The New York herald., 1876-03-17
A MESSAGE FROM THE GOVERNOR.

The lrst meeting of the council will be held next
Wednesday evening.
A MESSAGE FROM THE GOVERNOR
THE MARINE COURT AND JUDGE s1NNorT-
GOVERNOR T1LDEN GIVES HIS REASONS FOR
THE APPoINTMENT--THE LAW STATED.
ALBANY, March l6, 1876
The following Is the nication sent to the Sem
ate by The Governor to-day
STATE OF NEW YORK, EXECUTIVE CHAnBRRsl
albany, March 16, ls76
have received the following resolution adopted on
the 7th inst, viz =
Whereas occurred in the Office of Judge of tho
Marine Court OF the city Of New York by reason OF the de-
eoNTs WhSrsas Sns on. Jam.. s,r,o,, ,,ro. ,h. =,
such vacancy Is said to have been appointed judge of said
Marine Court by the Governor; therefore,
hereby respectfully requested communicate TO the Senate
and by what authority Of law any. he has
premises.
In reply to these inquiries have the honor to inform
the Scnate:-
First-James P. sinnott has been duly appointed to
execute the duties of the office of Justice Of Marine
Court in the place of Alexander Spauldng, deceased
until the vacancy caused by the death ofsaid Spaudg
shall be filled by election in conformity TO the constu
Second-The law under which said appointment was
made chapter % of the Laws of lS49 entitled An
TO provide Tor ing vacancies in olices, passed Feb
ruary B. lS49 las amended by chapter 1886 OF the Laws
of 1861
The Governor, alter quoting this law, then says
The next act in relation 10 the Marine Court material
TO be considered here, is chaPser 3s9 of the Jaws of
1852 entitled ian act in relation to the Marine Court
of the city of New York " passed in pursuance of the
mandate of the Constitution before rected which pro-
vdes that three Judges of the Marine Court OF the city
New York should be elected (secton ~ that the JUS
tices SO elected should Immediately after the votes
counted be classified by lot section 2 and that
vacancies should be filed as follows:-
SKcrIoS After the expiration OF terms office under
such classification the Jasti OF the Marine be
elected at the expiration every two and
in the prescribed by filling vacancies in the
New York. @''' V
This act was passed on the 18th day Of April 1852
and expressly repealed all former acts parts OF acts
inconsistent with IL (section l2L The question Is,
What was 'the manner prescribed by law for filing
in the offices of the Justices OF the Superior
Court when this act took eticcts" That answer what
ever it may have been, adopted by this
act for the purpose OF filling vacancies in the
Marine Court. Chapter 255 OF the Laws OF 1S47.
entitled An act In relation TO the Superior Court and
the Court of Common Pleas in and for the city and
county New York" The Governor here quotes
tion s.
In obedience to this mandate the Legislature passed
the general law first above cited enactng that in all
cases not expressly provided for, the Gov
no other provisions OF law for the filing
of these fractional vacancies in the Superior Court
The provision of the act of 1875 establishing the Marine
Court chapter 1870, In which the word vacancyn
Cured had no application and had ceased to he in force
for any purpose whatever. That provision
incident to system that had been swept away by the
constitution The only vacancy that is contemplated
was vacancy for full term to DO filed by appoint
mcnt for full term an appointment IN direct voIao ion
of the constitution OF 1916 but, besides this the act
Of 1873 had been superseded and repealed by the of
lSi9 which provided that all vacancies should be filed
by tho Board of Supervisors, and which,
In express terms repealed so much Of
all acts and parts heretofore passed as shall
be inconsistent with the provisions othis act Secon
16) The question has been raised us to whether the
words the act OF 1852 relating to the Marine Court
'in the manner prescribed by law for hing vacancies
In the Offices of justices OF the Superior Court relate
to the manner at that time prescribed by then existing
laws or relate TO such manner as might be prescribed
by laws and future constitutions. This IS nota
question about which there be tho slightest possi
blity OF a doubt. statute referring TO other laws
will be held TO mean laws then In existence unless
contrary meaning is pressed but in no case could
that statute In the phrase ''prcscribed by
law' be supposed to mean constitutional
amendment adopted seventy tyears aftcrward
Tho words 'prescrbcd by law' In this
equivalent to prescribed by tho Legislature" This
act was passed under the constitution OF 1896 and this
constitution devolved upon the Legislature the duty of
providing for vacancy III oce and the word constitu
tom is habtuay used in contradstincton to the
word ''aw." We speak OF constitution and aws'' in
common parlancc There nothing IN the language of
the act OF 1852 10 couDtenance n construction which
would make that shifting and ambuatory in attend
ancc upon all future laws aud constitutions affecting
court with which IL had no connection, for II must be
remembered that In 1852 tho Marine Court and
the Superior Court bore no relation to each
other which could make il probable that tho
Legislature OF that year wished to make the mode Of
hhng vacancies in the one follow future changes OF
laws and constitutions IN respect TO the other At
any rate that Legislature failed TO say so, aud
obey the law so long as II stands according TO the
pr1Dciple or the constitution, universally accepted
our jurisprudence II may be proper TO add that
question OF this character recently adjudcated Dy
Judge Hamilton W. Robinson, Of the Court OF Com
mon Pleas and decided accordance with these views
and that his decision affirmed appeal to the
General Term OF that Court
In conclusion ! may be permitted to add that II
would have been perfectly agreeable TO me 10 have
submitted this appointments 10 the Senate II could
haze done so without committing the solecism OF in
viing coordinate branch Of tho royernment--to
which owe by duty and by inclination every Official
c0iniy-to assume n junction in case of which the
constitution and the laws give II no Jurisdiction and
IN which its action whatever II might be. would be
totally void The constitution and the laws cast
me the obligation TO decide IN the FIRST instance
whether IT is my duty to appoint or 10 nominate to
the senate, and IN doing In this have simply
endeavored 10 obey the law SAMUEL J. TILDEN.