
    REID v. STEVENS.
    (Tompkins County Court.
    December 9, 1910.) .
    1. Justices of the Peace (§ 2)—Creation and Abolitio.n of Office.
    Laws 1892, c. 429, § 8, provided for the election of justices of the peace for the city of Ithaca, and that all laws applicable to justices of the peace of the several towns should apply to such justices. By Laws 1908, c. 505, the city charter was revised, section 258 providing that the terms of office of the justices of the peace in the city should end December 81, 1908. Bold, that the abolition of the office by said section was a valid exercise of legislative power.
    [Ed. Note.—For other cases, see Justices of the Peace, Dec. Dig. § 2.*]
    
      
      2. Courts (§ 42)—Statutes—Classes of Cities Excepted.
    Const art. 12, § 3, relating to the election and terms of office of judicial officers of inferior local courts, does not apply to cities of the third class: [Ed. Note.—For other cases, see Courts, Dec. Dig. § 42.*]
    3. Justices of the Peace (§§ 2, 3*)—Nature of Office—Towns—“Town Officers.” 0
    Justices of the peace of towns are “town officers,” under Const art. 6, § 17, providing for their election at town meetings, or as directed by the Legislature, and the office is a constitutional office which cannot be abolished by the Legislature.
    [Ed. Note.—For other cases, see Justices of the Peace, Dec. Dig. §§ 2, 3.* For other definitions, see Words and Phrases, vol. 8, p. 7031.]
    4. Justices of the Peace (§ 2*)—Nature of Office—Cities and Villages.
    The offices of justices of the peace for cities and villages are created by the Legislature, under Const, art 6, § 18, providing for the establishment by the Legislature of inferior local courts, and may be abolished by the Legislature.
    [Ed. Note.—For other cases, see Justices of the Peace, Dec. Dig. § 2.*] ’
    5. Justices of the Peace (§ 52*)—Nature and Extent of Jurisdiction.
    Under Code Civ. Proc. § 2869, relating to justices’ courts, justices of the peace of towns have greater jurisdiction than justices of the peace of cities and villages, as their jurisdiction may extend into adjoining towns, while the jurisdiction of a justice of the peace of a city is limited to its boundaries.
    [E'd. Note.—For other cases, see Justices of the Peace, Dec. Dig. § 52.*]
    6. Justices of the Peace (§ 1*)—Nature and Extent of Jurisdiction—Constitutional Officer.
    ■The true test as to whether a justice of the peace is a constitutional officer or an officer created by the Legislature and exercising different functions from a justice of the peace of a town, is the extent of the officer’s jurisdiction and his duties, rather than his official designation.
    [Ed. Note.—For other cases, see Justices of the Peace, Dec. Dig. § 1.*]
    7. Constitutional Law (§ 48*)—Determination of Questions—Judicial Authority and Duty.
    Courts will* not declare a statute unconstitutional except in the clearest cases.
    [Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. § 46; Dee. Dig. § 48.*]
    Appeal from Justice’s Court.
    Action by Harriet E. Reid, as administratrix, against De Forest Stevens. From a judgment of the Justice’s Court of the City of Ithaca for plaintiff, defendant appeals.
    Reversed.
    John D. Collins. (George B. Davis, of counsel), for appellant.
    George S. Tarbell, for respondent.
    
      
       For other cases see same topic & § number in Deo. & Am. Digs. 1907 to date, & Rep’r Indexes
    
    
      
       For other cases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes
    
   SWEET LAND, J.

This is an appeal from a judgment rendered by Edwin C. Tichenor, as justice of the peace of the city of Ithaca, on the 11th day of February, 1910, in favor of the plaintiff and against the defendant for the sum of $13.51 damages and $2 costs. The summons in this action was issued on the 31st day of January,, 1910, and, .with a verified complaint, was served on the defendant in the town of Dryden, Tompkins county, on the 4th day of February, 1910, such service being within the county of Tompkins, but outside the city of Ithaca, said town of Dryden adjoining the town of Ithaca. On the return day of the summons, the defendant appeared specially, hy counsel, and filed his objections in writing as follows:

"That the court had neither jurisdiction of the person of the defendant n'or ■of the subject-matter of the action, inasmuch as the office of justice of the peace of the city of Ithaca was abolished on the 31st day of December, 1908, and that the said Edwin O. Tlchenor was not a justice of the peace at the time of the issue or return of the said summons, his office having been abolished since the 31st day of December, 1908; that the said summons in the above-entitled action was served on the defendant in the town of Dryden, and not in the city of Ithaca; that the complaint was not properly verified.”

