#### ZIEGLAR v. CORWIN.

(Supreme Court, Appellate Division, Fourth Department.

December 15, 1896.)

Municipal Courts—Local Jurisdiction—Constitutional Restrictions.

The municipal court of Rochester was, by Laws 1870, c. 196, § 1, created “in and for said city.” The law was passed by virtue of the power given the legislature, under article 6, § 19, of the constitution, to create local courts of civil and criminal jurisdiction. Laws 1890, c. 561, § 29, conferred the further jurisdiction on such municipal court of having its processes “executed and served any where within the county of Monroe.” *Held,*that the extended jurisdiction beyond the limits of Rochester is contrary to the spirit of the constitution, and void, and that a summons from such court, served on a person in another town in Monroe county, conferred no jurisdiction on the municipal court of Rochester.

Appeal from Monroe county court.

Action by Louis C. Zieglar against Melissa Corwin. From an order denying defendant’s motion to set aside an order in supplementary proceedings, and to vacate the judgment on the ground that the court below never acquired jurisdiction of the action, defendant appeals.

Reversed.

Argued before HARDIN, P. J., and FOLLETT, ADAMS, WARD, and GREEN, JJ.

Clarence W. McKay, for appellant.

L. E. Hulburt, for respondent.

WARD, J.

In March, 1896, the plaintiff (the respondent here) commenced an action in the municipal court of the city of Rochester, and presented a verified complaint, against Carrie M. Corwin and another defendant, claiming judgment for |200, with interest from December 4, 1895, upon a promissory note executed by the defendants. Such proceedings were had that the plaintiff obtained judgment upon the note in the municipal court, from which a transcript was obtained and filed in the clerk’s office of Monroe county, and proceedings supplementary to execution were instituted for the examination of the defendant Melissa Corwin (the appellant here), concerning her property. She appeared specially on the 24th day *856of April, "before the referee appointed to take her testimony in supplementary proceedings, and objected to the .jurisdiction of her person for the reason that the municipal court had no jurisdiction of the defendant for two reasons: First, the defendant was not served with a summons in the action; second, that the summons was served upon her in the town of Penfield, a town in Monroe county outside of the city of Rochester, and the municipal court of Rochester did not thereby acquire jurisdiction of her person. These objections were overruled, ahd thereafter she obtained an order to show cause, from the special county judge of Monroe county, upon affidavits presenting the facts, upon the plaintiff, why an order should not be granted setting aside the judgment in the action, on the ground that the court below had no jurisdiction over the person of the defendant. The special county judge denied this motion, with $10 costs; and from this order an appeal was taken to this court, and the questions before us are indicated in the foregoing statement.

The appellant here did not appear in the municipal court. Judgment was rendered against her by default, and she has in no manner waived the question of jurisdiction which she here presents. The first point raised, that the summons was not served upon the appellant, is not tenable. The affidavits disclose fairly that such service was made upon her, notwithstanding her positive denial that it had been made.

. The serious question arises as to the second ground of appeal,— that the municipal court obtained no jurisdiction of the appellant, that it was a local city court, that its jurisdiction did not extend beyond the city of Rochester as to the person of defendant, and that the process of that court could not be served upon the defendant outside of the city. The municipal court of Rochester was created by chapter 196 of the Laws of 1876, and section 1 provides:

> “A court of civil jurisdiction to tie called and known as the municipal court of the city of Rochester is hereby created and established in and for said city with the jurisdiction and powers hereinafter provided.”

This statute further directs the appointment, by the governor, of two judges of the municipal court, one of whom shall hold his office for the term of five years and the other for the term of six years, and that at an annual charter election to be held in the city next preceding the close of each of said terms of office they shall be filled by election, and the persons so elected should hold the office for the term of six years. Jurisdiction was conferred upon this court in certain matters, and section 16 of the act provided that, after the passage of the act, no person should be elected to the office of justice of the peace of the said city, and that all acts and parts of acts inconsistent with this act, and all provisions of the charter of the city of Rochester in relation to the justices’ courts of said city, inconsistent with that act, were thereby repealed.

By chapter 561 of the Laws of 1890, being section 29, and being an amendment of section 241 of chapter 14 of the Laws of 1861, being an act to amend and consolidate the several acts relating to the charter of the city of Rochester, it is provided that:

> *857“A court of civil jurisdiction to be known as the municipal court of the city of Rochester is continued and established in and for said city, with the jurisdiction and powers hereinafter provided, and the further jurisdiction and powers to have any and all process or papers issued by the clerk, deputy clerk or one of the judges executed and served anywhere within the county of Monroe, and all process and papers issued, may be directed to and served by any constable of any ward within said city, or any town within said county.”

