USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume II > Part 29
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The convention moved with reverent caution, recognizing that past Constitutions "were the work of the ablest and most famous statesmen and lawyers," and that a system "so erected and long tried" surely should not "be discarded without grave and compelling reasons." They knew that judicial systems "for highly civilized and populous communities in our com- plex civilization cannot be made over at will," and they re- solved to be very certain of their reasons for any amendments proposed. They held to the conservative rather than the rad- ical view. For instance, though the convention appreciated
3. This judicial system had long been in practical operation; it had proved reasonably successful in securing the blessing of justice impartially administered according to law; many deep-rooted traditions had grown up around its provisions; it embodied and perpetuated fundamental permanent principles which in one way or another had guaranteed to all classes their "day in court," and the right to be heard by just, competent and impartial judges. Ibid., p. 6.
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that the appointive system "might be theoretically preferable," yet they were not prepared to suggest that "the practical ex- perience of the State during the past three-quarters of a cen- tury under the elective system had not been satisfactory, and had not resulted in the selection of scholarly, competent, indus- trious, impartial and incorruptible judges."
The convention gave eight months of intensive study to the subject, and reported their findings in due course to the Legis- lature. Some of the amendments recommended were not strictly constitutional provisions at all, but rather such as are strictly within the domain of legislative power and discretion, and consequently should be dealt with in and by statutes, thus becoming subject to ready amendment or repeal. Neverthe- less, being matters of vital importance to the State and such as demanded careful consideration, and more permanence than statutory law could give, it was deemed more prudent to in- corporate these changes in the organic law, for although cases can be cited of injustice and hardship wrought because remedial measures urgently needed were impossible by the slow process of constitutional amendment, yet, on the whole, vital governmental principles should be protected against alteration save by a course that affords more time for consid- eration of the subject than has been possible during recent years by the statutory method.4
The proposed new Article VI, as recommended by the Con-
4. ... it was felt that the increasing complexity of modern life in congested communities and of modern governmental problems had rendered it difficult, if not practically impossible, for any ordinary Legislature to give the necessary study to provisions of more or less permanent importance and necessity. Since the Constitutional Convention of 1915, that is, in six years, the Legislature had enacted four thousand four hundred and fifty-two statutes, or an average of seven hundred and forty-two at each session, besides sixty-one concurrent resolutions, or an average of ten in each year. The average volume or bulk is more than two thousand printed pages. Stated in other terms, the Legislature has had to dispose at each session, in three or four months, of fully one hundred times as much matter in volume as the present convention has covered in eight months of intensive study. Ibid., p. 8.
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stitutional Convention of 1921, opened with an entirely new section, which sought to vest the judicial power in the courts, just as the legislative power is vested in the Legislative and the executive power in the Governor. Their reason in wish- ing to make the judicial department of government as distinct and separate as the legislative and executive was based on good ground. "The due protection of personal and property rights demands such a provision," states the report, "and cer- tainly the spirit of Magna Charta and due process of law so requires." For centuries before our Revolution it had been re- garded in England to be a sound constitutional principle, as phrased in Magna Charta itself, that all should be entitled to trial in courts of justice held or presided over by judges who "know the law of the realm and mean to observe it well." Undoubtedly bureaucracy has during recent decades been en- croaching more and more upon what should be the exclusive jurisdiction of the courts of justice. "Extensive legislative, executive and judicial powers are being vested and combined in distinct and reckless disregard of the sound principle of the separation of governmental powers." Even "controverted questions of law and fact, heretofore regarded as fundamen- tally and exclusively for judicial determination, are being en- trusted to bureaucratic discretion." There has been such an alarming increase in public functionaries and public expend- itures in our own State during the last twenty years that com- petent obervers view the tendency "as imperilling not only our liberties but the very solvency of the State and its municipal- ities." Chief Judge Cullen warningly said in one of his con- structive opinions :
"The great misfortune of the day is the mania for regu- lating all human conduct by statute, from responsibility for which few are exempt, since many of our most intelligent and highly educated citizens, who resent as paternalism and social- ism legislative interference with affairs in which they are
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interested, are most persistent in the attempt to regulate by law the conduct of others."5
This seems an important section of the proposed judiciary article, yet it is not to be found in either the Schackno or Cole bills. But the last section of the Cole bill is interesting.6 It refers particularly to the Court of Claims.
