The sun., 1901-05-03
10 RESTRAIN HIGHER COURT.
Justice Gaynor Questions Right Of Appellate
Justices TO Name Commissioner OF Jurors.

| Justice. TO Name Commissioner OF Jurors.
Supreme Court Justice Gaynor, IN Brooklyn,
| has granted an order 10 show cause why the
individual Justices composing the Appellate
Division of the Supreme Court for the Second
Judicial Department should not be en- oined
from appointing "A successor to William T.
Melody as Commissioner OF Jurors under
the recent act of the Legislature The appli-
cation for the order In behalf OF MIR Melody
was made by Assistant District Attorney
Robert II Elder He alleges In his complaint
that the Cominissioner of Jurors "a county
oll cor and that the power to make the ap-
pointnent under the legislative act is lodged
in the Justices Of the Appellate Division.
who are state officers. and that this power
is violation Of the Constitution of the State.
which says that Commissioners of Jurors
shall be appointed by county officers 10 be
designated by the Legislature II Ia also
alleged That the act IL unconstitutional be-
cause IL imposes upon the Justices OF the
Appellate Division duty which IS not =
judicial function
The order to show cause operates as an
injunction pending the Application Tor an
Injunction TO be made AZ special lefn OF
the Supreme Court on May s The present
action Is said by lawyers 10 be novelty In
that il seeks to restrain Il higher court IN
performing duty which the LegIsat nre
enjoins it to do, In granting the order
Justice GaYnOr deemed IL wise 10 write
memorandum as follows.
IT seems best that Me this memorandum, as the
learned counsel who have thls case IN chafSr are
embarrassed and anxious that Their course Ia asking
that the individuals who are the justices OF thr Ap,
pelAte Division Of thr supreme Court IN the SECOND
Judicial Department he tcStianed from appointing
n Commissioner OF Jurors iot The county OF Kings
shall not seem unSeemly or lacking IN fespec'.
The ONCE Of commissioner OF Jurors OF ms county
was created by statute In 1888 and has existed ever
since Tho power Of appointing the Commissioning
was placed with county oinclals by such statute ana
has remained there and been exercised ever since
This year an act was passed placing such po"ri OF
appointment with The Justices 81 tae Appellate lpsi-
sion IN this !ud ,ciai department There In cons'-
tu,onal provision that apponive county omcets
may be appointed 10 existing county oncts onN bS
The Board vi Supervisors OF such other county au-
thOriiy aS thr Legislature may direct A. Justices
Of the supreme Court arc not county but SlAn ON.
GERS or authorities IL is claimed that the act passed
this year violates the Constitution and Is void. Ihe
object OF this action 'Sto test thai question
The action is not 10 obtain an Injunction aeains'
not profess 10 confer power of appointment on The
Couh. but agAnS, the individuals who compose the
court. upon whom the act does profess " coMet
the power The act " appointment Is not judicial
act but an Administrative one The case Is thr same
who, were not Judges. In such case this action
would he the pslntlr's proper remedy, as has oten
decided in ka,hoone vs. Wirh The fact that thc
&C, confrfs the power on judicial officers does not set
the case Al all. The plaintiff mas the same nsh' 10
bring this action and It IS my duty 70 entertain Ls
application The learned Justices Of the Appellate
Division could not by refusing TO appoint under the
act decide the question presented fOr they would not
be- acting iud ually In doing 50.
'rhe question has 10 be decided pdically, '. e,
frSt hy the court H Special Term and then on appeal
BY the Appellate Division. and lastly on appeal by
the Count Of Appeals and the learned counsel Tor the
plaintiff know ~ no other course and have aooped
The r,ght course u act such judicial decision Ana
the question ought 10 hc jud riAy decided IN advance,
Tor II the act be unclnsulOral the danger II threat
10 the administration n justice IN this county,
especially IN the criminal courts IN manifest Ihcfr
is also question whether the rgisbtue ran confer
on the Judiciary powers which are not judicial
i therefore giant the ordsr ior the preliminary
Injunction
The members Of the Appellate UiviJon are
Jus ices Nlla " GpOtrir.. Almet jerks,
Jon, Woodwa- i, Albert Sewsll and MI hael
n HiT chi erC Jbsllga lenks il tho only
Democrat IN the body
II is generally unlcr TODD thnt MAGISTRATE
Jacob Brenner Of I Adams a'roet police 'ourt
> slated a. Mr. Mel dy'- su ccssor