USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume II > Part 20
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I. That no debt should be hereafter contracted for expend- itures like these, until the law authorizing the loan should have been submitted to the people and expressly approved by them, by their direct votes at the polls, and
2. That no law submitted to the people for their appropria- tions, should contain authority to make loans for but a single work or object of expenditure, and should contain irrepealable provisions for a sinking fund to meet the interest and pay off the principal of the debt within a specified period.
This legislature, elected with reference to these provisions as amendments proposed to the constitution of the State, has expressed its sense, the one house by the constitutional vote of two-thirds, and the other by a majority in their favor, thus reflecting most truly, as I believe, the deliberate sense and wish of a majority of the people of the State, the propositions, however having failed to receive the constitutional vote of two-thirds of the assembly, cannot be submitted to the people, according to the provisions contained in the constitution for its amendment and have therefore failed. This failure, to- gether with that of other amendments similarly proposed and similarly failing, has secured the passage of a law for the call
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of a Convention of the people of the State to amend the constitution."
Believing that the convention would be held, the Governor declared that the resumption of public works and the making of new contracts would embarrass its proceedings. The meas- ure not receiving the requisite vote in either house to pass it over his veto, was defeated.
CHAPTER XXX. CONSTITUTIONAL HISTORY. The Convention of 1846.
The first Constitutional Convention ever assembled in this State which really deserved to be called a People's Convention was that of 1846. The deputies, or delegates, in the Conven- tion of 1777 represented mainly the proprietors of great estates and their tenants. The delegates to the Convention of 1821 were chosen by the same class, or at least by owners of real or personal property. The delegates to the Convention of 1846 were elected on the basis of almost universal suffrage. The truly popular origin of the convention may serve to explain its apotheosis of the notion that all power emanates from the people. The cardinal distinction between this convention and all its predecessors is that its work seems chiefly to be a re- vesting in the people of the State of delegated power. It is re- markable less in regard to the power which it bestows than that which it resumes. The Constitution of 1777, like all the early State Constitutions, gave the Legislature undue predominance. The Constitution of 1821 took away from the Legislature a large share of the appointing power and vested it partially in the Governor and partially in the Senate and Assembly. It also gave the Governor the right to veto bills passed by the two houses of the Legislature. But each of these constitu- tions left the area of legislation unrestricted. The chief inno- vation of the Constitution of 1846 was in limiting the sphere of legislation. It accomplished this result in two modes: In the first place, it deprived the Legislature of power to incur debts or to undertake costly schemes of public improvement with- out direct popular consent, and forbade it loaning the credit of the State to private capital. In the second place, it removed all fetters from industry and commerce by prohibiting the
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granting of special franchises or privileges, and by requiring that all corporations other than municipal should be created under general laws. The restraints which the Constitution of 1846 placed upon the legislative branch of the State govern- ment are the most valuable service performed by the conven- tion. Articles VII and VIII of the Constitution of 1846 em- body these provisions. These articles form a new bill of rights, no less important than any which the Third Estate ever wrested from monarch or nobility. They assert the suprem- acy of the people over the Legislature, of the principal over the agent, and add a needed bulwark against the tyranny of a temporary majority-one of the greatest dangers incident to a republican government. We are prone to think that the Con- stitution of 1846 is chiefly memorable because it made judicial and State officers elective ; but by far its greatest contribution to the political development of the Commonwealth is to be found in the limitations with which it surrounded the legisla- tive department. These provisions have not checked the com- mercial or industrial progress of the State nor rendered its supremacy uncertain, but they have saved it from such gigan- tic indebtedness as has hitherto weighed upon the Nation and still burden our counties, cities and towns.
