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disgrace it is that Congress does not do something hard to find a "demagogue” or “sycophant” on
NOTES OF CASES. condition of things. We have recently seen a sug
a ent business. Whether this can be constitutionally IN
IN Loubat v. LeRoy, 40 Hun, 546, it was held that
a member of a club may not be expelled withdone we do not know. Nor do we know whether the amount of patent business coming to the Su- and defend himself against the charges. The court,
out reasonable notice of and opportunity to attend preme Court would justify it. But perhaps it would not be unwise to cut off these appeals, and Daniels, J., said: “The governing committee was constitute a separate court for this business. There the sole body to hear and determine the case, and really is very little legal learning required in it. It to adopt the conclusion or take the action, which mainly involves an expert knowledge of mechanics, might be considered justifiable under the circummainly involves an expert knowledge of mechanics, stances appearing. But in taking the action which and it might better be intrusted to a bench of
upon skilled mechanics.
the report and the information submitted with it, no notice of their consideration or
that they designed in any manner to act upon the Mr. Joseph Daniel Pope, in an address before the report of the committee of five, was given to the South Carolina Bar Association on “The Tenure of plaintiff
. He had no opportunity to appear before the Judicial Office," advocated a life tenure, and as the governing committee, or to be heard concerning to the mode of choice he said: “The judicial sys- the action which it might be considered proper to tems of the several States have certainly and stead-take. If he had been, notwithstanding the cogency ily moved in the wrong direction. All of the new of the evidence against him, he might have submitStates, except Florida, that have come into the ted some reasons, or some considerations, which Union in the last forty years have (every one of would have mitigated the action of the members of them) curtailed the term of the judicial office; and the committee in attendance, and resulted in a punevery one, except Florida, has given the election of ishment short of that which was provided for by judges to the people. And many of the older States the resolution. This probability, or even though breaking from their ancient customs have followed it may be only a possibility, has in all investigations this pernicious example. Alabama, Arkansas, Cali- of this description been considered sufficient to refornia, Colorado, Indiana, Illinois, Iowa, Kansas, quire, as a demand of justice, that the party proMaryland, Michigan, Minnesota, Nebraska, Nevada, ceeded against shall in all cases have notice of the North Carolina, Oregon, New York, Ohio, Pennsyl- hearing intended to be had, and an opportunity to vania, Tennessee, Texas, West Virginia and Wis- exculpate himself as far as that may be done, either consin (being twenty-two out of the thirty-eight in the vindication or palliation of the misconduct States) have all given the election of judges to the forming the foundation of the complaint. The people, their holdings being generally by a dimin- legal principle is a general one affecting all proished term. This is far from encouraging as to the ceedings which may result in loss of property, posfuture character, learning and independence of the ition or character, or any disaster to another; that judiciary in these American States. That a judge he shall be first heard by the board or tribunal should be compelled to bend his ear to catch the considering his case before that body will be legally censure or the applause of the populace is in itself a permitted to pronounce its condemnation. This disaster. Human nature is the same the world over. principle has been considered and applied to the The system may work reasonably well for a time, action of associations of this description, and it has but it is vicious, and in the end leads to corruption, been held in general terms that its committee is the fatal tendency being to exclude high and incor- | bound to act 'according to the ordinary principles ruptıble men from the judicial office. Let us not of justice, and are not to convict a man of a grave be deceived; court favor and popular favor, unlike offense which will warrant his expulsion from the as they may appear, are near of kin – the one
club without fair, adequate and sufficient notice, breeds the supple sycophant, the other gives birth and no opportunity of meeting the accusations to the designing demagogue; let them change brought against him.' Fisher v. Keane, L. R., 11 places for a moment, and it will be found that the Ch. Div. 353. It was also considered in many other demagogue is at once the sycophant, and the syco- cases, resulting uniformly in its approval and conphant in turn the demagogue; both, it will be firmation. Hopkinson v. Marquis, etc., L. R., 5 Eq. found, are the willing slaves of power, wheresoever 63; Labouchere v. Earl, etc., L. R., 13 Ch. Div. 346 ; power for the time may be lodged.” He speaks of
