The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1845-06-16

by cotemporaneous exposition, and by the gene
to lsts. he did SO act as clerk of the Common Pleas
without interruption. All that was done up to 1921
was known to the Convention, and the mode of
THIS clerks election thereafter long discussed and
highly important Office it was given to the people
was argued most deliberately and his duties distinctly
Defined by the ablest talent of the Convention And
the nth Of Oct 1921 report made by the Secreta
ry of State of all the officers in the city county of
Carter and Stones Debates, 3s7, Oct TO- 49, 49, Nov
and IN And when the Convention 6xed'the mode of
his election they did with full knowledge of all the
functions and Offices appertaning to him. at the time the
Constitution adopted, (See a5 Wendell, p. 49, 1t
was not a building up of an entire new system, Sc)
Thus them the Convention found this officer in exis-
tence they found him the full possession and free
exercise OF certain duties rights, privileges and emoli-
ments they found that of these dtes was the
Clerkship Of the Common pleas they made no change IN
his duties but moreover they say that this officer as he
then should thereafter be elected by the people
that they would not lop off any part OF his oiice, but
bring him in and adopt him he was, with all the
tia powers then belonging to him. And taking even the
extrnsc facts they involve not particle OF doubt They
then take this officer who had previously been elected by
the Governor and Council and by the 9Th section Of the
Constitution OF 1921, says that he with all clerks Of
counties and sher shall be chosen by the people Did
they mean an officer who then clerk Of the Common
Pleas Most certainly or else speaking Of known
have made that exception In tho 9th section when it
says that those clerks Of courts except those already
provided for in the preceding section shall be appointed
by the courts &c. it can only mean and must mean ex-
cept those clerks of counties including tho clerk of the
city and county OF New York, who is clerk Of the Com
Pleas )" for nomne there clerks of courts
named in the Sth section.
Mr. WooD here said that he admitted that the clerk of
the city and county of New York was then clerk Of the
Common Pleas and that such the meaning Of the 9Th
section.
Mr.. CurrrSe.-Then there's an end of the argument
for that admission utter death the title Of his client
Human reasoning and human language must utterly fail
II there can be doubt after this. But suppose my
learned friend grappe with this difficulty BY
ected by the people, and that he may also be elected by
one or more Of the judges Of the court if the legislature
n nrdn r Lnrn 18th n nkn n1Nh nj
nothing But is it competent for the legislature, after en-
grating this the fundamental law Of the land to say
that the clerks of other counties after all shall be ap
pointed in some other way than by the people And il
not so with regard to them why be with regard
not the mantle Of the constitution protect him eectu
ally as it does other county clerks By the 9th section
OF the 4h article Of the constitution it is provided that
the clerks OF courts except those whose appointment is
provided for in the preceding section shall be appointed
by the courts Of which they respectively clerks"-
Now clerks of provided for by that name
in the preceding sth) section But the well known his
torcal fact that clerks Of counties then clerks
certain courts makes the exception in section 9th
County Clerks from the purview Of this section In 9TH
er words and to apply the provision to the case before
u.s. the clerkship OF the Court OF Common Pleas OF the
City and County Of New York excepted from the
9th section article A. Constitution because the Clerk Of
the City and County OF New York, whose appointment
was provided for in the preceding sh section, then
Clerk of such Court of Common Pleas This is support
Cd by the contemporaneo1s construction put upon the
meaning universally attributed to it. And in regard to
the effect of contempoi exposition, Coke I'd
lnstt pages H. 1885, 1871, IA well known maxim of the
Law Story's Com. on Const. 1888.
Now reach this point the 9Th section clearly
braces this case, does not if not it within
the 9th section and then he is to be appointed by the
Court of which he is to be Clerk. And what was the
composition of the Court of Common Pleas of the City
and County of New York at the adoption of the Const
stitution? Why, it consisted of the Mayor Recorder,
Aldermen and First Judge; and it has continued with
the addition of two Associate Judges down to lS43,
when this act that we complain of passed And this
act therefore deprves the Court of the power of appoint
ing any Clerk and gives it to the First Judge and his two
associates cutting of the chartered and constitutional
rights in this particular of the Mayor Recorder and IL
Aldermen. This alone conflicts fatally with the 9th
ton of the Constitution if there other objection.
