New-York tribune., 1902-03-15
BRENNER MUST GO.
COURT OF APPEALS DECISION IN CASE
OF JURORS COMMISSIONER
Albany, March 1.-THE Court of Appeals to-
day handed down the following decisions:

day handed down the following decisions:
In re Bremen. Commissioner Of Jarors of Kings
ouny appeSi peal % G0nPel The me delivery 10 him of
In re the same; appeal from order staying pro-
In re application Of Melody for writ Of man
damus, respondent vs.. Coer, Controller OF New
costs.
Melody. appellant. VS. Goodrich ct al, justices of
Appellate Division; order affirmed without costs
TO either party.
The effect of these decisions is 10 declare the
law which granted 10 the Appellate Division the
right to appoint the Commissioner of Jurors Of
Kings County unconstitutional. In its opinion
the court holds:
II the Commissioner of Jurors OF the County of
Kings was a county officer at the time OF the adop-
cations If any contained in the statute now under
acter of the Office has not been Changed. but it
sun remains an old office and not a new one.
was at the time the present constitution went into
erect. that is its nature and character now, since
were not changed by the recent statute, nor even
the statute IN question creates any new oflceS ana
II Is admitted that the power to appoint 70 H.
vision of the I'D Department has been conferred
upon State ana not a county authority by the
law Is in conflict with the constitution II the office
sttution Went into effect was a county once.
The learned judges in the court below who have
il was, except the learned judge, at special
term who granted the application. and he dlO not
attempt to give II any distinct classification, but
held that the commissioner aid TO the court
traon tor Of Justice It is OBVIOUS hoWeTer that it
was either county or State office and the fact
mnisteriay in the operation OF the judicial ma MAJ
that Is equally true Of the county clerk and the
sheriff. and no one claims that either her of these
officer so that the connection between the office
and and h e sa no s bearing s On local an aeeT @
be called upon 70 perform in the administration M or
3Rsraeter 3SsFSs 40 aSl eoaPSy ss' ocer e sss .
We are aware that various statutes have been
enacted since the present constitution went into
effect. applicable to other counties Of the state:
With the duties Of Selecting. summonng and draw
Ing jurors oeing dHties anaGf9uS f I0 9nTsG %
These statutes are not necessarily affected by our
With statut5 which provides for the appointment
er G3qn ba Do appeston to other Statutes apS
BILE to counties where there was no SUCH county
there was the, appointing power is stil left with
the ns M o ngs may With GS res6ee t9e to 6
otf1ee when the constitution took enee5 were eX-
ONCE by statute many years before and. hence the
views here expressed apply only TO such a case as
When the petitioner applied TO the court for an
oice by transferring to him the custody and ID pos
sessSn % OF the me rHSSTG d {n9s M was re-
validity OF the statute was necessarily raised.
could not determine the evidentiary value of the
trina 5 4Se cas v s d9 not
made under and pursuant 10 a statute in conflict
with the constitution Such law is simply void
1t confers rights, imposes duties, confers
protection, creates office and in legal CON
temptation is imperative for any purpose as If
Il had never been passed.
to this court four different records and all argued
together They all present the same Question and
the other three are really adjunctS this proceed
ing. and so can be finally disposed of in this de
cision. Our conclusions In regard TO them are:
ID That the final order in this proceeding reversing
the special term, should be affirmed, with costs;
t9 that the order of Justice Gaynor, staying the
proceedings upon the original order of the special
term, was not final order in a special proceeding
and moreover, involved the exercise of discretion.
The order affirming il below is not Renewable in
this court and the appeal from it should he dis
missed without costs 80 the order granting a man.
damuS against the Controller to paw the Incumbent
Of the Office under the old law his salary Was within
the power OF the court at special term and having
been affirmed on appeal, that order OF affirmance
should be affirmed here with costs; 90 Melody the
incumbent under the old law, brought taxpayer's
action against the judges 10 restrain them from
It seems that the preliminary Injunction was dis
solved and the appointment made There was a
demurrer to the complaint on the ground that il
did not state facts sufficient TO Constitute cause
or action, which has been sustained by the courts
below. the ground that the allesatons as to
waste and contemplated illegal action insufi-
clent without passing upon the validity of the
statute We think. without discussing the point,
that the complaint was open to that objection. and
since the purpose of the action is superseded by the
decision in this proceeding and the action itself
no longer involves any substantial question OF fact
or law. We are inclined to concur with the courts
below IN the decision upon the demurrer and so