USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume II > Part 22
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ber of districts, men of great promise, if not of actual prom- inence were chosen to the Senate. Comparison of the lists of the first half of the nineteenth century with those of recent times show the decline in the intellectual character of the Upper House. Formerly men of the stamp of De Witt Clin- ton, Ambrose Spencer, Martin Van Buren, William H. Seward, Silas Wright, Samuel Young, Samuel Beardsley, Alonzo C. Paige sat in the Senate, but their peers are not chosen to-day to the same office. So marked had the difference become, even in 1867, that many of the delegates to the Constitutional Con- vention of that year argued in favor of returning to the small number of districts established in 1822. Small districts, they argued, were no more entitled to separate representation in the Upper House than counties. Large districts would invite men worthy of representing the entire State and banish, at least from the Upper Chamber, the spirit of local jealousies and of log-rolling so potent in securing local legislation. To exalt the dignity of the office, it was proposed also to make the term four instead of two years, vacating one seat in each district every year, thus ensuring the choice of one-fourth of the Senate at each annual election. This plan had the sup- port of the strongest minds in the convention, but it was only partially adopted. The Constitution reported by the conven- tion retained the thirty-two Senate districts, while it length- ened the Senatorial term to four years. It provided that the first Senators elected under the new Constitution in the dis- tricts bearing odd numbers were to vacate their offices at the end of two years, those in the districts bearing even numbers at the end of four years, thereby securing the election of one- half of the Senate every second year.
When the subject of Assembly representation came up for debate, a majority of the delegates voted to return to county representation as fixed by the Constitution of 1821. The Con- stitution of 1777 had provided for the election of Assembly- men by counties, but it made the size of the Assembly depen-
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dent upon the growth of population, fixing the minimum membership at seventy and the maximum at three hundred. In 1801 the Assembly was limited to one hundred members. In 1827 the unit of Assembly representation was ordained to be the county, but the membership was fixed at one hundred and twenty-eight. A new unit of representation was intro- duced in 1846; the Assembly District. The Constitution of 1846 required that members of Assembly should be appor- tioned among the several counties by the Legislature as nearly as might be according to the number of their respective inhab- itants, excluding aliens, and that they should be chosen by single districts. It then provided that every county there- tofore established and separately organized (except the county of Hamilton) should always be entitled to one member of the Assembly, and that no new county should be erected unless its population should entitled it to a member. This complicated system was probably adopted because of the clamor of small districts for separate representation, and of the reluctance of the less populous counties to risk loss of separate representation with the growth of other parts of the State in population. But one great defect in this, the present plan, is the impossibility of giving all districts equitable representation, so remains a fixed quantity. Either the membership of the Assembly should vary with the population, or small counties should be merged together for purposes of Assembly representation. An extreme illustration will present the point: Population might be so distributed through the State that the counties of New York and Kings would contain three-fourths of the enumer- ated inhabitants. Each of the other fifty-eight counties (save Hamilton) would be entitled to one seat in the Assembly. Fifty-seven seats would therefore belong to the fifty-eight counties, but New York and Kings would then have only seventy-one seats, which would be much less than their pro rata share on the basis of population.
An attempt was made in the Convention of 1867 to pro-
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hibit certain classes of local and special legislation altogether, by restricting the power of the Legislature to make laws for localities and by bestowing increased legislative functions on county boards of supervisors. Most of the delegates admitted that special legislation was an evil productive of confusion, log-rolling, extravagance and corruption, but the convention did not readily agree upon the remedy. The report of the committee having charge of this subject tended, in the opinion of its opponents, too much towards decentralization ; in other words, if adopted, it would, they thought, create sixty local legislatures. Some, prominent among whom was the late Judge Folger, were convinced that the true remedy for special legislation was to prohibit absolutely the enactment of special laws upon any subject. On the other hand Professor Dwight pointed out, what has since been the experience of the State, that special legislation could not be utterly suppressed ; and that, if it were made unconstitutional, it would inevitably be at- tained under the guise of laws general in form but really operative only in some particular locality, or of laws passed merely for the accomplishment of a special purpose.
The convention finally adopted an amendment giving boards of supervisors powers of legislation ; but hardly any section of the new Constitution was more debated or more amended than the section first proposed by the committee hav- ing charge of this subject. The convention also voted an amendment forbidding special legislation in a great variety of cases, which is similar to the amendment reported to the Legislature by the Constitutional Commission appointed in 1872 and ratified by the people in the fall of 1873. It reported also an amendment prohibiting the Legislature from passing any local or private bill, unless notice of intention to apply therefor should first have been given in a manner provided by law, and ordained that such notice should never be waived, but that the fact of omission of notice should always be open to inquiry. A very similar amendment was adopted by the
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Commission of 1872, but failed to become law, as will be seen later.