Wood v. Wood, L. R., 9 Ex. 190, where, in the course the opposite system as “splendidly illustrated in the of the decision it was said, 'no man shall be conEnglish courts.” The English method may be well demned to consequences resulting from alleged enough under the English system, but here we pre- misconduct, unheard and without having the oppor. fer judges elected by the people for a term of four-tunity of making his defense. This rule is not corteen years, to judges appointed by a political parti- fined to the conduct of strictly legal tribunals, but san governor, for life or a less term. It would be is applicable to every tribunal or body of persons
invested with authority to adjudicate upon matters sengers for hire; and she differs from a yacht in not involving civil consequences to individuals.' Iu. being sea-going, if, in fact, she is not sea-going, and 196. A like principle was also declared in Ines v. in not being designed and used for pleasure merely. Wylie, 1 Car. & Kir. 262; Willis v. Childe, 13 Beav. But if neither a ferry-boat nor a yacht, she clearly 117; Murdock v. Philip's Academy, 18 Pick. 244, falls within the meaning of the phrase "other small by Mr. Justice Lawrence in a very thorough craft of like character.' If such a boat, so conand able opinion, considering the authorities in structed and used, is not included in that phrase, it Hutchinson v. Lawrence, 67 How. Pr. 38. This prin- would be difficult to name any that would be. If ciple was violated in the proceedings taken against it is argued that the Repauno is not such a craft as the plaintiff, for he was not afforded an opportunity Congress would require to carry a licensed engineer to be present when the statements of other persons and a licensed pilot, the reply is that as section 4426 were obtained by the committee of five. Neither makes this requirement of a canal-boat propelled by was he permitted to be present before the members steam, and subjects it to the other provisions of law of the governing committee in attendance when the for the better security of life, there is no reason report of the committee of five was received and why the same exactions should not be made of the acted upon and the resolution adopted for his ex- boat in question. The reason of the law applies to pulsion. The failure on his part to request the the Repauno. The purpose of title 52 is primarily privilege to be present is no answer to this exclusion, the protection of the passengers and crew and propfor he was not legally bound to ask this privilege, erty on vessels propelled by steam.
The law was but the committee, taking action upon the evidence / passed also to protect the lives and property of which was obtained, was legally bound to extend other persons on other boats, and at the wharves. and secure the opportunity for a hearing to the The Repauno was of sufficient size to cause peril to plaintiff before its members could proceed to the life and property by an explosion of her boiler. hearing and consideration of the case. There was She was not a skiff. She was not a mere toy, ina total failure to observe this obligation of supply capable of doing harm. The plaintiff's superintending the plaintiff with notice of the hearing and an ent, who daily, and his workmen, who occasionally, opportunity to contest the action taken against him, were carried back and forth upon her, and the pilot and that deprived the proceedings as well as the and engineer, who were required for her navigation, final resolution of all legal effect as to him. The and the people in other boats who passed her on the cases of People ex rel. Flanagan v. Police Commission water, or those who stood on the docks where she ers, 93 N. Y. 97; People ex rel. Farrell v. Same, 20 landed, where entitled to the same protection which Hun, 402, and Peopre ex rel. Gilhooly v. Same, 23 id. the law provided against the explosion of the boil361, are in entire harmony with this principle, for ers of larger craft. A boat propelled by steam, in each of them the relator was afforded an op- which habitually carries four persons and sometimes portunity to be present before the board and contest | more, and is capable of carrying twenty-five, ought its action when the final hearings were had upon to be subject to inspection. The fact, that if her which the decisions complained of were made. In- boiler should explode, or her hull spring a leak, stead of being authorities sustaining the proceed probably only four lives would be imperiled, does not ings taken against the plaintiff, they add further occur to us as ground why she should be exempted support to the necessity already suggested of observ. from the provisions of the law requiring inspection ing the obligation to give notice, and afford the of vessels propelled by steam.” Bradley, J., disparty proceeded against an opportunity to be heard senting, said: “I cannot agree to the judgment in before a determination can legally be made against this case. It seems to me that it carries the applihim."
