People Ex Rel. Hogan v. . Flynn

Rapallo, J. These cases depend upon the construction of the following clause contained in section 1 of chapter 438 of the laws of 1872: “ There shall be a clerk and an assistant clerk in each of the District Courts of said city, who shall be appointed by the justices of said courts; they shall hold office, perform the same duties, and possess the same powers as now prescribed by law.” At the time of the passage of this act, the term of office of the clerks of those courts was prescribed by law, but there was no such officer as assistant clerk; and the question now presented is, whether or not it was the intention of the act to provide that the existing provisions of law relating to the terms of office, powers and duties of the clerks of these courts should be applied to the assistant clerks. We cannot escape the conclusion that such was the intention of the act. It declares that “ they,” i. e., the clerk and assistant clerk, shall hold office, etc., as now prescribed by law. Although the legislature, in authorizing the appointment of an additional clerk for each of the District Courts, designated such additional clerk as assistant clerk, still he was to be a clerk of the court, and the provisions of law applicable to clerks of those courts could with propriety be applied to him. In substance, the provision is, that there shall be two clerks of each of said courts instead of one, and they shall hold office, etc., as now prescribed by law. The existing law provided that the clerks of those courts should hold their offices for the same period as the justices. (Laws of 1851, chap. 514.) It was not the intention of the legislature to apply this provision to the additional or assistant clerks authorized to be appointed by the act of 1872. Effect cannot be given to the language that “ they ” (the clerk and assistant clerk), shall hold office, etc., as now prescribed by law. Neither would the assistant clerk have *378 any powers, duties or salary. We think the intention is evident to apply to both of them the existing laws relative to the tenure of office, powers and duties of clerks of those courts. We concur with the General Term in the opinion that the power given by the act of 1872 to the justices of the District Courts to make these appointments is distributive, and is conferred upon the justices of the several districts respectively, and not on all the justices of all the districts collectively. That point is fully established in the opinion of Beady, J., at General Term, in the case of People v. Flynn. It follows that the relator in each case was illegally removed, and 'that the exceptions should have been overruled, and judgment rendered, in his favor on the verdict. All concur. Judgments reversed, and judgments accordingly.