The only work performed by the convention which was ap- proved by the people was its amendment of the judiciary article. The new article reorganized the Court of Appeals, lengthened the term of judicial officers, and prepared two ques- tions, relating to the appointment or election of judicial offi- cers, for submission to the people at the election of 1873, a date sufficiently distant to allow the arguments for either method to be amply presented to voters. The convention was so nearly balanced upon the question of the respective merits of an appointive and an elective judiciary that it would have been unwise for a slender majority to commit the con- vention to either view. The question was, therefore, referred to the people, who decided at the annual election in 1873, by a large majority, in favor of electing judges of courts of record.
The judiciary committee, which was composed of some of the ablest lawyers of the convention, framed a judiciary article providing that judges of courts of record should hold office during good behaviour or until seventy years of age. Their report proposed further that at the general election in the year 1870 there should be submitted to the people under proper provisions, to be determined by the Legislature, the question whether future vacancies in the Court of Appeals, the Commission of Appeals, the Supreme Court and the Su- perior City Courts should be filled by appointment by the Gov- ernor with the advice and consent of the Senate. This report bore the signatures of Charles J. Folger, chairman; William M. Evarts, Joseph G. Masten, George Parker, Joshua M. van Cott, Charles P. Daly, Waldo Hutchins, Frencis Kernan, Theo- dore W. Dwight, Amasa J. Parker, Charles Andrews, Edwards Pierrepont and Matthew Hale. A minority report was sub- mitted by Milo Goodrich favoring the election of Court of Appeals judges for fourteen years, and of justices of the Su-
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preme Court for twelve years. Life tenure, he argued, would involve practical denial of the benefits of the elective system. He dissented from the recommendation of the majority, to refer the question of the future election or appointment of judges to popular vote.
The report of the judiciary committee was exhaustively and ably debated, but was not accepted by the convention ; had it been so approved, it might not have found favor with the people. It was admirably supported by some of the most prominent lawyers in the convention, but the prevailing opin- ion of the convention was that a court of last resort, composed of four justices of the Supreme Court having the shortest terms to serve, and of four judges elected at large throughout the State, lacked the necessary elements of permanence and sta- bility. Constant changes in the personnel had impaired its efficiency and made its decisions uncertain and conflicting. It was found in practice to take almost half a year before the Supreme Court justices could work efficiently with their more permanent brethren of the Court of Appeals, and when the desired efficiency was attained, they were obliged to retire in favor of new members recruited from the court below. But the convention found criticism easier than constructive work. Various schemes were proposed. Baker suggested a Court of Appeals of nine members, to hold office for twelve years ; Wakeman, a Court of Appeals of seven members to hold for the same period, six to be elected by the people, the Chief Jus- tice to be appointed by the Governor and Senate. Beckwith proposed that the chief judge be appointed by the Governor and Senate for fourteen years, and that six associate judges be elected by the people for twelve years. Rumsey wished the judges of the existing Court of Appeals to be members of the new tribunal. Judge Comstock favored a court of seven mem- bers, all to be elected by the people for fourteen years, the judges not to hold office beyond the age of seventy, nor be
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eligible to reëlection. Pond suggested a Court of Appeals of ten judges, composed of four elective members of the existing court and of six additional judges-each elector to vote for four. Judge Landon proposed to abolish the Court of Appeals altogether, and make the Supreme Court the ultimate judicial tribunal of the State.
In the debate upon the constitution of the Appellate Branch of the Supreme Court, many expressed their belief that, in the creation of eight General Terms, the convention of 1846 had erred. Eight coordinate tribunals, with their di- vergent opinions had made the law uncertain, and had increased the work of the Court of Appeals. After prolonged and heated discussion, the convention voted to reduce the number of General Terms to four. There was compromise in almost all other recommendations made by the judiciary committee. The convention decided to lengthen the judicial term. Opinions were evenly divided, some advocating the continuance of the eight-year terms; others proposed fourteen years ; but the final compromise was fourteen years, this decision being arrived at chiefly from the knowledge that even under the appointive system, fourteen years had been found by experience to be the average term of judicial officers.
Unquestionably, the best arguments favored a tenure to last during good behavior. If fourteen years is the average judi- cial term, reason prompts the extension of the term to a life tenure, because a life tenure does away with the motives which induce a judge to seek reëlection by corrupt or improper conduct, or by like means to provide for his future in default of reëlection. It is clearly illogical to argue that if the aver- age life tenure is fourteen years the term should be fourteen years; a term continuing for life, subject to good behavior, would be much more desirable, though apparently this status would not average a term of fourteen years.
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Generally such delegates as favored the appointment of judicial officers and a life tenure for the judiciary agreed in urging the appointment of State officers and of district at- torneys, but a large majority of the delegates adhered to the elective system. The convention, however, reported an amendment to the Constitution requiring that the secretary of state, comptroller, treasurer and attorney-general should be chosen at the same time as the Governor. This amend- ment found acceptance at the hands of the Commission of 1872, but, though often mooted, it has never been ratified by the people. If such officers are to continue to be elected, their election should unquestionably be concurrent with that of the Governor.
