resident to this state do not break the continuity of his absence under the section of the Code, so as to entitle him to the benefit of the statute. The difference between the status of an absent resident and that of a nonresident and the ability of a creditor to pursue them is marked. The former, owing allegiance to the state, and subject to its laws, can be reached by its process, even though it be not personally served upon him (Hunt v. Hunt, 72 N. Y. 217, 28 Am. Rep. 129), while the state has no power to render a personal judgment against a nonresident unless he be served with process within the state; and by the Code (section 1217) no judgment of any kind can be entered against a nonresident served by publication unless the plaintiff has succeeded in attaching property.

The order of the appellate division granting a new trial to the defendant Charles K. Wead should be affirmed, and judgment absolute rendered for that defendant, under the plaintiff's stipulation, with costs. The judgments of the appellate division and of the trial term in favor of the defendant Leslie C. Wead should be reversed, and a new trial granted; costs to abide the event.

In re ALLISON, Commissioner of Jurors. (Court of Appeals of New York. Nov. 18, 1902.)

COMMISSIONER OF JURORS-CONSTITUTIONAL LAW-ABOLITION OF CITY OFFICE -LOCAL GOVERNMENT.

1. Laws 1901, c. 602, provides for a commissioner of jurors in each county having a population of 1,000,000 or more, to be appointed by the justices of the appellate division of the supreme court in the department in which such county is situated, and repeals prior statutes providing for a commissioner of jurors in the city of New York. Held, not a violation of Const. art. 10, § 2, providing that all city, town, and village officers whose election or appointment is not provided for by the constitution shall be elected by the electors of the cities, towns, and villages, or appointed by the authorities thereof, as the legislature should designate, and that all other officers whose election is not provided for by the constitution shall be elected by the people, or appointed, as the legislature may direct.

2. Laws 1901, c. 602, providing for the appointment of a commissioner of jurors in each county of the state, is a valid exercise of legislative powers, because it abolishes the office of commissioner of jurors in the city of New York, which office, not having been provided for by the constitution, the legislature had the power to abolish; and, so far as the county of New York is concerned, creates a new office for the county of New York, the functions of which are to be exercised in such county, and expenses and compensation therefor are a county charge.

3. The discretion of the legislature in the distribution of powers of local government as between the city of New York and the county

government is absolute when not restrained or excluded by some constitutional provision. Parker, C. J., and O'Brien and Cullen, JJ., dissenting.

Appeal from supreme court, appellate division, Third department.

In the matter of the application of Thomas Allison, commissioner of jurors in the county of New York, to compel Charles Welde, now in possession, to deliver the books and papers belonging to such office to the petitioner. From an order of the appellate division (76 N. Y. Supp. 1008) affirming an order of the special term denying the application, the petitioner appeals. Revers

ed.

Albert B. Boardman, for appellant. Robert H. Elder, for respondent.

HAIGHT, J. On the 10th day of April, 1902, Thomas Allison, the appellant, was appointed commissioner of jurors for the county of New York by the justices of the appellate division of the department in which that county is located. He thereupon qualified by taking the oath of office required by the constitution, and then demanded of Charles Welde, who was in possession of the books and papers belonging or pertaining to the office, the possession thereof, which demand was refused upon the ground that chapter 602 of the Laws of 1901, under which Allison had been appointed, was unconstitutional, and therefore void. The statute in question became a law on the 27th day of April, 1901. It provided that there should be a commissioner of jurors in each county of the state having a population of 1,000,000 or more, according to the last federal census, who shall be appointed by the justices of the appellate division of the supreme court in the department in which the county is situated, or by a majority of them. The act also contains specific provisions defining the power and duties of the commissioner, and then concludes by repealing all special or general laws inconsistent with the provisions of the act. The office of commissioner of jurors in the city of New York was first created by Laws 1847, c. 495. Under the provisions of that act, supervisors of the city, justices of the superior court, and the justices of the court of common pleas of the county were required to appoint the commissioner, whose powers and duties were specified by the other provisions of the act. In 1873, by chapter 335, § 25, entitled "An act to reorganize the local government of the city of New York," it was provided that the mayor shall nominate, and by and with the consent of the board of aldermen appoint, the commissioner of jurors. Subsequently the consent of the board of aldermen was dispensed with, and the power to appoint the commissioner was vested in the mayor alone (Laws 1884, c. 43), and this power of appointment by the mayor was continued in

section 118 of the Greater New York charter, under which Welde was appointed commissioner and claims the right to hold the books and papers pertaining to the office.

