The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-12-28
TIE vAcAsT yUDGEsRlI
Supreme Court--General Term.

THE PEOPLE ON TIE RELATION OF DAVIES AGAINST
C0wLEs--DIFFIcULTY ARISING OUT OF THE DEATH
OF MR.. JUSTICE MORRIS.
ROOSEVELT, 1.-THE question involved In this contro.
very-slthough of some interest," doubt to the imme-
diate pares- Of far greater importance when regarded
a. IL should be-, in public point OF view. Aas
Shall seat on the bench OF the Supreme Court-vAcat
ed not BY the regular expiration Of the term Of the in
cumbent, bat prematurey, by death other special
cause, happening at however short interval before
general election-be filed the instant, without legal
notice. and without the possibility Of legal notice. to the
ody Of the electors and in disregard OF the established
forms of law, by few, and perhaps by single voter,
who may chance to be cognizant ofk existences May
al election making known his intention to favorite
spirant, thus, in effect appoint successor to occupy
unexpred termq Such perhaps strongly yet truly
ed Il the question now presented for decision.
ss nss ss s sa
Ven nor and to hold their Office till the age co. we're
nary cases for the ssd term eight from the
first day ofJanuary following their eestion.
cesaary a corresponding change in the law. And the
legislature therefore, directed to "prescrbe the
tines for holding elections for Judges, and the mode Of
filing vacar cies should any occurrsstrcting the Co
to the power Of making temporary appointments
when and long only under the circumstances might
On the 7th Of May 1s47 act respecting elections
was accordingly passed declaring 10 effect that the
officers that such elections should be held the Tues
cay next after the rst Monday Of November in every
notice thus given by the law itself should, before the
first Of september IAN interval OF two months 1T least
Issue pasTttSla notice Bsiyng the Officers 70 be
fore the 18th Of October interval Of eighteen days al
leas ike notice Of any vacancy proper 70 be sup
cause the name Of the officer, and the tine when his
tenn in the ordinary course, would have expired
Here then, it seems 10 me- Is provision declaring
by the most necessary implication that vacancy by
death shall be filed at agenera election thats an cleo
nness the dea creat has occurred as early at least
the 14h Of 0ctobein other words that the vacancy
in such case Is not a the statute expresses IT. yscan
ceedrg the happening thereof" and must therefore be
| supplied in some other manner.
And IL not such deter Mutation, whether express or
implied, within the cons uonsl power OF the egisla
tuiea power necessarily resulting from the consti,u
ional injunction that the Judges (making distinction
between casualties and ordinary expratons) shall be
elected at fuch times as may be prescribed by and
ticular making distinction between judicial and other
ofces) the Legislature shall provide for ailng them
the legislature as TO the regular and ordinary elec
the times Of such elections and the abnormal and
extraordinary election Of Judges to AL vacancies, have
the aRoute power Of prescribing not only the times
but an other particulars, how 1t be said that they
have not the power to enact in effect they have done
that election TO ill vacancy shall take place at
time which does not admit Of at least eighteen day.
(om the 10Th Of October to the Tuesday after the first
DAY Of November notify the electors Of the fact and
the nature Of the vacancy and to enable them under
standingly and properly DIN III
The justice Of this eniDg, far a. It is founded
the constitutional prCvions thus far alone referred to-
to be conceded. There Is however, another
suonal provision, IT is said which entirely change
tanned in tie thirteenth section Of the SIKH article
The punctuation Of this section, and its Immediate
features in aseertaining Its meaning In both these re
spects The Citations IN the REALTORS printed ar
hs x. although in %e
! position, and on tie same subject matter, ar
detached from each ether and then stu further
from IL emseves by tie insertion Il semicoon and
capital letter in the place in which the original instru
TIE great object of the l2'h section whether wisely
not is immateral, to take from the executive
As it oreseen, however, that casualties Of th
ordinary must occur, and that in such cor
siderable time might frequently intervene before II
appealed to, exception-for although In the form d
distinct section it is but an exception to the l2tha
Il the exgency, the appointing power Of the Govel
ror 'unt (the vacancy shall be supplied at the mel,
tioD for the residue the urexpired term The object
repeat OF the two sections ogetherthe leading and
far practicable elective and not to prescribe TIM
the OF their election These merely inciden'
matters were in the language Of one part Of the cons
the Legislature" Why, it may may be asked, impose tn
duty, in express terms and twice repeated, the
making power IT, is contended-,o far least n
spects vacancies--the whole labor had 10 effect be
n(speakng Of any every vacancy before the reg
lar EXPIRATION OF the ofeers term the constitution In
election, why, in the instrument is it declar
that the tines Of electirg lin all cases) shall be sud
"as may be prescribed by law'. and WY in subs
the subject Of vacancies and nothing else again direct
introduced; and the whole ground covered, in IL
a,he legislature thA provide for filing vacancies
M
which the relator relies, the Interpolation he conten
for, can It be fairly averredA that with the most
ton can be found which conflicts with or qualities itY
Tie trainers Of the Constitution, he says and the peopl
must lie understood to have employed words in the
natural sense. and to have intended what they sal
sections quoted as to the i3ths And if 40, is NOT i,
in he two former as IN the iasters And il It
have In that view at least, a seeming contr
very manifest and gross aosurdity also to eDcounter
must, therefore, upon the REALTORS assumptio
s sss o dssss as ss zeal s.s
the difficulty. E
IN thus regarded says Nj. Justice johnson in
rally and gramfsaticaiy) g the words embt y defnJ
meaning, which involves no absurdty and no CONT
then (of course not otherwise that meaning, appare
upon the face of the instrument ia The which alo
b.. sep nasniy Of y Is Il 20 cssr Ii
the provision relied (secsion ID Of article 81 by It.
and OF Itself, imperatvey, no matter how nconysniei
6xes the time when every vacancy shall be filled
eiectiony
II The language of that section were clear and
ploit II would hardly have been deemed necessary as
done in Of the printed points submitted to MS
what by some might be considered material alterati
Know Who have read the bsssIy parties IN tbs
may he IS significant a word This typegr pbica "a
tsrstion unless accidental carries with I, ext
implied admission Read naturaly-and az the wor n
printed in the instrument itsef-the twelfth
thirteenth sections, II to me, clearly provt
fLu% n ttxa IseU ~ txa -..r.
Court shall be elected by the people, second that
Legislature shall prescribe or notify 10 advance.
times Of elecsipg them; Ind bd that in the exception
Of vacancy by deah other casualty the Cover
n y make tom pcrary appointment TO III IL until 81
pied according 10 law az The earliest general election
Judees at which II shnu be filed by the electors.
Such, in my judgment-eo far as the point in cont
verty corcerred-s fair psrsphrase OF the sesic
Of The constitution, paraphrsse fully borne out by
natnl al and meaL ng Of the while insfrnmant ~