New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1896-08-29
THE LAW CONSTITUTIONAL
ABOLITION OF LAY JUDGES UPHELD BY
THE SUPREME COURT BRANCH
MEMORANDUM FILED BY JUSTICE DEPUE TO EN-
ABLE AN APPEAL TO BE TAKEN-THE

OPINION TO COME LATER
Trenton. Aur Is (sreciaD-Justice Depue on
behalf OF the branch OF the Supreme Court. to-
day flied a memorandum declaring constitu-
uona! the voorhees, act Of 1906 abolishing the
lay judge system of the County Courts The
memorandum merely states the conclusion ar
rived ut by the branch court and promises to
nle an opinion later. The object OF filing the
memorandum In vac alton ia to give counsel an
opportunity to prepare In case they are de-
slrous or carrying the question at issue to the
court OF last resort 1t is more than probable
'ha' an appeal Will he taken In the case
Should this be done the case will be argued at
the November term in the State House.
The voorhees, act legslated out Of office on
Aprii last about forty lay judges who COL
lectively were drawing annually from the twen-
ty-one counties Of the State about $4,000 The
law was the outcome Of the Voorhees, County
Judiciary act of 1897. which sought to abolish
the lay judge element Of the cumbersome and
obsolete county judiciary by abclshing the
entire County Court. and re-establishing the law
judge and constituting him the entire court
This law was passed after an exciting all-night
session. and was finally declared unconstitu-
tional by the Supreme Court.
STATUTORY CREATION
INV utClSlon ueCldllnS the 1890 act unCOnSu-
tutional was dissented to by Justice Magic. who
held that the lay judge was simply a statutory
and not a constitutional creation, and that the
Legislature had undoubted power to abolish the
office. The act Of 1896. which accomplishes
exactly what was sought in 1S95-thc abolition
of the lay judges-was drafted on the lines sug-
gested by Justice Magie's dissenting opinion.
As soon as the Voorhees, act passed last
winter the lay judges Of the State. loath to
lose their official heads formed the Lay
Judges Protective Association" ard proposed
to test the constitutionaty of the law The
Hudson County Court decided uron one
Of the places where the lay judge should de-
mand the right to occupy the bench and there
by bring about test case. Accordingly Lay
Judge John Kenny insisted upon exercising the
right of a judge and Law Judge r. s. Hudspeth
refused to recognize him. The lay judge then
applied for writ Of mandamus directing Judge
Hudspeth to show by what right he refused to
recognize the claims of Lay Judge Kenny. ana
1t was upon the argument on this writ that the
whole question Of the constitutionaty OF the
act came before the Supreme Court.
The argument was heard by Justices Depue,
Van SICKLE and Gummere. Allan l.. McDer-
mott appearing for the lay judges Of the State
and Counsellor Frank Bergen. Of Elizabeth.
personal friend of Senator Voorhees, arguing
in favor Of the constitutonality Of the law.
For many years the people Of the several
counties of New-Jersey have been clamoring Tor
the abolition of the useless and expensive
wooden judges. the lay judges came to
be known The office was looked upon as a re-
ward for political services Of practical char
acter. and to the politicians the lay Judge was
the "approachable end" Of the court
THE OFFICE AN OLD ONE.
The Lay Judges contend that their right to con-
tinuance Is based upon the antiquity OF the
office It having been created In the seventeenth
century. Lay Judges existed both in East Jcf-
sey and West Jersey. In 1902 Queen Anne's in
struction after both provinces were surrendered
to the Crown that ;lie Governor and council
should hear and decide al appeals
The members Of the Council appointed
and were always lay.nen They not only gov-
erned, but heard all cases requiring the admins
tration Of Justice. This arrangement continued
Even in 1776, after the Declaration of indie
pendence was made and the State government;
was formed the Provincial Congress made no
change.
In 1914 there was change. The Chancellor
took the place Of the Governor and the Judges
OF the Supreme Court we're made Judges of the
Court Of Errors. Six other Judges were made
the Council. The general feeling at the time
was to make the entire COUncil 10 consist C1 men
trained in the law The weakness OF Lay Judges
was then fully understood and acclaimed
against Some In the Constitutional Conven-
ton. however. favored :he Lay Judges because
Of their counteracting influence in tempering the
rigor OF the other Judges, while shrewd lawyers
argued for the Lay judges because they knew
that without legal knowledge they could DC
easily persuaded
The Constitution. as rearranged and recon-
structed in 1894 does not designate chat tho
Council shall be laymen. but the traditions were
such and IL has been hard TO break away from
them particularly since then the forty Lay
Judges distributed throughout the state have
exerted tremendous influence TO etaln thelr
places every time the subject Of their abolition
was up for consideration.
The Common Pleas Court was always county
Court and was established as early as lOi.
The Judges OF this were also laymen, by con-
sent for the statutes do not say whether they
shall be LAWYERS or not. in the early lays. when
leading questions came up. too knotty for the
logic Of the laymen. they had the privilege "a
transmitting the briefs - this city for the opln-
ion OF Judge trained n the law.
The presiding Judge. such as prevails now
throughout the State. is a latter-day Innovation
The necessity Of having some law on the pench
caused a pressure to he thought to beai on the
vided
The Lay Judge long ago became more orna-
mental than useful All legal questions have
LONG been decided by the Law Judge, and the
Lay Judge naturally concurs
THEY WILL APPEAL
ysuea rIorr,op Cohalk and Michael I