USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume II > Part 25
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The New York Convention recommended a strong prin- ciple in reforming the civil service. All appointments or pro- motions were to be based upon merit, and ascertained as far as was practicable by competitive examination. They sought to extend this principle to the official personnel of the State prisons, canals, and other public works of the State, to which, under the Constitution of 1846, the Court of Appeals had de- cided that civil service rules could not be applied.
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THE CONSTITUTION OF 1894
The new Constitution prohibited the contract system of convict labor, and in this adopted the recommendations of the commissioners of the Prison Association, in their report of 1867. As to the canals, the convention authorized the Legis- lature to provide for the improvement of the canals, without, however, borrowing money for that purpose other than ac- cording to the provisions of the existing Constitution.
As to education, the Legislature was required to provide for free public schools, in which all the children of the State might be educated. The use of public money in aid of sec- tarian schools was, however, absolutely prohibited. Provision was also made for regulating and limiting the payment of pub- lic money to private institutions for the support of the poor, by depriving the Legislature of the power to pass mandatory laws requiring such payments from counties, cities, towns and villages. All such expenditures were to be controlled by the State Board of Charities.
The existing Constitution was also so amended as to pro- vide for a naval as well as a land force of militia; the total militia strength was not to be below 10,000 men, the State, by legislative act, providing for the support of the force.
The convention made important changes in the judicial system, the judiciary article being designed to remedy the evils that arose from the overcrowding of trial calenders, especially in the large cities, and of the calendar of the Court of Appeals. The remedial measures included the consolida- tion of the Superior City Courts with the Supreme Court, thus securing greater economy of judicial force; the creation of more effective courts of intermediate appeal, with larger power and jurisdiction, so as to obviate the overcrowding of the Court of Appeals, the proposals being to limit the Court of Appeals to its proper function of declaring and settling the law, and to make the proposed Appellate Division of the Su- preme Court the court of last resort, in the four judicial de- partments to be created, upon all questions of fact and upon
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all interlocutory proceedings. Upon the erection of Appellate Divisions, the existing General Terms of the Supreme Court were to be abolished. The convention abrogated the provi- sion for judicial pensions, did away with justices of Sessions, abolished the Courts of Sessions and conferred their jurisdic- tion upon the County Courts. The revised Constitution also abolished Courts of Oyer and Terminer and Circuit Courts, conferring their jurisdiction upon the Supreme Court, also enlarging and defining the jurisdiction of the County Courts. They prohibited county judges and surrogates in counties of more than 120,000 inhabitants from practicing law, forbade the Legislature to further enlarge the jurisdiction of local and inferior courts of its own creation, and recommended many other changes to simplify and strengthen the judiciary system, so as to secure a more uniform, speedy and effective admin- istration of justice throughout the State.
The judiciary committee was composed of the following members of the convention : Elihu Root, New York County ; Louis Marshall, Onondaga County; Henry J. Cookinham, Oneida County ; Tracy C. Becker, Erie County ; J. Rider Cady, Columbia County ; John F. Parkhurst, Steuben County ; John I. Gilbert, Franklin County ; J. Johnson, Kings County ; Daniel H. McMillan, Erie County ; Nathaniel Foote, Monroe County ; Charles H. Truax, New York County ; Roswell A. Parmenter, Rensselaer County ; Edwin Countryman, Albany County ; John M. Bowers, New York County ; Almet F. Jenks, Kings County, and George H. Bush, Ulster. They did excellent work, and were guided in their deliberations by the report of a Judiciary Com- mission of 1890. When it became apparent that there was legislative deadlock in the election of delegates to a conven- tion, which the people in 1886 had so decisively declared should be held, the Legislature took cognizance of the state of the judiciary system, and, with a view to its improvement, passed an act on April 26, 1890, authorizing the Governor, with the advice and consent of the Senate, to appoint a commission
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to propose amendments to the judiciary article of the Consti- tution. The commission was to consist of thirty-eight persons four from each of the eight judicial districts, except that the First District was to have eight, and the Second District six members. The political parties were to have equal repre- sentation on the commission. All persons appointed by the Governor were lawyers of high distinction. The commission organized at Albany on June 3, 1890, under the chairmanship of George F. Danforth. Its report, which was submitted to the Senate on March 4, 1891, favored a single Court of Ap- peals, unchanged in number; General Terms of enlarged juris- diction, the abolition of the Superior Court of New York, and the continuance of the Court of Common Pleas for the city and county of New York, the City Court of Brooklyn and the Superior Court of Brooklyn and the Superior Court of Buffalo, but without appellate jurisdiction. The commission pro- posed that the State be divided into four judicial departments, with one General Term of five justices in each department, the Governor having authority to designate the justices to sit at General Term, said justices to exercise none of the powers of justices of the Supreme Court other than those pertaining to the General Terms of which they were respectively to be mem- bers. The commission was of opinion that no litigant was ordinarily entitled to more than one appeal at the expense of the State. The commission proposed, with certain exceptions, to forbid appeals to the Court of Appeals from unanimous affir- mances at General Term, and that the latter should be the court of final appeal against substantial errors committed by the lower courts, and that the Court of Appeals should confine itself to the decision of new questions of law and to the laying down of rules for the guidance of the courts. The recommen- dations of the Commission of 1890 were not approved by the Legislature, and from earlier pages of this chapter, also from the further information given in Chapter XXXV, it will be seen to what extent the judiciary committee of the Conven-
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tion of 1894 followed the recommendations of the Commission of 1890.
