616 



NEW YORK. 



by saying: "There is, in my judgment, but 

 one plain and proper course to take, and that 

 is, to repeal the thirteen chapters of the new 

 code which took effect on the 1st of September 

 last, and to reenact the Code of Procedure as 

 it then stood. After most careful reflection, 

 and consultation with the very best minds of 

 the legal profession, I am sure that I only do 

 my duty in most respectfully but earnestly 

 appealing to the Legislature to take this course, 

 the only one by which, it seems to me, the 

 direst evil and confusion can be avoided." 



The portion of the code which took effect 

 in September, 18T7, contained a provision which 

 made persons convicted of infamous crimes 

 competent witnesses in court ; but it failed to 

 authorize the courts to take the convict out of 

 prison and bring him into their presence to 

 testify. To remedy this defect, a bill was 

 passed by the Legislature and sent to the Gov- 

 ernor for his approval. He returned it with 

 his objections. In his opinion it is undoubted- 

 ly the settled policy of modern legislation to 

 broaden the range of competent evidence. But 

 because parties in interest, and husband or 

 wife, are now permitted to testify, is no reason 

 for elevating an infamous convict to the same 

 level. The wisdom of the enactment must be 

 determined exclusively upon its own merits. 

 There is a vital difference in the reasons given 

 for excluding these various persons. Parties 

 in interest were excluded because of the natural 

 selfishness of men ; husband or wife because of 

 the sacredness of their relation. The crimi- 

 nal, however, is excluded because his vicious- 

 ness is a radical disqualification. Is it sound 

 policy to make the mass of criminals compe- 

 tent witnesses in all proceedings in the courts ? 

 Is it just to permit a magistrate to order 

 brought into court some one fresh from the 

 perpetration of a vile crime, to dispute before 

 a jury the evidence of unimpeached citizens ? 

 The question of veracity is raised. Doubt is 

 insidiously instilled into the minds of jurors 

 who may be personally unacquainted with all 

 the witnesses. Disagreements will thus be 

 inevitably multiplied. And yet the only con- 

 troverting testimony may be the perjured evi- 

 dence of one whose deeds evince his entire 

 moral incompetency to give truthful evidence. 

 Why should the State declare these criminals 

 legally competent to testify ? Why should not 

 the penalty of incompetency remain attached 

 to them ? True, the question of credibility is 



11 to be passed upon. But why raise that 

 question at all, when the possibility of obtaining 

 reliable evidence is so remote ? 



A concurrent resolution was passed in the 

 Senate to secure the continuance of the Com- 

 mission under the form of a Legislative com- 



ittee, at an expense of $15,000 ; but it failed 

 to pass in the Assembly. Subsequently the 

 Senate passed a resolution providing for a com- 



ttee of three Senators to sit during the recess 



consider the codes, and report to the next 

 Legislature. 



On February 21st the Governor sent to the 

 Senate a message transmitting charges of offi- 

 cial misconduct on the part of John F. Smyth, 

 Superintendent of the Insurance Department, 

 made by the Comptroller, F. P. Olcott. It 

 appears that the laws of 1873 contain appro- 

 priate and stringent provisions forbidding the 

 payment, or presentation for payment, of any 

 bill for services in examinations by any attor- 

 ney or appraiser of the Insurance Department, 

 until the same had been approved by the Su- 

 perintendent arid audited by the Comptroller, 

 and declaring that any party violating this 

 provision should be deemed guilty of a misde- 

 meanor. Under this statute the affairs of the 

 department were conducted until the present 

 Superintendent entered upon the duties of his 

 office. Finding these provisions not in accord- 

 ance with his views, he made an effort to have 

 them changed by the Legislature. Failing in 

 that, he seems to have gone on in defiance of 

 them. By reference to- the Comptroller's re- 

 port, it appears that a certain class of charges 

 aggregating about $9,000 have been submitted 

 to and audited by the Comptroller, while in 

 the case of numerous companies other large 

 and, as the Governor says, grossly improper 

 charges, amounting to over $64,000, have been 

 presented and approved, or paid without ap- 

 proval, but with the sanction of the Superin- 

 tendent, without having been audited or pre- 

 sented to the Comptroller for audit, as required 

 by the statute. The removal from office of 

 the Superintendent was recommended. He 

 was arraigned and tried before the Senate, 

 admitting the truth of the statement of facts. 

 It was urged in defense that the law of 1873 

 had been inoperative for want of the neces- 

 sary appropriations to give it force, and hence 

 the charge of violating it falls to the ground. 

 The law of 1853, which was not repealed, re- 

 mained the only statute giving authority to 

 make examinations, and its provisions governed 

 during the year. The result was an acquittal 

 by the Senate of the Superintendent on the 

 charges preferred against him, by a vote of 12 

 for removal to 19 against it, and a decision that 

 he should not be removed from office. 



The question of maintaining or abandoning 

 the canals has already become an important 

 one for the State. The Constitution prohibits 

 an expenditure for running them in excess of 

 the receipts of the previous year. The total 

 expenditure chargeable to the revenues for the 

 fiscal year 1876 was $1,202,053.62; for 1877, 

 $1,123,360.76. The total revenue for the fiscal 

 year ending October 30, 1877, was $1,053,361.01. 

 As the cost of running the canals is nearly 

 $1,200,000, it was evident at the beginning of 

 1878 that the expenses for the year must be 

 reduced about $135,708.78 below those of the 

 previous year. Unless a system could be 

 adopted by which the expenses would be re- 

 duced, the closing of the canals seemed inevi- 

 table. In the Assembly the following resolu- 

 tion was passed : 