cation of the statute to an unreasonable length. The boat in question was a mere skiff, not larger
than a ship's yawl, with a capacity not exceeding In Hartranft v. Du Pont, United States Supreme that of a good-sized canoe, without deck, with a Court May 10, 1886, 6 Sup. Ct. Repr. 1188, the hull boiler not much larger than a tea-kettle, and a cyland boilers of a craft used to transport the owner inder of seven inches stroke, and not much larger and his superintendent across the Delaware, and
than a popgun. I think we are in danger of stickoccasionally his workmen, to the number of nine or
ing in the bark by construing the statute as requirten, and having a small engine and boiler; were held
ing such a vessel to be inspected. Indeed it seems subject to inspection, such vessel differing but
to me that the terms of the law do not apply to such slightly from a ferry-boat or a yacht, and falling
a boat. The boat in question is not of like charunder "other small craft of like character;” and
acter,' within the meaning of the statute. It seems the owner is liable in the penalty imposed if he fail
absurd to require a man to have an inspection made to comply with the provisions of the statute. The court said: “It seems to us clear that the Repauno
of a mere skiff which he has rigged up to take him comes within the class of boats described in this
across the river to his shops, and to have a licensed section. Of course, she bears no resemblance to a engineer and licensed pilot to navigate it. With canal-boat, but she only differs from a ferry-boat, all due respect, I think it is running the application as it is generally understood, in not conveying pas- of the statute into the ground.”
CONSTITUTIONAL LAW – SURROGATE- isting County Courts are continued and the judges
thereof in office at the adoption of this article shall
hold their office until the expiration of their reNEW YORK COURT OF APPEALS, JUNE 1, 1886.
spective terms. Their successors shall be chosen by
the electors of the counties for the term of six years.' PEOPLE V. TOWNSEND.
“The county judge shall also be surrogate of his
county; but in counties having a population exceeding When the office of surrogate-other than in the counties of 40,000 the Legislature inay provide for the election of New York and Kings-becomes vacant from any cause
a separate officer to be surrogate, whose term of office before the expiration of the term, a successor elected to
shall be the same as that of county judge." fill the vacancy is chosen for a full term of six years.
In order to carry into effect these provisions the
Second Judicial Department, entered upou an which among other things provided for the election of order made February 19, 1885, which adjudged that county judges in each of the couuties of the Statethe relator was entitled to the office of surrogate of except New York and Kings—upon the expiration of the county of Queens from January 1, 1886, and that the terms of office of the existing incumbents, and for defendant be ousted therefrom.
the election of separate officers as surrogates at the Iu November, 1879, Alexander Hagner was elected option of the boards of supervisors of the respective Burrogate of Queens county for six years from Janu-counties whose population exceeds 40,000. Uuder ary 1, 1880. He duly qualified, and died in office April these provisions nearly one-half of the counties of 7, 1880.
the State elected to avail themselves of the privilege Ou the 19th of April the governor of the State ap- of choosing separate officers as surrogates, and the dupointed Garret J. Garretson to perform the duties of ties of tbe offices of county judge and surrogate Burrogate, “and to hold the office and receive the fees, throughout the State were thereafter distributed profits and advantages thereof for and during the among three classes of persons, viz., those who pertime limited by the Coustitution and laws of the formed the duties of both county judge aud surrogate State.” In the fall of 1880 the secretary of State issued
-those who discbarged those of couuty judge alone, a call for the election of a surrogate in the place of and those who acted as surrogatos only. The scheme Alexander Hagner, deceased,” and in November of of the Constitution, whereby the duties of both surrothat year defendant was elected surrogate under that gate and county judge were in a majority of the councall, and received his certificate of election November ties of the State united in the same person, rendered it 10, 1880, but did not enter upon the discharge of his imperative that their terms of office should be identiduties until January 1, 1881.