The delegates convened at Albany on June 1, 1846. John Tracy was chosen as president, and James F. Starbuck, Henry W. Strong, and Francis Seger were the secretaries. The rep- resentation was of a high order, some of the leading lawyers of the State being among the delegates. In the list1 will be
I. Delegates to the Continental Convention of 1846-President, John Tracy; Secretaries, James F. Starbuck, Henry W. Strong, Francis Seger; Sergeant-at-Arms-Hiram Allen; Doorkeeper, Heman R. Howlett. Albany : Ira Harris, Peter Shaver, Benjamin Stanton, Horace K. Willard. Allegany : William G. Angel, Calvin T. Chamberlain. Broome: John Hyde. Cat- taraugus : George A. S. Crooker, Alonzo Hawley. Cayuga : Daniel John Shaw, Elisha W. Sheldon, Peter Yawger. Chautauqua : Richard P. Mar- vin, George W. Patterson. Chemung : William Maxwell. Chenango : Elisha B. Smith,t* John Tracy. Clinton : Lemuel Stetson. Columbia : George C. Clyde, Ambrose L. Jordan .** Cortland: John Miller. Dela-
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seen the names of Charles H. Ruggles, later Chief Judge of the Court of Appeals ; Michael Hoffman, Charles O'Conor, Samuel J. Tilden, Churchill C. Cambreleng, Charles P. Daly, who for forty-one years was a justice, latterly Chief Justice of the Court of Common Pleas of New York; Ira Harris, later a prominent United States Senator; Henry C. Murphy, Charles P. Kirkland, John K. Porter, Lorenzo B. Shepard, Alvah Wor- den, Ambrose L. Jordan, William C. Bouck, a former Governor ; James Tallmadge, who had been a delegate to the Convention of 1821 ; and Samuel Nelson, a former Chief Justice of the Su- preme Court of New York and at that time a justice of the Supreme Court of the United States.
The convention reported a new Constitution which em- bodied the greater part of the old. The radical changes re- lated to :
I. The canals, internal improvements, public revenue and public debts.
2. Incorporations.
3. The election of State, judicial and local officers.
4. The enlargement of the number of Senate districts, and the substitution of district for county representation in the Assembly.
ware: Isaac Burr, David S. Waterbury. Dutchess : Peter K. DuBois, Charles H. Ruggles, James Tallmadge. Erie: Absolom Bull, Aaron Salis- bury, Horatio J. Stow,* Amos Wright. Essex : George A. Simmons. Franklin : Joseph R. Flanders. Fulton and Hamilton: John L. Hutchin- son. Genesee: Samuel Richmond, Moses Taggert. Greene: Robert Dor- lon, James Powers. Herkimer : Michael Hoffman, Arphaxad Loomis. Jefferson : Azel W. Danforth, Alpheus S. Greene, Elihu M. McNiel. Kings: Tunis G. Bergen, Henry C. Murphy, Conrad Swackhamer. Lewis : Russell Parish. Livingston : Allen Ayrault, William H. Spencer .* Madi-
son : Benjamin F. Bruce, Federal Dana. Monroe: Frederick F. Backus, Harry Backus, Enoch Strong. Montgomery: John Bowdish, John Nellis. New York: Stephen Allen, William S. Conely, Benjamin F. Cornell, John H. Hunt, David R. Floyd Jones, John A. Kennedy, ;* George S. Mann, Robert H. Morris, Henry Nicoll, Charles O'Conor, Lorenzo B. Shepard,t John L. Stephens, Samuel J. Tilden, Solomon Townsend, Alexander F. Vache, ** Campbell P. White. Niagara : Hiram Gardner,t* John W. McNitt.+* Onedia: Hervey Brayton, Julius Candee, Edward Huntington, Charles P. Kirkland. Onondaga: Cyrus H. Kingsley, David Munro, Elijah Rhoades, William Taylor. Ontario: Robert C. Nicholas, Alvah Worden.
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5. The reorganization of the judiciary and reformation in the system of legal procedure.
6. The method of amending the Constitution.
First-The subject of public improvements and public debts, which was the chief cause for the summoning of the convention, is treated in Article VII of the Constitution of 1846. As originally ratified, the article first provided for keep- ing the canals of the State in repair. It then applied $1,300,000 of the surplus revenues from the canals every year until 1855, to the liquidation of the principal and interest of the canal debt, and thereafter devoted $1,700,000 annually to the same pur- poses. It set apart annually $350,000, and, after the extin- guishment of the canal debt, $1,500,000 to the redemption of the principal and interest of that part of the State debt called the General Fund Debt, which it was claimed in the convention had been incurred for the canals and which therefore the canal revenues ought, equitably, to defray. As in the Legislatures of 1842 and 1844, so in the convention, were to be found earnest advocates for and against the enlargement and comple- tion of the canals. With some, the extinguishment of the debts in the shortest period, at least within the period contem-
Orange : John W. Brown,t* Lewis Cuddeback, George W. Tuthill.