A proposal made, in 1894, to return to the old appointive system in the choice of judges was emphatically rejected by the convention. The age limit of seventy years was retained, but the system of pensions to retiring judges was abandoned. The Commission of 1890 had voted down an amendment to shorten the terms of judges, and the Convention of 1894 de- feated by a large majority a similar amendment.
The revised Constitution was submitted to the people on November 6, 1894. It was not submitted as a whole, for at that election the people of New York City and Brooklyn were considering the question of the larger city, and the amendment relating to apportionment was so important to the greater city, and so vital to the other centers of population, that the delegates thought it unwise to rush nullification of their hard summer of work by submitting the Constitution as a whole to people who might reject it because of their view as to legis- lative reappointment. The canal measure was also an amend- ment that it was thought advisable to separate from the group submitted. The popular vote was as follows:
For the Revised Constitution 410,697
Against
327,402
For Legislative Apportionment Amend- ment
404,335
Against 350,625
For Canal Improvements 442,998
Against 327,645
For County Judges and Courts of Ses- sions, Kings County
391,350
Against 332,505
For Additional Justices of the Supreme Court
395,233
Against 341,713
The whole Constitution was thus ratified, and, with certain
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THE CONSTITUTION OF 1894
exceptions, became effective on January 1, 1895. The reor- ganization of the courts could not, however, be effected so quickly, so the judiciary article provided that the change in the judicial system should become effective on the first day of January, 1896. The Constitution of 1894, with some amend- ments, is still the organic law of the State of New York.
CHAPTER XXXIV. CONSTITUTIONAL CONVENTION OF 1915.
Pursuant to Chapter 819 of the Laws of 1913 entitled "An Act to provide for submitting to the people the question : 'Shall there be a convention to revise the Constitution and amend the same?' and to provide for such convention, if a ma- jority of the electors shall decide that such convention be held," also to the acts amendatory thereof, the delegates-elect convened in the Assembly Chamber, at Albany, on April 6, 1915, for organization.
Three delegates from each of the fifty-two Senate districts had been elected, as well as fifteen delegates-at-large.1 A quorum being present at the first meeting on April 6, 1915, Mr. Seth Low placed in nomination for election as president of the convention Mr. Elihu Root, of New York City. After the first ballot, which gave Mr. Root 133 votes and Mr. Morgan J. O'Brien 32 votes, upon motion of Mr. Wagner the vote for Mr. Root was made unanimous. Jacob Gould Schurman, of Ithaca, and Morgan J. O'Brien, of New York City were elected first and second vice-president respectively.