cal, and furnished an obvious reason for the requireIn the fall of 1885 the secretary of State issued a call
ment relating thereto contained in that instrument. for the election of a surrogate of Queens county in
In the case of county judges who perform the duties the place of Charles De Kay Townsend, and under of surrogate they are by force of the Constitution none tbat call the relator was duly elected surrogate, re
the less county judges, although they also act as surreived his certificate of election, took his official oath. rogates and are affected by all legislation applicable and filed his official bond.
to county judges or surrogates, but in the case of The question is, was the defendant elected for a full separate officers elected as surrogates their terms of term, beginning the 1st of January, 1881, or only for
office must conform to those of all county judges as the uuexpired term of Alexander Haguer, deceased.
the result of the fundamental law declaring that they
"shall be the same as the county judge.” John E. Parsons, for appellant.
Iu view of the circumstances it will be seen how imH. E. Sickels, for respondent.
possible it is by legislative enactment to sever the
mode of selection or the terms of office of one of these RUGER, C. J. The only question presented by this classes from the other, save in the counties of New appeal is whether the defendant, who was elected sur- York and Kings, which are in this respect excepted rogate of Queens county at a general election in No- from the operation of the Constitution. It may occur vember, 1880, is entitled to a full term of six years that the competency of persons to fill the respective from January 1st succeeding his election, or is limited offices of surrogate and county judge may differ, and to filling out the unexpired terın of his predecessor. might require one to cease to serve in one capacity,
Alexander Hagner was elected surrogate of the whereas he could lawfully continue to act in the other;
does not create any difference in their respective terms
thus placed the subject beyond the legislative power lengthening the terms of their incumbents, and this to effect any discrimination between these officers in seems to be best promoted by giving a legitimate efthat respect.
fect to every constitutional election of such vfficers. We are thus brought to the consideration of section In considering this question it is also important to 5 of the act of 1871, which it is claimed has that effect. observe that there is no express provision, either of the It reads as follows:
Constitution or the statutes, which restricts the term "$ 5. The separate officer elected and performing of an elected county judge or surrogate to any other the duties of the office of surrogate and the legal officer period than that of six years mentioned in the Constidischarging the duties of county judge and of surro- tution, and the point presented is whether in giving a gate, and elected at the election provided for in this construction to the statute of 1871 it shall be held by act, shall enter upon their duties on the first day of implication to have been intended to restrict the duJanuary next after such election, and shall hold their ration of the term in any case. The language of the office for the term of six years from said first day of section is susceptible of two constructions only, and January; but when such officers shall be elected to they are presented by the respective parties thereto. fill a vacancy then they shall enter upon the discharge The defendant claims that the words "where such of the duties of the office to wbioh they have been officer shall be elected to fill a vacancy,” may be inelected immediately upon the receipt of the certifi-terpreted according to the popular siguification of the cate of such election."