Orleans : William Penniman. Oswego : Sereno Clark,t* Orris Hart.t Otsego : Levi S. Chatgeld,; Samuel Nelson,{* David B. St. John. Putnam : Gouverneur Kemble. Queens: John L. Riker. Rensselaer : William H. Van Schoonhoven, Perry Warren, Abram Whitbeck. Richmond: John T. Harrison. Rockland: John J. Wood.t St. Lawrence: Bishop Perkins, John Leslie Russell, Jonah Sanford. Saratoga: James M. Cook, John K.
Porter. Schenectady : Daniel D. Campbell.t Schoharie : William C. Bouck,+* John Gebhard, Jr. Seneca: Ansel Bascom. Steuben: Benjamin S. Brundage, Robert Campbell, Jr., William Kernan. Suffolk: Churchill
C. Cambreleng, Abel Huntington. Sullivan : William B. Wright. Tioga : John J. Taylor. Tompkins: Thomas B. Sears, John Youngs. Ulster :
James C. Forsyth, George G. Graham. Warren : William Hotchkiss. Washington : Albert L. Baker, Edward Dodd. Wayne: Ornon Archer, Horatio N. Taft. Westchester: John Hunter,t* Aaron Ward. Wyoming : Andrew W. Young. Yates: Elijah Spencer.
Those in the Convention who did not sign the engrossed Constitution are marked thus (*). Those whose votes are not recorded on the journal are marked thus (+). All others voted in the affirmative.
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plated by the law of 1842, was the paramount idea. Others were animated by the desire to see the works completed and enlarged so as to produce the fullest benefit to the State and to prevent the diversion of western trade to other Atlantic ports, even at the cost of delaying the liquidation of the debt, and it was the purpose of this class to secure the provision out of the canal revenues for the requisite completion and en- largement. The constitution made provision for the neces- sary work, and so fortunate was the State, that she was able to pay the debts then charged upon the canal revenues, in as short a time as was anticipated by those most desirous of see- ing them promptly extinguished.
Article VII also directed that the Legislature should never sell, lease or dispose of the canals or the salt springs belonging to the State.
But the most important provisions of the article were con- tained in Sections 8 to 14 inclusive, and they have remained substantially intact to the present day. Section 8 forbade the payment of money or funds of the State except in pursuance of appropriations by law; Section 9 declared that the credit of the State should not in any manner be given or loaned to or in aid of an individual, association, or corporation, thus prevent- ing subsidies to railroads or to other public enterprises orig- inated by private capital ; Section 10 empowered the Legisla- ture to contract debts in order to meet casual deficits or fail- ures in revenue or expenses not provided for, but such debts, direct and contingent, singly or in the aggregate, should not at any time exceed one million dollars. Moneys raised to pay such debts should be rigidly applied to the specific purposes for which they would be obtained. Section II declared that these limitations should not apply in extraordinary emergen- cies. The State was, therefore, left free to contract debts in any amount, in order to repel invasion, suppress insurrection, or defend itself in war; but moneys raised for any of these objects should be sacredly devoted solely to their accomplish-
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ment. Section 12 ordained that, with the exception of the debts specified in the tenth and eleventh sections, the State should contract no debt except in pursuance of a law specify- ing the sole work and object for which the debt is incurred; and the law should also provide for the collection of a direct annual tax sufficient to pay the interest on the debt as it should fall due and the principal within a period of eighteen years from the time when the debt should have been contracted ; and that every such law, before it could take effect, should be submitted to the people and be sustained by a majority of all the votes cast for and against it. Even after popular sanction has been thus obtained, the Legislature might repeal the law or stop the work. To prevent the enactment of such laws in moments of public excitement, the section provided that no such measure should be voted upon by the people until three months should have elapsed since its passage through the Legislature. Nor could a vote be taken upon any such law when any other enactment or bill, or any amendment to the Constitution was to be voted upon. Section 13 provided that every law which imposed, continued or revived a tax should distinctly state the tax and the object to which it was to be applied, without reference to any other law, in order to fix the tax or object. Section 14 required that the vote in either House upon all such measures should be taken by ayes and noes, which should be entered on the journals, and that three- fifths of all members elected to either House would be neces- sary to constitute a quorum whenever such measures are to be voted upon.
