consideration. When this section was under advisement in the Constitutional Convention of 1869 Mr. Murphy, who had it in charge, in explanation of the reason for its presentation, stated: “ I am unwilling that there should be in this Constitution the blot, making a distinction between the electors of cities and those of the country. Such a distinction is unjust in principle and unjust to cities, which are thus discriminated against.” (Proceedings and Debates of the Constitutional Convention of 1867-1868, vol. 5, p. 3732.)

It is a principle of construction that courts will adopt that which gives force and validity to a statute or section rather than the one which avoids it. (The People ex rel. Sinkler v. Terry, 108 N. Y. 1.) That the Legislature intended to give this effect to this section I am now seeking to uphold is obvious, for in prescribing the mode of procedure for courts of justices of the peace those in cities and towns are treated alike. (Code Civ. Proc. §§ 2868, 2869.)

Even if the power to elect justices of the peace in the city of Lockport with jurisdiction embracing the entire county exists, it is urged that this was not accomplished by the act of 1886 ; that the office theretofore existing was not abrogated, but was simply enlarged, and hence is within the condemnation of Ziegler v. Corwin (12 App. Div. 60) and kindred authorities. The intent of the Legislature is plain; it was to create the office of justice of the peace in the city of Lockport, not as a local officer, but with civil powers identical with the constitutional magistrate of that title. To make that intent effective it saw fit to deal with officers as they existed. There were already three justices of the peace in the city apparently exercising their functions outside the city in violation of the Constitution; they also possessed local powers. The Legislature probably could have terminated the official life of these officers at once. (Koch v. Mayor, 152 N. Y. 72.) It did not elect to do so. It provided for new officials to take office upon expiration of the respective terms of the justices in office. The whole matter of the provision of justices of the peace in cities was within the purview of the Legislature, and it decided to make the annulment of the existing 'offices operative upon the expiration of the term of each incumbent. The Legislature possessed the power to abolish the existing offices of justice of the peace in the city of Lockport. (People ex rel. White v. City of Rochester, 11 Hun, 241.) The manner of its exercise was not defined or curtailed by the Constitution. This is not a perpetuation of the same office, for each justice of the peace, prior to the enactment of the revised charter, was a city official, without authority to exercise his judicial functions beyond its limits; he was a local officer. The one devised by the new act possesses powers common to that official everywhere. There is nothing in the act which confers upon him any powers peculiar to the municipality. The recognized rule is, that his authority is co-extensive with the boundaries of the county. (Beach v. Baker, 25 App. Div. 9.)

We accordingly have constitutional warrant for the creation of tliis office by the Legislature, and the execution of the authority intrusted to it by the law-making body.

In Baird v. Helfer (12 App. Div. 23) and Ziegler v. Corwin (Id. 60), recent decisions of this department, the' question involved was as to the power to endow the Municipal Court of Rochester with jurisdiction over the entire county of Monroe. The act giving life to the court limited its jurisdiction in plain terms to the city of Rochester. There was no endeavor to abolish that court and create the court of justice of the peace in its stead ; but there was a palpable attempt to enlarge the authority of this Municipal Court to embrace the county. There was no power in the Legislature to make that extension. To carry that purpose into effect involved the commingling of a purely local court with one of general juris.diction, and the Constitution made these separate and distinct.

In Geraty v. Reid (78 N. Y. 64) and Brandon v. Avery (22 id. 469) the duties of the official in each instance were made in the act creating them to appertain exclusively to the locality. These cases, as I view the situation, are not in conflict with the conclusion that the Constitution since 1869 has vested the Legislature with authority to provide courts of justices of the peace in cities with jurisdiction coincident with the county. (See Ostrander v. The People, 29 Hun, 513, affd. in Court of Appeals.)

There are two well-known canons of construction where the constitutionality of legislative enactments is involved: First, the act. will not be held in contravention of the Constitution unless the violation is palpable. (People v. Budd, 117 N. Y. 13; Dartmouth College v. Woodward, 4 Wheat. 625.) Second, that interpretation will he given which coincides with justice and the public demands, unless it runs counter to the fundamental law. Ho extraneous aid is necessary to spell out of the Constitution a purpose to make the duties devolving upon justices of the peace in cities commensurate with those of the towns. Ho restriction is embodied in th.e language vesting the - law-making power with authority to establish these courts. In the creation of this court in question there was no enlargement of its powers beyond what is usual in the administration of that office. Unless this interpretation is followed, an invidious discrimination is upheld against the people of the city of Lock-port. To enforce their small claims against residents of their county they would be forced to go outside their city, while they can be made to go to the remotest town in the county at the behest of a'suitor residing in such town. A reasonable construction of the Constitution and of the act in pursuance of it prevents this, injustice.

The judgment is affirmed, with costs.

All concurred.

Judgment affirmed, with costs. 
      
       See People v. Bork (96 N. Y. 198).
     