The opinion
Cullen, J./
While concurring in the'" opinion - of Judge Werner, I think the legislation in review before us conflicts
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with the Constitution in another respect than that passed upon by him, in that the statute of 1901 (Chap. 466) provides for the election of city magistrates in the borough of Brooklyn by congressional districts, while section 17, article 6 of the Constitution requires that all judicial officers in cities, other than justices of the peace and district judges, shall be elected by the electors of the city or appointed by some local authorities thereof. A perusal of this section shows a marked change in the phraseology used with reference to three classes of officers.
First: “
The electors of the several towns shall ” elect justices of the peace.
Second:
Justices of the peace and district court justices “ may be elected * * * in such manner "x" * * as are or shall be prescribed by law.”
Thi/rd:
Other judicial officers in cities “ shall be chosen by the electors of such cities, or appointed by some local authorities thereof.” There is no provision in terms as to who shall elect justices of the peace and district court justices in cities, while it is expressly directed that justices of the peace shall be elected by the electors of the town, and judicial officers in cities other than justices of the peace and district court justices shall be elected by the electors of the cities in case the offices are filled by election. “ The electors ” of the state or of any of its political divisions means all the electors. The Constitution provides that the members of this court shall be chosen by the “ electors of the state,” justices of the Supreme Court by the
“
electors of the several existing judicial districts” and county judges and surrogates by “ the electors of their respective counties.” Ho one would seriously assert that the legislature could authorize judges of the Court of Appeals to be chosen by districts, justices of the Supreme Court by counties in the judicial districts, or county judges and surrogates by towns. In fact, even if the Constitution had failed to prescribe in terms that the officers named should be elected by the electors of the state, judicial district or county (it does not so prescribe as to the governor and the lieutenant-governor), I should be much inclined to the belief that the principle underlies our form of gov
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emment that 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 case of a legislative body or board of a municipality whose members are chosen by districts is no exception to the rule, for it is only in their aggregate character that such members constitute a municipal authority.
(Rathbone
v.
Wirth,
150 N. Y. 459 .) The Constitution itself recognizes this principle, for when it transferred judges of the various Superior City Courts to the Supreme Court it prescribed that they should hold court only in the counties by the electors of which they had been originally chosen to office.
But we are not without authority on the interpretation of this very section of the Constitution. In
Brandon
v.
Avery
( 22 N. Y. 469 ) the validity of a statute authorizing the election of a police justice in the town of Ilion, who “ in said village” should possess all the jurisdiction, power and authority of a justice of the peace of the town of German Flats, was challenged. The statute was upheld on the ground that it was intended to confine the jurisdiction and power of the justice exclusively to the limits of the village. Judge Com-stock there said: “It is urged that the charter of the village of Ilion attempts to create an additional justice of the peace for the town of German Flats, to be chosen by only a portion of the electors of that town. If this were true, the statute would, doubtless, be unconstitutional. (Const, art. VI, § II.)” In
Waters
v.
Langdon
( 40 Barb. 408 ) the statute provided that a police justice elected in the village of Whitesboro should have the same power and jurisdiction as justices of the peace in the town of Whitestown without the qualification “ in said village ” found in the
Bra/ndon
case. It was held that the effect of this statute was to authorize a part of the electors of- the town of Whitestown to choose an additional justice of the peace of such town, and that, therefore, it was unconstitutional and void. This case is cited with approval in
Geraty
v.
Reid
( 78 N. Y. 64 ). If “ the electors ” of a
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town means all the electors of the town, it is difficult to see why the term
“
the electors ” of a city does not mean exactly the same thing.
I do not say that police justices might not legally be chosen by districts in a city. The Constitution authorizes justices of the peace and district court justices in cities to be elected in such manner as may be prescribed by law. At the time of the enactment of this constitutional provision (1869) these officers, in the then cities of Hew York and Brooklyn, were elected by districts. Their courts were local in their character. They were held in the districts, and in many respects their jurisdiction was confined to such districts. In what district it was necessary to bring a suit depended in some measure, at least, on the residence of the parties with reference to the district. My recollection is that the jurisdiction of the district courts in the city of Hew York was exclusively civil, but not so with justices of the peace in Brooklyn, who could and did act as criminal magistrates. The Constitution does not prescribe what the jurisdiction of these justices must be. I think that the legislature might create in cities district criminal courts as well as district civil courts, with justices to be elected by the electors of the districts. But in such case the courts must be really district courts; that is to say, courts held for the districts, and the jurisdiction of whose magistrates is in some way limited to, or at least connected with, the districts, of which there is not a trace in the present case. If this view be correct, we are not troubled with any fear that our decision may obliterate the City Court of Hew York. The judges of that court are elected by the voters of the old city of Hew York, the present borough of Manhattan. But the jurisdiction of the court is confined to that borough, and the election of its judges in the present manner can well be upheld on the ground that it is a district court within the Constitution.