Second-Article VIII of the Constitution of 1846 contained the second class of restraints on the State Legislature, namely, those which relate to the creation of corporations.
The State had long suffered from the evils of special legis- lation. The Constitution of 1821 supplied a partial remedy by requiring the assent of two-thirds of the members elected to every bill appropriating public money or property, for local
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or private purposes, or creating, continuing, altering or renew- ing any body politic or corporation. Mr. Wheaton, one of the delegates to the Convention of 1821, offered a resolution in that body making it imperative on the Legislature to enact general laws on the subject of private corporations, but his resolution was not adopted.
Article VIII represents the work of three separate com- mittees of the Convention of 1846-the committee on munic- ipal corporations, the committe on banking corporations, and the committee on incorporations other than banking and mu- nicipal. The reports of the several committees, so far as adopted by the convention, are contained in the article. The article forbids special charters for private incorporations, and rendered the shareholders in a corporate enterprise respon- sible for corporate debts. As was well said in the convention :
"The people had seen a system existing by which the gov- ernment had granted to particular individuals special privi- leges which had been refused to others, contrary to the great principle of equality among men. They had seen not only that, but that, when these special privileges, which were essential to the very nature of a corporation were exercised, they had the further privilege of immunity from loss arising from business, which other individuals had not from loss by their business."
Special prohibition of the granting of special charters for banking purposes was also inserted in the article; the Legisla- ture was forbidden to sanction in any manner the suspension of specie payments by any person or association issuing bank notes ; and was required to provide for the registry of all bills issued to circulate as money and for their redemption in specie. Stockholders in banks of circulation were made individually responsible for corporate debts to the extent of their shares, and bill holders were, in the event of the insolvency of a bank, given a preference over all its other creditors. As the Dart- mouth College decision had placed all corporate charters there- tofore granted above revocation, the Constitution wisely re-
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served to the Legislature the power of altering or repealing such charters as should be thereafter granted.
Third-Next in importance to the restrictions upon the lawmaking power imposed by the Constitution of 1846 was the change which it made in the system of appointment. The first Constitution vested the power of appointment, in all its amplitude to the Council of Appointment; the second Consti- tution clothed the Governor and the Senate with this function except in the case of State officers, who were to be elected by the two Houses of the Legislature. The policy of 1846 was de- centralization. It gave to the people in their several localities the right to elect, not only the officers hitherto appointed by the Governor, and the State officials previously elected by the Senate and Assembly, but also district attorneys, clerks of counties and, practically, all county, city and village officers. The power of removal, which the Constitution of 1821 had divided between the Governor and the Legislature, was re- tained in the same hands, but the extent of the power was greatly increased. While the tendency in electing was decen- tralizing, the power of removal was centralized. The people were to elect, but either the Governor and Senate, or the Legislature might remove for misconduct in office.
Fourth-The decentralizing spirit of the convention also wrought a change in the tenure of the Senatorial office and in the mode of electing Senators and Assemblymen. The State was divided into thirty-two Senatorial districts, and each dis- trict was to choose a Senator every two years. County rep- resentation in the Assembly was abolished and district repre- sentation substituted. The new Constitution directed that members of Assembly should be apportioned among the sev- eral counties of the State as nearly as might be according to the number of their respective inhabitants, excluding aliens and persons of color not taxed, and should be chosen by single districts. But every county except Hamilton was insured at least one member. Provision was also made for a new census
-
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and a new reapportionment every ten years. The restrictions upon colored citizenship, for the removal of which Peter A. Jay had gallantly pleaded in 1821, were unfortunately con- tinued.
Fifth-The new Constitution retained the Court of Im- peachment, but abolished the Court for the Correction of Er- rors. Chancery Courts, as separate organizations, also ceased to exist, and the former expensive and tedious methods of taking testimony in equity cases were abolished. In this re- spect the New York system thus improved upon the Federal tribunals the practice in the United States courts being to take testimony in equity cases before a master, who had no power to pass upon evidence, but had to accept all evidence, how- ever irrelevant or immaterial, presented by either party, and printed for the use of the court.
