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ration of his first term he was named again for The Albany Law Journal.

the same office, which he has occupied ever

since. ALBANY, SEPTEMBER 21, 1895.

The nomination is made to fill the vacancy

caused by the forced unfortunate retirement of Current Lopics.

Judge Finch. The loss of Judge Robert Earl

on the bench of the court of last resort has been (All communications intended for the Editor should be addressed simply to the Editor of The ALBANY LAW JOURNAL. felt keenly in many ways where his vast experiAll letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW

ence was of great value, and we but echo the JOURNAL COMPANY.]

universal sentiments of the bar when we regret HE candidates for the Republican nomina- that Judge Finch must retire however talented

tion for Associate Justice of the Court of his successor may be. Appeals at the recent Republican Convention of

For the first time in the history of the Court New York were Justice Celora E. Martin of

of Appeals, it convened in extraordinary sesBinghamton; Hon. Jesse Johnson of Brooklyn, sion on Tuesday, September 17, 1895. The who was a member of the recent Constitutional session was held to listen to argument of the Convention, Justice Henry H. Childs of Orleans constitutionality of the annexation of part of county, Judge William H. Adams of Ontario Westchester county to New York city by the county, and Supreme Court Justice Pardon C. act of June 9, 1895. The appeal arose on the Williams of Watertown. All of these are men application of Augustus M. Field for a manof ability and learning and have for years been damus to compel the board of aldermen of regarded as men of credit to the bench and New York city to reapportion the Assembly bar.

districts of New York county so as to include Judge Martin was nominated on the second the annexed part of Westchester county. There ballot and his nomination was then made is also an appeal from the decision of the Genunanimous.

eral Term granting an application of Henry C. Judge Celora E. Martin is a resident of Bing- Henderson for a mandamus to compel the hamton. He was admitted to the bar in July, board of supervisors of Westchester county to 1856, and began his practice in Broome county apportion the annexed territory in one of the the following year. In 1867 he formed a part- Assembly districts of that county. There are nership with the Hon. 0. W. Chapman, late also two appeals from decisions denying an apSolicitor-General of the United States. The plication for an injunction against the police firm had a large and successful practice, and authorities of New York city to restrain them built up a business second to none in their part from interfering in the affairs of the town of of the State.

Westchester and the village of Williamsbridge, The partnership continued until May, 1877, part of the annexed territory. when, upon the petition of practically all the The courts below have decided that the act members of the bar of the district, irrespective of annexation is constitutional, so far as it anof party, Judge Martin was appointed Justice | nexes the territory in question to the city and of the Supreme Court of the Sixth District by county of New York for municipal and adminGov. Lucius Robinson. The appointment was istrative purposes, but that the territory still confirmed by a Republican Senate. In the fall remains a part of Westchester county for the of that year he was nominated by both parties purposes of Assembly, Senatorial and judicial for the full term and was elected unanimously elections.

The citizens of the annexed territory After filling the office for more than fourteen represented by Augustus M. Field, who brought years he was renominated by both Republican the mandamus proceedings against the Board and Democratic parties, and again was elected of Aldermen, assert that the act is constituunanimously. After having been engaged in tional in every respect, that the effect of the act circuit work for ten years, he was designated was to transfer this territory bodily from Westby the Governor as a member of the General | chester county to New York county ; that it Term of the Fourth Department. At the expi- was thereby taken out of the Twenty-second

Vol. 52 — No. 12.

shall be divided into fifty districts, to be called but without increasing the number thereof." Senate districts,” each of which shall choose

Drovided "that no county shall be divided in by Mr. Guthrie, the Legislature, by its act of





one Senator. Among these fifty it appears that judicial department was created that included

District number twenty-two (22) shall consist | Westchester county. And yet in the face of of the county of Westchester.” Further on it this constitutional mandate, as it was argued 178

Senate district, which is described in the Con Still further it is provided in the apportionstitution as the county of Westchester, and be ment of Assemblymen that until after the came a part of the Twenty-first Senate district, | next enumeration members of the Assembly which is described in the Constitution as em shall be apportioned to the several counties as bracing all that part of the city and county of follows:

New York county, thirty

Westchester county, New York " not hereinbefore described.” It is five members; further asserted that inasmuch as this act went three members.” into effect before the date fixed by the Constitu It was argued that if the Legislature, in spite tion for the division into Assembly districts by of these provisions, could take a part of one the Board of Supervisors of Westchester county county and add it to another, then, instead of and the Board of Aldermen of New York city, the small slice taken from Westchester, say the territory in question should have been ap- nine-tenths might have been taken and the portioned in one of the Assembly districts of one-tenth left, with a Senator and three New York county. The Senate districts would Assemblymen to represent it in the State Legisthen be bounded by county lines instead of be- lature. Or, on the other hand, an arbitrary ing intersected by the dividing line between Legislature might annex a half of New York Westchester and New York counties.

county to Westchester, which would still have number of inhabitants in the annexed territory but one Senator and three Assemblymeri, while is about 13,000. Adding these to the Twenty

the part of the city left to be New York county first Senate district and taking them from the would have its twelve Senators and thirty-five Twenty-second tends to equalize those districts

and to carry out the spirit of the constitutional
apportionment. It is asserted further that it

Then there were the provisions of the Con

stitution, defining the judicial districts and dewill be an injustice to the citizens of the annexed district if they are merged in New York

partments. Quotations from two sections were county for municipal purposes and remain in made. One provides that “the existing judicial Westchester county for election representation. districts of the State are continued. These contentions were the basis of the argu

The Legislature may alter the judicial districts ment of Mr. William B. Hornblower, who ap-stitution, of the inhabitants of the State, and

once after every enumeration, under the Conpeared for Mr. Field.

thereupon reapportion the justices to be thereThe argument of William D. Guthrie, who after elected in the districts so altered." The represented the people opposed to annexation, Constitutional Convention found the judicial was based on the theory that where county districts bounded by county lines and declared lines form the boundaries of either judiciary or its intention to continue them as so constituted. Senate districts they cannot be altered, under

That is to say, it provided in the Constitution the Constitution of the State, by the Legisla- that “the Legislature shall divide the State ture, except immediately after a census of the into four judicial departments. The first deState provided for by that Constitution. In partment shall consist of the county of New support of this theory he directed attention to York; the others shall be bounded by county a number of the provisions of the State Consti- lines, and be compact and equal in population tution referring to Senate and judiciary districts. as nearly as may be. Once every ten years the It is provided, for instance, that the “State Legislature may alter the judicial departments

, Under the mandate of this last provision a

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formation of a Senate district, except to June 6, 1895, altered the judicial department of ake two or more Senate districts wholly in which Westchester was a part, thus: The an

nexed part now in dispute, according to that

Such county.”


act, “is hereby set off from the county of West- volved. The fact that about 13,000 people chester and annexed to, merged in, and made were involved not to be considered. part of the city and county of New York, and Whether many or few were connected with the of the Twenty fourth ward of said city and case was a matter of absolutely no moment, for county, and shall hereafter constitute a part of this was wholly a question of principle and conthe city and county of New York and of the stitutional law. The argument ended in an Twenty-fourth ward of said city and county, eloquent appeal for a strict observance and a subject to the same laws, ordinances, regula-strict interpretation of the Constitution in all tions, obligations and liabilities, and entitled matters involving the fundamental law of the to the same rights, privileges, franchises, and State. immunities, in every respect and to the same

Corporation Counsel Scott, of New York extent as if such territory had been included city, argued that the act was unconstitutional, within said city and county of New York at the

and that its effect was to annex territory to time of the grant and adoption of the first char- New York county for municipal purposes, but ter and organization thereof, and had so re- that it left this territory in Westchester county mained up to the passage of this act.”

for electoral purposes. It is argued by those who favor the annexa

William B. Hornblower, of New York city, tion scheme, said Mr. Guthrie, that the annexed

contended that the annexation was constitudistrict could become an integral part of the tional, not only for municipal but also for city save in the matter of the elections of Senatorial and Assembly purposes. senators and in judiciary matters. To this Mr.

In view of the historical and legal value of Guthrie replied at length. The whole theory Mr. Guthrie's legal argument, we print it in this and the entire system of the administration of

issue of the JOURNAL. The court announced justice in criminal cases depend upon the in

that it would file its decision with the clerk on tegrity of the county. Crimes are to be tried September 27, 1895, and then adjourned until

October Sth. in the county where committed. Jurors are selected within the limits of the county, and

Comptroller Bowler has gained considerable such county officials as sheriffs, district at

fame and achieved great distinction by his feartorneys and clerks must act only within the less and bold stand in the sugar-bounty case. limits of the county.

