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Judge Martin was nominated on the second ballot and his nomination was then made unanimous.

Judge Celora E. Martin is a resident of Binghamton. He was admitted to the bar in July, 1856, and began his practice in Broome county the following year. In 1867 he formed a partnership with the Hon. O. W. Chapman, late Solicitor-General of the United States. The firm had a large and successful practice, and built up a business second to none in their part of the State.

The partnership continued until May, 1877, when, upon the petition of practically all the members of the bar of the district, irrespective of party, Judge Martin was appointed Justice of the Supreme Court of the Sixth District by Gov. Lucius Robinson. The appointment was confirmed by a Republican Senate. In the fall of that year he was nominated by both parties for the full term and was elected unanimously. After filling the office for more than fourteen years he was renominated by both Republican and Democratic parties, and again was elected unanimously. After having been engaged in circuit work for ten years, he was designated by the Governor as a member of the General Term of the Fourth Department. At the expiVOL. 52- No. 12.

ration of his first term he was named again for the same office, which he has occupied ever since.

The nomination is made to fill the vacancy caused by the forced unfortunate retirement of Judge Finch. The loss of Judge Robert Earl on the bench of the court of last resort has been felt keenly in many ways where his vast experience was of great value, and we but echo the universal sentiments of the bar when we regret that Judge Finch must retire however talented his successor may be.

For the first time in the history of the Court

of Appeals, it convened in extraordinary session on Tuesday, September 17, 1895. The session was held to listen to argument of the constitutionality of the annexation of part of Westchester county to New York city by the act of June 9, 1895. The appeal arose on the application of Augustus M. Field for a mandamus to compel the board of aldermen of New York city to reapportion the Assembly districts of New York county so as to include the annexed part of Westchester county. There is also an appeal from the decision of the General Term granting an application of Henry C. Henderson for a mandamus to compel the board of supervisors of Westchester county to apportion the annexed territory in one of the Assembly districts of that county. There are also two appeals from decisions denying an application for an injunction against the police authorities of New York city to restrain them from interfering in the affairs of the town of Westchester and the village of Williamsbridge, part of the annexed territory.

The courts below have decided that the act of annexation is constitutional, so far as it annexes the territory in question to the city and county of New York for municipal and administrative purposes, but that the territory still remains a part of Westchester county for the purposes of Assembly, Senatorial and judicial elections. The citizens of the annexed territory represented by Augustus M. Field, who brought the mandamus proceedings against the Board of Aldermen, assert that the act is constitutional in every respect, that the effect of the act was to transfer this territory bodily from Westchester county to New York county; that it was thereby taken out of the Twenty-second

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Senate district, which is described in the Con-
stitution as the county of Westchester, and be-
came a part of the Twenty-first Senate district,
which is described in the Constitution as em-
bracing all that part of the city and county of
not herein before described." It is
New York"
further asserted that inasmuch as this act went
into effect before the date fixed by the Constitu-
tion for the division into Assembly districts by
the Board of Supervisors of Westchester county
and the Board of Aldermen of New York city,
the territory in question should have been ap-
portioned in one of the Assembly districts of
New York county. The Senate districts would
then be bounded by county lines instead of be-
ing intersected by the dividing line between

The

Westchester and New York counties.
number of inhabitants in the annexed territory
is about 13,000. Adding these to the Twenty-
first Senate district and taking them from the
Twenty-second tends to equalize those districts
and to carry out the spirit of the constitutional
apportionment. It is asserted further that it
will be an injustice to the citizens of the an-
nexed district if they are merged in New York
county for municipal purposes and remain in
Westchester county for election representation.
These contentions were the basis of the argu-
ment of Mr. William B. Hornblower, who ap-
peared for Mr. Field.

Still further it is provided in the apportionment of Assemblymen that "until after the next enumeration members of the Assembly shall be apportioned to the several counties as * * * New York county, thirtyWestchester county, follows:

five members;
three members."

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and three

It was argued that if the Legislature, in spite part of one of these provisions, could take a county and add it to another, then, instead of the small slice taken from Westchester, say nine-tenths might have been taken and the one-tenth left, with a Senator Assemblymen to represent it in the State Legislature. Or, on the other hand, an arbitrary Legislature might annex a half of New York county to Westchester, which would still have but one Senator and three Assemblymen, while the part of the city left to be New York county would have its twelve Senators and thirty-five Assemblymen.

