the County Court shall have jurisdiction in cases arising in justices' courts and in special cases as the legislature may prescribe, but shall have no original civil jurisdiction *Page 58 except in such special cases." Another clause in the same section declares that "the legislature may confer equity jurisdiction in special cases upon the county judge." Acting upon these provisions, the legislature has attempted to confer upon the County Courts of this state original civil jurisdiction in various specified or enumerated cases, embracing in the number the foreclosure of a mortgage, the sale of mortgaged premises situated within the county and the collection of any deficiency remaining unpaid after the sale. (Code of 1852, § 30.) The question now is upon the validity of this exercise of legislative power, and our duty is to determine in its favor unless we are plainly required by the language of the constitution to do otherwise. It is believed that the jurisdiction thus conferred upon the County Courts has been exercised in numerous cases. If we determine against it, many titles will doubtless be overthrown, and great mischiefs will be likely to follow from such a decision.

In the mode of interpreting the constitution adopted by those who deny the power which the legislature has thus attempted to exercise, the words "special cases" refer to an inherent, unchangeable distinction between the cases thus designated and all others; a distinction supposed to exist somewhere in the very nature of legal controversies, which, being recognized by the fundamental law, is altogether beyond the reach of the legislative power. It manifestly devolves upon those who place this reading upon the constitution to explain and define in some intelligible manner what are and what are not special cases in their essential nature and according to the distinction referred to. If this cannot be done, then we are bound to inquire whether the words of the constitution do not admit of some other interpretation which will uphold the jurisdiction in question.

In the case of Kundolf v. Thalheimer (2 Kern., 593), this court decided that the legislature could not confer upon the county courts jurisdiction in the action for assault and battery. In the opinion of Chief Judge GARDINER, delivered *Page 59 in that case, the "special cases" of the constitution are supposed to refer to a large class existing when the constitution was adopted, many of which, he observed, would be found in chap. VIII, part 3, of the Revised Statutes, entitled "Of proceedings in special cases." It was sufficient, he added, "that such a class of cases was distinctly recognized in our statutes, and that there was, therefore, a legal subject in esse to which the language of the constitution would apply." Resorting thus to the existing statutes of the state for a definition of special cases, and assuming that the constitution referred to those cases and others of the same kind created by later statutes, he arrived at the conclusion, in which the court concurred, that jurisdiction in common law actions of debt, trespass, c., could not be given to the county court. I believe no other attempt has ever been made to define what are special cases under the interpretation of the constitution which we are now considering.

We have now, since the change in pleadings and practice, no common law actions; and on some future occasion, if the question shall again arise, it may be deemed advisable to inquire whether the constitution necessarily excludes the power of the legislature to confer jurisdiction on those courts over all the causes of action, where the appropriate remedy was by a common law suit at the time the constitution was adopted. In view of the present question, it will be useful now to look at the so-called special cases in the Revised Statutes, to which it is supposed the constitution had a particular reference. Chapter VIII is entitled "Of proceedings in special cases," and is divided into seventeen titles. The first of these titles relates to suits by poor persons; the second to proceedings by and against infants; the third embraces suits by and against executors and administrators; the fourth relates to suits by and against public bodies and the persons representing them, such as supervisors, commissioners of loans, of common schools and highways, overseers of the poor, c., c.; the fifth to actions *Page 60 for penalties, forfeitures, c.; the ninth to the action of ejectment for the non-payment of rent; the twelfth to the action of replevin, and the seventeenth contains a variety of provisions concerning suits and civil proceedings in general. Other titles in the same chapter relate to proceedings peculiar in their nature and form, such as forcible entries and detainers, admeasurement of dower, the draining of swamps, c. In this enumeration of "special cases," therefore, we find no distinction between common law actions and suits or proceedings of a different character. The poor person, on being allowed to prosecute in forma pauperis, would bring his action at common law, or he might file his bill in equity. His suit, so far from being a special case, in any other sense than that of being specially enumerated, or made the subject of some particular provisions of law, might embrace every subject in the whole range of legal and equitable controversies. So in regard to suits by and against infants, executors and administrators, public bodies and the persons representing them. These special cases were cases at common law, as much so as the action of assumpsit on a note; but there was some provision of the statute in relation to each of them, required by the condition, the age, or the representative character of the party. Ejectment and replevin were certainly common law remedies, and of a very ancient date; yet, as we see, they were recognized as special cases at the adoption of the constitution, because upon them also some special provisions of law were engrafted.