The convention, in its report and proposed new article, deals first with Supreme Court matters, considering sections 2, 3, 4 and 5 of the Constitution of 1894. While the members recognized the Supreme Court as vested with general original jurisdiction in law and equity, and also that there has been of late a strong tendency to impinge upon and limit the jurisdic- tion of the Supreme Court, they did not deem it advisable to attempt to define the scope of the constitutional term "gen- eral jurisdiction." It was pointed out that the rule is well settled that the present language deprived the Legislature of all power to take from the Supreme Court any of its existing jurisdiction or to limit its general jurisdiction,7 although it left the Legislature free to give general jurisdiction likewise to other judicial tribunals.8 Nevertheless, the general juris- diction conferred upon the Supreme Court by the State Con- stitution does not operate to prevent the Legislature from changing the common or statutory law, or from regulating and altering the jurisdiction and proceedings in law and equity. This was expressly provided in 1869, and is incorporated in Section 20 of the Cole Judiciary Bill of 1925, viz .: "The Legis- lature shall have the same power to alter and regulate the
5. Hopper v. Britt, 204 N. Y., 524, 534.
6. Section 23. Nothing in this article contained shall abridge the authority of the Legislature to create or abolish any board or court with jurisdiction to hear and audit or determine claims against the State, and any such tribunal existing when this article shall take effect shall be continued with the powers then vested in it until otherwise provided by law .- See Senate Bill, Introductory, Number 258, January 22, 1925.
7. In Alexander v. Bennett, 60 N. Y., 204, 206; The People ex rel. The Mayor v. Nichols, 79 N. Y., 582, 589-90.
8. People ex rel. Ryan v. Green, 58 N. Y., 295, 301.
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jurisdiction and proceedings in law and in equity that it has heretofore exercised."9
The convention recommended that the ratio of justices of the Supreme Court to population be increased from eighty to one hundred thousand in the First and Second Judicial Dis- tricts, and from sixty to seventy-five thousand in the remain- ing seven districts; but the bill as passed maintains the old ratio.
Recognizing that the reform adopted in 1894, in creating Appellate Divisions, has been generally successful and satis- factory, the convention continued the Appellate Divisions and existing judicial districts. It was proposed that the Governor be given power, when necessary for the speedy disposition of cases pending before the Appellate Divisions, to designate ad- ditional justices temporarily, and that such justice need not be resident within the division to which he is assigned, though "a majority of the justices designated to sit in any Appellate Division shall at all times be residents of the department." The experience in the First and Second Districts during re- cent years has demonstrated that "a very desirable element of impartiality and confidence" is supplied when the experience of justices trained in other parts of the State is thus borrowed in cases "which might be thought to involve local predilec- tions or prejudices."
The authority of the Governor to fix the time and place of extraordinary terms of the Supreme Court, without first con- sulting the Appellate Division was not considered "conducive to the best interests" of the State. The Constitution of 1894 expressly provided that the justices of the Appellate Division in each judicial department should have the power to fix the times and places for holding special and trial terms therein,
9. Matter of Estate of Stilwell, 139 N. Y., 337, 342; Guttag v. Shatzkin, 194 App. Div., 509, 517, reversed 230 N. Y., 647; People ex rel, Durham Realty Corp. v. Le Fetra, 230 N. Y., 429, 450; see also article by John Brooks Leavitt in "New York Law Journal," December 29, 1921.
