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N. Y. Supp. 896, sustaining an act conferring exclusive jurisdiction in criminal cases on a police justice in Mt. Vernon.

Power conferred upon a city officer to audit claims against the city does not make him a court within the meaning of this section. Syracuse v. Hubbard (1901) 64 App. Div. 587, 72 N. Y. Supp. 802.

New York.—The act of 1866, chap. 74, creating the metropolitan sanitary district and a board of health therein, did not establish an inferior local court within the meaning of this section. Coe v. Schultz (1866) 47 Barb. 64; Cooper v. Schultz (1866) 32 How. Pr. 107.

It was competent for the legislature to confer on the New York marine court "whatever civil or criminal jurisdiction it might deem best, subject only to the restriction that its character, as a local court, should be preserved.” Anderson v. Reilly (1876) 66 N. Y. 189

The legislature had power to establish the municipal court of New York with the powers and jurisdiction conferred upon it by the Greater New York charter of 1897. Re Schultes (1898) 33 App. Div. 524, 54 N. Y. Supp. 34. This court was again under consideration in Tyroler v. Gummersbach (1899) 28 Misc. 151, 59 N. Y. Supp. 266, 319, where it was held to be an inferior local court under $ 18, and that in an action for money only its jurisdiction was limited to the city.

In Rieser v. Parker (1899) 27 Misc. 205, 57 N. Y. Supp. 745, it was held that the municipal court had no jurisdiction of an action for the recovery of money only against a foreign corporation.

The court in McConologue v. McCaffrey (1899) 29 Misc. 139, 60 N. Y. Supp. 279, and in Smith v. Silsbee (1900) 53 App. Div. 462, 65 N. Y. Supp. 1083, held that the municipal court of New York had no jurisdiction of an action to foreclose a mechanic's lien, for the reason that such an action involved the exercise of equity jurisdiction, and the Constitution prohibits the legislature from conferring equity jurisdiction on inferior local courts.

The legislature had power to make the jurisdiction of the municipal court of New York coextensive with the city, and it was not required to limit such jurisdiction within a county. The power as to inferior local courts was not restricted by reference to county courts as the territorial standard, but it was intended rather to "restrict their jurisdiction as to subject-matter and persons, and not as to locality.” Irwin v. Metropolitan Street R. Co. (1899) 38 App. Div. 253, 57 N. Y. Supp. 21; Kantro v. Armstrong (1899) 44 App. Div. 506, 60 N. Y. Supp. 970.

In the article on the judiciary, in the chapter on the Convention of 1894, I have quoted from the report of the judiciary committee, and also from the remarks of Mr. Root relative to the limitations on the power of the legislature as to the jurisdiction which might be conferred on inferior local courts, from which it will be seen that it was the intention of the committee, as expressed by Mr. Root, to "prohibit the legislature from ever enlarging the jurisdiction of local and inferior courts so that they shall exceed, as to the courts now existing, the jurisdiction they now have, and as to any court they may hereafter create, the jurisdiction of the county courts. We thus keep down to the level of the county court, the local tribunals and useful tribunals, adapted to the performance of specific functions, all courts except the one supreme court."

In Dodge Mfg. Co. v. Nassau Show Case Co. (1899) 44 App. Div. 603, 61 N. Y. Supp. 111, it was said that the municipal court had jurisdiction of an action against a domestic corporation, although there was no evidence as to the county in which the corporation had its principal office or place of business. The court declined to concur in the views expressed by the appellate division in the first department in the Rieser Case above, to the effect that the municipal court had no jurisdiction of an action against a foreign corporation.

In Worthington v. London Guarantee & Acci, Co. (1900) 164 N. Y. 81, 58 N. E. 102, the court of appeals had occasion to consider the jurisdiction of the municipal court, especially as to foreign corporations, and it sustained the section of the New York charter (1364) which conferred on the municipal court jurisdiction of a foreign corporation having an office in the city. The court said the municipal court was not a new inferior local court, but a merger and continuation of the former district courts in New York and the justices' courts in certain parts of Brooklyn. The former district courts had jurisdiction of actions against foreign corporations, and this jurisdiction survived and was continued after the consolidation of former local courts in the new municipal court. The principle of this decision was applied in Routenberg v. Schweitzer (1900) 163 N. Y. 175, 58 N. E. 880, where it was held that the legislature had power to confer on the municipal court jurisdiction of actions against nonresidents who have a place of business in the city. See also Meuthen v. Eyelis (1900) 33 Misc. 98, 67 N. Y. Supp. 246; Lehigh & N. E. R. Co. v. American Bonding & T. Co. (1903) 40 Misc. 698, 83 N. Y. Supp. 191.

§ 19. (Clerks of courts. ]—Clerks of the several coun

ties shall be clerks of the supreme court, with such powers and duties as shall be prescribed by law. The justices of the appellate division in each department shall have power to appoint and to remove a clerk, who shall keep his office at a place to be designated by said justices. The clerk of the court of appeals shall keep his office at the seat of government. The clerk of the court of appeals and the clerks of the appellate division shall receive compensation to be established by law and paid out of the public treasury.

