John C. Devoy, Respondent, v. The Mayor and Aldermen of New York, Appellants; Carl Harbeck, Respondent, v. same Appellants

John C. Devoy, Respondent, v. The Mayor and Aldermen of New York, Appellants. Carl Harbeck, Respondent, v. same Appellants. The clause in the act of 1857, transferring to the metropolitan police board, the power of appointing the police court clerks in the- city of New York, is unconstitutional and void. The police court clerks continue to be, as they were before the Constitution was adopted, local officers of the city of New York; and the act in question does not assume to extend the territorial limits of their authority. These cases involve, substantially, the same questions. The appellants sued respectively as assignees of portions of the salary of Edwin Bouton, a clerk in one of the police courts in the city of New York. One of the causes was tried before Judge James in the Supreme Court, and the other before Judge Monell in the Superior Court. The plaintiffs in each recovered, and the judgments were respectively affirmed at General Term. It was proved that Bouton was appointed clerk of the first district police court on the 31st of December, 1857, by a resolution of the mayor and board of aldermen, adopted in pursuance of the authority conferred by chapter 293 of the Laws of 1855; that he took the official oath and filed the usual bond; that he discharged the duties of the office, and demanded from time to time his monthly salary, which the comptroller refused to pay. Other evidence was given bearing on questions presented in the courts below, which it is not material to state, as the only question raised in this court was, as to the effect of the act of April 15,1857, which purported to transfer the power of appointing the police court clerks to the metropolitan board of police. (2 Laws of 1857, 211, 212). The cases are reported in 39 Barb., 169 ; and 10 Bosw., 366. Richard O'Gorman, for the appellants. Felix Hart, for the respondents. [MAJORITY — Porter, J.] 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 aider-men to make the appointment was divested by the following provision in the twentieth 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 of New York; and it shall designate the courts at which they shall' do duty respectively.” (2 Laws of 1857, 212, 213.) The validity of this clause of the act depends on 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 or 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 name, with no' powers or duties beyond a previously organized locality.” (32 N. Y., 382.) Our public statutes furnish conclusive evidence that the office of police clerk, in the city of New York, is not a new creation of the law mailing power. It existed long before the Constitution; and there has been no substantial change, either in the official title, or in the functions and duties of the incumbent. (Laws of 1833, 14, § 22; Laws of 1844, 471, § 14; Laws of 1848, §§ 8, 9; Laws of 1851, 958, § 9; Laws of 1852, 471, § 3; Laws of 1855, 502, § 1; Laws of 1857, 107, § 1; 2 id., 212, § 20.) It follows from the principles settled in our former decisions, that the clause in the act of 1857, transferring the power of appointing the police court clerks to the board created by that act, is in conflict with the Constitution, and cannot be upheld. (People v. Pinckney, 32 N. Y., 382, 386; People v. Metropolitan Police Board, 19 id., 195, 199; People v. Draper, 15 id., 539.) The repealing clause in the statute is applicable only to laws inconsistent with its operative provisions. The judgments should be affirmed. All the judges concurring, except Hunt, J., who was for reversal, Judgments affirmed.