In reorganizing the Court of Appeals, the delegates re- ported a section providing that the court should be composed of a chief judge and six associate judges, to be chosen by the electors of the State upon a general ticket, and to hold their offices for a term of fourteen years from and including the first day of January next after their election. This mode of selection, as well as the longer term, was a reaction from the decentralization of 1846. A commission was also created to decide the unfinished causes on the calendar of the retiring Court of Appeals. The commission consisted of the four judges of the old court and a fifth commissioner appointed by the Governor and confirmed by the Senate. The amend- ment reorganizing the Court of Appeals and forming a Com- mission of Appeals, and the amendment extending the terms of all other judges of courts of record to fourteen years, were ratified by the people in the fall of 1869. In the following win- ter the Legislature passed an act providing for the holding of a judiciary election in May, 1870, at which the members of the new tribunal were chosen. The chief judge and two asso- ciate judges of the newly constituted court had been among the most influential members of the convention. The judges took the oath of office in July, 1870.
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The subject of municipal government received much con- sideration in the convention. The debate upon the conflict- ing reports from the committee on cities was protracted and to a certain extent partisan. The speeches of Mr. Harris, chairman of the committee on cities, and of Mr. Opdyke, also a member of the committee, presented the evils of city gov- ernment and the remedies which were urged upon the con- vention in a clear and striking light. The majority report advocated a great enlargement of the powers of mayors of cities. It recommended that a mayor should have power to appoint heads of departments and officers charged with the administration of departments, and to remove at his pleas- ure all his appointees. It proposed also to confer on cities absolute power of self-government and to forbid the Legisla- ture from interfering with their affairs except by passing gen- eral laws. Mr. Opdyke, in a minority report, urged the re- striction of the elective franchise in local affairs as a pre- requisite to investing cities with local self-government. He proposed that the mayor and a portion of the Common Coun- cil should be elected by citizens having the right to vote for State officers, and that municipal boards of aldermen and comptrollers should be chosen by persons owning property valued at not less than one thousand dollars. Such a limita- tion upon suffrage would, in his belief, be sanctioned by the people ; without it he should be constrained to vote against every increase of governmental power of cities.
The convention voted to report that general laws should be passed for the organization of cities. It also adopted a provision to the effect that members of Common Councils should hold no other office in cities, and that no city officer should hold a seat in the Legislature. Beyond this, it con- tented itself with a section, drafted by Henry C. Murphy, the purport of which was that the mayor should be chosen by the electors of every city as the chief executive officer; that he should have power to investigate the acts of the various city
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officers and the right to examine them and their subordinates on oath; that he should also have power to suspend or re- move such officers, whether they were elected or appointed, for misconduct in office or neglect of duty, to be specified in the order of suspension or removal, but that no such removal should be made without reasonable notice to the officer com- plained of and an opportunity afforded him to be heard in his defence.
The financial article (Article VIII) remained substantially as in the Constitution of 1846; but additions were made cover- ing certain questions and a new section (15) was added, pro- viding that real and personal property should be subject to a uniform rule of assessment and taxation.
Space will not permit a complete enumeration of the changes which were finally adopted by the convention. For a full list of these modifications, the Constitution reported by the convention must be examined. A select committee of ten, of which Judge Folger was chairman, was appointed to draft an address to the people. The address describes the character of the changes which the convention proposed in the organic law of the State. The new Constitution was sub- mitted for public ratification at the general election of 1869 and was voted down. The vote in its favor was 223,935 to 290,456 against it. The only article of the proposed new Constitution which was approved by the people was (as already stated) the judiciary article, which was submitted separately, the vote being 247,240 in its favor to 240,442 against it. Two other provisions were submitted separately : The proposal to abolish property qualifications for colored voters and the proposal to subject real and personal property to a uniform rule of assessment and taxation ; but neither was ratified by the people.
CHAPTER XXXII. CONSTITUTIONAL HISTORY.
Commissions of 1872 and 1876.
In Judge Folger's address to the people, briefly summariz- ing the work of the Convention of 1867, he commended atten- tion to the stringent provisions it had framed to stop bribery at elections and to check abuses in the disposition of public money, and its drastic measures to prevent corruption in office and bribery of officials.
