New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1899-11-16
is AN ELECTION NOT AN ELECTIONf

The candidacy Of Assembyman Merton z.
Lewis for appointment by the Governor 10 the
office of Special County Judge OF Monroe Coun-
". to succeed George A. Carnahan, elected
Mayor of Rochester, brings to attention an In
teresting constitutional question. Mr.. Lewis Is
at present q member of the legislature and
was last week reelected to take office on Janu'
arv /. the day on which Judge Carnahan VIII
he obliged TO leave the bench to assume his
executive duties Section Of the State Con-
stitution declares that:
No member of the Legislature shall receive
anv civil appointment within this State, or the
Senate of the United States, from the Governor,
the Govern IT and Senate. or from the Degslat-
ure, from any city government curing ,hs
time for which he shall have been elected; ana
all such appointments and all votes given for
any such member for any such office or ap-
pointment shall be VOID.
That provision would seem on It's face to
make it impossible for the Governor, however
much he might desire It, to appoint Mr.. Lewis
TO the judgeship or any other office between
now and January /. 1901. Mr. Lewis, however.
has other views of the constitution. In reply to
questions about his candidacy for the Judge
ship he frankly says, I'll take 1t If | can get
It." and he argues that tile prohibition will not
operate to bar him so long as he does not
qualify for the office Of Assemblyman. He
holds that IL he should be appointed after Jan
uary l. when his present term In the Legislat-
IRE had expired. having failed to qualify for
the new term, his appointment would be legal.
We do not attempt TO forecast what the ofi'
cal Interpretation of this section Of the consti-
tuition NAV be. Possibly the Attorney General
will share the view of Mr.. Lewis. and the Court
of Appeals might sustain his title to the office
Of Judge II he should secure the appointment.
The legal effect of any collection Of words In
the constitution is matter for the courts to de-
eide and laymen will not be inclined to ques-
ton their technical accuracy. Nevertheless, we
think there Is no doubt Of what the trainers Of
the constitution meant to accomplish by that
provision, nor that their purpose would be
frustrated by any such evaslve construction as
Mr. Lewis suggests. Undoubtedly the purpose
OF the prohibition Is TO remove legislators from
temptation to use their position for their own
advancement Among other things it is to pre-
vent schemng Governor from influencing
legislation by promises OF Office to men who
will vote rs he wishes BY the use Of the APP
pointing power to reward his supporters after
the session the Governor might practically DOM
mate both Senate and Assembly. So. too, If the
out qualification holds Governor can remove
from the houses members who threaten to stand
in the way Of measures he wants, or to favor
measures the Executive does not wish laid on
his desk
We do not mean 10 suggest any such posi-
b,Iitv In the case of Governor Roosevelt and
Mr.. Lewis. We are dealing only with the
general principle But suppose a Tammany
Governor were In office and anxious to keep n
bill repeating the Horton law from placing him
in the dilemma Of antagonizing all decent SEN
timent or disobliglng his Tammany hackers
What more natural than that he should see in
Monroe County judgeship chance to remove
from the Assembly man who promised active
ly to push such repeal billG He would not tell
Mr.. Lewis his object. He would say: Here Is
"a Republican county, where the people have
| promoted Republican Judge. 1t Is fitting
J. that should put In his place q Republican