Opinion
August, 1910.
John B. Merrill, for motion.
Archibald R. Watson, Corporation Counsel (James D. Bell and Sanders Shanks, of counsel), opposed.
The relator is now upon the eligible list for court attendant in Queens borough. He seeks a writ of mandamus to the municipal civil service commission as to its lists of persons eligible to be certified for appointment as court attendants under the new act in relation to the inferior criminal courts in the city of New York. Laws of 1910, chap. 659.
At present civil service regulation IX, subdivision 5, provides: "Candidates for the position of court clerk, stenographer or attendant in the City Magistrates' Court, or in the Municipal Court, must be residents of the borough or other prescribed geographical division in which the court in which they are to be appointed is situated."
The former Magistrates' Courts were under chapter XX, title 3, sections 1390-1404, of the city charter. While the Legislature attempted to unite the Court of Special Sessions, it did not do so with the Magistrates' Court. Indeed, the appeals therefrom are so diverse that a complete consolidation could hardly be made. In the case of city magistrates in the county of New York the appeal lies to the Court of General Sessions, but in Brooklyn, Queens and Richmond the appeal lies to the County Courts. The city magistrates have been in two divisions, the first embracing the boroughs of Manhattan and The Bronx, the second including the boroughs of Brooklyn, Queens and Richmond. City Charter, § 1390.
The new act emphasizes this separation. They are referred to as the City Magistrates' Courts, and are organized into two distinct judicial divisions. Each has its chief magistrate, who must be a resident of the division in which he is appointed. § 51. Each division makes its own rules, which shall be uniform as far as practicable in all courts of the division. § 59. The jurisdiction of the night courts and of the domestic relations courts "shall be coterminous with that of the division or borough in which the same are held." § 70. A magistrate's court has jurisdiction only of infractions committed within the county in which it is located.
Under the city charter any city magistrate could hold court for another in case of illness or inability to sit (§ 1403), but the new law does not provide for the transfer of a magistrate out of one division into another. The magistrates in the first division have no voice or concern in the affairs of the second division or in the personnel of its court attendants. Separate and independent action by each board is provided for as to appointment of court attendants (§ 56) and in the power of removal. § 103. On September first the uniformed police are not to act as attendants or court officers, as such services are to be performed by court attendants appointed by the boards of city magistrates. § 109.
The charter heretofore provided that clerks and other officers and employees appointed by a board of city magistrates, or by any magistrate, shall be residents of the city of New York and of the divisions in which they were appointed, and, in the second division, they shall each be a resident of the borough from which they are appointed. § 1394.
The new act has no such restriction, and section 1394 of the charter is included in the repealing clauses of the new act.
The municipal civil service commission on July nineteenth was advised by the acting corporation counsel that "In view of the fact that there is no provision in the new act requiring court attendants, court stenographers, interpreters and assistant court clerks of the Magistrates' Court to be residents of any particular subdivision of the city, and in view of the repeal of section 1394 of the revised charter, I advise you that these employees should be appointed from the 'general list.'
"From the provision of the act before quoted, that the certificates issued by the chief city magistrate upon the appointment of a chief or other clerk of the Magistrates' Courts shall state 'the division from which' the appointment is made, an inference might be drawn that the appointee must be a resident of the division for which he is appointed. However, I do not think the inference sufficiently strong to warrant advising you that assistant court clerks must be appointed from the division list. The courts are open to any one who may feel aggrieved by your failure to give him the benefit of such a doubtful right.
"In giving you the advice that I have I am not unmindful of the provision of your regulations contained in regulation IX, which states that:
"'5. Candidates for the position of court clerk, stenographer or attendant in the City Magistrates' Court or in the Municipal Court must be residents of the borough or other prescribed geographical division in which the court in which they are to be appointed is situated.'
"I assume, however, that this regulation was based upon the provision, as far as it relates to the Magistrates' Courts, contained in section 1394 of the Greater New York Charter, and that there will, in consequence of the repeal of said section, be no further necessity for such a provision in relation to such courts."