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and to assign justices in the departments to hold such terms. But by amendment passed in 1905, the power of the justices was restricted to special terms. The Legislature, however, deemed it necessary to amend the judiciary law, Section 84, so as to provide that all trial terms, as well as all special terms, should be fixed by the Appellate Divisions. The constitution- ality of the statutory provision has, however, been challenged. Both the conventions of 1915 and 1921 thought it was nec- essary, in order to secure due administration and distribution of the judicial business of the departments, that the Appellate Divisions should have the power to fix the times and places for holding not merely the special terms (at which equity cases only are triable), but also all the other terms of the Supreme Court in each department, and to assign the justices in the de- partments to hold such terms. They felt that there must be some centralized administrative control, and looked upon the Appellate Division as the most appropriate body for such re- sponsibility. The convention introduced a new provision in regard to the extraordinary terms appointed by the Governor. While the exercise of such power by him has been sustained by the courts, and the calling of an extraordinary term is, under the present law, beyond the control of the Appellate Di- vision, the convention felt that an amendment which would prevent the appointment by the Governor of a justice to hold an extraordinary term without even consulting the justices of the Appellate Division of the department affected would prove advantageous. The Cole Judiciary Bill has omitted this provision, but gives the Appellate Divisions the "power to fix the times and places for holding special and trial terms of the Supreme Court held therein, and to assign the justices in the departments to hold such terms."
The Constitution of 1894 made no provision for any appel- late tribunals to hear appeals to the Supreme Court from in- ferior and local courts, which were then being heard in the Court of Common Pleas for the city and county of New York
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and the Superior Court of Buffalo. The only provision made was that such appeals should "be heard in the Supreme Court in such manner and by such justice or justices as the Appel- late Divisions in the respective departments which include New York and Buffalo shall direct, unless otherwise provided by the Legislature." Appellate Terms were promptly created in the First and Second Departments, and they have func- tioned satisfactorily; indeed these tribunals "are in largest measure the only appellate tribunal known to the majority of the residents of the Greater City of New York." To remove all possible constitutional doubt as to the authority to con- stitute Appellate Terms, and to make these terms permanent constitutional courts, in all departments, and to leave no dis- cretion in the several Appellate Divisions as to their continu- ance or discontinuance, is the purpose of Section 3 of the Cole bill.
The Sections (6, 7 and 8) of the Constitution of 1894 that provide particularly for the Court of Appeal have only once been amended, and there has been no constitutional change since 1899. The Convention of 1921 recommended that the Court of Appeals be continued as at present constituted, to consist of a chief judge and six elected associate judges. They also were of the opinion that the present system of designating Supreme Court justices, as associate judges during the ex- treme stress of work was entirely satisfactory. During the first twenty years of this century eleven justices of the Su- preme Court were designated for service in the Court of Ap- peals, and nine of these eventually became permanent judges of the court.10 In fact it has come to be regarded generally
IO. These were Judges Cullen, Werner, Willard Bartlett, Hiscock, Pound, Cardozo, Chase, Crane, and Andrews. In fact, in every instance where a justice of the Supreme Court has been designated to serve in the Court of Appeals, he has been subsequently nominated by his party, or by both parties, to fill a vacancy in the court, except in the case of Mr. Justice Landon, who retired because of age limit of seventy, and Mr. Justice Miller,
C.&L .- 50
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that a temporary judgeship is the safest way of proving the merit of the jurist; and when he has been found to be com- petent and satisfactory, the electorate has invariably shown a desire to promote him to a permanent judgeship in the Court of Appeals.
The convention of 1921 recommended the insertion of a new provision in Section 6, authorizing the Court of Appeals, in case of a temporary absence or inability to act of a judge, to designate a justice of the Supreme Court to serve during such absence or inability to act. They also wished to leave to the court the question of when the temporary additional judges should be released, instead of making their return to the Su- preme Court compulsory when the calendar of the Court of Appeals should have been reduced to two hundred causes.
As to the jurisdiction of the Court of Appeals, the conven- tion agreed that it should continue to be essentially and always a court of law. Two exceptions were provided : One is when- ever the judgment is of death, which exception has long ex- isted; the other is based on the principle of allowing the liti- gant at least one appeal on the facts. It is argued that if the Appellate Division actually makes new findings of fact, and thereupon renders final judgment, the litigant decided against ought to have a review of those findings in some appellate tri- bunal. This plea is not new; indeed, it was recommended by the Convention of 1915, after full discussion. The Coles bill adds that "the right to appeal shall not depend upon the amount involved." In the proposed new article, the second sentence is struck out of the present Section 9, which provides that no unanimous decision of an Appellate Division that there is evidence supporting or tending to sustain a finding of fact
who resigned and was elected Governor. Judge Mclaughlin was appointed while serving as a justice of the Supreme Court to fill a vacancy, and was subsequently nominated by both parties. So also as to Judge Collin and Seabury; both first served in the Court under temporary appointments, and were then nominated and elected by the People .- "Legislative Document (1922), No. 37," p. 18.
