Devoy v. . the Mayor, Etc., of New York

*378 Porter, J. The officer in -whose right the Respondents recovered was appointed by the city authorities. The claims were well .founded, unless the power of the Mayor and Aldermen to make the appointment was divested by the following provision-, in the 20th section of the. Metropolitan Police Act:- “The Board of Police shall appoint all court clerks, prescribed to the judicial districts in which Police Justices are elected in the city and county of Hew York, and it shall designate the courts at which they shall do. duty respectively (2 Laws, of 1857, 211, 12). The .validity.of this .clause of the act.depends upon the question, whether the office of Police Court Clerk, in that city, existed at the time the present constitution was adopted! If it did, the provision is in conflict with the second section in the tenth article of that instrument. The duties of the office in question are strictly local. In respect to the members of the police force proper, there is an extension of jurisdiction beyond the' bounds of the city and county, which makes’ them officers of a new civil division of the State; but we have held that where- there is no such extension of" territorial authority, the office retains its local character, within the meaning of the constitution. Our views on this subject were expressed with great clearness by Judge Davis, who delivered the opinion of the Court in the case of The People v. Pinckney. “ It is manifest that the officer to be appointed, to be within the power reserved to the legislature, must be an officer of the new district division, and not merely local in the scope and performance of his duties and functions; and therein superseding some existing local officer. He must be a district officer, in the sense of his functions and'authority; and not merely in’ Uame, with no powers or duties beyond a previously organized locality ” (32 New York, 382). Our public statutes furnish conclusive evidence that the office of Police Clerk in the city of Hew York is not a new creation of the law-making power. It existed long before the constitution; and there has beeuno substantial change, either in the official title, or in the functions or duties of the incumbent (Laws of 1833,14, § 22; Laws of 1844, 471, § 14; Laws of -1848; 249, §§ 8 and 9 ; Laws *379 of 1851, 958, § 9; Laws of 1852, 471, § 3 ; Laws of 1855, 502, § 1; Laws of 1857, 197, § 1; 2 id. 212, § 20). It follows from the principles settled in our former decisions that the elause in the Act of 1857, transferring the power of appointing Police Court Clerics to the Board created by that act, is in conflict with the constitution, and cannot be upheld (People v. Pinckney, 32 New York, 382, 386; People v. Metropolitan Police Board, 19 id. 195, 199; People v. Draper, 15 New York, 539). The repealing clause in the statute is applicable only to laws inconsistent with its operative provisions. The judgments should bo aflirmed. All the judges concurring except Hunt, J., who was for reversal. Judgment aflirmed. JOEL TIFFANY, State Reporter.