(1886) 102 N. Y. 430, 7 N. E. 360, says of § 16 that "in the case of elective officers the necessity for the existence of some continuous authority to fill vacancies temporarily, in order that the performance of their duties may not be too seriously interrupted, and the inconvenience and inadequacy of any system by which such power could be exercised by the people through the medium of popular elections except at regular periods, led to the adoption of that clause of the Constitution which delegated to the legislature power to make provision for such cases."

Under an act creating the office of special county judge, with such compensation as might be allowed by the board of supervisors, it was held that such a special county judge, acting as surrogate without proof of the authority required by § 2487 of the Code of Civil Procedure, was not entitled to compensation as provided by

2493, but only to such compensation as might be allowed by the board of supervisors. Re Tyler (1891) 60 Hun, 566, 15 N. Y. Supp. 366.

What are "special cases" under this section was considered in People v. Main (1859) 20 N. Y. 434, and it was there said-quoting previous decisions in Kundolf v. Thalheimer (1855) 12 N. Y. 593, and Doubleday v. Heath (1857) 16 N. Y. 80-that "the qualifying word 'special' is considered as having been used in opposition to ordinary or common, and as denoting some legal proceeding other than a regular action at law or in equity;" and that taking bail out of court is within this definition. "It is an act aside from the general jurisdiction of criminal courts, and has always been authorized to be done by magistrates other than the judges of the court in which the offenders were to be tried." The court sustained an act authorizing a special county judge to perform the same duties out of court that might have been performed by a county judge.

§ 17. [Justices of the peace.]-The electors of the several towns shall, at their annual town meetings, or at such other time and in such manner as the legislature may direct, elect justices of the peace, whose term of office shall be four years. In case of an election to fill a vacancy occurring before the expiration of a full term, they shall hold for the residue of the unexpired term. Their number and classification may be regulated by law. Justices of the peace and judges or justices of inferior courts not of rec

ord, and their clerks, may be removed for cause, after due notice and an opportunity of being heard, by such courts as are or may be prescribed by law. Justices of the peace and district court justices may be elected in the different cities of this state in such manner, and with such powers, and for such terms, respectively, as are or shall be prescribed by law; all other judicial officers in cities, whose election or appointment is not otherwise provided for in this article, shall be chosen by the electors of such cities, or appointed by some local authorities thereof.

[Const. 1777, art. 24; 1821, art. 4, § 7; Am. 1826; Const. 1846, art. 6, § 7; Jud. Art. 1869, § 18.]

Justices of the peace in towns.-A justice of the peace is defined by the court of appeals in People ex rel. Burby v. Howland (1898) 155 N. Y. 270, 41 L. R. A. 838, 49 N. E. 775, as "a constitutional judge, elected by the people for a fixed term, protected from removal except by a judicial tribunal, on notice and for cause, with civil jurisdiction in most actions where the sum claimed does not exceed $200, and with criminal jurisdiction to apprehend and commit for all crimes, and to try and convict in cases of misdemeanor." The provision in the act of 1896, chap. 22, limiting criminal jurisdiction of justices of the peace in the town of Fort Edward, and prohibiting them from receiving any fees for services in such cases, was an unconstitutional restriction on the powers conferred and duties imposed on these officers. "Any legislation that hampers judicial action or interferes with the discharge of judicial functions is in conflict with the principles of the Constitution. Whenever a judge, however humble, is authorized by law to hold a criminal court established by the Constitution, and to require executive officers to serve his warrants and enforce his judgments, the legislature cannot leave him the power to act, and withdraw from him the power of compelling obedience to his lawful mandates, without affecting his independence and depriving him of the essential powers of a judge.” The Fort Edward act received a similar construction in People ex rel. Ryan v. Washington County (1898) 155 N. Y. 295, 49 N. E. 779, with special reference to a deputy sheriff's right to fees.

The same principle was asserted in People ex rel. Holmes v.

Lane (1900) 53 App. Div. 531, 65 N. Y. Supp. 1004, where it is said that the "office of justice of the peace is a constitutional one, and the legislature possesses no power to abridge the scope of that functionary or, by indirection, to supplant him by another officer." A police justice elected under the act of 1899, chap. 34, creating this office in the town of Sweden, could not be vested with exclusive jurisdiction as against justices of the peace.

The legislature may enlarge or restrict the territorial jurisdiction of justices of the peace; their jurisdiction rests in legislative discretion, and is subject to legislative control. By the erection of a new county out of parts of other counties the jurisdiction of justices is necessarily restricted, but the office cannot be abolished nor the term abridged; they are entitled to continue in office for the term for which they were chosen. Ex parte M'Collum (1823) 1 Cow. 550. The same principle was declared in Garey v. People (1827) 9 Cow. 640, and it was there held that the constitutional term of office of a justice of the peace could not be affected by the transfer of a town from one county to another, or the erection of a new county.

The jurisdiction of a justice of the peace depends upon the general statutes of the state. He has jurisdiction to pass upon every question involved in the action, including the validity of the law under which the action was brought. "The judgment, so long as it remained unreversed, was for every purpose as conclusive between the parties and upon every question necessarily embraced in the judgment as would have been that of the highest court of record in the state." Such a judgment cannot be ignored by the defendant therein, and he cannot maintain an independent action for damages caused by the judgment, even if the act under which the judgment is rendered may be deemed unconstitutional. The defendant must seek relief by an appeal, instead of by another action. Hallock v. Dominy (1877) 69 N. Y. 238.