By chapter 143 of the Laws of 1861 three justices of the peace in the city of Rochester could be elected by the legal voters of the city, and section 237 provided:

> “The justices of the peace in said city exercising civil jurisdiction shall be deemed justices of the peace of the county of Monroe, and the general laws of this state relating to process, pleading and proceedings by and before justices of the peace of the several towns of this state relating to judgments rendered by them and the methods of enforcing the same and the appeals therefrom shall be applicable to such justices of the peace and to all judgments by them rendered.”

The general term of the old Fourth department, in Dawson v. Horan, 51 Barb. 459, and in People v. Common Council of City of Rochester, 11 Hun, 241, held that justices of the peace of the city of Rochester, whose election was provided for in chapter 143 of the Laws of 1861, were not justices of the peace, within the meaning of that term as used by the constitution; and the courts held by them were courts of inferior jurisdiction, within the meaning of section 19 of article 6 of the constitution; and that these justices were city officers, and not town officers.

In People v. Upson, 79 Hun, 87, 29 N. Y. Supp. 615, the general" term of the Fifth department held that chapter 384 of the Laws of" 1887, which provided that the court of special sessions held by the police justice of the city of Rochester should have “in the first instance exclusive jurisdiction to hear, try and determine all charges of misdemeanors committed within the county of Monroe,” etc., was unconstitutional, because it assumed to give to the police justice of Rochester a territorial jurisdiction throughout the county of Monroe. Judge Dwight, in pronouncing the opinion in that case says:

> “The office in question finds its only warrant for being in that provision of the constitution of the state which provides for the establishment by the legislature of ‘inferior local courts of civil and criminal jurisdiction.’ The meaning of the term ‘local courts’ is well established by the authorities. It means courts possessing a jurisdiction localized within the territorial limits of the city or village for which each is created, and by the electors of which its incumbent is chosen. Such is the plain doctrine of such cases as Brandon v. Avery, 22 N. Y. 469; Waters v. Langdon, 40 Barb. 408; Geraty v. Reid, 78 N. Y. 64; People v. Terry, 108 N. Y. 1, 14 N. E. 815; Curtin v. Barton, 130 N. Y. 505, 34 N. E. 1093. In the two, cases last cited the constitutionality of the enactments assailed was upheld only because, by a just construction of their terms it was apparent that the jurisdiction of the courts created thereby was intended to be limited in the one case to the city of Syracuse and in the other to the village of Canton, in which these courts were, respectively, constituted.”

To this history of the legislation and the decisions affecting the subject of the jurisdiction of the municipal court of Rochester and of the justices of the peace of that city should be added the provisions of section 3226 of the Code of Civil Procedure, which were" in force during the period covered by the litigation in the case at bar,, and are as follows:

> *858“The provisions of chapter. nineteenth of this act excluding titles tenth and eleventh thereof (being the chapter relating to courts of the justices of the peace and proceedings therein) apply to the municipal court of the city of Rochester and to the judges thereof; except so far as they are inconsistent with the next section, or with any other special provision of statute remaining unrepealed after this chipter taking effect. For the purpose of applying the same the court is deemed a justice’s court, each judge thereof is deemed a justice of the peace; and the city of Rochester is deemed a town of Monroe county.”

“The next section” above referred to does not affect the question we are considering.

It is easily perceived, from the above statement, that the effort of the legislature has been to confer upon the local courts of Rochester jurisdiction over the people of Monroe county outside of the city in both civil and criminal matters. In People v. Upson, supra, as we have seen, the jurisdiction of the police court in criminal matters outside of the city was denied. The question remains whether the legislative command, carrying the jurisdiction in civil matters into that portion of Monroe county which lies outside of the city of Rochester, can be upheld. The judiciary of this state will not nul- • lify the acts of the legislature, except the plain violation of the letter or the spirit of the state constitution is apparent. The legislature is primarily the judge of the validity of its own acts, as asserted in many cases, and courts will not overrule that judgment, except a plain duty exists to preserve the integrity of the constitution itself ; but when that "duty is apparent, the courts do not hesitate to meet the responsibility. It may be admitted that there is nothing in the constitution in terms absolutely forbidding the exercise of the legislative power which is here challenged. But was it not a violation of the intent and plan of the constitution in the organization and operation of the courts of this state? A statute which is opposed to the spirit and purpose of the constitution is as much within •the condemnation of the organic law as though it were written in bold characters upon the face of the statute itself. The question we are considering has, in substance, been before the courts of this state in many cases, and those cases seem to establish beyond cavil or dispute that the court of the kind we are considering is not a court of general jurisdiction, but of local and inferior jurisdiction, and limited to the territory embraced within the locality over which the court is constituted.