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or a verdict not directed by the court shall be reviewed by the Court of Appeals. This provision has frequently pre- cluded the review of what is always and essentially a question of law, a possibility not contemplated by the framers of the Constitution.
The Convention further wished to provide that all litigants should be secure as a matter of right in the privilege of ap- pealing to the highest judicial tribunal of the State, and not be dependent upon leave to do so. It was, therefore, recom- mended that the existing provisions of Sections 588 and 589 of the Civil Practice Act be embodied in the Constitution, so that they shall no longer be subject to constant change and alteration by the Legislature.
The power of removal of judges and impeachment is con- tinued as at present provided in Sections 9 and 10.
The County Courts would come in for radical alteration in the counties of Greater New York under the original amend- ments of the convention. This has been briefly referred to in the opening paragraph of this chapter, and will be found to have been more extensively reviewed in the New York City chapter. The new bill would give the Legislature authority to provide for the election of a surrogate in any county, re- gardless of its population. And the Coles bill has a clause regarding Children's Courts which is identical with the amend- ment ratified by the people on November 8, 1921.
An important new section begins thus :
"All judges, justices, and surrogates shall receive for their services such compensation as is now or may hereafter be established by law, provided only that such compensation shall not be diminished during their respective terms of office."
The convention was of the opinion that the compensation of judges should be left entirely to the Legislature, and should not be dealt with in a constitution. It is generally agreed that the present compensation of the judges of the Court of Ap- peals and of the justices of the Supreme Court, as fixed by the
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Constitution, is inadequate. With mounting cost of living, the cost of rendering service rises ; therefore the compensation for service should rise, and, to be fair, should rise propor- tionately. Ditch diggers were working for a dollar a day on the Erie Canal contracts in 1896 and 1897; they can command many times that wage to-day. On the other hand, the stipend of the judges of the Court of Appeals has remained unchanged since 1887. Efforts to remedy this injustice by the only means possible, viz., by constitutional amendment, have failed, an indifferent electorate not giving the amendment the con- sideration it merited. But if the question of judicial salaries were taken altogether out of the Constitution it would be easier to promptly make the compensation for service meet the cost of service.
There are some other important amendments incorporated in the proposed new judiciary article, but the foregoing are the most vital. The report of the Judicial Constitutional Conven- tion of 1921, which is Legislative Document (1922), No. 37, was signed by William D. Guthrie, chairman, and by other members of the executive committee, the report being pre- pared by order of the convention. It was countersigned by Cuthbert W. Pound, permanent chairman of the convention, who, however, set above his signature the following words: "Whilst I concur in the recommendations of the convention, I do not concur in all of the above discussions." There were many lawyers who did not concur in the whole of the report prepared by the executive committee, nor in the whole of the recommendations of the convention. In the next year many associations met with the executive committee, and amend- ments to the convention's recommendations were agreed upon, and incorporated in the Senate bills. The Coles bill was in- troduced in the Senate on March 9 and passed ; it was amended by the Assembly on March 27, 1925, and on the same day the amendments were accepted by the Senate. The proposed new judiciary article of the Constitution will, therefore, be sub- mitted to the people at the general election in 1925.
CHAPTER XXXVII. THE COURTS OF LAST RESORT.
Higher Courts.
The Director-General and his Council (Dutch Period);
The Court of Assizes (1665);
The Court for the Correction of Errors and Appeals (1691);
The Court for the Trial of Impeachments and the Correc- tion of Errors (1784);
The Court of Appeals (1847);
The Court for the Trial of Impeachments (1847).