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Then there were the provisions of the Constitution, defining the judicial districts and departments. Quotations from two sections were made. One provides that "the existing judicial The Legislature may alter the judicial districts districts of the State are continued. once after every enumeration, under the Constitution, of the inhabitants of the State, and thereupon reapportion the justices to be thereThe argument of William D. Guthrie, who after elected in the districts so altered." The represented the people opposed to annexation, Constitutional Convention found the judicial was based on the theory that where county districts bounded by county lines and declared lines form the boundaries of either judiciary or its intention to continue them as so constituted. Senate districts they cannot be altered, under That is to say, it provided in the Constitution the Constitution of the State, by the Legisla- that "the Legislature shall divide the State ture, except immediately after a census of the into four judicial departments. The first deState provided for by that Constitution. In partment shall consist of the county of New support of this theory he directed attention to York; the others shall be bounded by county a number of the provisions of the State Consti- lines, and be compact and equal in population tution referring to Senate and judiciary districts. as nearly as may be. Once every ten years It is provided, for instance, that the "State Legislature may alter the judicial departments, shall be divided into fifty districts, to be called but without increasing the number thereof." Senate districts," each of which shall choose j one Senator. Among these fifty it appears that judicial department was created that included District number twenty-two (22) shall consist Westchester county. And yet in the face of of the county of Westchester." Further on it this constitutional mandate, as it was argued brovided "that no county shall be divided in by Mr. Guthrie, the Legislature, by its act of formation of a Senate district, except to June 6, 1895, altered the judicial department of nexed part now in dispute, according to that ake two or more Senate districts wholly in which Westchester was a part, thus: The an

፡፡

the

Such county."

the

Under the mandate of this last provision a

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act, "is hereby set off from the county of Westchester and annexed to, merged in, and made part of the city and county of New York, and of the Twenty-fourth ward of said city and county, and shall hereafter constitute a part of the city and county of New York and of the Twenty-fourth ward of said city and county, subject to the same laws, ordinances, regulations, obligations and liabilities, and entitled to the same rights, privileges, franchises, and immunities, in every respect and to the same extent as if such territory had been included within said city and county of New York at the time of the grant and adoption of the first charter and organization thereof, and had so remained up to the passage of this act."

It is argued by those who favor the annexation scheme, said Mr. Guthrie, that the annexed district could become an integral part of the city save in the matter of the elections of senators and in judiciary matters. To this Mr. Guthrie replied at length. The whole theory and the entire system of the administration of justice in criminal cases depend upon the integrity of the county. Crimes are to be tried in the county where committed. Jurors are selected within the limits of the county, and such county officials as sheriffs, district attorneys and clerks must act only within the limits of the county. A crime not indictable by the grand jury of the county where committed, not triable by a petit jury of that county would be an anomaly, and yet such results must follow the division of a judicial district by the alteration of a county line.

Then the place of trial of many civil actions pending in the Supreme Courts is determined by the county in which the parties reside. "If the annexed territory continues a part of the Second Judicial district, will actions between its residents be triable in Westchester county or in New York county? In the former case, the action would be tried in a county in which neither party resided. In the latter case, the trial would be had before a tribunal whose judges the parties had no share in electing and before a jury upon which neither they nor their neighbors had the privilege of sitting.'

Reference was made to the sentiment of the people, and the arbitrary and rude severing of old ties without the consent of those in

volved. The fact that about 13,000 people were involved was not to be considered. Whether many or few were connected with the case was a matter of absolutely no moment, for this was wholly a question of principle and constitutional law. The argument ended in an eloquent appeal for a strict observance and a strict interpretation of the Constitution in all matters involving the fundamental law of the State.

Corporation Counsel Scott, of New York city, argued that the act was unconstitutional, and that its effect was to annex territory to New York county for municipal purposes, but that it left this territory in Westchester county for electoral purposes.

William B. Hornblower, of New York city, contended that the annexation was constitutional, not only for municipal but also for Senatorial and Assembly purposes.