A crime not indictable | We never could comprehend why one class of by the grand jury of the county where com- producers should receive any benefit which all mitted, not triable by a petit jury of that county other individuals did not possess, and it is imwould be an anomaly, and yet such results material to us whether Mr. Bowler acted in a must follow the division of a judicial district judicial capacity as an executive officer or not, by the alteration of a county line.

so long as he performed his duty in a proper Then the place of trial of many civil actions and legitimate way. We think no one will pending in the Supreme Courts is determined gainsay is that, in preventing the payment of by the county in which the parties reside. “If an unconstitutional appropriation, Mr. Bowler the annexed territory continues a part of the only carried the powers vested in him to their Second Judicial district, will actions between proper end. It is through the bold and indeits residents be triable in Westchester county pendent exercise of the judicial function that or in New York county ? In the former case, this country has more than once escaped atthe action would be tried in a county in which tempts by Congress to overthrow or evade the neither party resided. In the latter case, the fundamental laws. Some one has said that the trial would be had before a tribunal whose preservation of our republican institutions is judges the parties had no share in electing and due more to the interpretations of the Supreme before a jury upon which neither they nor their Court than to any legislation enacted by Conneighbors had the privilege of sitting,"

gress, and without inquiring closely and with Reference was made to the sentiment of particularity into the assertion, it is clear to all the people, and the arbitrary and rude severing students of our political history that if the of old ties without the consent of those in- I courts had not the power to apply to every stat

ute the test of the Constitution, we should be The Comptroller is an executive and not a in much greater peril than we are from the judicial officer, but he is charged with very imdemagogues and populists who too often suc-portant judicial functions. It is his duty to ceed in controlling Congress.

grant or refuse the payment of money under In the case of the sugar bounty, if the at- the laws of Congress, and if he believes that tempt to secure it succeed, the courts will be an act of Congress directing a payment is condeprived of the opportunity to pass upon the trary to the higher and controlling law of the constitutionality of many important statutes Constitution, it is his duty to refuse payment. It was contended by the counsel for the claim- | Mr. Bowler has obeyed his view of the Constiants of the bounty that the executive branch of tution, and his view is sustained, in principle, the government has not the power to pass upon by more than one decision of the Supreme the constitutionality of a law; that that func- Court of the United States, and, in respect to

rests with the judicial branch of the this very sugar bounty, by the Court of Appeals government alone, and that the executive must of the District of Columbia. In view of the obey an act until the courts decide that it is decision rendered by the Court of Appeals, void. If this view be sustained, then Congress which has been referred to and quoted in these may compel the expenditure of public moneys columns, Mr. Bowler would have put himself as it sees fit. The courts have decided that the in serious peril if he had not declined to pay the public money shall not be expended for private sugar bounty. uses; that the people of a town may not be Whether he is right or wrong in his view of taxed for the purpose of encouraging manufac- the constitutionality of the appropriation for tures, and that forced contributions may not the bounty is a question that may now be be levied in aid of inns, banks, farmers, com passed upon by the Supreme Court. The mercial enterprises, or for the promotion of the claimants of the bounty may bring an action interests of individuals, on any pretext what for the recovery of the money in the Court of

But if the treasury officials must pay Claims, and from the decision of that court every appropriation authorized by Congress, either they or the government may appeal to without question, then these decisions are of the Supreme Court. The question could not no avail, and the limitations imposed by the

have been presented to that court in any

other Constitution upon the power of the legislative way.

If Mr. Bowler had signed the warrant branch of the government in this respect are

and the claim had been paid by the treasurer no limitations at all.

of the United States, a precedent would have If no executive officer can prevent pay

been established, and Congress might have ment of an unconstitutional appropriation, the gone on evading the Constitution by making power of Congress to give away the public appropriations for every communistic and money for any purpose whatever is only private enterprise that pleased its fancy or that limited by its own loyalty to the fundamental aroused its demagogic fears. If Congress by a law. But Mr. Bowler has taken the only simple appropriation can set the Constitution ground that can be sustained, for the courts at naught, and can escape from the interpretahave passed on this question more than once.

tions made by the courts, it can compel the An unconstitutional law is void, and no one is payment of public money in aid of one crop or bound to obey it. On the contrary, no execil

all the crops, in aid of egg-raising or tree-planttive or administrative officer ought to obey it. ing, in direct loans to farmers or merchants or As Mr. Bowler says in his opinion, “It is true manufacturers, or in bounties to railroads or that the officer acts at his peril if he does not

rain-makers. For if the sugar bounty is constiexecute a constitutional statute, but it is none tutional, or if the constitutionality of the act the less true that he acts at his peril if he exe- authorizing it cannot be questioned by the cutes an unconstitutional statute.' He must be Comptroller of the Treasury, or by any other the judge. Justice Field has said, “An un executive officer having any duty to perform constitutional act is not a law; it binds no one with respect to it, then any gift or any loan of and protects no one."