The contention of the appellant is that the legislature had no power to extend the jurisdiction beyond the limits of the city of Rochester, while it is the contention of the respondent that the municipal court is but the successor of the court of justice of the peace of the town or towns absorbed by the city of Rochester from the county of Monroe, and that the city of Rochester is, in effect, but a town of such county, and so declared by the legislature, and the judges of the municipal court are the successors of justices of the peace, and should be treated as such in the disposition of this case. Upon this contention of the respondent hinges the only possibility of saving the legislation complained of. The municipal court of Rochester has largely increased powers over that of justices of the peace. Its judges are salaried officers, paid by the city; they are elected by the *859city, and not by the town; they are elected for six years, and not for four; and the procedure by which that court exercises its power is ■different from that of justices' courts in important particulars. The •concession, which must be made, that the municipal court of Rochester is a city court, and not a town court or a justice’s court, would seem to dispose of the question against the respondent.

Section 18 of article 6 of the state constitution.provides; '

> “The electors of the several towns shall at their 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. * * * 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 shall be prescribed by law; all other judicial officers in cities whose election or appointment is not otherwise ■provided for in this article shall bo chosen by the electors of cities or appointed by some other local authorities thereof.”

This provision of the constitution was in force during the period covered by the litigation in the municipal and county court. The -constitution clearly provides for the election of two classes of justices of the peace, one to act for the towns and the other for the cities; and the attempt to blend these two classes of officers in this case cannot prevail. If the justice of the peace is elected by the city, he is a city officer, and the legislature can provide his method of election, and fix his term of office. If he is a justice of the peace of a town, he is a town officer, whose method of election and term of •office is fixed by the constitution itself. The provision of the Code of Civil Procedure, above quoted, which states that the municipal court is to be deemed a justice’s court, and each judge thereof deemed a justice of the peace, and the city of Rochester is deemed a town of Monroe county, if it bears the construction, claimed by the respondent, that the city is a town in Monroe county, and its judges are justices of the peace of that town, with the right to send their processes into every other town of the county, the same as the justices in towns outside of Rochester, it is plain that such a construction would be a violation of the articles of the constitution. We should rather construe this section of the Code to mean that, so far as practicable, considering the authority and power vested in the justices of the towns and the judges of the city court, respectively, the proceedings in the city court are to be assimilated to and be governed by the practice and laws affecting the courts of justices of the peace.

The reported cases in this state disclose several attempts on the part of the legislature to confer upon the city courts the jurisdiction contended for by the respondent, but without success.

In Geraty v. Reid, 78 N. Y. 64, where, under section 35 of chapter 125 of the Laws of 1849, it had been provided that the common council of the city of Brooklyn might divide the city into two or more districts, for each of which a justice of the peace should be elected for four years, who should have the same jurisdiction in the city of Brooklyn as justices of towns had in respect to towns for which they had been elected, and should be deemed “Justices of the Peace of the County of Kings.” One of these city justices had issued a *860summons^ which was served upon the defendant in the town of New Lots, outside of the city of Brooklyn. Defendant appeared and pleaded to the jurisdiction. Held, that the "justice had no power to send his process beyond the city limits, and no jurisdiction was-obtained over the defendant; and, further, held, in effect, that the act cited would be unconstitutional, unless the construction was given it that it only referred to the jurisdiction which might be exercised in the city. And Judge Church says, at page 67:

> “The jurisdiction of a local court must be exercised within the locality, and its process cannot be executed outside of it. Whatever power constitutional justices of the peace may possess to send their process into adjoining towns, no local court, created under the clause referred to [the provision of the constitution for the creation of local and inferior courts], could be vested with that power, and we think that the legislature did not intend by -these acts [the act referred to and chapter 102 of the Laws of 1850] to violate the constitution.”

These acts were only held to be constitutional upon the ground that they were deemed operative only within the city limits.

In People v. Terry, 108 N. Y. 1, 14 N. E. 815, there was a provision in the charter of the village of Canton for the election of a justice of the peace of the village which provided that “the said justice of the peace shall have all the powers of justices of the peace elected by towns at town meeting,” etc. Although the principal question in this case was whether the legislature was authorized to provide for the election of a justice of the peace in a village (which the court held could be done), the court also decided that the jurisdiction of the-justice could not extend beyond the village, and that he was not a constitutional justice of the peace, with the same powers as justices-of the peace of the town.

