New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1872-01-19

THE coURT or OYER IND TERMINER
A curious question has been raised In tho
Court of Appeals affecting the validity VI tl'9
present organization of the Court OF oyer anu
Terminer, and the legality Of all sentences
passed by it since April, 1870. An ACT paSScu
in 1s47 provided that it should DO held by
Justice of the Supreme Court and two asso-
ciates. who were to DO either Judges OF tno
Court of Common Pleas, the Mayor, the nc
cor,ler, or Aldermen. In 1853 it was enacteo
that no Alderman should thereafter sit as
Judge of the Oyer and Terminer; ana py
supplementary act it was provided that 'no
court should DO held by a single justice Oh
the Supreme Court. This provision was to
heated in the Charter Amendment OF 1917,
and iho court has ben Constituent
in this way ever since. The new
Charter, however, of 1870 expressly repealed
the Acts of 1857 and 1853; and it ia cOntended
by The appellant in the present case (who Is
ono George II. Smith, sentenced to three years
in the State Prison for false pretense) that
| the Act Of 1917 was thereby restored to It's
| full force, and the court must, consequently,
| be held by three Judges. The importance OIL
| the question con be seen at glance; IL the
| claim of the appellant be sustained, there has
| been no legally-cOnstituted Oyer and Torminer
| in this county since April, 1870, and all SEN
! fences purporting to have been imposed oy
such tribunal are void.
| The issue, however, has already been decided
by the General Term of the Supreme Court
| Qngraham and BarnarD, in the case OF WI
liam O'Kell, convicted of larceny of bonds.
John Sedgwick appeared for the plaintiff In
error, and istrict-Attorncy Garyn for tho
| people, and after argument the judgment OF
| the court below was sustained and the Legality
| of tie present constitution of the Oyer and
Termincr was affirmed. In prOnOuncing the
decision Judge Ingraham held that the repeal
ing section in the Act of 1870 was to be con-
| strued according TO tho evident intention OF
tho Legislature, to repeal not the whole of the
preceding statutes to which it referred, but so
much Of them only as was inconsistent with
or related to the government OF the city as
therein provided. 1t was local act, intended
merely to reorgaDize the city government,
whereas the court is a State Court, organized
under the Constitution. But there is another
| consideration. Even il the Acts Of 1853 and 1856!
were to be understood as wholly repealed, the Act
of 1S47 would not DO restored 1t seems to
havo escaped notice there is now no such
statute to be revived, for it was abolished in
1913 by the Code of Procedure, the 18th section
Of which runs as follows: "All statutes now
Gin force providing for tho designation Of tho
"tmes and places of holding the terms of tho
Supreme Court, Circuit Courts, and Courts OF
"Oyer and Terminer, and Of the Judges who
shall hold the same, are repealed from and
"after the first day of July, 194s." By the @Sd
section of the Code the Governor was author
lied to designate the Judges by whom such
courts should be held up to the year 1850. 1t
seems clear therefore that if the new Charter
repealed the whole of the Acts of 1853 and 1857
| it left no provision whatever for the Court of
| Oyer and Terminer except Sec. of Art. vi.
/ of the Constitution which declares that " any
"one of 1.-THE Justices of the Supreme Court
"may preside in Courts of Oyer and Terminer
| Gin any county,