There is no need to put into this chapter more than a few introductory paragraphs regarding the provincial courts of last resort, their histories having already been reviewed in the chapters relating to the provincial period.
Briefly, under the Dutch Governors the court of final appeal -- at least in the first years of New Netherland-was the States General of the United Provinces; in later years, during a crit- ical chaotic period of the home government, the provincial Governor, the Director-General, exercised almost uncurbed au- thority, and with his Council constituted the last appellate tribunal, actually if not properly.
With the coming of the English, in 1664, the same system was followed to an extent, the Governor having considerable discretionary powers of government, as the representative of the King. With his Provincial Council, the royal Governor
Chapter XXXVII, as to the Court of Errors, is mainly an abridge- ment of an article by Irving Brown, editor of the "Albany Law Journal." Other material drawn on for this chapter, and principal authorities studied include : "Colonial Laws of New York"; "New York Civil List," 1888 edition; Public Service of the State of New York; records of the secre- tary of state; Senate Documents; "Journal of Constitutional Convention of 1894, journal of like conventions in 1915 and 1921; Cardozo's "Jurisdic- tion of the Court of Appeals" (1903) ; "American Bar Association Jour- nal," 1924; Strong's "Landmarks of a Lawyer's Lifetime."
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maintained considerable judicial authority throughout the colonial period. In the personnel of the courts established were some of the "official family"; and the plan of government made the Governor the ultimate provincial authority in judicial matters. For instance, the Governor was ex officio chancellor ; his Council was made up largely of jurists, the Chief Justice generally being the president of the Council; and for the greater part of the period the Governor had the sole right to appoint judges, and could remove them at pleasure. As a matter of fact, the Governor and the Provincial Council were officially constituted the ultimate provincial court of appeal, and he was supposed to exercise considerable authority over the courts of original jurisdiction.
By the Duke's Laws, promulgated at Hempstead in 1665, a Court of Assizes was created, composed of the Governor, members of his Council, the high sheriff of Yorkshire, and such justices of the peace as might attend. It had original juris- diction in all criminal matters and held trials by jury ; its civil jurisdiction was in cases of twenty pounds or more. It had legislative power, registered the edicts of the Duke of York and of the Governor and Council, and until abolished in 1683 shared appellate jurisdiction sometimes with the Council; as a matter of fact, it was, to all intents, the Council of the Gov- ernor, the high sheriff and local justices of the peace being negligible factors. By the Dongan Act and legislation of 1683, the Court of Assizes was abolished, but for the next eight years appeals could be made direct to the King, or at least through his English ministers, by any "inhabitant, planter, or freeholder . . from any judgment or decree . . . in the High Court of Chancery or in any of the Courts of Oyer and Terminer and General Gaol Delivery." In the reorganization of the provincial system of government, in 1691, this right of appeal was continued. It was required that the person ap- pealing should "first pay all cost of the decree or judgment from which the appeal was taken, and also the debts, costs and
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damages adjudged against him or them in any other suit or suits within the province, and give in the sureties recognizance double the amount involved, and to make return within twelve months after the appeal or appeals are made and to pay all costs, damages and charges if Cast." If the appellant did not make the return within the said twelve months execution would be issued against him or his sureties. Appeals were limited to cases which involved one hundred pounds or more.1 The provincial appellate tribunal created in 1691 was known as the Court for the Correction of Errors and Appeals. Its powers were analagous to those of the first appellate court of the State system, the Court of Errors, or, to give it its full name, the Court for the Trial of Impeachments and the Correc- tion of Errors. The provincial Court for the Correction of Errors and Appeals was again but a judicial name for the Governor and Council ; it was composed of the Governor and Council, and its sittings were always held in the Fort. Ap- peals lay to this court from any judgment exceeding in value £ 100 sterling, which amount was increased in 1753 to £ 300.2 In cases where the amount exceeded £ 500, an appeal was al- lowed to the King in Privy Council, provided the appeal was made "within fourteen days after the decision3 and the appel- lant gave bonds for the payment of the final costs and judg- ments."4 In cases where the Episcopal Church was affected, appeals were allowed from the inferior courts to the Governor
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