A person elected to the office of justice of the peace to fill a vacancy enters upon the duties of the office at once, and the person previously appointed to fill the same vacancy can hold only until such election. People v. Keeler (1858) 17 N. Y. 370.

In Re Eliott (1886) 6 N. Y. S. R. 8, the court sustained the act of 1875, chap. 166, authorizing the town board to make an appointment to fill a vacancy in the office of a justice of the peace, and providing that the appointee should hold during the residue of the term if it expired at the end of the calendar year in which the ap

pointment was made, even if a town meeting might be held in the meantime.

Justices of the peace must be elected at a town meeting, and the legislature cannot provide for their election at any other time. People ex rel. Smith v. Schiellein (1884) 95 N. Y. 124.

The prohibition against abolishing the office of justice of the peace in towns does not affect the power of the legislature to create cities. Such officers are the incidents only of the political existence of towns." The town as an independent organization may be destroyed and its territory merged in the city, and justices of the peace do not continue in office after the town has ceased to exist. Gertum v. Kings County (1888) 109 N. Y. 170, 16 N. E. 328.

"The office of justice of the peace is a constitutional one and stands on a different basis from inferior local courts. . . . The general rule is that the territorial limits of a justice's jurisdiction are coextensive with the limits of the county in which he resides. The ordinary process issued by him in a civil case may be served at any place within his county." Beach v. Baker (1898) 25 App. Div. 9, 48 N. Y. Supp. 1042.

A justice's court has jurisdiction of an action against the postmaster for the conversion of a newspaper. It is an ordinary action of trover, and the Federal courts have no exclusive jurisdiction. Teal v. Felton (1851) 12 How. 284, 13 L. ed. 990, affirming (1848) I N. Y. 537, 49 Am. Dec. 352.

Justices of the peace in cities.-The legislature may fix the times and places for the election of justices of the peace in cities, but it cannot extend the term of office of an incumbent. People ex rel. Fowler v. Bull (1871) 46 N. Y. 57, 7 Am. Rep. 302.

Police justices in New York are not included in the terms "justices of the peace in cities" and "district court justices," used in this section, and the legislature may constitutionally provide that such police justices may be appointed instead of elected, as required by the Constitution in the case of the other officers named. Wenzler v. People (1874) 58 N. Y. 516. See People ex rel. Joyce v. Guden (1902) 75 N. Y. Supp. 347; People v. Morgan (1874) 5 Daly, 161, affirmed in (1874) 58 N. Y. 679; Coulter v. Murray (1873) 15 Abb. Pr. N. S. 129.

Justices of the peace in Rochester, chosen under the act of 1861, chap. 143, are not justices of the peace within the meaning of this section. The office may therefore be abolished by the legislature. People ex rel. White v. Rochester (1877) 11 Hun, 241.

The municipal court of Rochester is not a court of general jurisdiction, but of local and inferior jurisdiction, and limited to the territory embraced within the locality for which the court is constituted; the legislature could not give it jurisdiction outside the city. The two classes of justices mentioned in § 17, namely, justices in towns and justices in cities, cannot be blended. Ziegler v. Corwin (1896) 12 App. Div. 60, 42 N. Y. Supp. 855. But in Armstrong v. Kennedy (1898) 23 Misc. 47, 51 N. Y. Supp. 509, and in Desmond v. Crane (1899) 39 App. Div. 190, 57 N. Y. Supp. 266, it was held that the legislature had power to confer on a justice of the peace elected in the city of Auburn the jurisdiction in civil actions possessed by justices of the peace in towns, although the city court had within the city exclusive jurisdiction as against such justices. Section 17 expressly confers on the legislature discretion as to the powers which may be vested in justices of the peace in cities.

The provision in the revised charter of Lockport (1886, chap. 120), giving city justices of the peace the same jurisdiction as town justices, was unconstitutional. The legislature may create "courts of justices of the peace in cities, with jurisdiction coincident with the county." Gould v. Mahaney (1899) 39 App. Div. 426, 57 N. Y. Supp. 363. The same rule was declared in Ostrander v. People (1883) 29 Hun, 513, as to justices elected in the city of Rome.

Recorders and city judges in cities are not provided for in the Constitution, and therefore their terms of office are within the control of the legislature. People ex rel. Stupp v. Kent (1903) 83 App. Div. 554, 82 N. Y. Supp. 172.

Uniformity in method of selection.-The provision in this section that "all other judicial officers in cities, whose election or appointment is not otherwise provided for in this article, shall be chosen by the electors of such cities, or appointed by some local authorities thereof," was construed in People v. Dooley (1902) 171 N. Y. 74, 63 N. E. 815, and it was there held that the method of selection must be uniform throughout the city, that an election by the people could not be authorized in one part of the city, and an appointment by the mayor in another part. "All public officers must be elected by constituencies coextensive with their jurisdiction, unless express provision is made to the contrary, as in the instance of justices of the supreme court." The New York charter amendments of 1901, providing for the election of city magistrates in one part of the city, and their appointment in other parts, was unconstitutional.

§ 18. [Inferior local courts.]-Inferior local courts of