It is claimed on the part of the respondent that the revised charter of 1873, giving the appointment of the commissioner of jurors to the mayor, with the approval of the board of aldermen, constituted the office a city office, and that it has remained such ever since; that the act of 1901 did not change the character, scope, or functions of the office, and that it did not abolish it, and that it is in conflict with the provisions of article 10, § 2, of the constitution, which, it is claimed, has preserved to the city and other localities of the state local self-government, and the control of all the official functions of which they were possessed when the constitution went into effect; that the only way this control can be taken away is by abolishing the office, etc. The provision of the constitution referred to by the respondent, which will be necessary to consider upon this review, is as follows: "All city, town and village officers, whose election or appointment is not provided for by this constitution, shall be elected by the electors of such cities, towns and villages, or of some division thereof, or appointed by such authorities thereof, as the legislature shall designate for that purpose. All other officers, whose election or appointment is not provided for by this constitution, and all officers, whose offices may hereafter be created by law, shall be elected by the people, or appointed, as the legislature may direct." The office of the commissioner of jurors is not a constitutional office, and the constitution contains no provision with reference to the election or appointment of this officer. The office, therefore, if made a city office, must be filled by an election by the electors of the city, or appointed by some authority thereof, unless it is an office created after the adoption of the constitution, in which case it must be filled by election or by appointment in such manner "as the legislature may direct." The legislature, however, may abolish a city office as unnecessary, unless it is a constitutional office; and, even if some of the functions of the office are necessary for the welfare of the municipality, these functions may be devolved upon other city officers. The object and purpose of the provision of the constitution is to secure to the civil divisions of the state the right of local self-government, and the courts will not permit an evasion of this constitutional right by a change in the name of the office, or a division of the duties thereof under different names, or by the appointment of the officer in a different manner than that authorized by the constitution. People v. Albertson, 55 N. Y. 50.

Returning to a consideration of the provision of the act of 1901, we find that it is a general act applying to all of the counties in the state having a population of 1,000,000 at the last federal census. It therefore applied to

the county of New York. The power and duties of the commissioner, when appointed, are limited to the county. He is required to make up a list of persons to serve as jurors in the courts of the county, and these jurors are selected from the residents of the county. His salary and expenses are made a county charge instead of a city charge, and then, as we have seen, the act concludes by repealing all special and general laws inconsistent therewith. Confessedly, the prior existing acts with reference to the commissioner of jurors in the city of New York are in conflict with the provisions of this act, and, if it is not violative of the provisions of the constitution, these acts by its provisions stand repealed, and the office of commissioner of jurors of the city of New York is abolished. But it is said that the functions of the office remain substantially the same. The answer to this contention is that prior to the adoption of this statute there was no such office for the county of New York. It is true that at one time there was such an office in the city of New York, and at that time the city covered the same territory as that of the county. But that time has passed. The city now embraces the whole of three counties and a portion of two others. Each of the other counties included in the city has the selection of its jurors provided for under other statutes and by other means. The mayor of the city is elected by the electors thereof. The people of the other counties and localities embraced within the city have a voice in his selection. They, therefore, through that officer whom they select, take part in the appointment of the commissioner of jurors for this county. In this way the electors of this county are compelled to submit to the choice made by others residing in other counties, and have their office of commissioner of jurors filled by others than themselves. This is not local self-government. In the county of Kings there is another statute for the selection of jurors, under which there is a commissioner of jurors, a deputy, clerks, a stenographer, and messenger. The salaries and expenses are made a county charge. The people of that county are taxed and have to pay these expenses, and should they also be taxed to pay the expenses of the jury system in the county of New York for the reason that the commissioner of jurors in that county is a city officer? Is this just to the people of the county of Kings? In the counties of Richmond, Queens, and Westchester other jury systems are in force for which the people of those counties have to pay. Should the people of those counties, who reside within the limits of the city, be also required to pay for the jury system in the county of New York? Is this just to these people, and has the legislature no power to provide a remedy? Such, in effect, is the contention of the respondent. The functions of the office of a jury commissioner cannot well be dispensed with, and he contends

that there can be no change made without abrogating the functions of the office.

