The sun. [volume] (New York [N.Y.]) 1833-1916, 1878-03-26

In order to overcome the Governors veto
Of the Supplementary Code bill II Is ncccs-
sary to attack the Constitution Of tho State.
Mr.. MONTGOMERY II. Tnnoor. the real
author of the now code. recognizes this no.
ccssity, and hasicns to the attack in II pub
lshcd review of Gov RoBISsoNs objections.
We have not seen his pamphlet, but the
constitutional argument is stated in the
Albany Lac Journal which also gives the
authorities upon which Mr.. THRooP relies.
lie contends that the provision of the Con-
stltution which requires that bills shall bc
read in the Legislature before they can be
enacted into laws is merely directory. and
therefore. that the disregard Of this require
ment by the State Senate in tho case of the
now code did not nvalidatc its passage.
As a matter Of common scnsc and COM
mon safety for the people, the proposition
that the Legislature can enact Law with
out reading II Is one of such gross and owl
dent enormity that We are surprised 1t
should have single advocate. As n matter
of law. the proposition that n provision in
Constitution can be- regarded rs direction
which may safely bo departed from, instead
of command which must be ohcycd. is ut
tcrly without authoritative precedent to
sustain 1t in this State. and has never been
supported by the opinion of any great jurist
anywhere.
Mr.. THnooP endcavors 10 uphold II, how
over. by citing two Ohio cases and one case
in our own Court Of Appeals. In the first
Ohio case, and in the New York case. the
only opinions which help him in the least are
what lawyers call obu,r d,cfd: that is to
a.. i 4.
Of tho question whether the particular con-
stitutiOnal provision under consideration
was directory or mandatory, and so far as
any views were expressed on that point
they were entirely outside the case. and
have no weight rs authority in other cases.
rhc second ease in Ohio is more applicable:
but 1t il enough to say II this that the doc
trinc there asserted, though by no means as
broad as that for which Mr.. THRoOP CON
tends. is condemned MS contrary to the pre-
vailng rule in american Jurisprudence by
Chief Justice COOLEY ~ Michigan, one Of
the first constitutional lawyers in the coun-
try. The courts tread upon very danger
Gus ground. he says, when they venture
to apply the rules which distinguish dlrec-
tory and mandatory statutes 10 the pro-
visions of Constitution
One Of the present associates Of Mr.
| THEoOP on tho Commission Ia Revise the
Statutes Is the Hon. JAMES EMorT. for
| mcrly one Of th6 Justices Of tho supreme
| Court 81 this State. While he was = Judge
! he decided the case of the People agt. Law
RENEE, to be found reported In the 18th vol
ume ~ BARDoUR's Reports, whore he said ;
1T will he found. upon full consideration, to
4 tr.u tf.,t.a al
vision as merely directory. and not impera-
tive" This view scarcely accords with that
which his brother rcviscr is urging upon the
Legislature.
1t is not very cdifying spectacle for the
people Of New York to see their representa-
tives tranpling on the Constitution in order
To uphold a mongrel code. The Governor is
right in all that he has said on the subject,
and the sooner the Legislature recognizes
this fact the better