In view of the historical and legal value of Mr. Guthrie's legal argument, we print it in this issue of the JOURNAL. The court announced that it would file its decision with the clerk on September 27, 1895, and then adjourned until October 8th.

Comptroller Bowler has gained considerable fame and achieved great distinction by his fearless and bold stand in the sugar-bounty case. We never could comprehend why one class of producers should receive any benefit which all other individuals did not possess, and it is immaterial to us whether Mr. Bowler acted in a judicial capacity as an executive officer or not, so long as he performed his duty in a proper and legitimate way. We think no one will gainsay us that, in preventing the payment of an unconstitutional appropriation, Mr. Bowler only carried the powers vested in him to their proper end. It is through the bold and independent exercise of the judicial function that this country has more than once escaped attempts by Congress to overthrow or evade the fundamental laws. Some one has said that the preservation of our republican institutions is due more to the interpretations of the Supreme Court than to any legislation enacted by Congress, and without inquiring closely and with particularity into the assertion, it is clear to all students of our political history that if the courts had not the power to apply to every stat

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The Comptroller is an executive and not a judicial officer, but he is charged with very im

ute the test of the Constitution, we should be in much greater peril than we are from the demagogues and populists who too often suc-portant judicial functions. It is his duty to ceed in controlling Congress.

In the case of the sugar bounty, if the attempt to secure it succeed, the courts will be deprived of the opportunity to pass upon the constitutionality of many important statutes It was contended by the counsel for the claimants of the bounty that the executive branch of the government has not the power to pass upon the constitutionality of a law; that that function rests with the judicial branch of the government alone, and that the executive must obey an act until the courts decide that it is void. If this view be sustained, then Congress may compel the expenditure of public moneys as it sees fit. The courts have decided that the public money shall not be expended for private uses; that the people of a town may not be taxed for the purpose of encouraging manufactures, and that forced contributions may not be levied in aid of inns, banks, farmers, commercial enterprises, or for the promotion of the interests of individuals, on any pretext whatever. But if the treasury officials must pay every appropriation authorized by Congress, without question, then these decisions are of no avail, and the limitations imposed by the Constitution upon the power of the legislative branch of the government in this respect are no limitations at all.

If no executive officer can prevent payment of an unconstitutional appropriation, the power of Congress to give away the public money for any purpose whatever is only limited by its own loyalty to the fundamental law. But Mr. Bowler has taken the only ground that can be sustained, for the courts have passed on this question more than once. An unconstitutional law is void, and no one is bound to obey it. On the contrary, no executive or administrative officer ought to obey it. As Mr. Bowler says in his opinion, "It is true that the officer acts at his peril if he does not execute a constitutional statute, but it is none the less true that he acts at his peril if he executes an unconstitutional statute." He must be the judge. Justice Field has said, "An unconstitutional act is not a law; it binds no one and protects no one."

grant or refuse the payment of money under the laws of Congress, and if he believes that an act of Congress directing a payment is contrary to the higher and controlling law of the Constitution, it is his duty to refuse payment. Mr. Bowler has obeyed his view of the Constitution, and his view is sustained, in principle, by more than one decision of the Supreme Court of the United States, and, in respect to this very sugar bounty, by the Court of Appeals of the District of Columbia. In view of the. decision rendered by the Court of Appeals, which has been referred to and quoted in these columns, Mr. Bowler would have put himself in serious peril if he had not declined to pay the sugar bounty.

Whether he is right or wrong in his view of the constitutionality of the appropriation for the bounty is a question that may now be passed upon by the Supreme Court. The claimants of the bounty may bring an action for the recovery of the money in the Court of Claims, and from the decision of that court either they or the government may appeal to the Supreme Court. The question could not have been presented to that court in any other way. If Mr. Bowler had signed the warrant and the claim had been paid by the treasurer of the United States, a precedent would have been established, and Congress might have gone on evading the Constitution by making appropriations for every communistic and private enterprise that pleased its fancy or that aroused its demagogic fears. If Congress by a simple appropriation can set the Constitution at naught, and can escape from the interpretations made by the courts, it can compel the payment of public money in aid of one crop or all the crops, in aid of egg-raising or tree-planting, in direct loans to farmers or merchants or manufacturers, or in bounties to railroads or rain-makers. For if the sugar bounty is constitutional, or if the constitutionality of the act authorizing it cannot be questioned by the Comptroller of the Treasury, or by any other executive officer having any duty to perform with respect to it, then any gift or any loan of the public moneys is possible, and there is no

limit to the taxes that may be imposed upon the country for the gain of private persons.