The situation here presented has recently been condemned by this court in the case of People v. Dooley, 171 N. Y. 74, 84, 63 N. E. 815. In that case the legislature had authorized the electors of the county of Kings to elect their own magistrates. Under the charter of the city of New York they were to be appointed by the mayor. In considering that situation Werner, J., says: "Under the original plan each elector who exercised his right of franchise had an equal part in the selection of all the magistrates, through his vote for the mayor who appointed them. In the present situation the electors of the borough of Brooklyn have the right, in common with the electors of the borough of Manhattan, to vote for the mayor, who appoints the magistrates in the first division; and also to vote, both by district and at large, for the magistrates in their own borough, although the right is denied to the electors of the first division." These views were indorsed by a majority of this court, and every word applies forcibly to the situation we have presented in the case under consideration. The electors of the borough of Brooklyn had the right, in common with the electors of all the other boroughs included in the city, to vote for the mayor, who appoints a jury commissioner in the borough of Manhattan. The electors of all the boroughs, other than Manhattan, also have the right to vote for the officers who select their jurors, thereby denying the right to the electors of Manhattan to choose their own officer for the performance of this function. We think there is a remedy for these evils; that the legislature has the right to distribute the powers of local government, as between the city and county governments, as it may deem best; and that there is no provision of the constitution which limits the power of the legislature in this regard. This, we think, was settled by the decision of this court in the case of People v. Dunlap, 66 N. Y. 162. In that case the same statutes were under consideration, except the last one, which we have in this case. In that case a commissioner of jurors appointed under the provisions of the charter claimed the office from the commissioner appointed under the act of 1847. It was then contended that the office of commissioner, as created by the act of 1847, was a county office, and that the office could not be changed to a city office. In this case it is now contended that it is a city office, and cannot be changed to a county office. Andrews, J., in delivering the opinion of the court, says that the act of 1847 did not constitute the office a county office, but he also shows that it made no difference with the result if it were a county office, for, he says: "Assuming that the commissioner of jurors, as constituted by the act of 1847, was a county officer, the legislature, by acting, lost none of its authority over the sub

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ject. It could thereafter abolish the office, or change its character from a county to a city office, and provide for a different mode of appointment. The whole subject was within the control of the legislature. What the legislature could have done originally, it could do by a subsequent enactment. It is for the legislature to distribute the powers of local government, as between the city and the county governments, as it may deem best, and this discretion, when not restrained or excluded by some provision of the constitution, is absolute, and no such provision applicable to the matter under consideration exists." If the legislature had the power to change the office from a county office to a city office, it would seem to also have the power to change it back again.

There is another consideration which may properly have influenced legislation upon this subject, and that is public policy. Complaints have not been uncommon to the effect that in some localities the jury lists have been made up almost exclusively of persons belonging to one of the great political parties. If there is any branch of the department of the government that ought to be strictly nonpartisan, it is the jurors to whom are committed the determination of the rights of persons to life, liberty, and property. Recognizing this, the legislature in its wisdom has seen fit, by general laws, to provide for the appointment of commissioners of jurors in a number of the counties of the state in which there are large cities, and has given the appointment of such commissioners to the justices of the appellate division of the district in which the county is located, believing that the rights of persons would be safer and more scrupulously guarded by the justices of such courts, who would see to it that impartial jurors were selected, than by any other board or officers to whom the appointment could be committed. The judiciary of the state forms one of the co-ordinate branches of the government. The statutes provide for the holding of the courts in the different counties of the state for the trial of civil and criminal cases that may arise in such localities. The jurors, when drawn, become a part of the court, having governmental duties to discharge. It would seem, therefore, to be good public policy for the state in some measure to retain some control over positions of this character. If these considerations are good public policy in other parts of the state, we see no reason why they should not be in the county of New York. The act of 1901 was passed after the adoption of the constitution of 1894. It creates the office of commissioner of jurors in every county having the required population, which includes the county of New York. It is therefore a new office within the meaning of the provisions of the constitution which we have under consideration, and therefore it may be filled by appointment in such manner "as the legislature may direct.”

