The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1856-01-25

JoHNsos Jon the 2sd October lss. Robert a. Norris
OF the Jus Ices Of the Supreme Court ssesd in the
rst judicial district died. leaving unexpired Eve years
nd upwards of the ocia which he vss ee,ted
At the general election held the 9th day Of November
last large number of the electo in that district voted
for Justice of the Supreme Court to ali vacancy and
Of the votes cast Hsrry E. Davies received larger
given prior to the election by the Secretary sa by
any other officer that any vacancy the once Of Justice
OF the Supreme Court "a bs ed In tho First Judisa
district st that election On the sd day Of December
Of the Supreme Court ala va,ancy occ Asoned By
the death Of Mr. Justice Aos These facts which appear
upon the face Of the and are admitted by the
which whether tie electors OF tbs First Judicial District
under the circumstances sste possessed ths power Of
filing the vacancy question by their votes at the last
Section Is OF article Of the cont luton is in the fol-
lowing terms =
Jusce Of the supreme Court shall become Va before the
expiration Of he ,egusr term for which ne was elected as
shall be supplied At the next general election q Judges
PRED term
THIS is the only section which direct speaks of
. vacancy occurring in either Of the offices named, and
vacancy ia question occure before the expiration
of the regular Of the officer By whose death ii
occasoDed case presented already falling within the
pose Of this section Is to confer Of appointment
upon the Governor and limit the period for which such
appointment shall BE- made and that the Goes not
regulate the filing Of the vacancy by election TO shape
the language used that 1t bear this construction
it necessary to subject It to great and violent changes
by appointment by the Governor. until i shall 30
supplied ct the mkt general election OF Judges, at
which can ee fl ed . election ssf'e e, such s
residue Of the unsxprei term" read it does not
conflict with The ds,G1 sPpsssd . t,s But !, S
meant they would have used the LANGUAGE they rave 70
convey that meaning The books will re searched In
-~s-la<
The language as It stands, provides for temporary
filing of the vacancy by the Governor, and permanent
one ca sc as for The other II clear and explicit and
neither requires permits any other construction than
that which obvious upon its face when sucn w.
for the residue cf the term not a. special
election at general eeation merely but at gen
era election Of Judges" Other clauses Of the same art
Gle afford the means Of saying what referred TO
under the designation Under section tas four elected
Of the ss to BE- 80
year; and BY section ! the Justices Of the sn-
preme Court TO be classified so that one OF the
end of every two years. One Judge of the Court Of
Appeals, and eight Justices o: the Supreme Court,
would thus end ther eis s ast%s at the close Of
y the general election of Judges spoken of In the 18th
fectcn Section Il OF the came article PROVIDES shat
the Judges Of the Court Of Appeals shall oe elected by
the the State and the Justices Of the Supreme
Court by the electors of the judicial districts ct
such times may be prescribed by law" Under this
for the Of the officers named from that at which
the Governor nd members Of the Legislature were to be
elected but they have hitherto deemed expedient
Under the provisions OF $40 of the Laws
OF l847 section g. those officers to be chosen at gene
raj elections which declared to be such held At
the came time every county for the election Of all
of certain designated public officers. among whom
named Judges Of the Court Of Appeals and Justices
of the Supreme Court Section OF the same act pro-
vidss that all vacancies in any Of the Offices named"
in the last mentioned section with certain exceptions
necessary be noticed shall BE- supplied ct toe general
gucc00dnQ the opening theeOfo By this
the Legislature have csed the power which
It claimed they possess uncer article TO- section OF
the constitution to provide for filing vacancies
in Office II applies to Justices Of the Supreme
Court and to Justices of the Court of Appeals h.p
held the 9th Of November last not emily general
election, but also general election OF Judges There
was therefore, the both of the constitution and
statute TOR The electors to proceed to fill the
cy that election the next after the occurrence Of
the vacancy. abstain from quoting dictionaries to
show how ''next' is defined; no palmer term can be
used The election the 9th Of November certainly
the first that occurred after the 23d Of October when the
took place ana Is certainly after
counsel sba b sustained That position was that the
term next general election to be held to embrace
also the preceding period In which the preliminary
notices by Law to be given BY The Secretary Of State
officers the election begins the FIRST day of Sep
TENDER at latest and to others the 10th day Of
October: Il Rs. ed. $50, $40, sect. 20 Moreover,
give notice and prescribe Its terms recognise the
the position that the day Of election and not the whole
BY the PHI ase next general election This notice is
itself to specify the officers to be chosen at the then
next general election g. ls47, CHI $40, 8, r. s 4th
the position is to be found in the well ssoerained
meaning Of the term general election" The election
shall be held the Tuesday succeeding the first Mon
day of November in every year and again. general cleo
tons shall be held on the Tuesday preceding the first
Monday of November in every year and again, general
elections shall be held for one day only" This express
son which is also found in the Revised Statutes had
org used In this State before the Convention that
framed the constitution met il then in force law
and must be taken to have been used by that body in
this which is both its natural and accustomed sense 1t
to me- therefore, that bound to declare that
the election ct which the reator claims to have been
elected was the next general election Of Judges after
it it seem than e' the necessity Of this 20 ooncIu
sion is at all affected by the fact that the election law
Il r. s. 4h ed $40, sec ~ contains provision under
which, this vacancy had existed prior 10 the 18th of
October it would been the duty Of the Secretary Of
state to give notice Of the vacancy having occurred;
lfter that period similar duty by law imposed
upon him. upon any other officer In the case of va
,aocy occurring in the office Of Judge OF this court
aw makes II the duty Of any officer under any cireum-
election to fill it, and yet the statute before referred
TO H. ls47, eh 24O o. directs it to be filed at the
next election and section 10 of the act regulates
the form OF ballot to be given when at general election
more vacancies to be supplied in the office OF
Court is this provision sary be regarded as
proving that accidental omission exists in respect
the filing OF the oAce OF Judge OF the Court Appeals
to which notice at least proper 10 regard
to filing the Office of q Justice Of the Supreme Court.
That suposaon ought not to be resored to except from
necessity because it hat the Legislature has
been guilty of oversight IN the discharge their du-
ty The better explanation is that afforded by the fac.
that the section requiring notice when vacancy In .
district is to be filed formed part of the election law
under the Revised Statutes. At that time there
Senatorial districts and Congressional districts
each Of which fell under its provisions. This section
continued in the revision Of the election law of
1S4 and it probably allowed to stand unaered AZ
the legislature saw that under II conflict could arise
with section six Of that act which provides for filing
vacancies in the Offices Of the Judges Ct the Court Of
Appeals and Justices OF the Supreme Court and Others
at the next general election, insomuch when the
cancy in the Office Of Justice of the Supreme Court &C.
CURED before October 1 notice could be given and when
occurred after that time law prescribed any notice
his they might reasonably consider good ground for
altering the section in question, because even |
where notice is prescribed, supposed that |
the omission to give it win vtate the election.
Having arrived at the conclusion that the constitution
requires the Interpretation above given upon the PLAIN
meaning Of the terms employed may be proper to con.
slider for moment ground which have pressed
with controlling M tbo