The New York herald., 1876-03-04
The Vacancy in the Marine Court.

1t is reported from Albany that Governor
Tilden will fill the vacancy occasioned by
the death of Judge Spaulding by appointing
Mr.. Sinnott, one of the defeated Tammany
candidates of last fall; and further, that he
will appoint this gentleman without sending
his name to the Senate, thus taking the
ground that the appointment does not re-
quire the confirmation of that body. By the
act of 1852 it is provided that ''any vacancy
occurring in the offices created by this chap
ter shall be filled in the manner prescribed
by law for filling vacancies in the Offices of
the Justices of the Superior Court of the City
of New York" With the learned men it is
in dispute what this means; and some hold
that it must refer to the mode of
appointment to the Superior Court, which is
laid down in the constitution-the actual law
on the subject; and others hold that it refers
to the mode in existence previously. By the
constitution appointments TO vacancies in
the Superior Court are filled in the same
manner as those in the Supreme Court, and
in these they are filed until the next cleo
tion by the appointment of the Governor,
''by and with the advice and consent Of the
Senate" But the statute of 1859 directs that
''the Governor shall appoint a suitable per-
son, and confirmation is not necessary In
favor of appointment under the statute, pre-
sumed by Mr.. Tilden to be the law of the
case when the filling of vacancies was pro-
vided for, it is argued that the Legislature
meant to designate a specific mode of ap-
pointment then in view, and not mode that
might be subsequently established for the
Superior Court. On the other hand, it NAV
be urged that the Legislature meant to
assimilate the mode of filling vacan-
cies in the several courts, and that
they should be alike in all, and
that each should follow the changes made in
the other If it meant the former it could
have designated the method by express
words; if it meant the latter it could only
give effect to its will by the words employed.
But the Governor has overlooked the fact
that tho statute of 1859 cannot apply TO the
method of filling vacancies as established in
1852 in any sense in which it is not reached
by the constitution; for as between the
lapse of seven years and the lapse of sixteen
there is no difference for point of this ma
ture Indeed, if any subsequent act is valid
in such case it must be tho one that is
most remotely subsequent. If the Governor
holds that the constitution does not apply,
thea it is not to the statute of 1859 that he
must recur. If, as he argues, the appoint
ment must be made in accordance with the
method in force when the Court was
created, then he must recur to what
preceded the statute of 1S59-and this
he will find in chapter 255. Laws
of 1Si7-where it is provided that
''if vacancy shall occur at any time
in the Office of any such justice or Judge
before his term shall have expired, by death,
resignation, removal or otherwise, then such
vacancy shall be filled for the residue of the
unexpired term at the next general election .
In other words, there is no appointment by
the Governor. Mr.. Tilden must, therefore,
not appoint if he deems the statute his au-
thority, or he must appoint with the consent
of the Senate if he acts on the constitution.