Year: 1867

THE QUESTION or DESIGNATING SPECIAL JUDGIi-


OPINION or THE ATroRNBY-GEEKRAI~
ATTORNEY G9NRRAL's OFFICE.
ALBANY, May 6, 1867


am requested 10 examine the act regulating the
practice IN tho First judicial D5Ct as b0I1ng 5peca
Terms at Chambers passed the s session OF the gS
lature and 10 state opinion whether tho ACT fepu5


Under the Constuon OF i777 the Supreme Court con.
Chief Justice and four Justices who performed
the duties Of Justice OF ne Court AZ General ana
Terms and the Circuit Courts ana Courts OF oyer anu
Tcminer throughout the state Under the Cchsut1tioI
of the Supreme Court made TO consist OF Chei
the Court. But further provision was maao
Circuit Judges TO be appointed for each OF the circuits
into which the State 20 be divided and who woro in
vested with the powers OF Justice OF the supreme court
at Chambers and in tho trial OF issues Joined IN the Su
preme Court and Courts OF oyer and Termner aud OF
Jail delivery Under the Constitution OF 1896 the Once OIL
Circuit Judge abrOgated. and the supreme Court was
retained with general jurisdiction III iT anu equX ~
the 4h section OF the 9th article the 9tate was uVueu
into eight Judicial Districts and Tour Justices We're pro
yded for each District and power gwen TO increase he
number in the District composed OF the Cy OF fewi 0r


II s perfectly obvious that these Justices each and al
Of them were intended to participate IN ana perform a
the judicial duties Heretofore performed by me Chahce
lOr Justices OF the Supreme Court and Circuit Judges


In order to uniformity aud homogeneity IN me
opinions Of the Judges, and In tho ludlca system ol e
tho Judges should spend year of his term In the Court
Of Appeals and by which half of that Court oil nna
experience acquired in all the departments and branches
of the Supreme Court BY the fifth section OF the same
and regulate the jurisdiction and proceeding IN law
aud equity but this affects only the remedies



TO classify the Judges. aud invest portion OF them with
superior authority privilege or dignity above the rest
nor degrade any portion OF them below the rest inc
only authority vested tho Legislature In this respect Is
contained in the sixth section OF the same article. Dy
presiding Justice at General Term. wh0 with any thIee
more Jusces may hold such General Term Tie same
section provides that any Of the Justices
hold Special Terms and Circuit Courts ana any one OF
them may preside in Courts OF oyer ana Iernher III any
county. , At.


think the act under consideration contTavenes this
section II deprives all the Justices OF the supreme
except
Governor. of authority and jurisdiction TO near ana ue
termne ex parc and contested motions in tho City and
County OF SewYork II separates that district into
distinct and peculiar one, subjected 10 the judgment OF
SINGLE Justice and that too without any rgt OF review
the large and important class OF cases which are by
law submitted to his discretion This experiment abso
lutcy without precedenD Is attempted In portion OF
the state where the largest amount OF special term bus
ness transacted invoking the granting and dissolution
ance OF their compensation. which may amount to five
per cent OF the collected and paid by them ian in
solvent corporation with assets amounting to sOOcO
would afford opportunity for paying receiver $OoOe
involving the granting Of costs III various other cases
and IN short the disposal Of millions Of money annually


This large field Of practice and judicial experience IS
shut against all the Justices Of the Supreme Court save
one. and IS prOporonabiy withdfawh from ,ie Sor oI
Appeals IL is not necessary 10 enlarge on tue dangers
which will attend tho admin,stratlon OF surh q
ing reason for considering carefully the con
stuona objections to tae , act ces she ., sss ts @
preme Court OF authority to transact Special Term bust
ness they may also deprive them OF power TO hold Cir
cults and General Terms; in short they ny by Sgsa,
tive act substantially revive and reinaugurae the OLD



quit Courts which created by special constitutional
provisions in 1922 and supposed to be abogaed ny
the Constitution OF l5I6


may he said that the act in question does not dis
qualify Of the Justices perform special term busi
ness convenient and legal mode Of designating
which one among all, shall do certain class OF business
in certain locality.


suppose exciting political question OF that class
shall arise and be pending In the Special Term Of the SUI
Court IN Judicial District OF the state, could
be considered wha the constitutional authority OF the
Legislature TO designate the particular Justice who
should decide That exercise of would not be
to the Constitution than the act In ques
tiOu.


If the Legislature may authorize the Governor 20 desg
nate Justices who may, and Others who may not,
perform class OF judicial duties In Of the
OF the State. the designation be made di
rectly IN the act without the Intervention Of the GOV.
at all, and may be extended 10 any number OF
counties Would 10 be constitutional TO enact for exam
pie that the present distinguished presiding Justice Of
the First Judicial District should not hold IN other
words should DC disqualified from holding special terms
anywhere The Constitution provides that he and all
other Justices may hold them !" In any county" For
further example would u be constitutional 10 enact that
other Justice might hold special terms, but should
sit "A Justice at general term in the Frst any
other Judicial District ,


am impressed with the conviction that such legisa
tive acts limiting the judicial authority of the Justices
OF the Supreme Court, and making an inytdous dsctm'
nation between them, repugnnnt 10 the
and that the Governor will he jusabe should ne omit
TO make the designation directed by the law IN question


j. II. MARTINDALE, Attorney -GcncfaL