The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1860-11-06

The SurREME CorRT's FIFTH WHEEL--A doubt
has been started as to the propriey of electins
Supreme Court Judge at this time. The ques-
ton deserves attention, and its solution may be
FOUND somewhat difficult In arranging for an
elective judiciary, 1t was necessary that the
NUMBER OF districts, the number of Judges, the
Judicial term and the judicial election day
should harmonize. Accordingly the COMMITTEES
on the Judiciary in the Convention of 1916 re-
ported system consisting of thirty.two Judges,
to hold for eight years each, and to be elected
in eight separate districts each district elec.ing
four. The four judges of each district were to
be so classed that after the first election one
should 60 out Of Office every second year. Thus
general election of Judges" occurring every
alternate year, became necessary in contradis-
tinction to the general election which occurs
every year, and it was provided that vacancies
should be filled by appointment until supplied
'at the next general election of judges"
After this plan had been accepted by the
Convention, II was suggested that the rapidly
increasing population of this district would soon
entitle to more than four judges; and an amend
ment was adopted, providing that in this district
there should be as many more than four Judges
as might from time to time be authorized by
law, but not to exceed in the whole such num-
Der, in proportion to its population, "as shall
be in conformity with the number of such
judges in the residue of the State in proportion
to its population"
In the original plan the numbers-two for
the times of election, four for the number of
judges in each district eight for the terms eight
for the districts and thirty-two for the whole
number of judges-admitted of being indef-
nitely combined in a regular series of muta-
tons, and whenever the Legislature thought ct
to supply New York with an additional Judge,
the first and all successive elections OF such
judges should have been held at a general cleo
ton Of judges with term of eight years. to
commence on the 1st Of January following.
This would have made every such eccentric
combine with the system into which it was pro-
herewith perfectly.
The fifth Judge was added by the act of
1S52-Laws Of that year, page sol, section 8.
The first election under that act was held in
November, 1852, when there was no regular
judicial election. The new judges term COM
menced on the LIST Of January, 1858. No
other regular judicial term commenced at that
time. Hence all the difficulty.
The case Of Judge Davies against Judge
Cowles did not necessarily draw attention to
this point. Neither Of the parties was inter
estsa \ presenting it. Whether it occurred to
them or to their counsel Is unknown. The
courts did not notice it. g Herman, 35O.)
The statute of 1852 conflicts so utterly with
the judicial scheme laid down In the constitu-
ton that its validity may well be doubted.
The Judges who have held under it are judges
de facto, and their acts are all valid. But it is
probable the Court of Appeals would not sus-
tain the act, and undoubtedly our next Legis-
lature ought to amend 1t so as to make the time
Of electiDg this 9th Judge and his term Of Office
correspond with the rest Of our judicial system.
Vote early, and take your neighbor along to
vote early also.