The decision of the first question raised by this appeal involves the legal effect of that part of the charter of the City of Ithaca which abridged and abolished the office of justice of the peace of the city of Ithaca. The respondent denies the constitutionality of such legislation. This question is important because a large amount of litigation has been brought in justice’s court of the city of Ithaca since that office was abolished!, and the term for which said Edwin C. Tichenor was elected does not expire till December 31, 1911.

Chapter 429, § 8, of the Laws of 1892, provided for the election of a justice of the peace for the city of Ithaca in March, 1894, his term to commence at once, and to continue for four years, and at the election in every two years thereafter a justice of the peace to be ■elected in said city, to hold office for four years. “Said justices of the peace shall have and exercise all the powers, authority and jurisdiction, discharge all the duties, and be entitled to the fees and compensation of justices of the peace of the several towns of this state, and all laws applicable to justices of the peace of the several towns, and to their official acts, duties and powers, shall apply to the justices of the peace of said city, except they shall not be members •of any town board or constitute a part thereof, or have any power in the same. The said justices shall have the same jurisdiction of actions in which the parties thereto live without the city as if the limits of the city of Ithaca embraced the present town of Ithaca.” No change was made by the Legislature affecting the tenure of •office except that the time of holding the election for city offices was changed from March to the date of the general election in November. Ithaca being a city of the third class is not affected by section 3 of article 12, New York State Constitution. The said Edwin C. Tichenor was elected justice of the peace under the provisions of law above cited.

The charter of the city of Ithaca was revised in the year 1908, and constitutes chapter 503 of the Laws of 1908. Section 233 of said charter reads as follows:

“The terms of office, powers and duties of the present justices of the peace in the- city of Ithaca shall end with the 31st day of December, 1908, except as provided in section 238 thereof and as to actions and proceedings then pending.”

The said Edwin C. Tichenor would have been a justice of the peace at the time of the issue and service of the summons in this action: and at the time this judgment was rendered except for the above provisions of the amended charter, which abridged the term and! abolished his office.

There is a broad distinction between the office of justice of the-peace of the several towns of the state, and the so-called justices of the peace of cities and villages, the town justice of the peace being a constitutional office, while.the office of justice of the peace created by the charter of the city of Ithaca is not a constitutional office, but an office created by =act of the Legislature. Clearly there are two kinds of .justices of the peace, as above distinguished.

Section 17 of article 6 of the New York State Constitution reads in part as follows:

“The electors of the several towns, shall at their annual town meetings, or at such other time and in such manner as the Legislature may direct, elect justices of the peace whose term of office shall be four years. In case an election to fill a vacancy occurring before the expiration of a full term, they shall hold for the residue of the unexpired term.”

Section 18 of article 6, New York State Constitution, is as follows:

“Inferior local courts of civil and criminal jurisdiction may be established by the Legislature, but no .inferior local court hereafter created shall be a court of record. The' Legislature shall not hereafter confer upon any inferior or local court of its creation, any equity jurisdiction or any greater jurisdiction in other respects than is conferred upon county courts by or under this article. Except as herein otherwise provided, all judicial officers shall be elected or appointed at such times and in such manner as the Legislature may direct.”

A reading of the two sections of the state Constitution, above quoted, shows the distinction between the two classes of offices provided for in said sections. Justices of the peace in towns are town officers. Gertum v. Supervisors of Kings County, 109 N. Y. 170, 16 N. E. 328; People ex rel. Burby v. Howland, 155 N. Y. 270, 49 N. E. 775, 41 L. R. A. 838. The office of justice of the peace in the towns is a constitutional office and cannot be abolished by act of the Legislature. People ex rel. Burby v. Howland, 155 N. Y. 272, 49 N. E. 775, 41 L. R. A. 838. An important part of the duty of justices of the peace of the towns is their service rendered as members of the _ town board of their respective towns in determining various matters ‘ of town policy, auditing town bills and passing on the expenditure of money for their respective towns. In this respect the duties of town justices of the peace are distinct, apart from, and greater than the duties of the justices of the peace, under the former charter of the city of Ithaca. Justices of the peace of towns have greater territorial jurisdiction than justices of the peace of cities, as the jurisdiction of town justices of the peace may extend into adjoining towns. 1 Section 2869, Code Civ. Proc.- - - - —- •' ■ ■