In Waters v. Langdon, 40 Barb. 408, chapter 10 of the Laws of 1859, which provided for the election of a police justice by the electors of the village of Whitesborough, and clothed him with the same-jurisdiction as justice of the peace of the town of Whitestown (the town in which said village was located), was held to be unconstitutional, as being in contravention to the constitutional provision which directs that justices of the peace shall be chosen by the electors of the several towns, and shall hold their offices for four years.

In Bocock v. Cochran, 32 Hun, 521, it was held that chapter 260 of the Laws of 1867, incorporating the village of Coxsackie, providing, for the election of a police justice, and conferring upon him, among other powers, “jurisdiction of all criminal cases the same as is now possessed by justices of the peace of towns,” was construed as conferring upon the justice jurisdiction of such criminal acts only as-should be committed within the territorial limits of the village. The court there seemed to concede that a construction which extended the jurisdiction of the justice outside the village would violate the-constitution. To the same effect is Village of Deposit v. Vail, 5. Hun, 310.

In Rockwell v. Raymond (City Ct. Yonkers) 5 N. Y. Supp. 642, a statute had conferred, among other powers, upon the city judge of Yonkers, “the same jurisdiction and powers as a justice of the peace of towns,” and also civil jurisdiction upon the city court where the-*861amount did not exceed §1,000, “provided that one of the parties to the action shall be a resident of the city of Yonkers or a resident of a town in the county of Westchester adjoining said city.” It was held that the clause just cited, creating jurisdiction over a party outside of the city was unconstitutional, and Chief Judge Thayer, of the city court, in a clear, exhaustive opinion, which will well repay 'a perusal upon this subject, cites the authorities bearing upon the question to sustain his conclusion.

In Pierson v. Fries, 3 App. Div. 418, 38 N. Y. Supp. 765, in construing chapter 182 of the Laws of 1892, which created the city court of Mt. Vernon, that, among other things, provided that “the summons in an action brought in said court may be served at any place within the county of Westchester but not elsewhere,” the appellate division of the second department held that this provision of the act was unconstitutional, as it exceeded the legislative powers.

In Curtin v. Barton, 139 N. Y. 505, 34 N. E. 1093, the court of appeals held, the same as the general term of the Fourth department, (hat under chapter 342 of the Laws of 1892, establishing a local court of civil jurisdiction in the city of Syracuse, to be called the “Municipal Court” of that city, and which conferred “the same jurisdiction over the persons of defendants as is now possessed by justices' courts of the towns,” is descriptive of the character, rather than the territorial extent, of the jurisdiction, and, taking the whole act together, the intention is manifest to create a court the jurisdiction of which shall be confined to the limits of the city. And, while the question before us was not there expressly decided, we gain the impression, from the whole tenor of the decision, that, had an attempt been made to extend the jurisdiction beyond the limits of the city of Syracuse, it would not have been sustained.

In Re City of Buffalo, 139 N. Y. 422, 34 N. E. 1103, it was held that chapter 557 of the Laws of 1887, authorizing the park commissioners of the city of Buffalo to appraise lands condemned for park purposes located outside of the city limits, belonging to a nonresident of the city, was inoperative and void; and that the provisions of the state constitution, as amended in 1869 (article 6, § 12), continuing the superior court of Buffalo and certain other local courts, with powers and jurisdictions they had then severally had, “and such further civil and criminal jurisdiction as may be conferred by law” did not authorize the legislature to confer jurisdiction upon said superior court over the owner of lands situate outside the city limits.

The learned counsel for the respondent, however, claims that Geraty v. Reid, supra, is not authority in the cases that have arisen since the amendment to the sixth article of the constitution made in 1869, as that case was decided upon the provisions of the constitution of 1846, and, as we understand his argument, now claims that section 18 of article 6 of the constitution as it existed prior to the amendment of 1869, being:

> “All judicial officers oí cities and villages and all such judicial officers as may be created therein by, law shall be elected at such time and in such manner as the legislature may direct.”

*862Whereas, section 19 of article 6, which was created by the amendment of 1869, and which supersedes section 18, above quoted, is as follows:

> “Inferior local courts of civil and criminal jurisdiction may be established by the legislature; and, except as herein otherwise provided, ail judicial officers shall be elected'or appointed at such times and in such manner as the legislature may direct.”