the public moneys is possible, and there is no



limit to the taxes that may be imposed upon fore you; not for one political party, nor for one the country for the pain of private persons. locality, but for all the people, for all parties,

The bounty claimants are now confronted by for the whole State. The advocate at your bar can a situation. Will they go to the courts and

never be called upon to perform a duty of more have the constitutionality of the statute passed vital and comprehensive interest or of greater dig. on by the Supreme Court of the United States nity than that of assisting the court to maintain

and enforce the Constitution according to its letter or will they attempt to have a seemingly uncon

and its intent. Indeed, the highest office of our stitutional statute of Congress amended

epoch of the profession is that of conservators of conform to our fundamental law ? The latter established and time-honored institutions against course would require the act to be repealed as the spirit of change now so rampant, any act unfairly discriminating in favor of any The following argument is made on behalf of the class is properly without the authority of Con-relator in the Westchester mandamus proceedings gress to frame. This sort of legislation will and on behalf of the town of Westchester and vilcease only when representatives fairly give ex

lage of Williamsbridge in the injunction suits.

The latter proceedings were instituted to restrain pression to the sentiments of their constituents.

the officers of New York county from taking forci

ble possession of the town and village. The validWESTCHESTER ANNEXATION CASES.

ity of the act is challenged by our clients upon the

ground that it violates the express provisions of the ORAL ARGUMENT OF WILLIAN D. GUTHRIE BEFORE

Constitution of 1894 which apportion the Senate THE Court OF APPEALS IN SUPPORT OF Con- and Assembly districts among the counties and es

tablislı the judicial districts and departments of the TENTION THAT ACT OF JUNE 6, 1895, is UNCON

State. We contend that the whole act is void, and STITUTIONAL AND VOID.

cannot be sustained in any respect.

It conflicts At the close of the last session of the Legislature, with express constitutional provisions; it violates this act was hurriedly passed, arbitrarily transfer- the spirit thereof, and it tends to destroy the unity ring fifteen thousand inhabitants from one county and integrity of counties and local associations to another without consulting their desires, or sub upon which the Constitution itself was framed. mitting the measure to the vote of those vitally There are six controlling provisions of the Conaffected. As the comptroller of the city of New stitution of 1894 to be brought particularly to your York has publicly declared, the annexed territory attention, although in almost every article the county is to the city an unwelcome foundling left on its system is referred to. Section 3 of article III prodoorstep. The feeling of indignation in the local- | vides that the “State shall be divided into fisty ity at once precipitated a contest in the courts.

districts to be called Senate districts, each of which The utmost confusion reigns; for our whole system shall choose one senator." of laws, providing for the administration of public The districts are then apportioned among the affairs and civil and criminal justice. is based upon sixty counties of the State, but the county lines are the integrity of the counties. We have another in- rigidly adhered to as boundaries for these Senate stance of the deplorable results arising from basty districts. and ill-considered legislation which is so fruitful of The section further provides “District number unconstitutional measures in national and State twenty-two (22) shall consist of the county of affairs. One judge in Westchester county declares Westchester.” the act constitutional in some aspects; the surrogate

Section + of article III provides : of the same county decides that it is wholly uncon shall be divided in the formation of a Senate disstitutional. Under the circumstances, there was no trict except to make two or more Senate districts alternative except to pray your honors to convene in wholly in such county.” extraordinary session. We hope it has been suffi These constitutional provisions, of course, had ciently shown that the public interests imperatively reference to the county of Westchester as it existed demanded this sacrifice of your convenience. when the new Constitution took effect, namely,

The issues to be discussed and decided in these January 1, 1895. Article XV so provides. cases are of far-reaching importance, involving, in Section 5 of the same article of the Constitution the gravest form, a question of constitutional law. declares as to Assembly districts : · Until after the The determination of the court will unfold a next enumeration, members of the Assembly shall standard of truth for the interpretation of the be apportioned to the several counties as follows: Constitution of 1894, as our organic and funda

New York countr, thirty-five members; mental law, not merely for the litigants be

Westchester county, three members."

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“No county

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