The relator, on August ninth, demanded of the commission that, instead of certifying for appointments as advised by the corporation counsel from the general list, they be certified according to the divisions, namely, for the first division, embracing the boroughs of Manhattan and The Bronx, those residing in said boroughs only; and for the second division, embracing the boroughs of Brooklyn, Queens and Richmond, only those residing in said last named boroughs.
Such a principle is recognized in the Civil Service Law. Appointments to the State service outside of Albany are as far as practicable to be made from residents of the judicial district including such locality. § 14. Even in the case of unskilled laborers in cities, separate registration lists may be made for each district or locality. § 18. But in the city of New York such separate lists are to be according to boroughs, which are not to be subdivided (People ex rel. Melledy v. Shea, 73 A.D. 232), and a bridge tender on the Manhattan list cannot be certified for appointment in The Bronx. People ex rel. Coyne v. Shea, 73 A.D. 239.
The requirement that local offices shall be filled by residents of the locality is as old as the Revised Statutes. Section 3 of the Public officers Law declares: "No person shall be capable of holding a civil office who shall not at the time he shall be chosen thereto be of full age, a citizen of the United States, a resident of the State, and, if it be a local office, a resident of the political subdivision or municipal corporation of the State for which he shall be chosen, or within which the electors electing him reside, or within which his official functions are required to be exercised."
This is felt so essential to a proper discharge of public duties that the courts have emphasized residence by the stronger meaning of domicile, so that anything less than actual domicile on the part of the incumbent leads to an ouster from the office. People v. Platt, 117 N.Y. 159. There are here continued two independent geographical divisions of the new Magistrates' Courts. Each division for administration of criminal law cannot be an entire municipality, but a division based on county and borough boundaries.
If the attendants to be appointed by the separate boards of city magistrates are public officers, it follows they must be resident within the respective divisions in which their official functions are required to be exercised. Their position is an adjunct to the court, an office created by law in which the incumbent, for the dignity of the court, must necessarily be regarded as a public officer judicially appointed. In the same view, a Supreme Court crier has been held to be a public officer whose salary could not be reduced by the board of estimate. Ricketts v. Mayor, 67 How. Pr. 320. In Rowland v. Mayor, 83 N.Y. 372, 376, the salary of a court attendant had been raised while in office; the city declined to recognize the advance because as a public officer his salary could not be increased during his incumbency. This position was sustained, the Court of Appeals saying that a court attendant "is to perform such duties as are by it required to be performed, * * * duties are in aid of the proper business of the court, * * * to be present at its sittings, to execute its commands, secure due order in its proceedings, * * * and all are as necessary as the duties intrusted to its clerks or crier. * * * He owes in like manner a duty to it, and his employment is one in which the public are interested; its proper exercise requires capacity, diligence and attendance." Hence, notwithstanding the repeal of charter section 1394, the relator and the court attendants to be appointed are subject to the provisions of section 3 of the Public Officers Law, and must be residents of the respective divisons in which they are to serve.
The contrary view leads to practical difficulties in the case where a large number of appointments are to be made, as will be necessary about September first. If the two divisions in their distinct boards are to appoint, necessarily each set of division appointments must be made from a list of eligibles. If, however, a single general list with the same names is submitted in duplicate to each board, that board cannot appoint with certainty an attendant therefrom without risk that such name may have already been selected by the other board. Such appointments, if attempted in this way, would require a priority to be assumed by one board or some joint conference in appointing, neither of which is according to the purpose of the new statute. Such results cannot be imposed on the magistrates merely by implications from the repeal of section 1394 of the City Charter.
The long established practice of the municipal civil service commission in preparing separate lists leads to no such difficulty, is clearly in accordance with the general law and the rights of those to be appointed, and is to be followed until a contrary purpose is clearly evinced by the Legislature.
The relator is, therefore, entitled to a writ commanding the municipal civil service commission to certify for the position of court attendant to the board of city magistrates of the first division only such persons eligible therefor as reside within the boroughs of Manhattan and The Bronx, and to the board of city magistrates of the second division only such persons eligible therefor as reside within the boroughs of Brooklyn, Queens and Richmond.
Ordered accordingly.