The Constitution of 1821 had abolished the former Supreme Court, and in consequence had ended the terms of the justices of that court then in office, among them such jurists as Van Ness and Spencer. A like fate lay before some eminent jurists in 1846, for the new Constitution provided for the creation of a new Supreme Court, and invested it with general jurisdiction in law and in equity. It divided the State into eight judicial dis- tricts, of which New York City was to be one. The other dis- tricts were to be bounded by county lines, and as compact and nearly equal in population as possible. Each district, except the First, embraced many counties. Four Supreme Court jus- tices were allotted to each district, excepting that which was coterminous with the city and county of New York, which district was to elect as many such justices as the Legislature might prescribe. The term of office was fixed at eight years. The Constitution of 1846 established a Court of Appeals of eight judges, four of whom were to be elected by the electors of the State for a term of eight years, the remaining four to be selected by methods to be provided by law from the justices of the Supreme Court having the shortest time to serve. The
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judges of the Court of Appeals were to be so classified that one should go out of office every year; the justices of the Supreme Court were to be so classified that one in each dis- trict would go out of office at the end of every two years. Provision was also made for supplying vacancies in the mem- bership of these tribunals. Fuller reviews of these higher courts will be found in other chapters.
The Constitution also authorized the establishment of tri- bunals of conciliation, to hear cases voluntarily submitted by parties and to render judgment thereon. It required the first Legislature convened after its adoption to appoint commis- sioners to revise the system of practice in the courts; this resulted in the simplified system of procedure subsequently adopted in this State and substantially copied in most of our sister States and even in England. It required the adoption of similar measures to secure the codification of the substan- tive law of this State, but, although the commissioners charged by the Legislature with this duty reported a code of the law many years ago, so great was the hostility it encountered from the bar that it was not enacted.
Sixth-While the Constitution of 1822 made provision for its amendment by legislative resolutions approved by the people, it did not authorize the calling of a Constitutional Con- vention. The act of 1845, disregarding the express language of the Constitution, provided for the election of delegates and the holding of a convention. Two views have been entertained as to this enactment; one, that although extra-constitutional, it was justifiable as a peaceful revolution. The other up- holds its constitutionality on the ground that the right of amendment by convention is a popular right underlying the Constitution of every free people, and cannot be withdrawn from the people, notwithstanding that the Constitution may furnish other methods of amendment. This interesting dis- cussion was set at rest in this State by Article XIII of the Constitution of 1846, which provides for ascertaining the pop-
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ular desire for a convention, at least once in every twenty years, and for the holding of a convention at shorter intervals whenever the people so will. Thus the Constitution of 1846 secured two methods of amendment, the one by legislative initiative, sustained by popular vote, the other by a conven- tion. This dual method is now found in the Constitution of many of the States, and the history of the State of New York demonstrates the practical value of this dual plan.
The fourteen articles which made up the Constitution of 1846 were submitted for popular approval as a whole. The address of the delegates in convention to the people of the State well sums up their work:
"In these fourteen articles, they have reorganized the Leg- islature; established more limited districts for the election of the members of that body and wholly separated it from the exercise of judicial power. The most important State officers have been made elective by the people of the State; and most of the officers of cities, towns and counties, are made elective by the voters of the locality they serve. They have abolished a host of useless offices. They have sought at once to reduce and decentralize the patronage of the Executive Government. They have rendered inviolate the funds devoted to education. After repeated failures in the Legislature, they have provided a judicial system, adequate to the wants of a free people rapidly increasing in arts, culture, commerce and population. They have made provision for the payment of the whole State Debt and the completion of the public works begun. While that debt is in progress of payment, they have provided a large contribution from the canal revenues towards the cur- rent revenues of the State, and sufficient for that purpose when the State Debt shall have been paid; and have placed strong safeguards against the recurrence of debt and improvident expenditures of the public money. They have agreed on important provisions in relation to the mode of creating incor- porations and the liability of their members, and have sought to render the business of banking more safe and responsible. They have incorporated many useful provisions more effect- ually to secure the people in their rights of person and prop- erty against the abuses of delegated power. They have modi-
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