I. Constitutional Convention of 1915-Delegates-at-Large: William Berri, Edgar Truman Brackett, Jacob Brenner, Alphonso T. Clearwater, Patrick W. Cullinan, Seth Low, Louis Marshall, John Lord O'Brien, Her- bert Parsons, Adolph J. Rodenbeck, Elihu Root, Jacob Gould Schurman, Henry L. Stimson, George W. Wickersham, Charles H. Young. Delegates from Senate Districts : Ist District : Robert S. Pelletreau, Franklin A. Coles, William M. Mckinney. 2nd : Philip Frank, George J. Ryan, John W. Weed. 3rd: Andrew McLean, Charles A. Webber, Moses J. Wafer. 4th : Floyd J. Adams, Richard E. Weber, Isador Buxbaum. 5th: James H. Dahm, Edward J. Byrne, Michael Daly. 6th: Alfred G. Reeves, Meier Steinbrink, William P. Bannister. 7th : Michael Fogarty, Francis P. Ward, William N. Dykman. 8th: William R. Bayes, Almet R. Latson, Edgar M. Doughty. 9th: Theodore C. Eppig, Frank Mann, Harry Hey- man. roth: Isaac Sargent, William F. Matthewson, Joseph Linde. IIth : John F. Ahearn, Alfred E. Smith, Abraham Harawitz. 12th: John J. White, Morgan J. O'Brien, Harry W. Newburger. 13th : Michael J. Drummond, John B. Stanchfield, Arthur J. Baldwin. 14th : James A.
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COURTS AND LAWYERS
Throughout the summer the delegates painstakingly pursued their work, and on September 10, 1915, the committee to pre- pare and report to the convention a form of address to the people, submitted to the convention an address which they recommended. The address shows that the delegates had considered more than eight hundred amendments to the Con- stitution of 1894, and had adopted thirty-three. The most im- portant of the adopted amendments were :
I. The reorganization of the State Department, on its ad- ministrative side into seventeen civil departments, a reduc- tion in the number of elected officers, and provisions for the appointment of all other officers.
2. Provisions affecting the Legislature, designed to remove from it the consideration of local matters and private claims, and to restore it to its true function of enacting laws of gen- eral application and of making necessary appropriations for the conduct of the State government.
3. A careful regulation of and change in the method of making appropriations for the expenses of the State, by means of an annual executive budget.
4. Improvements in the method of contracting indebted- ness for the purposes of the State and the substitution of serial for sinking fund bonds.
Foley, DeLancey Nicoll, Hiram M. Kirk. 15th: Thomas F. Smith, Wil- liam F. Sheehan, Thomas M. Mulry. 16th: Robert F. Wagner, John T. Dooling, John G. Saxe. 17th: Frederick C. Tanner, Courtlandt Nicoll, Gordon Knox Bell. 18th: Mark Eisner, William M. K Olcott, Martin Saxe. 19th: Andrew J. Shipman, J. Sidney Bernstein, Albert Unger. 20th : Timothy A. Leary, Nathan Burkan, Mark W. Potter. 2Ist: Peter Donovan, James F. Donnelly, William E. Slevin. 22nd: Francis Martin, Louis F. Haffen, Anthony J. Griffin. 23rd: George A. Blauvelt, George A. Leitner, Eugene Lamb Richards. 24th: Francis A. Winslow, Frank L. Young, Henry R. Barrett. 25th: Caleb H. Baumes, Russell Wiggins, Joseph Rosch. 26th : Samuel K. Phillips, Clayton Ryder, Lemuel E. Quigg. 27th : Severyn B. Sharpe, John N. Vanderlyn, H. Leroy Austin. 28th : William Barnes, Harold J. Hinman, Edward A. Mealy. 29th: Willis E. Heaton, Victor M. Allen, Andrew P. Mckean. 30th: Robert R. Law, William S. Ostrander, Otis A. Dennis. 3Ist : Olin Henry Landreth, Seward H. Van Ness, W. Barlow Dunlap. 32nd : George H. Bunce, Perry
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CONSTITUTIONAL CONVENTION, 1915
5. The grant to cities of as large a control of their own municipal government and affairs as is consistent with State sovereignty.
6. Authority in the Legislature, with the approval of the electors of each county, to provide for any county optional forms of government and prohibiting the passage of local or special laws relating to a county except at the instance of its local authorities.
7. Reform in civil procedure in the courts of the State and provisions affecting the organization and jurisdiction of the courts, designed to prevent delays in the administration of justice and to simplify litigation and make it less expensive.
8. State control over the assessment of taxes on personal and intangible property.
9. The protection of the natural resources of the State under a conservation commission.
IO. Provisions for the benefit of wage earners by creating a Department of Labor and Industry, by extending the ben- efiits of the Workmen's Compensation Act to embrace occu- pational diseases and by empowering the Legislature to regu- late or prohibit manufacturing in tenement houses.
