#### People of the State of New York, *ex rel.*Hiram Sinkler, Resp’t *v.*Irving C. Terry, sup’t of the Onondaga County Penitentiary, Appl’t.

*(Supreme Court, General Term, Third Department,*

*Filed December,*1886.)

1. Justice oe the peace — De facto — Acts of, how regarded.

In a proceeding to inquire, under the writ of *habeas*corpus, into the cause of imprisonment of the relator S. who was arrested and brought before one Seaver Justice of the Peace of the village of Canton, on a charge of assault in the third degree to which he pleaded guilty and was sentenced by said Justice to imprisonnent in the Onondaga County Penitentiary for the period of four months. *Held,*that if there were such an office as justice of the peace in the village of C. then S,, notwithstanding, the fact that his election was attended with such ¡regularities as would probably be fatal to his title, if the people should by an action in the nature of *quo warranto*require him to defend it, having under color of legal title assumed the office and discharged its duties was justice of the peace *de facto,*and his official acts'would upon grounds of public policy be regarded as valid so far as the rights of third persons were concerned.

2. Same — In order that a person may be a de facto officer the OFFICE MUST EXIST.

*Held,that,*in order that these.might he an officer *defacto*there must have actually existed the office into which he could intrude.

S. Constitutional provisions as to — Constitution, art., 6, § IS — Laws 1859, ch. 70, § 2, as amended by laws 1870, ch. 263, § 2, held unconstitutional.

The constitution of the State of New York, article 6, § 18, provides for. *121the election, of justices: of the peace in towns and cities. *Held,*that the constitutional provision for the election of justice of peace in towns and cities is the denial of the power to elect them in villages, and that the charter of the village (Laws 1859, chapter70, § 2,) as amended by Laws 1870, chapter 203, § 2, authorizing the election of one justice of the peace for said village is unconstitutional.

4. Same — Officer existing by virtue of constitution only.

The constitution of the State of New Vork, article 6, § 19, provides that “■inferior local eourts of civil and criminal jurisdiction may be established by the-legislatui-e.” *Held,*that justice of the peace is an officer of the constitution, and that an officer so designated whether with greater or less power can not exist, except, as allowed by the constitution.

5. Appeal from festal order discharging a prisoner under Code Civil Procedure § 2059 — Affirmance — Costs.

In a ease where an appeal was taken in the name of the people under Code Civil Procedure,, | 2059, and the order of the lower court affirmed. *Held,*that the costs should be paid by the county.

Henry E. Seaver, who pretended to be a Justice of the Peace, pretended to convict tbe relator, Hiram Sinlder, of the crime of assault in the third degree and to sentence him to the Onondaga County Penitentiary for the term of four months. The relator was accordingly confined in that penitentiary. After the relator had been confined in the penitentiary for the period of three months, his mother, in his behalf, procured a writ of *habeas corpus*requiring the superintendent of the penitentiary to produce the relator before Justice Tappan on the 10th of July, 1886, that the cause of his detention might be inquired into. Mr. Terry, the superintendent, produced the relator, certifying that he held him by virtue of the commitment. The relator traversed the return assigning his reasons why he should be discharged. At the hearing, the District-Attorneys of St. Lawrence and Onondaga counties both appeared and contested the discharge of the relator. Justice Tappan required service of the writ to be made upon the District-Attorney of St. Lawrence county, who objected to the hearing of the writ until the District-Attorney of Onondaga county had been notified, which was accordingly done. Evidence was taken before Justice Tappan from which it appeared that at the annual charter election in the village of Canton on the 12th of January, 1886, Mr. Seaver received no votes for the office of “ Justice of the Peace,” but did receive 162 votes for “ Police Justice.” The clerk of the village filed with the county clerk a certificate of Mr. Seaver’s election as “ Justice of the Peace.” Mr. Seaver pretended to give a bond as Justice of the Peace, which bond was approved by the Supervisor of the town of Canton. The Act which created the office of Justiee of the Peace of the village of Canton is Chap. 263, of the Laws of 1870. The act makes him a Justice of the Peace of the town and county as to criminal matters. It seems to have been a matter of grave doubt in Mr. Seaver’s mind as to what, if any, office he held, for he signed his name not only “ Justice of the Peace,” but also “ Police *122Justice.” At tbe session of the last Legislature a new charter-was created for the Tillage of Canton (Laws of 1886, Chap. 363). This Act repealed Chap. 263 of the Laws of 1870, but proyided by its 85th Section that the officers elected at the election in January, 1886, should hold their offices until the term expired for which they were elected, but they were to be goYerned by the provisions of the new Act, which took effect immediately and repealed all the other laws relating to the village of Canton. There was nothing in the commitment to show that it Avas issued by an officer of the village of Canton, but it does show that Mr. Seaver supposed himself to be a Justice of the Peace of the *town,*for in his record of conviction he styles himself a “ Justice of the Peace of said county,” and it is headed “Town of Canton, County of St. Lawrence.” Justice TappAN held that Mr. Seaver’s commitment was irregular and void; that he was never elected a Justice of the Peace and was not a magistrate, and that Chap. 263, of the Laws of 1870, was unconstitutional and void in so far as it pretended to create the office of Justice of the Peace. Mr. Terry did not appeal from the order, neither did the District-Attorney of St. Lawrence or Onondaga county, but they have served upon the relator a paper signed by them from which it appears that “ the People of the State of New York ” appeal from the order.