It would seem impossible, therefore, to hold that the constitution, in providing for jurisdiction in special cases to be prescribed by the legislature, has excluded all the remedies which were pursued by actions at common law. The reasoning which preceded, I do not say sustained, the decision of the court in the assault and battery case of Kundolf v. Thalheimer, as we have seen, does not justify such a conclusion. Indeed, if such an interpretation be adopted, then we *Page 61 must hold that the constitution limits the jurisdiction to proceedings of a summary and peculiar character, which are not instituted or conducted in any respect according to the course of the common law. If this had been the intention of those who framed and adopted the constitution, I think more appropriate and precise language would have been used. If the design had been to exclude all subjects of controversy which admitted of the usual and customary remedies, and to include those only where the remedy was peculiar and summary, no one could have been at a loss for words in which to express that design. There is and always has been a known distinction between "cases" at law or in equity, and "proceedings" of a special character which do not take the form of an action, but are instituted and carried on in some peculiar and anomalous mode. It must be conceded, I think, that the language of the constitution was not well chosen, if it was intended to mark as the subjects of jurisdiction these proceedings only. We certainly ought to look for far greater clearness and precision in expression, before we overrule the legislative interpretation; an interpretation which, it ought to be observed, was adopted at the very first session after the constitution had been accepted by the people, and which has been continued ever since that time. (Laws of 1847, 328; Codes of 1848, 1849, 1851, 1852.)

It is quite certain, then, according to all the definitions ever attempted of the terms used in the constitution, that the county courts can take jurisdiction of some of the cases or causes of action which were cognizable at common law. If, therefore, all such cases are not excluded, is any one of them, provided the legislature sees fit, by a special enactment, to define the case and confer the jurisdiction? This inquiry I shall not now pursue, because the decision of this court, in the case mentioned, stands directly in the way of such a discussion.

In a more precise view of the present question, the inquiry is, whether any cause of controversy or suit, in respect to *Page 62 which, at the adoption of the constitution, there was a remedy by bill in equity, can now be brought within the jurisdiction of the county courts. Here we shall find still greater difficulties in the way of an interpretation which restricts the power of the legislature. Those who are able to suggest, if they cannot define, the distinction between general and special cases at law, as depending on the inherent quality of the cases themselves, must fail when they attempt to do so in respect to cases in equity. No such distinction ever existed, nor does it now exist. On the contrary, in the sense of the term special, now considered, it qualifies the entire jurisdiction of courts of equity. The system of equity jurisprudence has arisen out of the special and particular exigencies of society. It was devised, it has increased and been matured through many ages, mainly to relieve and mitigate the rigor of the common law, which, through the universality of its principles and the unyielding nature of its forms, failed to do justice in special cases and particular emergencies. The very judgments of courts of law, pronounced upon certain fixed rules of universal application, by which those courts were bound, were relieved against in equity, under the peculiar and extraordinary circumstances of the particular case. The conditions of fact under which such relief would be given, are of great variety, and no attempt to reduce them to uniformity in principle or in statement could be successfully made. Who would hesitate to pronounce such a case "special," when speaking of its nature and quality? Illustrations of cases in equity, special in this sense, according to the most accurate and precise use of language, might be given almost without number. A very obvious one may be found in the bill for specific performance of a contract for the sale and purchase of lands, where the vendee has failed to perform on his part within the time required by his agreement. Equity will still preserve his rights and decree performance in his favor, if he can allege special and peculiar facts which ought to relieve *Page 63 him from the forfeiture, such as continued occupation, valuable improvements, payments of money, acquiescence on the part of the vendor, c. In legal as well as popular phrase, such a case is special, and in its nature it is eminently of that character. What authority, then, have we for saying that the convention which formed and the people who adopted the constitution, in conferring jurisdiction on the county courts, intended to exclude a case exactly described in the very words of the grant?