A number of other matters of only less importance than
G. Williams, Charles S. Mereness. 33rd: Edward M. Angell, Harry E. Owen, Patrick J. Tierney. 34th: Ferris J. Meigs, Robert S. Waterman, Ledyard P. Hale. 35th: Edward N. Smith, Merrick Stowell, Lewis H. Ford. 36th : Watson T. Dunmore, Louis M. Martin, Samuel H. Beach. 37th : George L. Bockes, Albert F. Gladding, Frank R. Lennox. 38th. Alan C. Fobes, Ray B. Smith, D. Raymond Cobb. 39th: George F. Green, Israel T. Deyo, Samuel H. Francher. 40th : E. Clarence Aiken, Joseph E. Eggleston, Francis C. Allen. 4Ist: John M. Parker, Hobert C. Manville, Bertrand W. Nye. 42nd : John Parmenter, John H. Johnson, Charles H. Betts. 43rd: Jesse S. Phillips, James W. Wadsworth, Monroe Wheeler. 44th : John C. Leggett, Frank S. Wood, Clarence H. Greff. 45th: Rush Rhees, Frank M. Jones, Andrew E. Tuck. 46th: Charles J. White, Rich- ard H. Curran, Homer E. A. Dick. 47th: Edward E. Franchott, James P. Lindsay, Thomas A. Kirby. 48th: George Clinton, Sr., Leroy A. Lincoln, Charles B. Sears. 49th: Mat Endres, Thomas V. O'Connor, Charles Schoonhut. 50th : Frank W. Standart, Harry D. Sanders, James L. Nixon. 5Ist : Herman J. Westwood, Charles M. Dow, James S. Whipple .- See the "Journal of the Constitutional Convention of 1915," pp. 3 to 6.
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COURTS AND LAWYERS
those above referred to were embodied in the proposed amend- ments :
I. The modifications recommended in the reorganization of the executive department offered the people a plan for end- ing the present "unsystematic, wasteful and irresponsible State government." The Convention planned to substitute seventeen departments for the more than one hundred and fifty bureaus, departments, commissions, boards and officials. Of the proposed seventeen State departments two, the De- partments of Law and Finance were to be administered by the attorney-general and the comptroller, respectively; four, the Departments of Labor and Industry, Public Utilities, Conser- vation and Civil Service, were to be directed by commissions composed of one or more commissioners, appointed by the Governor, with the consent of the Senate, for terms extending beyond that of the Governor. The Department of Education was to be continued under the administration of the Univer- sity of the State of New York. Each of the other ten depart- ments were to be placed under a responsible head, appointed and removable by the Governor. The principle of the short ballot was to be applied, by taking the secretary of state and the State treasurer out of the class of elective officials and abolishing the office of State engineer and surveyor and trans- ferring his duties to the Department of Public Works, an ap- pointive office. The elected State officials then would be the Governor and Lieutenant-Governor, attorney-general and the comptroller, all for the term of two years.
II. Restrictions to the power of the Legislature to pass private or local bills were proposed. Public moneys were not to be used for any public works until plans had been filed with the secretary of state by the superintendent of public works, and the latter had approved the proposed work. Provisions for emergency messages by the Governor were abolished, and it was provided that no bill should become law until printed and upon the desks of the members in its final form for at least
749
CONSTITUTIONAL CONVENTION, 1915
three calendar legislative days prior to its final passage. The salaries of members of the Legislature were to be increased from $1,500 to $2,500 a year, and that of the Governor, after January 1, 1917, to $20,000 a year.
III. Radical changes in the methods of providing for the necessary expenditures of the State were proposed. The mes- sage to the people reads :
"Instead of leaving the Legislature to make appropriations without any comprehensive and systematic study of the needs of the various departments of the State government, and the sources of its revenue, leaving to the Governor the power and duty after the adjournment of the Legislature to go over the appropriation bills and cut out items which appear to him to be unnecessary or improper, we have sought to restore the true American ideal which accords with the genius and his- tory of our institutions by requiring the preparation by the heads of departments, in advance of each legislative session, of itemized estimates of appropriations to meet the financial needs of each department for the ensuing year, and the prep- aration by the Governor, after public hearing, for submission to the Legislature, of a complete budget or plan of proposed expenditures and estimated revenues. We give to the Gov- ernor and the heads of the departments the right to appear before the Legislature and be heard respecting the budget, and make it their duty so to appear, if requested by either house. We give to the Legislature the power to reduce or eliminate, but not to increase any item in such proposed budget. The appropriation bills enacted after such procedure are to become laws without the Governor's approval. Appro- priations for the expenses of the Judiciary and the Legislature are left subject to the Governor's veto power as at present. We have sought by these provisions to substitute responsible for irresponsible government."
