NEW YORK. 



615 



The language of the Constitution and the neces- 

 sary functions of the Legislature arising from the na- 

 ture of our system of government, would seem to 

 leave this power, with reasonable certainty, in pos- 

 sesion of the Legislature, to be exercised over in 

 every decade. 



But, grave as this question is conceded to be, as 

 all questions of constitutional construction necessa- 

 rily are, it is relieved from difficulty by judicial inter- 

 pretation given to these provision^ many years ago. 

 (Kurnsey vs. The People, 19 N. Y., 41.) 



The Committee on Apportionment were di- 

 rected by the Assembly to report in twenty 

 days. The report was duly made and the bill 

 referred for amendments. Thus, with amend- 

 ments and delays between the Houses, no act 

 was passed. 



There were nine supplemental chapters of 

 the Code of Civil Procedure which failed to 

 become enacted in 1877 for want of the approv- 

 al of the Governor. These were again passed 

 by the Senate and Assembly, and sent to the 

 Governor^ who vetoed them. 



New York took the lead of all the States in 

 making provisions for the codification of her 

 laws as early as 1846. The proceedings for 

 this end are of sufficient interest and impor- 

 tance to be summarily stated here. The new 

 State Constitution of 1846 provided for the ap- 

 pointment of three Commissioners, whose duty 

 it should be " to reduce into a written and sys- 

 tematic code the whole body of the law of the 

 State, or so much and such parts thereof as to 

 the said commissioners shall seem practicable 

 and expedient; and the said commissioners 

 shall specify such alterations and amendments 

 therein as they shall deem proper, and they 

 shall at all times make reports of their pro- 

 ceedings to the Legislature, when called upon 

 to do so ; and the Legislature shall pass laws 

 regulating the tenure of office, the filling of va- 

 cancies therein, and the compensation of said 

 commissioners ; and shall also provide for the 

 publication of the said code, prior to its being 

 presented to the Legislature for adoption." It 

 in like manner directed that the Legislature, at 

 its first session after the adoption of that Con- 

 stitution, should provide for the appointment 

 of three Commissioners to "revise, reform, 

 simplify, and abridge the rules and practice, 

 pleadings, forms, and proceedings of the courts 

 of record of the State, and to report thereon to 

 the Legislature, subject to their adoption and 

 modification from time to time." In obedience 

 to these requirements of the Constitution, the 

 Legislature on the 8th day of April, 1847, 

 passed an act by which Reuben H. Walworth, 

 Alvah Word en, and John A. Collier were ap- 

 pointed commissioners, to be styled "Commis- 

 sioners of the Code," to perform the duties 

 specified in the 17th section of the 1st article. 

 By the same statute, Arphaxad Loomis, Nicho- 

 las Hill, Jr., and David Graham were appoint- 

 ed commissioners, to be styled " Commission- 

 ers of Practice and Pleadings," in accordance 

 with the provision of the 24th section of the 

 Gth article, to perform the duties in that article 



specified. These Commissioners, and their suc- 

 cessors appointed according to law, addressed 

 themselves to their task with zeal and ability. 

 In 1848 the Commissioners of Practice and 

 Pleadings reported a partial code, which, on 

 the 12th of April in that year, was enacted by 

 the Legislature as chapter 379 of the laws of 

 1848. The same Commissioners reported in 

 1849 completed codes of civil and criminal pro- 

 cedure. By chapter 438 of the laws of that 

 year, the Code of Civil Procedure, as amended, 

 constituting in all an act of less than a hundred 

 pages, was established. With some subsequent 

 amendments, this one statute has constituted 

 the main body of our civil practice from that 

 day. The Commissioners of the Code, ap- 

 pointed in pursuance of the 17th section of 

 article 1st, completed and submitted at differ- 

 ent times codes of the common and statute 

 Jaw, in accordance with the provisions of the 

 Constitution ; but their work has never been 

 adopted or considered by the Legislature, al- 

 though the intent of the Constitution that such 

 a code should be enacted is apparent. On one 

 or two occasions, action in regard to them has 

 been urged upon the Legislature by the Execu- 

 tive, but no earnest steps looking to their en- 

 actment have ever been taken. The great aim 

 of the Constitution of 1846 was to secure a 

 symmetric system of jurisprudence, including a 

 code of political, criminal, and civil law. The 

 adoption of the original Code of Procedure 

 was a partial accomplishment of this constitu- 

 tional purpose so far as the practice law of the 

 State was concerned The intent of the 17th 

 section of the 1st article has never yet been 

 fulfilled. Realizing this defect in the law, the 

 Legislature, on the 2d of March, 1870, passed 

 an act authorizing certain commissioners to 

 " revise, simplify, arrange, and consolidate all 

 statutes of the State of New York, general and 

 permanent in their nature " ; and in perform- 

 ing this duty " to bring together all statutes, 

 and parts of statutes, which, from similarity 

 of subject, ought to be brought together, omit- 

 ting redundant or obsolete enactments, and 

 making such alterations as may be necessary 

 to reconcile the contradictions, supply the 

 omissions, and amend the imperfections of the 

 original text." Without doubt the aim of this 

 act was to revise the existing general acts, and 

 not in any way to change the settled system of 

 legal practice. But, instead of applying them- 

 selves to this needed revision of the scattered 

 and confused statutes, the Commission set 

 about an entire upheaval of the legal proce- 

 dure. In 1876 they submitted the first install- 

 ment of their proposed work in the shape of a 

 substitute for part of the practice law, consist- 

 ing of 1,496 sections. This the Legislalure 

 of that year enacted. It was not, however, 

 allowed to take effect until September, 1877. 

 The vetoed bill of 1,824 sections is the re- 

 mainder of the proposed substitute. The Gov- 

 ernor in his veto presents numerous objections 

 to the code of great importance, and concludes 