Those three Judges not the Court can be 1.-THE
Court does help the matter for the act OF the Le
gslaure to say that these three shall for certain
purpose be deeme dthe Court. !"
Here Mr.. CUTTING dgressed to state that he had omit
ted at the proper point to that the act passed in 1926
fully recognized the right of the County Clerk to act
as the Clerk of the Court of Common Pleas. (See Story
on the Constitution, and Cokes Institutes)
Mr. G. continued-When, then, the Constitution said
that certain Clerks should be appointed by the Courts
did they mean "by the Courts then organized 2"
did they mean by Michael Ulshoefer, Esq, one
Of the Judges, or two or three Of them or
preme Count What constitutes it Three Judges Sup
an act to be passed saying that the junior
and that he shall be deemed the court the time be
ing Would that be constitutional So the organza
allow one of its Judgeso appoint its clerk
that the Assistant Alderman OF the 3d Ward should by
an act Of the Legislature, "be decmedo the Court Of
Common Pleas for the purpose OF appointing its clerk
Would your Honors allow tbs? Certainly not neither
in the present instance which is precisely analogous
You bound to take recognition construction Of
every Court OF Record in the State. And you must
that all this is papable evasion ofthe Constitution To
say that any par-any portion Of the Judges Of court
ed the Court, Why il would be an infamous evasion
Of the letter and spirit Of the Constitution Besides
liberal construction is always to be made in favor OF the
people in all these matters and it is not compatible
with the duties of the court, after principle has
IT construction and to make il mean meagrc,
lean specre-a miserable phantom Of power-a gross
Like Dead Sea fruits that tempt the eye,
But turn to ashes on the lip"
And Justice Bronson right in the decision he dev
e at ALL both the to
people, and not to the court But this law does not
give to the court II gives II to fraction Of the court
to three who made the court for the time
being. Now can you thus give things wrong names,
and then make that pretext for overturnng the princ
rights of the people Most certa My not The 18th
ton Of the 18th article of the Constitution provides that
Justices Of the Peace may be removed BY the County
act say ing that A. b. that c. D. shall be deemed"
the County Court for the time being. and shall have
power to remove Justice Who would dare attempt
thus to infringe the rights of the people and yet that
would not be greater outrage thereon, than what is
attempted in this act Of April TO- ls43.
Mr.. CUTTING here again referred to the opinion OF
Judge Bronson Given above) and to the 25th Wendell
"a per Bronson l. varans case, to show that though
nothing away from them.
Mr.. c. went say that the Clerk of the city and
county of New York, being officer whose appoint.
ment has been provided for IN the Constitution, that
neither the 18th 10Th sections OF the dth article
apply to his appointment The clear object of the provi
sion reseng to the people the right TO elect the Clerk
Of the county, was not TO nominal prvt
lege, which would be- the Legislature could deprive
that officer of his functions but IT intended 10 Sc
cure the right of eectng such Clerk, with the same
general poers and as had been constantly ex'
ercised by him and this provision therefore. ought
10 be carried into full and liberal effect Kcnt's notes
D. l67 30 Wendell H. per Bronson And 1t is very sin.
gular that after Mr. Justice Bronson, in lsi0 selected
this case Of the Clerk OF the county and laid down these
rules which doubted or opposed up TO 1913
that We lsi5 should able counsel rallying in this
Court prove that this Clerk be appointed by Mi
chacl Ulshoefer Daniel P. lngraham, and VIM. lngls
But to come to the 9TH and last point, say-If the
Legislature have the power under the Constitution,
to confer authority the Court OF Common
Pleas of the city and county Of New York TO
appoint its Clerk, still the act of April 10, lss3
invalid because passed by amajority and not
by a two-third vote ii excludes the Mayor Aldermen
and Recorder wbo by the CITY charter of Dongan and