The only change observable is that section 19 of the amended constitution does not confine the judicial officers to cities and villages, and, therefore, it may be claimed that the grant of power in section 19 is broad enough to authorize the legislature to pass the act, the constitutionality of which is here assailed. It is difficult to see how this amendment changes the situation. Section 19 of the amended constitution is dealing with inferior local courts of civil and criminal jurisdiction, which may be established by the legislature'; and the judicial officers therein referred to would seem to refer to the officers of such inferior or local -courts. At least, we are not to assume that this provision was intended to override the provisions of section 18 of article 6 of the constitution, providing for the election of justices of the peace of towns.

In Landers v. Railroad Co., 53 N. Y. 450, it was held that the provisions of the judiciary article of the state constitution, as amended in 1869 (article 6, § 12), continuing the superior court of the city of New York, the court of common pleas of the city and county of New York, the superior court of Buffalo, and the city court of Brooklyn, with the powers and jurisdiction they then had “and such further civil and criminal jurisdiction as may be conferred by law,” does not authorize the legislature to change the character of these courts by divesting them of their locality, and extending their jurisdiction to persons and matters the subjects of actions in other parts of the state outside of the locality wherein such courts are established; and that, when the constitution speaks of “further civil and criminal jurisdiction,” it has respect to the object of the jurisdiction, not' to the territory or the persons of suitors, and by said article the courts therein mentioned were continued with the same territorial and personal jurisdiction, with power to the legislature to enlarge their jurisdiction over subjects and matters civil and criminal in their nature, and in the proper subjects of civil and criminal prosecution; that, when jurisdiction is spoken of, it had not respect to the residence of the plaintiff, but the subject-matter and cause of action, and the person of the defendant. The jurisdiction of these local .courts is limited to causes of action arising within the territorial limits of the - tribunal, or to cases in which the party proceeded against resides in or is served with process within the jurisdiction.

This case is cited as indicative of the view of the court of appeals in restricting the jurisdiction of local courts within the territory within which they are created, and not permitting them to extend their jurisdiction beyond their territorial limits, and as a construction by that high court of the extent of the power granted to the local courts of “further civil and criminal jurisdiction.”

In addition to the cases cited as sustaining tie views here an*863nounced, the following may be considered: Anderson v. Reilly, 66 N. Y. 189; Sill v. Village of Corning, 15 N. Y. 297; Hoag v. Lamont, 60 N. Y. 96; Wheelock v. Lee, 74 N. Y. 495; Brandon v. Avery, 22 N. Y. 469; People v. Porter, 90 N. Y. 68.

The importance of the subject under consideration would seem to justify the somewhat extended examination of the authorities which we have made. We reach, with reluctance, the conclusion that that portion of the act of the legislature in question that attempts to give the municipal court of Rochester jurisdiction outside of the limits of the city is unconstitutional and void. The scheme of the constitution as to the courts of this state and their jurisdiction is clear. The court of impeachment, the court of appeals, the supreme court, the county courts, and the surrogates’ courts have well-defined duties. The local and inferior courts take their places with defined and limited jurisdiction. None of these local courts are intended to trench upon or overthrow the jurisdiction of any of the superior courts, and, while jurisdiction in some courts is concurrent, it is not conflicting, but it proceeds on harmonious lines. The attempt here is to give a local city court the prerogative of the justice of the peace of the town, without complying with the constitutional prerequisites by which a town justice of the peace can be created, and by creating confusion by forcing the jurisdiction of a local court outside of the locality from which its existence springs. Judge Andrews, in People v. Porter, supra, well says (at page 76):

> “The constitution seems carefully to guard the autonomy of the several divisions in ail matters of local government, and to avoid as far as practicable any confusion or division of powers, or any obliteration of their local independence and control in all matters of local government.”

While, as we have said, the exact letter of the constitutional law does not condemn this legislation, it is contrary to the spirit and purpose of the constitution, and, if sustained, may be destructive of it. The conclusion we have reached does not destroy the existence of the municipal court of Rochester, or disturb its jurisdiction in that city. It only lops off the unconstitutional branch of chapter 561 of the Laws of 1890 which extends the jurisdiction of the municipal court outside of the limits of the city of Rochester. In so doing, simple justice will be done to all concerned. The city of Rochester will not be burdened with litigation that belongs to the towns of Monroe county, nor will such towns be deprived of their appropriate and natural jurisdiction, and conflicts of jurisdiction between the several courts will be avoided.

The order of the county court should be reversed, with $10 costs, and the disbursements of this appeal. All concur.