[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 318 The power of the recorder of Troy to appoint the plaintiff receiver of Randall James, a judgment debtor, has been defended on the ground that in entertaining jurisdiction of proceedings supplementary to execution that officer exercised merely the functions which, prior to the constitution of 1846, belonged to a justice of the Supreme Court at chambers, or to a Supreme Court commissioner. On the other side the power in question is denied, in the first place, on the ground that the constitution has perpetually abolished the office of Supreme Court commissioner, and that the functions which belonged to it cannot, any of them, be bestowed on officers of the class to which the recorder belongs. The attempt so to bestow them, it is urged, is an attempt to restore, in substance, an office which has been forever abolished by an authority above that of the legislature.
The constitution (Art. 14, § 8), abolished nearly all the preëxisting judicial offices in the state, and among them that of Supreme Court commissioner, "from and after the 1st Monday of July, 1847." It must be admitted therefore that this office can no longer exist in this state; but the abrogation of the office did not annihilate the powers and duties which pertained to it. Those powers and duties were left to be bestowed by the legislature upon other classes of officers brought into existence, or suffered to exist, by the constitution. The office itself cannot be restored nor can a new one like it be instituted, although under a different name; but the office and the functions which belonged to it are each capable of a separate consideration. The office as the convention thought, could be spared. The function is absolutely indispensable in every government where law is administered. So too the offices of chancellor, vice chancellor and master in chancery were abolished. But the indiscriminate zeal for reform which swept away those institutions also, unable it would seem to distinguish between institutions in themselves of the highest excellence and their *Page 320 accidental inconveniences, did not occasion the lapse of the principles and powers known and administered in the system of equity jurisprudence. These are so interwoven in the very frame work of civilization as to be exempt from the danger of destruction until the ignorance of so called reformers and the public credulity, which gives them their powers for mischief, shall carry society back to its original barbarism.
It is the office then, of Supreme Court commissioner, which is abolished; but the various powers which appertained to it not being lapsed, the true inquiry is whether those powers are so distributed, by other arrangements of the constitution, to and amongst other officers as to take from the legislature the authority to bestow them on the recorder of Troy. In the absence of constitutional restraints the power of the legislature to distribute them amongst any or all of the various officers composing the judicial force of the state, does not admit of a doubt. The judges of the mayor's court of Troy are a part of that judicial force. Does then the constitution expressly or by any clear implication, say that these judges cannot take the jurisdiction in question by a legislative grant? There certainly is no such express declaration, nor do I see any ground for such an implication. The constitution, it is true, provides for thirty-two judges of the Supreme Court, arranged in districts; for a county judge in each of the counties, and for local officers in counties having a certain population. But the same constitution provides also for local courts in cities, and it declares moreover (Art. 14, § 12), that all the preëxisting local courts of cities and villages, including by special enumeration those in the city of New-York, "shall remain, until otherwise directed by the legislature, with their present powers and jurisdiction." The Mayor's Court in Troy is one of those preëxisting courts, and the mayor and recorder are its judges.
Now, the theory of the constitution undoubtedly was, that the judicial forces, thus provided for, were sufficiently *Page 321 numerous and sufficiently spread throughout the state to discharge the particular functions which belonged to the office of Supreme Court commissioner, and hence that office was dispensed with; but in regard to the distribution of those functions amongst the judicial officers of the state we shall look in vain for any restraint upon the power of the legislature. To the Supreme Court the constitution has given general jurisdiction in law and equity, and the judges as such undoubtedly take, or may take by legislative enactment, all the special powers formerly exercised by justices of the Supreme Court at chambers and by Supreme Court commissioners. So certain appellate powers are given to the County Court, and that "court" in one clause and the "county judge" in another are made capable of taking from the legislature original jurisdiction in special cases at law and in equity. The provision is similar in regard to local officers in the larger counties which may become entitled to such an officer. These are the only arrangements of the constitution which bear upon the present question, and I do not see in them the slightest ground for an inference that the legislature cannot in its discretion bestow powers of the class of which we are speaking upon the judges of courts in cities. Upon the jurisdiction of those courts and upon the powers of the judges authorized to hold them, the constitution itself imposes no limit except such as the term "local" may imply. But as the constitution provides for such courts they must have, of course, a jurisdiction subject to the control of the legislature.