Again, in the case of People v. Dunlap, it was distinctly held that the act of 1847 created a new office, and that under the constitution it could be filled in such manner as the legislature should direct. It is contended, however, that although it was a new office at that time, and so continued down until 1894, by the adoption of the new constitution of that year it became an old office, and could not thereafter be filled "as the legislature may direct." But the provisions of article 10, § 2, of the constitution of 1894 are copied word for word from article 10, § 2, of the constitution of 1846. Section 32 of the statutory construction law provides that "the provisions of a law repealing a prior law, which are substantial re-enactments of provisions of the prior law, shall be construed as a continuation of such provisions of such prior law, and not as new enactments." It is true this provision by its terms has reference to the construction of statutes. The constitution is a higher law adopted by the people, and the legislature may have no power to repeal, amend, or construe its provisions. The power to construe the constitution devolves upon the courts, and the courts in construing its provisions are not controlled by any act of the legislature. But the provisions of this act are but declaratory of the rule previously laid down by the courts in numerous cases. Ely v. Holton, 15 N. Y. 595; In re Prime, 136 N. Y. 347-353, 32 N. E. 1091, 18 L. R. A. 713; Laude v. Railroad Co., 33 Wis. 640; Gilkey v. Cook, 60 Wis. 133, 18 N. W. 639; Blackwood v. Van Vleit, 30 Mich. 118.

The same rule applies to the construction of constitutions. Cooley, in his work on Constitutional Limitations, at page 76 (6th Ed.), says: "Where a constitution is revised or amended, the new provisions come into operation at the same moment that those they take the place of cease to be of force; and if the new instrument re-enacts in the same words provisions which it supersedes, it is a reasonable presumption that the purpose was not to change the law in those particulars, but to continue it in uninterrupted operation. This is the rule in the case of statutes, and it sometimes becomes important, where rights had accrued before the revision or amendment took place. Its application to the case of an amended or revised constitution would seem to be unquestionable." If this were not so, many of the new offices created under the constitution of 1846 in the different localities of the state would, upon the adoption of the constitution of 1894, become inconsistent with its provisions herein referred to; for by its provisions it continued in force existing laws, only, which were not inconsistent with its provisions. See, also, Black, Interp. Laws, p. 32, and authorities cited thereunder. It follows, therefore, that the constitution of 1846 having been continued by the constitution of 1894 in hæc verba, so far as these provisions are concerned, it is deemed to be a continuation of the provision from the time of its

first enactment in 1846; and the offices that were new thereunder still continue to be new offices, which may be filled "as the legislature may direct." The creation of the office of the commissioner of jurors in the city of New York, being a new office under the constitution of 1816, still continues such, and may be filled "as the legislature may direct." In re Brenner, 170 N. Y. 185, 63 N. E. 133, a very different question was presented. That case was unique, and was so considered by the court at the time the decision was rendered. O'Brien, J., who delivered the opinion, says, with reference to it: "It may be that the conditions in the county of Kings with respect to this office when the constitution took effect were exceptional, in that the office had been made a county office by statute many years before, and hence the views here expressed apply only to such a case as is presented by this record."

It follows that the provisions of the act of 1901, so far as the county of New York is concerned, are not in conflict with the provisions of the constitution.

The order of the appellate division and special term should be reversed, and the motion granted, with costs in all the courts.

PARKER, C. J. (dissenting). The third appellate division unanimously affirmed an order of special term denying an application of Thomas Allison, as commissioner of jurors in the county of New York, for an order compelling the delivery to him of the books and papers appertaining to such office, and now in the possession of Charles Welde. The ground for the decision was that chapter 602 of the Laws of 1901, in so far as it attempts to confer upon the justices of the appellate division of the supreme court in the first department power to appoint a commissioner of jurors in and for the county of New York, offends against section 2 of article 10 of the constitution, and is therefore void. This decision seems to be justified by the language of the constitution, and it is certainly required by the decision of this court in Re Brenner, 170 N. Y. 185, 63 N. E. 133, which affirmed the position unanimously taken by the same appellate division. The Brenner Case considered the same statuteone of a series of enactments upon our statute books-made general in form in order to avoid offending against a very different constitutional provision than that now before us, but in substance and spirit special, and entitled "An act to provide for the appointment of a commissioner of jurors and to provide for a special jury in civil and criminal actions in each county of the state having a population of one million or more, according to the last preceding federal census." Chapter 602, Laws 1901. In effect, therefore, the act provided for commissioners of jurors for the counties of New York and Kings. The justices of the appellate division of the first department appointed this relator for the