(Const. 1821, art. 4, $ 9; 1846, art. 6, 8 19; Jud. Art. 1869, $ 20.)

The office of county clerk is considered in a note to § 1 of article 10.

§ 20. (Certain judicial officers not to receive fees; eligibility.]—No judicial officer, except justices of the peace, shall receive to his own use any fees or perquisites of office; nor shall any judge of the court of appeals, or justice of the supreme court, or any county judge or surrogate hereafter elected in a county having a population exceeding one hundred and twenty thousand, practise as an attorney or counselor in any court of record in this state, or act as referee. The legislature may impose a similar prohibition upon county judges and surrogates in other counties. No one shall be eligible to the office of judge of the court of appeals, justice of the supreme court, or, except in the county of Hamilton, to the office of county judge or surrogate, who is not an attorney and counselor of this state.

(Const. 1846, art. 6, $ 20; Jud. Art. 1869, $ 21.)

In Settle v. Van Evrea (1872) 49 N. Y. 280, it was held that a member of the commission of appeals was not a judge of the court of appeals, and therefore was not prohibited from acting as referee.

In Countryman v. Norton (1880) 21 Hun, 17, it was held that the

power of a referee terminated upon his acceptance of the office of justice of the supreme court, and that he could not, while holding such office, act as referee and decide the issues which had been referred to him.

Brown v. Brown (1901) 64 App. Div. 544, 72 N. Y. Supp. 309, considers but does not decide an interesting question relative to the right of the surrogate of Westchester county, elected in 1900, to act as referee; namely, whether the population, as ascertained by the state census of 1892, should determine the application of the constitutional provision, in view of the fact that, by the annexation act of 1895, a considerable portion of the county was attached to the county of New York; or whether resort may be had to the Federal census of 1900 to ascertain the population at the beginning of the surrogate's term, January 1, 1901.

The mandate of the Constitution prohibiting a surrogate in certain counties from practising as an attorney and counselor operates immediately, by virtue of his election, and an order of a court is not necessary. Re Silkman (1903) 88 App. Div. 102, 84 N. Y. Supp. 1024.

§ 21. [Publication of statutes; court reports. ]—The legislature shall provide for the speedy publication of all statutes, and shall regulate the reporting of the decisions of the courts; but all laws and judicial decisions shall be free for publication by any person.

[Const. 1846, art. 6, $ 22; Jud. Art. 1869, $ 23.)

A section on this subject first appeared in the Constitution of 1846; it was modified by the Convention of 1867, and again by the Convention of 1894.

§ 22. (Local judicial officers, terms not abridged. ] Justices of the peace and other local judicial officers provided for in sections seventeen and eighteen, in office when this article takes effect, shall hold their offices until the expiration of their respective terms.

[Temporary; Jud. Art. 1869, $ 25.)

The act of 1895, chap. 601, which abolished the office of police justice in the city of New York, and provided for certain officers with power to hold courts of special sessions, did not violate this section. People ex rel. Thornton v. Hogan (1895) 14 Misc. 48, 35 N. Y. Supp. 226.

In Petterson v. Welles (1896) i App. Div. 8, 36 N. Y. Supp. 1009, relating to the office of justice of the peace in the city of Brooklyn, it is said that this section should be read with $ 3 of article 12, which abridged the term of such a justice.

This section did not prevent the abolition of the office of police justice in the city of New York. “The word 'terms, as used in & 22, refers not to constitutional, but to statutory officers, justices of the peace excepted. It does not necessarily mean a tenure so fixed as to prevent the abolition of the office, but simply that the tenure for the period fixed by the statute continues, unless the office is abolished or the incumbent dies, resigns, or is removed." The act of 1895, chap. 601, was sustained. Koch v. New York (1897) 152 N. Y. 72, 46 N. E. 170.

§ 23. (Courts of special sessions. ]-Courts of special sessions shall have such jurisdiction of offenses of the grade of misdemeanors as may be prescribed by law.

(Jud. Art. 1869, $26.]

The term “misdemeanor" includes petit larceny not charged as a second offense, and where the statute gives the court of special sessions exclusive jurisdiction, it is bound to try the case, and cannot take bail. People ex rel. Stetzer v. Rawson (1872) 61 Barb. 619.

The same rule as to bail was declared in People ex rel. Comaford v. Dutcher (1880) 83 N. Y. 240, sustaining the act of 1879, chap. 390, conferring on courts of special sessions exclusive jurisdiction in certain cases.

Under a previous statute (the prohibitory liquor law of 1855), it was held that the magistrate must examine the defendant and admit him to bail if bail were offered. People ex rel. Vassar v. Berberrich (1855) 20 Barb. 224. People v. Austin (1888) 49 Hun, 396, 3 N. Y. Supp. 578, where the defendant was charged with selling diluted milk, contrary to the act of 1885, chap. 183, is to the same effect.

The right to give bail may be lost by not demanding it in time. Devine v. People (1880) 20 Hun, 98.

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