Great reliance has been placed upon the clause which declares the county court shall have jurisdiction "in special cases as the legislature may prescribe;" but the words which follow are, "but shall have no original civil jurisdiction except in such special cases." Every one acquainted with the history of this provision knows that it was intended as a restriction rather than a grant; the question in the convention being whether the County Court should or should *Page 322 not be a court of general jurisdiction, like its predecessor the "Common Pleas." There is no foundation, therefore, for the argument that, according to the maxim "expressio unius," c., other tribunals established or provided for by the constitution cannot take such a jurisdiction as the words "special cases" were intended to designate, whatever may be the true interpretation of those words. And there is another answer to the argument founded on this provision. The special cases mentioned are given to the jurisdiction of the County Court, and cannot be said to include all, if any, of those proceedings which were carried on outside of courts before a judge at chambers or a Supreme Court commissioner.
If therefore the rule expressio unius excludes the jurisdiction of the judge of a city court in such proceedings, a still more direct application of the same rule will exclude the judge of the County Court also. But neither are excluded Those outside and summary powers, I repeat, are left at large by the constitution and subject to the control of the legislature; the limit of that control being that the office of Supreme Court commissioner cannot be directly or indirectly restored. A contrary conclusion might lead to the gravest consequences. If the constitution stands in the way in regard to the recorder of Troy, the same difficulty exists in regard to the judges of the Superior Court and Court of Common Pleas of the city of New-York, and all the other local courts in the state. This would lead doubtless to the subversion of many titles, acquired under proceedings before the judges of those courts.
It has also been argued, in the next place, that the proceedings supplementary to execution are, in their substance and nature, a case in equity calling for the exercise of the very powers which formerly were vested exclusively in the Court of Chancery. These proceedings, it is said, perform essentially the office of a judgment creditor's bill; that being the only remedy which, at the adoption of the constitution, the creditor had for reaching the equitable property of his *Page 323 debtor on the return of execution unsatisfied. Setting aside the mere forms of procedure and looking at the substance of things, it is certainly somewhat difficult to distinguish between the former judgment creditor's bill, with its incidents of discovery, injunction, receivership, c., and the various proceedings which the statute (Code of 1852, § 292, c.) has authorized to be taken supplementary to execution. But if we concede that such proceedings do constitute a case of jurisdiction in equity, according to distinctions existing before the constitution and recognized by that instrument, then the question next arises whether the legislature can confer a jurisdiction of that kind upon the local courts in cities, including the Mayor's Court of Troy. Upon this question I do not entertain any doubt.
It has already been observed that when the constitution abolished the offices of chancellor, c., the equity system and the various powers incident to it were not lost. It is moreover clear that in the constitution must be found the only restraint upon the authority of the legislature in distributing those powers amongst the judicial bodies created or recognized by that instrument. The question then is, can the Mayor's Court of Troy, by a legislative act, share in the distribution? and this is a question which affects not only that court but the local tribunals in all the cities of the state. Some of these tribunals are of the highest importance, and a large portion of their jurisdiction is equitable, according to former distinctions. Among these may be mentioned the Superior Court of the City of New-York. (Code of Procedure, tit. 5; Laws of 1847, 641, § 21.)
The argument on this subject is understood to be, that the jurisdiction in question is excluded by the provisions of the constitution giving equity jurisdiction to the Supreme Court and authorizing the legislature to confer it upon the county judge in "special cases." Now in regard to the Supreme Court the constitutional grant is of "general jurisdiction in law and equity." It is plain therefore, that if this definition *Page 324 of the powers of that court is to be taken as excluding other tribunals from the possibility of sharing in one branch of its jurisdiction, the same definition will exclude them from the other branch also; and thus we shall have a variety of courts established or recognized by the constitution without any jurisdiction, or even the capacity of receiving any from the legislature. This is so absurd, and yet so necessary a result of the construction contended for, that such a construction must be at once abandoned. For similar reasons the construction claimed for the provision relating to the county judge cannot be maintained. By one clause of the constitution, the "county court" is to have jurisdiction in "special cases as the legislature may prescribe," and by another clause in the same section, "the legislature may confer equity jurisdiction in special cases upon the county judge. The first clause would I presume include all that is given in the other. At all events it authorizes the legislature to confer jurisdiction in special cases not of an equitable character, in other words cases at law. If therefore jurisdiction in equity is impliedly forbidden by these clauses, or either of them, to local courts in cities, why is not legal jurisdiction also forbidden? The argument I am considering amounts precisely to the proposition, that the express provision of the constitution concerning equity jurisdiction excludes the possibility of other provisions being made by the legislature. But the argument will not stop at that point, nor at any point short of imposing the same restraint upon the legislative power in regard to legal jurisdiction also. This would make the constitution somewhat more absurd than any one has hitherto supposed it to be. If we are to adopt such theories of construction what is to be done with the local courts in cities? They are provided for in the same constitution along with the Supreme and the County Courts, and their jurisdiction is undefined. They are not courts without the possibility of having powers and functions as such. The legislature therefore must have *Page 325 authority to confer on them a jurisdiction. If they can receive it in respect to causes of legal cognizance, then why not in respect to those of equitable cognizance also?