*P. R. McMonagle,*for the relator, resp’t; *John Q. Keeler,*of counsel; *Leopold O. Hale,*Ass’t Dist. Att’y, for appl’t.

Landon, J.

If there is such an office as Justice of the Peace for the village of Canton, then Mr. Seaver, notwithstanding the fact that his election was attended with such irregularities as would probably be fatal to his title, if the people should by an action in the nature of a *quo warranto*require him to defend it, had, under some color of legal title assumed the office and discharged its duties, and was therefore a justice of the peace *defacto,*and his offical acts would upon grounds of public policy be regarded as validso far as the rights of third persons are concerned. *Re Wilcox v. Smith,*5 Wend., 231*People*v. *White,*21 Wend., 520; *Re Wakker,*3 Barb, 162; *People*v. *Cook,*8 N. Y., 67; *People ex rel. Bush*v. *Thornton,*25 Hun, 456; *Morrison*v. *Sayre,*40 id., 465.

But in order that there may be an officer *defacto*there must actually exist the office into which he can intrude. The unauthorized person must occupy an actually existing seat of authority, otherwise he would by his assumption create an additional office and exercise its functions.

The village of Canton, it was conceded upon the argument, formed part of the town of Canton. We may presume that the town of Canton has all the justices of the peace to which it is entitled. Section 18 of article 6, of the Constitution provides *123that, — “ The electors of the several towns shall, at tbeir annual town meeting, and in such manner as the legislature may direct, elect justices of the peace, whose term of office shall be four years.” Mr. Seaver in order to have any color of claim to the office of justice of the peace for the town of Canton, must have sought to enter into it when the' entrance was open. But no such claim is made in his behalf. He claims an election by the electors of the village of Canton. The charter of the village Laws 1859, ch. 70, § 2, amended by Laws 1870, ch. 263, § 2, authorizes the election of one justice of the peace for said village, The section of the constitution, cited, also provides “ that justices of the peace and district court justices shall be elected in the different cities of this State in such manner, and with such powers, and for such terms, respectively, as may be provided by law.”

It has been repeatedly held that justices of the peace cannot be elected otherwise than as prescribed by the constitution. *Geraty*v. *Reid,*78 N. Y., 64; *People ex rel. Smith*v. *Schiel*lein, 95 N. Y., 124; *Wenzler*v. *The People,*58 N. Y., 516. The constitutional provision for the election of justices of the peace in ,towns and cities, is the denial of the power to elect them in villages. The statute authorizing the election of a justice of the peace for the village of Canton is therefore unconstitutional, and Mr. Seaver could not be a *de facto*justice of the peace for the village since there is no such office.

But section 19, of article six of the constitution provides that — “ Inferior local courts of civil and criminal jurisdiction may be established by the legislature.” This provision toolc effect in 1870. It had been previously decided that the legislature had the power to establish the office of police justice in villages provided such officer was given a strictly local jurisdiction, and not the general territorial jurisdiction which justices of the peace possess. *Sill*v. *Village of Corning,*15 N. Y., 297; *Brandon*v. *Avery,*22 id., 469.

But it had also been decided that, if such police justice in villages, is vested with the same powers and territorial jurisdiction as a justice of the peace, then he is a justice of the peace under another name, and the statute creating the office is unconstitutional. *Waters*v. *Langdon,*40 Barb., 408. The distinction thus indicated affords the test of constitutionality, *Village of Deposit*v. *Vail,*5 Hun, 310; *Brady*v. *Cochran,*23 id., 274; *Conor*v. *Hilton,*66 How, 144; *Geraty*v. *Reid, supra.*

The charter of the village defines the power of thejusti.ee of the peace as follows: “ The said justice of the peace shall have the usual powers of justice of the peace of towns in relation to crimes and misdemeanors, and to oaths and acknowledgments, and also in civil actions, in which all the parties shall be residents or inhabitants of said village.” § 2.

*124If the designation of the officer had been police justice instead of justice of the peace, the act might have been sustained, within the authorities cited, upon the implied construction, that his civil and criminal jurisdiction was limited to the village, and thus local, and within the express power conferred by the constitution.

But a justice of the peace is an officer of the constitution. Whether it is competent for the legislature to pass a local law depriving him elsewhere than in cities, of any of the powers and jurisdiction conferred by general laws, we need not inquire, Const. Art. 3, § 18. Certain it is, that if by so doing, he may be elected in villages, then the constitution is thwarted by an easy evasion — an evasion pointedly condemned in *Wenzer*v. People, 58 N. Y., 516. This officer is designated a justice of the peace whether with greater or less statutary powers, and we cannot suppose that any other than a constitutional iustice of the peace can exist.

The relator was properly discharged.

Order affirmed with $50 costs and printing disbursements, Code Civ. Pro., § 3240.

The appeal was taken in the name of the People under § 2059, Code Civ, Pro., and the costs should be paid by the county of St. Lawrence.

Learned. P. J. and Bockes, J. concur.