The distinction between justices of the peace in towns and cities is clearly pointed out in People ex rel. White v. Rochester, 11 Hun, 241; holding that justices of the peace created by a city charter have not the same functions as justices of the peace in towns, that justices of the peace of cities are included under the term “officers of inferior local courts,” and that the Legislature may abolish such offices andl create others in their place. The same question was up in Murphy v. Snitzpan, 15 Mise. Rep. 496, 36 N. Y. Supp. 1013, wherein Justice Gaynor held:

“Courts of justices of the peace in the city of Brooklyn are included in the term ‘inferior local courts’ as defined by the Constitution and the term of such office could be abridged.”

In this connection, an interesting discussion is found in Petterson v. Wells, 1 App. Div. 8, 36 N. Y. Supp. 1009. The three cases above cited arose under the former Constitution, yet the wording is substantially the same in the present Constitution. The jurisdiction of justices of the peace in cities is more restricted! than that of the town justices of the peace. The territorial jurisdiction of a justice of the peace of a city is limited to the boundaries of the city. Rockwell v. Raymond (City Ct. Yonkers) 5 N. Y. Supp. 642; Pierson v. Fries, 3 App. Div. 418, 38 N. Y. Supp. 765; Baird v. Heifer, 12 App. Div. 23, 42 N. Y. Supp. 484; Ziegler v. Corwin, 12 App. Div. 60, 42 N. Y. Supp. 855; Darling v. White, 67 Misc. Rep. 366, 124 N. Y. Supp. 846.

Some confusion has arisen because of the application of the name “justice of the peace” to officers exercising distinctly different functions. The true test is the extent of the officer’s jurisdiction and his duties rather than his official designation that determines his authority. The fact that an officer be vested with such authority as could legally be given him by the charter of the city of Ithaca be called justice of the peace does not invest him with the power and authority of a justice of the peace of a town, the latter being a constitutional office directly established by the Constitution. The town justice of the peace cannot be removed so long as his town organization' exists. The office of city justice of the peace created by the Legislature may be abolished by the Legislature.

It is perhaps unfortunate that the term “justice of the peace” is applied to any officer except to the constitutional justices of the peace of towns. Terming officers of inferior local courts, of cities, justices of the peace naturally suggests jurisdiction territorially analogous to that of justices of the peace of towns. The recognition of this difficulty, and the desire to avoid it, is perhaps one reason for the tendency to use some other title rather than justice of the peace to designate the class of officers of cities established by the Legislature, under authority of section 18 of article 6 of the Constitution. The tendency is to designate such officers as city judge rather than justice of the peace.

The term of office, powers, and duties of the said justice of the peace ended with the 31st day of Decembér, 1908, if it was within the power of the Legislature to abolish the office and end the term of office of the justices of the peace of said city. The office was created by act of the Legislature which defined its powers, jurisdiction, length of term, and duties. The Legislature has the power to abridge the term and abolish the office. In so doing there was no violation of the Constitution. Only in the clearest cases will the courts declare a statute unconstitutional. People v. Budd, 117 N. Y. 13, 14, 22 N. E. 670, 682, 5 L. R. A. 559, 15 Am. St. Rep. 460; Dartmouth College v. Woodward, 4 Wheat. 625, 4 L. Ed. 629.

It seems to me that the section of the charter of the city of Ithaca abolishing the office of justice of the peace in the city of Ithaca after the 31st day of December, 1908, was within the powers of the Legislature, consequently valid, and that the acts of the justices of the peace of the city of Ithaca after that date, except in the cases within the exception of the charter of said city, were absolutely, void.

This determination renders unnecessary a further consideration of the other question involved in this appeal. The judgment appealed from is reversed, with costs, but without prejudice to the plaintiff’s suing in a court having jurisdiction.  