IV. The existing cumbersome and expensive system of pro- viding sinking funds for retirement of bonds, was to be rem- edied by issuance of bonds in serials not extending beyond the estimated life of the work.
V. A large measure of home rule by municipal governments
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COURTS AND LAWYERS
was provided, consistent with the retention of the sovereignty of the State. Cities were to have the right to organize and manage the departments of the city government, and regulate the compensation and method of removal of all city officers and employees. As a last resort, or as a matter of State policy, the Legislature was to retain power to redress first grievances by the enactment of laws applicable to all cities. Provision for the revision of city charters was made, but amendments which change the framework of the city govern- ment, or modify restrictions as to issuing bonds or contracting debts were to be submitted to the Legislature for approval. The Legislature was to be prohibited from passing any law re- lating to the property affairs or municipal government of a city, except such as would be applicable to all cities without distinction. The Legislature was to have the power to pro- vide for the method and limitations under which debts might be contracted by all cities, counties, towns, villages or other civil divisions, to the end that no municipal debt should remain outstanding for longer than fifty years.
VI. The Legislature was authorized by general law to establish different forms of government for any county not wholly included within a city.
VII. To remove the basis for complaints of delays and undue expense in the administration of justice, amendments were submitted dealing with (1) rules of procedure and (2) the organization and jurisdiction of courts and judges.
As to the first, the Legislature was required to enact at the next session a short and simple civil practice act, which it might not alter or amend, unless at the request of the judges empowered to frame civil practice rules, except at intervals of five years, and then only after report by a commission ap- pointed to consider the subject. The judges of the Court of Appeals and Supreme Court were to be given exclusive power to make rules of court to regulate details of civil practice. By these provisions, the delegates sought not only to do away
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CONSTITUTIONAL CONVENTION, 1915
with the "confused and complicated mass of statutes" which constitute the Code of Civil Procedure, but to provide, in place of a rigid statutory regulation of practice, rules of court made to facilitate the progress of litigation without undue technicali- ties and delay.
As to the second amendment. It was recommended to in- crease the number of justices of the Appellate Division in the First Department from seven to not less than ten, nor more than twelve, and in the Second Department from five to seven. To supply this enlarged force, provision was made for election of two new justices in the First District. In 1914 the Appel- late Division in the First Department disposed of 1,500 appeals and 840 motions, more than double that of any other court in the State, except the Appelate Division in the Second De- partment, which, in 1914, decided about seventy per cent of that number.
The convention report further read :
"The number of cases undisposed of in the Court of Appeals has been steadily increasing. It requires more than two years after appeal taken to that court before a case not entitled to preference can be reached for argument. There are now more than 600 cases pending before it. We recommend that the number of permanently elected judges be increased to ten, and that the three Supreme Court justices now sitting in the Court of Appeals by designation of the Governor be continued as Associate Judges of the Court until the expiration of their respective terms, after which their successors shall be elected as Associate Judges of the Court of Appeals. For the purpose of disposing of the present accumulation of business, we re- quire the Court of Appeals within three months after the Con- stitution takes effect, to designate for temporary service in that court not less than four nor more than six justices of the Supreme Court, and thereupon to divide the Court of Appeals into two parts, each of seven judges, each part having equal jurisdiction to hear and dispose of the cases which shall be distributed between them by the Chief Judge. When the ac- cumulation of cases has been reduced to 100, but not later than December 31, 1917, the Supreme Court justices are to return
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COURTS AND LAWYERS
to their court and the Court of Appeals is then to resume its normal condition as a single court. Further accumulation of cases was to be dealt with in like manner."
To facilitate impeachment of officers of the State in proper cases, it was provided that the Legislature of its own motion, might convene to take action for the removal of a judge of the Court of Appeals or justice of the Supreme Court; that the Assembly, of its own motion, might convene for the pur- poses of impeachment, and that the Court for the Trial of Im- peachments might order all or any part of the testimony in any case to be taken and reported by a committee composed of members of the court, except that the impeached officer must be allowed to testify before the court, if he so desire. Apply- ing the principle that no man shall serve as judge in a cause in the outcome of which he has a personal interest, it was pro- vided that on the trial of an impeachment of the Governor or Lieutenant-Governor, neither the Lieutenant-Governor nor the temporary president of the Senate should act as a member of the court.
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