Ex parte M'Collum

Savage, Ch. J. A motion is made, that a mandamus issue, to, Alexander R. Tiffany, commanding him to issue an execution qn a judgment rendered by him as a Justice of the Peace of-the county of Wayne, in favour of the relator, against Anthony, Souls. Notice having been served on the Justice, and the defendant, Souls, the former shewed for cause, that he had been advised, that the act erecting the county of Wayne, so far as the same authorized part of the former Justices of the county of Ontario to act qs Justices of the county of Wayp,e, is unconstitutional and void, and that he will be liable in an action, at the suit of any person, against whom he may issue an execution. The only question for the consideration of the C ourt, is the constitutionality of so much of the act erecting the county of Wayne, as provides for the continuance in office of the Justices residing in those towns taken from Ontario, and Seneca, now constituting the county of Wayne.. I approach this question with all that respect which, is due to a co-ordinate branch of the government -, and before the Court will deem it their duty to declare an act of the legislature unconstitutional, a case must be presented in which there can be no rational doubt. Under the old constitution, Justices of the Peace were appointed to office by the council pf appointment; and held their offices during the pleasure of the council. Their number was unlimited, and their residence not confined to any particular town, until the passing of the “ act tp limit the number of Judges of the Courts of Common Pleas and Justices of the Peace in the several counties of this state,” &c. passed March 27, 1818. (Sess. 41, ch. 60.) By that act the number of Justices is limited to four in. each town. By the amended constitution, (article 4, section 7,) the powr er of appointing these officers is given to the Supervisors and the Judges of the county courts, in their respective counties, and in case of their disagreement, to the Governor—thetimq when they are to be appointed tp be fixed by law ; and they are to appoint so many as shall be equal to the number of Justices to be appointed in the several towns—recognizing the principle, that a certain number must be appointed in each [565] town. The same section declares, that each person appointed a Justice of the Peace, shall hold his office for four years, unless removed in the manner particularly specified. By the 3d section of an act regulating the time and manner pf electing general state officers, Justices of the Peace, &c. passed April 12,1822, the time appointed for choosing Justices of the Peace is the 3d Tuesday of February, 1823, and afterwards, the 1st Tuesday of October, in pvery year. By virtue of the constitution and laws referred to, the defendant was duly appointed a Justice of the Peace, for the town of Palmyra, in the county of Ontario, on the 3d Tuesday of February, 1823. By “ an act to erect a new county from parts of the ,counties of Ontario and Seneca, by the name pf Wayne, and for other purposes,” passed April 11, 1823, the towns pf Wolcott and Galen, in Seneca county, and the towns of Lyons, Sodus, Williamson, Ontario, Palmyra and Macedón, and part, of Phelps, in Ontario county, were erected into a new county by the name of Wayne ; and by the 2d proviso to the third section, it is provided, “ that every person who shall have been appointed a Justice of the Peace in and for the counties of Ontario and Seneca, in the manner prescribed by the 7th section of the 4th article of the .constitution of this state, and who shall now reside within the said county of Wayne, shall, by virtue of this act, be and remain a Justice of the Peace, in and for the county of Wayne, for the same term and with the same powers and .authority in the town in which he shall reside, within the county of Wayne, "as he would have had in the counties of Ontario and Seneca, if . this act had not been passed.” It was contended on the argument, 1. That Justices are County officers; and 2. That their jurisdiction is and must be confined to the county for which they are appointed. Justices are undoubtedly county officers for some purposes ; but their jurisdiction may be limited or enlarged by the legislature. The constitution, (article 1st, section 7,) expressly recognizes the power of the legislature to erect new counties. Tiffany, and all the magistrates in the bounties pf Ontario and Seneca, had been duly appointed [566] to office; and on the llth of April, 1823, when the county of Wayne was erected, they were in possession of their offices, and not liable to be removed within four years from jjje info 0f February, preceding, except in the mode pointed out by the constitution. Had the legislature enacted that those offices should be vacated, they would have assumed a power given by the co’nstitution, under certain circumstances, to a different tribunal. Had they been silent on the subject of removal, and enacted that the Judges and Supervisors should have made a new appointment, then if different persons were designated, the county of Wayne would have had eight persons in each town, claiming to hold the office of Justice of the Peace, when four only are authorized by law. Had the county of Wayne been erected entirely from part of Ontario, leaving out the towns of Galen and Wolcott, the act would have been constitutional, provided the population were sufficient. What, in such a case, would have been the jurisdiction of the Justices of Ontario county ? Could they have sent their process into Wayne county ? Certainly not. Could those Justices, residing ia Wayne, send their process into Ontario ? That is not pretended. But if is said, that they are still Justices of Ontario ; and by remo, ving into that county, they may there exercise their offices, Should they do so, they would act in violation cf the law, limiting the number to four in each town ; and whether their proceedings would be valid or coram non judice, it is not necessary now to decide. It is sufficient for the present argument, (and this is conceded) that a removal would be necessary. That concession admits the power of the legislature to limit the territorial jurisdiction of a Justice of the Peace, which is all that is contended for in sup-, port of the act. Had the legislature simply taken the towns of Galen and Wolcott from Seneca, and given them to' Ontario, the Justices of Ontario would gain, and the Justices of Seneca would lose jurisdiction in those towns ; and the Justices in those towns must of necessity become officers of the. county to which they are annexed. This must be the case,, [567] or the legislature must have power by altering the bounds of counties, incidentally, to remove the Justices from office—a power, which, if attempted to be exercised directly, would be a plain act of usurpation. The right of the legislature to extend or limit the jurisdiction of Justices, as to the amount cognizable before them, has never been disputed. Their power to limit or extend their territorial jurisdiction, is, to my mind, equally clear. Should the legislature enact that Justices should have power to send their process into any county in the state, or to hear and try causes to any amount, no part of the constitution would be violated. Though such an act might be thought indiscreet, yet it would be the duty of the Court to carry it into effect. In some of our sister states, Justices have general jurisdiction ; and even with us, they have jurisdiction throughout the state for some purposes. For instance, the removal of paupers, and the apprehension of criminals, and of the putative father of a bastard child, under certain qualifications. The result is, that the jurisdiction of Justices of the Peace rests in legislative discretion, and is subject to legislative control. By the erection of a new county from parts of Ontario and Seneca, the Justices of those counties are limited in their jurisdiction. The Justices in the new county can no longer exercise their offices in counties in which they do not reside. They are, however, entitled to hold their offices for four years, having been regularly appointed for the towns in which they reside. They must, therefore, necessarily be Justices within the new county. The act does not create the offices, nor appoint the officers, but merely defines the limits within which they are to act. This the legislature had power to do. The right of the people to choose their officers in the mode directed by the constitution, is not at all abridged. That right has been exercised ; and the persons chosen continue in office. I am therefore of opinion, that a mandamus should issue according to the application. Buie accordingly.