It is not difficult to account for the clauses of the constitution relating to the Supreme and County Courts, without imputing to them a meaning which restrains the power of the legislature in giving jurisdiction to other tribunals. The old Supreme Court and Court of Chancery were abolished by abolishing the offices to which their jurisdictions were attached. The further design was to establish a new court as a substitute for both, and with their combined law and equity powers. That design was precisely accomplished by the language used: "There shall be a Supreme Court having general jurisdiction in law and equity," and I know not in what more appropriate terms the result could have been attained. Then as to the County Court: The office of "judge of the existing County Court in each county" was also abolished. The former Court of Common Pleas or County Court had no equitable jurisdiction. In providing for its successor, it was thought wise to allow such a jurisdiction in "special cases;" the general policy of the constitution being to blend the jurisdictions at law and equity in the same tribunals. But as the old county court possessed no equitable powers it was proper, if not indispensable, to mention them in providing for the new one. If the specification had not been made it would have been left at least open to question and doubt whether a jurisdiction hitherto unknown to that court was intended. These being obvious and sufficient reasons why the clauses referred to were framed as they are, all other inferences must be quite too feeble and attenuated to have any influence in opposition to the power of the legislature otherwise unquestionable.
In this case the only difficulty which leaves the conclusion in doubt is of a character not yet mentioned. The jurisdiction in proceedings supplementary to execution is given by the act of 1849 (p. 165), in terms, to the recorder of *Page 326 Troy and not to the "Mayor's Court" of that city. The mayor is authorized to act only in case of the "absence or inability" of the recorder. By the charter of Troy passed in 1816, the mayor, recorder and aldermen, or the mayor and recorder jointly, or either of them singly, with or without the aldermen, were authorized to hold a "Court of Common Pleas" in and for that city, called "the Mayor's Court." This was the court in existence at the adoption of the constitution in 1846. Now, the aldermen are not named in the act of 1849, nor is the mayor, except in a certain contingency, and therefore they do not share in the jurisdiction which that statute confers. In what capacity, then, is it given to the recorder? If it is conferred on him as holding the Mayor's Court, then, although the proceedings in question be deemed to constitute a case in equity, the power, as we have already seen, is constitutionally bestowed. If not so given, then the further question arises, whether equity jurisdiction can be conferred on the recorder of Troy as a local magistrate to be exercised when not sitting as the Mayor's Court.
These difficulties, we think, are not insurmountable. As a question of power, the Mayor's Court may be abolished altogether, or its jurisdiction may be regulated at the pleasure of the legislature; and I see no reason to doubt that the whole or any particular part of its jurisdiction may be given to the recorder, as one of its judges, to the exclusion of the others. The organization of courts, the changes in such organization, and the regulation of their powers are as clearly the appropriate subjects of legislation as any other can be; and we find in the constitution no restraints whatever in respect to courts of the class we are now considering. (Art. 14, § 12.) As a question upon the effect of a legislative act, the distinction between giving a particular power to the Mayor's Court by name, and giving it to the judge authorized to hold the court without any associate, is hardly appreciable. The act of 1849 confers the power now in *Page 327 question on the recorder, and only contingently on the mayor; but by the constitution of the court the recorder can hold it alone. It certainly is not a constitutional principle that a new function may not be added without associating the mayor and aldermen in the discharge of that function; and if the nature of that function be such that it appertains to the court, and not to the magistrate out of court, then the legislature should be deemed to have bestowed it accordingly.
But if we grant that the statute of 1849, in conferring certain judicial powers upon the recorder of Troy, regards him simply as a local magistrate in that city and intends that he is to exercise those powers outside of the court of which he is a judge, then what are the consequences? It will be for those who assert the invalidity of the statute to find some constitutional prohibition on which the assertion is based. I can find no such prohibition.
I might properly have noticed, in another connection, the theory that the constitution has created a complete judicial system. Nothing can be a greater mistake than this theory. The more we examine and apply reasonable rules of interpretation, without preconceived notions, the more clearly, I am persuaded, we shall find this to be the result: that the constitution has provided for the judicial forces of the state, so that new forces cannot be added outside of those provisions, and that with this limitation there is very little restraint upon the authority of the legislature in the distribution of the powers and functions which belong to our system of jurisprudence.
The judgment of the Supreme Court must be reversed and judgment must be rendered against the defendants on the demurrer to the complaint, with leave to answer in the usual terms.
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