There was urgent need of such constitutional measures. The demoralizing effect of war had become evident in the large centres of population. There had been a grave degen- eration of political and official morality in the cities, and also in the Legislature. The storm was rising in New York City especially, and although some years were destined to elapse before the corrupt municipal politicians were unseated, indig- nation was growing, and the citizens were slowly being or- ganized to combat the curse in the city of New York. Even the bar and bench were not free from suspicion of conniving with the politicians, or of in some measure being responsible for the continuance of the disgraceful state of municipal af- fairs. It was openly remarked "that its (the bar's) glory and dignity were gone, that it had ceased to be a noble profession and had become merely a trade with the rest."1 The gravest suspicions were entertained against the integrity of the ju- diciary, and it was widely believed that the administration of justice was, in New York City at all events, "disgraced by monstrous improprieties."2 The "New York Times" almost alone began a crusade against the municipal government, the
CONSTITUTIONAL COMMISSIONERS OF 1872 AND 1876
I. An address to the members of the bar of the city of New York, see Bar Association Report, 1870.
2. "History of the Bench and Bar of New York" (1897), Vol. I, p. 193.
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"ring" of local politicians who, before they were finally un- seated, dishonored, imprisoned, or otherwise removed from possibility of again robbing the municipal coffers, are esti- mated to have misapplied thirty millions of dollars of public money. In 1869 the "New York Times" vigorously criticized the bar for its apparent indifference, and urged it to take steps for its own vindication and for the purification of the bench. "If it be supineness, the guilty silence of the lawyers, as offi- cers of the people's courts, which have brought us to our present pass," declared the "Times," "it is their reawakened public spirit and activity which must help us to a better state of things. . . We must again proclaim that the bar must lead the way."
And the bar proved worthy of the high moral purpose that is normally associated with the profession. Just as the law- yers of New York City in 1744 and later colonial days took up the cause of the people against the arbitrary, unscrupulous Crown rule, just as Adriaen van der Donck in the days of New Netherland had used his knowledge of civil law to free the commonalty and the municipality from the absolutism of the Dutch Governors, so, in this emergency did the worthy law- yers of New York-and they were legion, by comparison with the unscrupulous few who were the tools of the local poli- ticians-band together, in 1869, for the public good. As the Association of the Bar they set themselves resolutely to free not only the bench and bar from the stigma, but also the city from the network of corrupt influences in which it was en- meshed.
Through proper channels the work of the Association of the Bar eventually became evident. While it cannot be said that at the outset the work of the association was seen as an organized movement against the Tweed ring, for it was not until 1871 that the popular uprising came, and the Associ- ation of the Bar had been organized some months before initiating a formal campaign against the corrupt municipal
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power ; yet Samuel J. Tilden undoubtedly had a particular un- stated purpose in mind when, at the meeting, in February, 1870, for the organization of the association, he said: "The bar, if it is to continue to exist, if it would restore itself to the dignity and honor which it once possessed, must be bold in defence and, if need be, bold in aggression." He and other "clear-seeing . . founders of the association had a thorough understanding of the gravity of the situation with which that body would logically have sooner or later to deal." Still, the original purposes of the association were, as stated by Tilden : To elevate itself; to elevate its own standards; and for the common and public good. That was an adequate statement, for publication, at that moment. But the corrupt character of a portion of the New York judiciary "was already well known to the bar," and while the Association of the Bar aimed at the impeachment of certain judges, its action in reality struck at the vitals of the Tweed ring.
The Association of the Bar made its power felt in the Legislature. To some extent the work of the municipal re- form was one of the purposes of the Convention of 1867. To a larger degree it entered into the vital purposes of the Con- stitutional Commission of 1872, and it dominated the work of the Municipal Commission of 1876.
THE CONSTITUTIONAL COMMISSION OF 1872.
In his annual message in January, 1872, Governor Hoffman, after adverting to the proceedings of the recent Constitutional Convention and to the failure of the people to approve its work, recommended that a non-partisan commission of thirty- two eminent citizens, to be equally selected from the two great political parties, should be appointed to propose amendments to the Constitution for ratification by the Legislature and the people. The message contained a large number of valuable suggestions, nearly all of which are to be found in the Consti- tution reported by the commission.
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Pursuant to the Governor's recommendation, the Legisla- ture of 1872 passed an act which the Governor approved, au- thorizing him to nominate and with the advice and consent of the Senate to appoint a commission of thirty-two persons, four from each judicial district of the State, to propose to the Legislature at its next session such amendments to the Consti- tution (exclusive of the judiciary article) as the commission might deem proper. The act provided also the mode of filling vacancies in the commission, the place of its meeting, compen- sation of its members and various other incidental matters. In accordance with this enactment Governor Hoffman ap- pointed thirty-two commissioners, some of whom, including George Opdyke, William Cassidy, Erastus Brooks and Fran- cis Kernan, had been delegates to the Convention of 1867. The commission3 assembled at Albany on December 4, 1872. Robert H. Pruyn was chosen chairman. Its sessions con- tinued until March 15, 1873, when it adjourned sine die, after reporting a large number of amendments to the fourteen articles of the existing Constitution and two new articles : One relating to municipal government, the other to the crime of bribery.
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