language, and considered descriptive merely of the In this connection it is important to consider also occasion for the election, and not as defining the term the amendment of that act effected by chapter 613 of of office, while the relator insists tbat they define the the Laws of 1881, which is as follows:
limit of the term. Upon the success of this conten"$9. When a vacancy shall occur in the office of tion the relator's case must stand or fall. ang county judge in any of the counties of the Statem Although the question made has under the aspect except New York and Kings-from any cause before presented by the various statutes relating thereto the expiration of term, the office shall be filled for a been the occasion of quite conflioting views on the full term of six years at the next general election hap- part of able jurists, and may not be entirely free from pening not less than three months after such vacancy doubt, yet we thing when examined in the light of the
controlling effect to be given to the constitutional proWhatever provision may at any time be enacted by visions, it is still capable of a reasonably certain soluthe Legislature affecting the term of office of county tion. All of those contingencies for which the Cons judge must, it lawfully adopted, be by force of the stitution either expressly or impliedly provides must Constitution equally applicable to the office of surro- be governed by its provisions, and it is only in cases gate. Thus the act of 1881, providing that a vacancy expressly delegated to the Legislature for its action, bappening in the office of county judge shall be filled or when the Constitution is silent on the subject, that for a full term of six years at the next general election the legislative will is controlling. An examination of thereafter, operates both to fix the status of a surr»- the Constitution indicates that certain subjects affect, gate thus elected, and to repeal any prior legislatire ing the question under consideration upon which its provisions, if any there were, repugnant thereto. Lire framers have clearly expressed their will, and which Ingston v. Harris, 11 Wend. 329; Fowler 1. Bull, 40 are decisive, as we think, of this appeal. Thus express N. Y. 57; Harrington v. Trustees, 10 Wend. 547, provisions declare that county judges and surrogates
Although this amendment was adopted subsequent are to be elected, and when elected their terms of ofto the election under which the defendant claims, it fice are to commence on the first day of January next became a law before the election of the relator, and succeeding their election, and to continue for six years must be regarded not only as a legislative interpreta- therefrom. The language of the Constitution is broad, tion of the act of 1871, but as determining the law of plain avd unequivocal. The successors of the judges the land when the rights of the parties herein ac- then in office “shall be chosen by the electors of the crued.
coupties for the terms of six years." Who are the Whatever effect this amendment had upon the term successors of the judges then in office? It confessof office of a county judge under the force of the con- edly does not mean the immediate successor alone, stitutional requirement that the term of a surrogate but by universal acceptation bas been held to lay down shall be the same as that of a county judge, it cannot the rule not only by which the coustitutional term of be questioned but that it had a like effect upon surro
all successors shall be determined, but also a permangates. The amendment in terms refers generally to ent method for tbeir selection. People v. Carr, 86 N. the office of county judge alone, but this embraces not Y. 514. only those persons who are county judges, but also The language applies to all of the indefinite line of those who are also surrogates of their county. If the guccessors or the original incumbents, and furnishes a act of 1871 is susceptible of the construction placed controlling rule on the subject, except in the special upon it by the relator, we should have not only one cases where the Constitution provides for the filling of term of office for a county judge and another for a sur- vacancies. Whenever å successor to & prior incumrogate, but also different terms for the same office in
bent is to be choseu by election, his term of office is respect to the several duties required to be discbarged fixed at six years hy the express provision of the Conby him. A construction so absurd and repugnant to stitution. Section 16, article 6, of the Constitution, common sense should not be adopted if the language provided for certain vacancies in these offices by au. of the statutes is reasonably susceptible of any other thorizing the Legislature on the application of the meaning.
board of supervisors of any county to provide for the It is also well to premise that there are no consid- election of special officers to discharge the duties of erations of publio policy to be subserved or special ob- county judge and of surrogate in such counties iu case ject to be accomplished in preserving the periodicy of of their inability or of a vacancy, and in some of the blection in the case of these officers-as there was in counties of the State these provisions have been the case of MeCtave, 99 N. Y. 83_which requires the availed of, and the special officers so chosen necesadoption of fixed consecutive periods for their elec- sarily fill any vacancy occurring in the offices to distion. The primary object of the Constitution seems charge the duties for which they were elected. In to have been to make the offices elective, and to give
other counties however vacancies in the office of efficiency to the administration of their duties by county judge and surrogate must be supplied accord
ing to the general provisiops regulating the mode of judge and surrogate and those who hold ouly the sep-
In the case of elective officers the necessity for the only gives it legitimate effect but avoids a conflict
first day of January succeeding, aud is entitled to hold
Judgment reversed with costs. commencement of the political year next succeeding the first annual election after the happening of the vacancy and the occurrence of the vacancy. People v. Keeler, 17 N. Y. 371; $5, art. 10, Constitution.
