New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1855-12-28

the sspreme &c urt are elected by DsTcs, ,od when
either Of them dies he vacancy exists in s1d IL 10 Oe
SUPP iel by hs district. Senator's Stnte officers,
aud Representatives in Congress arc officer Of the
United States bu /, IA conoeded thai the provision IN
qu ston is applicable 20 them. The &C, containing
the rCqussion was pissed previous to the adoption Of
our present Consh1ton, aud when our Judges were
appolned by the Governor and lste but the pro-
vision was general and 1t was rot opposed 20 any part
of cur organic law; L no. repealed by ", but tie
efficacy continued and extended 20 wastevef might
be brought into the same e by any system.
Indeed, its continued operetion vas admitted by
slight amendment made in chapter $40, OF the Statutes
of 1917.
lives also ssid that TIE provision in quest IN q d.
rectorJ only, and may be disregsrded. Oar Courts
have undoubtedly exercised the power of dsp snsiog
with the regulations oil iaute5 where they seem 10 DO
mere matters of convenience and do not sff-c. sno-
stsnual rights. Bat, as II is often diff ;ut 90 as
crimiDete, the power snoud be exercised ~lh great
caution, and the principle should not be extende ~
yond the cases to which 1t s clearly appncso,e. IL
SCENE ~ that |. is very ma erla thar INC e'scpIS
should have timely notice of vscsncies occurring or
ing TIE terms Of office, AID of the ane "neh tney are
to be supplied through the exercise ~ nne eleo i've
frsr Chise In most Paone1y IL LOT oOVoue Iea
49, most essential especially If i so when there is
aw recurring ra0lic otci7 notice In toat case the
I "a, H. Ell wait for such notice and if that il
| emitted cd election had, Notwithstanding suc1
o,oisstD they may he taken by surprise 1t is no,
al answer 10 this to say that in tts instance the
I elections il question were generally kno@n. Ire
! knowledge may not have been universal III the DIS
tfict and il il Lad been, many might bave a1stailed
| from voting from an impression that it was IN.
authorized and might have been nugitory. JUDGED,
il s apparent from the statements in the complaint,
that many of the voters vino attended and voed a. the
lac election omitted TO vote for any one to supply the
| vacancy in question. The vote given for q Justice
| of the Supreme Court for the long term was 50 769
whereas bat 40 sis given for al the candidates for
The short term The difference was very conslterable-
mole than double the plurality obtained by the relstor
1t may be- sugf ested by the coUnse tn It this falling
off was incurred by other thau the existence Of
doubts in the minds of the voters as 10 the validity OF
the election but where there is eXtinguishins clause
clearly established sufficient TO produce the effect it s
| more appropriate TO attribute such effect to the
known and adequate than to the one tia. is sim
| ply col jectural. The statutory notice essential
TO enable the eecorst to act with confidence in matter
in which they had deep interest, and iu such eases
implicit rOnforn y is required, There may be diff
culties in defeating election Wien the Secretary of
State purpOsey Ornis is unabsfo give the notice,
but they by no means equs those which would result
from sustaining al imperfect and partial election One
mig h result in 0ssa sfactiOn with officer while
the other might, if often repeated, p3rdzs the
tire sysem TIE statuts eoss not expressly declare
that election shall be void by of the omission
10 give the requisite preliminary notice. neither does it
il express terms avoid any election given under any
circumstances but the only way to preserve the pu
y Of our elections is TO aDnul those which have been
conducted contrary 10 Statutory regulations designed
to sustain the fair exercise of the right of suffrage.
In such cases the only inquiry thoud be- is there an
actual on isson of substantial regulation and ithere
has been 1t IS no answer to sag that 1t has not been
productive of any injury. The evils which might
reeul from relaxation of the rule cannot be foreseen
and might be very great.
Upon the whole, / am satisfied that the relatOr was
not duly elected, and that there vacancy in
the Cice ct the line when the defendant received hi.
conn hsion. The primary vacancy was caused by
the death Of the late incumbent. But vacancy may
result from the failure to elect pursuant to
the sttute. The Coz stitution speaks of vacancies
ally without specif ing the causes instances
The eth section of the l0ta article provides that the
Legislature may declare the cases in which any office
shall be deene1 vacant But am not aware that the
Les issture has since exercised the pc yer, and
rot exhausted by previous enac.mens in the absence
of any Iew provision. Where there exists actual
vacancy from any cause the constitutional grant ap
ples. There must be such vacancy on the death Of an
incumbent until the valid election appointment Of
q successor. An election may fail by reason of some |
radical defect in the manner of conducting it, or
where there rs an AZ nua1e Of votes for each Of
pre- by reason Of the new election of dor
iii The mex general election Of judges unless it be
done through the fundamentally of the Governor.
IT ere is no OIher limitation OF the time within winch
I. G appointment by him must be made than that 1t
az all continue until the vacancy shall be supplied ct
the ext general election. 1t would sesm TO be the
more rational and think that it is the true construc
tion of this InoVsOn, that where there is failure 10
choose SUCCESSOR a. the next general election, tue
power in the Governor to supply the vsoancy stu
con inues. II may exist until the vacancy is actually
SUP piled. There is undoubtedly requshon upon
the cleo 10 fill the vacancy a. the next election, but
that must be with the qualification tohen that can be
legally done. The Constitution should not be con-
strued so as to require an imPossbity. have en-,
d(avored show that valid election could not be had
when the death of al incumbent happens az too late
day 10 give the requisite statutory Lodce. IL may
happen, also, at a late day tbat it can be knowo
only to the immediate neighbors of the deceased
Judge while the District may be very extensive. So
too il may occur in distant country TO which the
judge may have been under the necessity of resorng
for the benefit of his health, and at so late day tht
ii may not be known to sny one in the District at the
tine Of the election. II surely could no. have been
the intention of the amtrs Of the Constitution that
in these, and other similar cases, there should be
vacancies until the rext general elecuon OF Judges
IL wss said on the argument that instances OF the
kind to which have alluded are so improbable that
intention 10 rrovce for the contuget ces could be
presumed. But the uncertainty OF life Is as great
Immediately before an election IS at any other time
and the experience OF se last eight years shows thattte
aboIs of the Judges some other cause renders their
held upon life unususly precarous Within that period
we have TO the loss OF six Jusice9 Of this Court
Judges Sill, Maynard, MoOrehOuse, Barks, Edwards
and Morris snd such of them died at compsr avey an
early age At any rate thers can be no doubt a. to
the intention plainly manifested by the Constitution
that there should not be long vacancy IN an office OF
much Importance, ard where so much s constantly
required, and Construction which has tendency to
prove efectual is 10 be favored rather than one by
which it may be deieaed. BY this construction no
violence done TO the literal Specification Of the words
used in the Constitu ion, aud there is no violation of
the rigid rule to adhere to the meaning watch the
woIcs orally import am satisfied that the power
of the Governor to make the appointment continues
until the vacancy is supplied by an election.
There is another view of the principal question in
volved in this controversy, which sug gested by
the unset for tie defendant, and is entitled con-
sdtTalon. The next general election of Judges" |
specified in the Consultation in the provision for sup
ply ing vacsrces in the office may well be the 6rst at
which election can be legally had and no that one
which must be Imperative. That Interpretation may |
not correspond with the literal sense of the wor is but
is preferable TO that which might lead to absurd |
col cusOns judges prefer to adhere TO the express
meaning of the worcs used 10 the statute when that
be done consistently with its evident intent, but
thew often adv So Il fDGre liberal In .erpceation when