If we adopt the conclusion that all causes which were cognizable by bill in equity are excluded by the terms of the constitution, then there was no subject to which those terms could be applied, except the peculiar cases where the proceeding was not by bill, but a more summary remedy was provided. These, it will be found, were very few in number; so few, indeed, that they could have been easily enumerated if it had been intended to confine the jurisdiction to cases of this description. Some of these, however, it is well to observe, were quite as difficult and complicated as any other in the whole range of equity jurisdiction. This will be quite evident when we consider that the summary jurisdiction of the Court of Chancery, exercised upon petition merely, embraced corporations, their dissolution in certain cases, the sequestration and distribution of their effects, and the right to restrain, by injunction, the exercise of their powers. In proceedings of this character, rights of the greatest importance are frequently involved, and the questions are often peculiarly complicated and difficult. And yet, according to the construction of the constitution which I am endeavoring to refute, the county court can take jurisdiction of such proceedings, while it cannot of the simplest case of foreclosure. No practice can be found of foreclosing a mortgage upon petition instead of bill, and therefore the legislature is powerless, so the argument runs, to confer the jurisdiction. I do not believe this to be a reasonable interpretation. *Page 64

What, then, are the special cases in equity of which jurisdiction can be given to the county court? To answer this question we must consider not only the fair import of the language used, but also the other judicial arrangements of the constitution, and the terms employed in making those arrangements. In the judiciary article, provision is made for a Supreme Court, with "general jurisdiction in law and equity," and in the same article we find the clauses concerning the county court and the county judge. Now, the words "general" and "special" are manifestly used in senses precisely opposite. The idea represented in one of these terms is the very one designed to be excluded by the use of the other. If, therefore, the special jurisdiction of the county court resides in the nature and quality of the cases in which it is to be exercised, irrespective of legislative enumeration, it follows that the general jurisdiction of the Supreme Court resides in those of an opposite nature and quality. If the word "special" limits the power of the legislature in one direction, the word "general" limits it in another. If the county judge cannot receive jurisdiction in any case where the remedy was by bill in equity, because it is not a special case, the Supreme Court cannot entertain it in a summary proceeding, because this is not a general case. In short, neither one of these tribunals can take any share in the jurisdiction which is given or allowed to the other. We are thus brought to a conclusion which we know to be false. We know that the powers of the Supreme Court are not thus limited, and we must therefore reject the interpretations which lead to such a conclusion.

Why, then, is the jurisdiction of the Supreme Court denominated "general?" Plainly, because no legislative specification of the subjects of that jurisdiction is required. That of the county court is "special" in a sense directly the opposite; that is to say, the cases in which that court may receive its jurisdiction must be specified and defined by the legislature, and hence they are called "special" — the *Page 65 terms "general" and "special" being used to denote the opposite qualities of the two jurisdictions. When we are certain that we have the true meaning of one of them, we cannot be mistaken as to that of the other. If we know that the general nature of the jurisdiction of the Supreme Court has no reference to a distinction in the quality and character of controversies, then we may also be certain that the special jurisdiction of the county court rests on no such distinction. It is special, because it must be specially conferred by legislative act. The cases in which it may be exercised must have a special definition, and nothing can be taken without such definition or contrary to it.