AGENCY - SALE OF LIQUORS BY STEWARD OF In the exercise of this power it was competent for
CLUB AGAINST ORDERS. the Legislature to provide as it did by section 5 of the act of 1871, for the sulection of some person to fill tbe office of surrogate between the occurrence of a vacancy
17 QUEEN'S BENCH DIVISION, 132. and the first day of January thereafter, and the designation by such section of the persons who had been
NEWMAN V. JONES. * theretofore elected as surrogate did not thereby en- The appellants, who were trustees and members of the large his constitutional term, but provided simply a managing committee of a club, were convicted under the mode of filling out a term of limited duration over Licensing Acts for selling liquor without a proper license which the Legislature had unquestionable constitu- to persons not members of the club. It appeared that tional authority. During the period intervening be- the liquor was sold on the club premises by the steward of tween the occurrence of a vacancy happening so that the club, who in selling it acted contrary to the orders of an election can be held at a regular general election the appellants, and without their knowledge or assent. and the commencement of the next political year, the The money which he received for the liquor was paid by Constitution gives the Legislature unlimited power to him to the account of the club. Held, that the convicindicate the mode of filling it, and it is competent to tion was wrong, for the appellants were not, under the provide therefor by couferring power of appointment circumstances, responsible for the act of the steward. upon tbe executive department or in such other mode
VASE stated by justices of Beacoptree under 20 & 21 as in its discretion it may deem wise and prudent.
Vict., ch. 43, and 42 & 43 Vict., ch. 49. After the death of Haguer, Garretsou was appointed
At a petty sessions held at Stratford on the 25th of to fill the vacancy in the office “for and during the July, 1885, four informations were preferred against time limited by the Coustitution and the laws." It
the appellauts by the respondent, an officer of inland was competent for the Legislature to provide that his
revenue-1. For having, as trustees of the Cyprus authority should terminate upon the election of a suo
Workman's Club and Institute, on the 12th of March, cessor, and that such successor should serve during 1885, retailed certain spirits, to-wit, one gill of brandy, the remainder of the limited term, extending to the
without having in force such a license as was required first of January succeeding the occurrence of the va
by 23 Vict., ch. 27, S 19–2. For having on the 17th of cancy. The Legislature had not however the power
March, 1885, sold one pint of beer by retail, to be to restrict the term of a duly elected officer whose
drunk and consumed in and upon their premises, term of office had been fixed by the Constitution,
without having an excise license under 4 & 5 Wm. 4, or to provide any other term for a surrogate than that
ch. 85, $ 17--3. For having on the 12th of March, 1885, belonging to a county judge. A reasonable construc
sold certain wine, tu-wit, one gill of port, without tion of the act of 1871 therefore requires us to hold
having a proper license-4. For having on the 17th of that the words “when such officers shall be elected to
March, 1885, dealt in and sold certain tobacco, to-wit, fill a vacancy,” refer simply to the contingency out of
two cigars, without having a license as required by 6 which the necessity of an election arises, and do not
Geo, 4, ch. 81, $ 26. The justices convicted the appelattempt to limit the term for which the officers named
lants of each of the above-mentioned offenses, avd adwere to be elected. To hold otherwise would bring judged them to pay the several penalties of 25., 101.7 the provision in conflict with the limitations upon the
101., and 251., and costs, and in default of sufficient legislative power imposed by the Constitution (People distress, awarded imprisonment for the several terms v. City of Brooklyn, 89 N. Y. 200) and create an unwarrautable distinction between the terms of office per- *See Seine v. State, 55 Md. 506; 8. C., 39 Am. Rep. 419; note, taining to county judges who perform the duties of 32 id. 433; Grajf v. Evans, 8 Q. B. Div. 373.