The bounty claimants are now confronted by a situation. Will they go to the courts and have the constitutionality of the statute passed on by the Supreme Court of the United States or will they attempt to have a seemingly unconstitutional statute of Congress amended to conform to our fundamental law? The latter course would require the act to be repealed as any act unfairly discriminating in favor of any class is properly without the authority of Congress to frame. This sort of legislation will cease only when representatives fairly give expression to the sentiments of their constituents.

WESTCHESTER ANNEXATION CASES.

ORAL ARGUMENT OF WILLIAM D. GUTHRIE BEFORE THE COURT OF APPEALS IN SUPPORT OF CONTENTION THAT ACT OF JUNE 6, 1895, IS UNCONSTITUTIONAL AND VOID.

At the close of the last session of the Legislature, this act was hurriedly passed, arbitrarily transferring fifteen thousand inhabitants from one county to another without consulting their desires, or submitting the measure to the vote of those vitally affected. As the comptroller of the city of New York has publicly declared, the annexed territory is to the city an unwelcome foundling left on its doorstep. The feeling of indignation in the locality at once precipitated a contest in the courts. The utmost confusion reigns; for our whole system of laws, providing for the administration of public affairs and civil and criminal justice. is based upon the integrity of the counties. We have another instance of the deplorable results arising from basty and ill-considered legislation which is so fruitful of unconstitutional measures in national and State affairs. One judge in Westchester county declares the act constitutional in some aspects; the surrogate of the same county decides that it is wholly unconstitutional. Under the circumstances, there was no alternative except to pray your honors to convene in extraordinary session. We hope it has been sufficiently shown that the public interests imperatively demanded this sacrifice of your convenience.

The issues to be discussed and decided in these cases are of far-reaching importance, involving, in the gravest form, a question of constitutional law. The determination of the court will unfold a standard of truth for the interpretation of the Constitution of 1894, as our organic and fundamental law, not merely for the litigants be

fore you; not for one political party, nor for one locality, but for all the people, for all parties, for the whole State. The advocate at your bar can never be called upon to perform a duty of more vital and comprehensive interest or of greater dignity than that of assisting the court to maintain and enforce the Constitution according to its letter and its intent. Indeed, the highest office of our

epoch of the profession is that of conservators of established and time-honored institutions against the spirit of change now so rampant,

The following argument is made on behalf of the relator in the Westchester mandamus proceedings and on behalf of the town of Westchester and village of Williamsbridge in the injunction suits. The latter proceedings were instituted to restrain the officers of New York county from taking forcible possession of the town and village. The validity of the act is challenged by our clients upon the ground that it violates the express provisions of the Constitution of 1894 which apportion the Senate and Assembly districts among the counties and establish the judicial districts and departments of the State. We contend that the whole act is void, and cannot be sustained in any respect. It conflicts with express constitutional provisions; it violates the spirit thereof, and it tends to destroy the unity and integrity of counties and local associations upon which the Constitution itself was framed.

There are six controlling provisions of the Constitution of 1894 to be brought particularly to your attention, although in almost every article the county system is referred to. Section 3 of article III provides that the "State shall be divided into fifty districts to be called Senate districts, each of which shall choose one senator."

The districts are then apportioned among the sixty counties of the State, but the county lines are rigidly adhered to as boundaries for these Senate districts.

The section further provides "District number twenty-two (22) shall consist of the county of Westchester."

Section 4 of article III provides: "No county shall be divided in the formation of a Senate district except to make two or more Senate districts wholly in such county."

These constitutional provisions, of course, had reference to the county of Westchester as it existed when the new Constitution took effect, namely, January 1, 1895. Article XV so provides.

Section 5 of the same article of the Constitution declares as to Assembly districts: "Until after the next enumeration, members of the Assembly shall be apportioned to the several counties as follows: New York county, thirty-five members; Westchester county, three members."

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