The question before us was, I think, in its substance and nature, involved in the recent decision of this court inDoubleday v. Heath (16 N.Y., 80). That was a suit in one of the county courts for the partition of lands. It was, therefore, a case in equity, according to the distinctions between law and equity existing at the adoption of the constitution. It is true that partition could be had by petition and proceedings of a summary character in the common law courts (2 R.S., 315). But the remedy by bill in equity was as ancient as the time of Queen ELIZABETH. In this state, it was modified by certain statutory provisions, but still the remedy existed and was in frequent use down to the constitution of 1846, and after that time until the Code of Procedure was enacted. Under the Code, the action for partition has now taken its place, modified, as the suit in equity was, by the statutes referred to. In holding, as this court did, that jurisdiction could be given to the county court in a suit for the partition of lands within the county, it was necessarily determined that some matters, which were formerly remediable by bill in chancery, could be brought, by act of the legislature, within that jurisdiction. That point being conceded, where does the power stop? Is it limited by another distinction to be drawn between cases in equity where the remedy by bill has been in some degree *Page 66 modified by statutory regulation, and other cases in which there has been no interference by legislation? Are the cases in one of these classes special, and the other not within the meaning of the constitution? This cannot be the distinction which the constitution or the people had in view. But even if it were, we find that the remedy by suit in equity for the foreclosure of a mortgage had been modified by a variety of statute regulations, some of which were of great importance in the administration of that remedy. (2 R.S., 191.) I see no solid ground, therefore, for distinguishing between the case of partition, already decided by this court, and the one now before us.

For all the reasons suggested I am of opinion that the legislature can confer jurisdiction on the county courts, in suits for the foreclosure of mortgages upon lands within the county, and the sale of mortgaged premises.

The judgment of the Supreme Court should, therefore, be reversed and judgment rendered for the defendant on the demurrer, with leave to go to trial on the issue of fact.

The question raised on this appeal relates to the validity of the act authorizing mortgage foreclosures in the County Courts. Had it not been for the action of the Court of Appeals inKundolf v. Thalheimer (2 Kern., 595), I should have supposed the point admitted of no doubt.

"There shall be a Supreme Court," says the constitution, "having general jurisdiction in law and equity." And then, after providing for the election of a county judge, it declares that "the County Court shall have such jurisdiction in cases arising in justices' courts and in special cases as the legislature may prescribe; but shall have no original civil jurisdiction except in such special cases." Reading these provisions together, they are tantamount, as it seems to me, to saying that the Supreme Court shall be a court of general jurisdiction, in all cases, by force of the constitution itself; whereas the County Court shall have no jurisdiction in any case unless *Page 67 specially given by law, and then only in the special cases which the legislature may enumerate, and in such manner and to such extent as the legislature may prescribe. At the date of the constitution the terms "special cases" or "special proceedings," as technical expressions, were unknown. They had no precise, well defined meaning. It is not to be presumed, therefore, that the convention, in using these terms, especially when inserted in a provision obviously framed merely to control the jurisdiction of inferior courts, meant a limitation on the power of the legislature. But admitting the constitutional provision to be dubious, which certainly is the most that can be contended for, we are then to apply the well settled principle that acts clothed with the forms of law are not to be set aside on dubious grounds. Something is due to the judgment of the legislature, enough at least to decide where judges disagree. The presumption is in favor of the validity of the law. "Plenary power," say the court in The People v. Draper (15 N.Y., 532), "plenary power in the legislature for all purposes of civil government is the rule. A prohibition to exercise a particular power is an exception. In inquiring, therefore, whether a given statute is constitutional, it is for those who question its validity to show that it is forbidden." Express words of course are not indispensable. There must, however, at least be a necessary implication, an implication so prominent and marked in its character as to be readily visible to the ordinary eye and not requiring any microscopic powers for its discovery. Courts are not to be astute in detecting supposed legislative errors or disregard of constitutional restraint. There is no impeachment in the present instance, even if such a suggestion were ever admissible, of the motive of the legislature, no suspicion of attempted evasion. In such a case I should pause long before reversing the deliberate decision of a coördinate department of the government.

The judgment of the court below ought therefore to be overruled. *Page 68

PRATT, J., delivered an opinion to the same effect as that of COMSTOCK, J.; JOHNSON, Ch. J., and DENIO, J., were for reversal, upon the ground that the proceeding for the foreclosure of a mortgage and the sale of the mortgaged premises, under our statutes, is an exceptional and peculiar case, in which the jurisdiction of the county courts is to be upheld for substantially the same reasons assigned in respect to the action for partition of lands in Doubleday v. Heath (16 N.Y., 80); SELDEN, J., expressed no opinion; HARRIS and STRONG, Js., dissented, the former delivering the following opinion:

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