county of New York, while those of the second appellate division appointed Jacob Brenner for the county of Kings. The question relating to Brenner's appointment came first to this court, where it was decided that the office of commissioner of jurors in the county of Kings was, at the time the constitution of 1894 went into effect, a county office, and that chapter 602 of the Laws of 1901 transferred the power of appointment from the local authorities to the justices of the appellate division of the supreme court in the second judicial department, which is a state authority, and so that act violated section 2 of article 10 of the constitution, which in terms restricts the power of the legislature to appoint to existing local offices, or to provide for appointment thereto by central or state authority.

The only differences between the Brenner Case and this one are that in the Brenner Case the appointment was made by the justices of the appellate division in the second department, while in this case it was made by the justices of that court in the first department, and in the Brenner Case the office of commissioner of jurors in the county of Kings at the time chapter 602 of the laws of 1901 went into effect was a county office, while in New York it was a city office in name, the county and city territorially being the same. Therefore chapter 602 attempted to continue in the county of Kings a county office as such, but in New York to continue an office by law termed a "city office" as a county office,-certainly not a change of substance, but a change in name only. The statement already made, that the decision in the Brenner Case required the decision made by the appellate division in this one, needs no other support than the brief analysis I have made of the so-called distinguishing features.

It

I should omit further discussion, inasmuch as the Brenner Case carefully consider's every proposition involved, were it not that a suggestion has been made which perhaps should not be allowed to pass unnoticed. is said this court may hold that a new office has been created, and, therefore, the legislature has power to provide not only the method of appointment, but to provide that it may be made by other than local authority. Stated in other words, the position is that, while there was a commissioner of jurors exercising the functions of that office, within the territory of New York, and the act under consideration provides for the exercise of similar functions within the same territory, nevertheless it may and should be called, by courts charged with the responsibility of preventing violations of the constitution, a new office. If such a decision were possible, it would open a very convenient avenue for defeating the will of the people as expressed in the constitutional provision under consideration; but this court closed the door against any scheme looking toward the un

dermining of this constitutional provision, and depriving it of the power of accomplishing the result intended, in Devoy v. City of New York, 36 N. Y. 449. To that and to the cases following it reference will be made.

In Devoy's Case the question decided was whether the clause in the act of the 15th of April, 1857, transferring to the metropolitan police board the power to appoint clerks to the police courts of New York, was unconstitutional and void, that power having been long prior to the act vested in the mayor and board of aldermen. The clause was held to be unconstitutional, this court saying: "Our views on this subject were expressed with great clearness by Judge Davies, who delivered the opinion of the court in the case of 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 and 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 lawmaking 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."

In People v. Raymond, 37 N. Y. 428, it was held not to be competent for the legislature to create a new office, and vest the power of appointment in the governor and senate, when the duties were the same as those of a former county officer made elective by the constitution. The decision is in point as to the question now being considered, and a portion of the argument contained in the opinion, written by Judge Grover, in which all of his associates concurred, can with propriety be referred to in connection with the discussion of the suggestion that a new office has been created. Judge Grover said: "The plain intention of the section of the constitution in question was to preserve to localities the control of the official functions of which they were then possessed, and this control was carefully preserved, consistent with the power of the legislature to make needful changes, by restricting the power of appointment of other officers to perform the same functions, to the people, or some authority of the locality. Any other construction would render the section in question, when applied to the cities of the state, substantially nugatory." Here we have the key to the real meaning of this provision of the constitution, which is, that the functions of local officers are to remain within the control of the local authorities. The constitution did not aim at such a useless thing