Mr. Wickersham I move that the order of third reading be suspended for to-day.

The President-All in favor of the motion say Aye, contrary No. The motion is agreed to. Special order. General orders. The Convention under the head of special order of the day will go into the Committee of the Whole for the further consideration of the judiciary article. Will Mr. Wagner resume the

Chair?

Mr. Wagner resumes the Chair.

The Chairman The Committee will continue the consideration of Special Order No. 61. Section 1 is now under consideration.

Mr. Wickersham Mr. Chairman, when the Committee rose last evening we had about finished consideration of Section 1. There was one suggested amendment - I don't know that it was formally made by Delegate Austin or not. I see no objection to amending line 11, page 1, by inserting the word "three "before "justices." I think possibly it makes it a little clearer and as that would remove the point of criticism I therefore move to make that amendment. The only other question on that section which was raised was the question which the delegate from Saratoga raises regarding the justices of the Supreme Court.

Mr. Brackett-I only wish to assure my honored leader that I make no motion on the subject, but I am going to call attention to other bad things in the report, simply for the purpose of making the record. I shall not make a motion during the whole report.

Mr. Wickersham-Well, then, Mr. Chairman, I move the adoption of the first section as amended by the insertion of the word "three" before" justices" in line 11, page 1.

་་

The Chairman - The question is on the motion of Delegate Wickersham that page 1, line 11, be amended by adding before the word "justices the word "three." Those in favor of the motion will say Ave. Opposed, No. The amendment is adopted. I now move the adoption of the section as

Mr. Wickersham amended.

The Chairman - Those in favor of the adoption will signify by saying Aye. Opposed, No. The section is adopted. Section 2. The Clerk will read.

The Secretary Section 2. The present division of the State into four judicial departments is continued. Once every ten years the Legislature may alter the judicial departments, but without increasing the number thereof. They shall be bounded by county lines, and be compact and equal in population as nearly as may be. The appellate divisions of the Supreme Court are continued and shall consist of not less than ten nor more than twelve justices in the first department, seven justices in the second department and

five justices in each of the other departments. The justices heretofore designated shall continue to sit in the appellate divisions until the terms of their designations respectively expire. The appellate division in the first department may sit in two parts, in which case the presiding justices shall assign the justices who from time to time shall sit in each part. In each appellate division or part thereof four shall constitute a quorum, and the concurrence of three shall be necessary to a decision. No more than five justices shall sit in any case. The Governor shall designate the presiding justice of each department, who shall act as such during his term of office and shall be a resident of the department. The other justices shall be designated by the Governor from all the justices elected to the Supreme Court for terms of five years or the unexpired portions of their respective terms of office, if less than five years. From time to time as the terms of the designations expire, or vacancies occur, the Governor shall make new designations. A majority of the justices so designated to sit in the appellate division, in each department, shall be residents of the department. Ten justices in all shall be designated to sit in the appellate division in the first department, but in case the presiding justice. thereof at any time shall certify to the Governor that the interests of justice so require he shall designate two additional justices to sit therein. In case of the absence or inability to act of a justice of any appellate division, the presiding justice thereof may assign any of the justices of the Supreme Court to sit in the appellate division during such absence or inability, but no justice shall be so designated to sit longer than four months in any year. In case the presiding justice of any appellate division shall certify to the Governor that one or more additional justices are needed for the speedy disposition of the business before it the Governor shall designate such additional justice or justices. Whenever the appellate division in any department shall be unable to dispose of its business within a reasonable time, a majority of the presiding justices of the several departments at a meeting called by the presiding justice of the department in arrears shall transfer such number of pending appeals as the presiding justices may determine to be necessary from such department to any other department for hearing and determination. No justice of the appellate division shall, within the department to which he may be designated to perform the duties of an appellate justice, exercise any of the powers of a justice of the Supreme Court, other than those of a justice out of court, and those pertaining to the appellate division, or to the hearing and decision of motions submitted by consent of counsel, but any such justice, when not actually engaged in performing the duties of such appellate justice in the department to which he is designated, may hold any term of the Supreme

Court and exercise any of the powers of a justice of the Supreme Court in any county or judicial district in any other department of the State. The appellate division, except as herein provided, shall have the jurisdiction now exercised by it and such additional jurisdiction as may be conferred by the Legislature. On appeals from judgments of conviction in criminal cases, the appellate division may reduce the sentence imposed by the trial court or judge. It shall have power to appoint and remove a reporter. The justices of the appellate division in each department shall have power to fix the times and places for holding the terms of the Supreme Court therein, and to assign the justices in the departments to hold such terms.

Mr. Dykman - The Chairman of the Committee has asked me to make a short explanation of the changes in the appellate division by this section. We make no changes in the appellate divisions in the third and fourth departments. We make a change in the second department, and a substantial change, perhaps, in the first department. Let me first make a comparison of the amount of business done in the appellate division in the four departments treating only of appeals from judgments and orders and not motions originally made. In the Third Department about 400 appeals were heard last year; in the Fourth Department, some 540; in the Second Department, 1,100; and in the First Department, 1,500. In the Second Department we increase the number of justices sitting in the appellate division from five to seven. At the present time five judges in the Second Department are permanently appointed to that court and two are supernumeraries. The result is that while the judges permanently appointed are supposed to be of somewhat greater dignity, from their permanent tenure, they are appointed only for five years; while the supernumeraries, appointed only until the calendar is reduced, praetically are indefinitely appointed and hold for the whole term for which they are elected. Now this change is to have seven judges who are actually at work in the Second Department, appointed for the term of five years. This has the unqualified approval of the presiding judge in the Second Department, Mr. Justice Jenks, and of every lawyer in the Second Department who appeared before the Committee. In the First Department there is a very remarkable body of judges, led by a most remarkable presiding judge who has made the work of the Appellate Division his entire life and has given up everything to the work of that department. These men have succeeded in performing almost a superhuman task. They are up with their calendar and are disposing of between fifteen and sixteen hundred cases a year. A presiding judge and other justices sitting in that court, leading members of the Bar in

the First Department, have appeared before the Committee and the result is this: We have increased from seven to ten the number of justices to be permanently assigned to that court. If the court continues to sit in one part only, that will enable it to sit one more week a month and will practically give one-third more time, sitting four weeks instead of three,- will greatly increase the time to be given to the disposal of cases in that department. This should make it possible at least to remove the only complaint that has been made in the First Department, a complaint that some of the older members of the Bar do not appreciate. Perhaps the younger members are not used to the severe discipline that the older members have had from this very remarkable tribunal, this appellate division in the First Department. We give the Appellate Division in the First Department leave to sit in two parts, of five judges each. We make provisions for two extra judges, if it shall be necessary. We make a new provision giving the Appellate Division power to reduce sentences in criminal cases. mended by district attorneys, by judges sitting at trial terms and by justices sitting in the Appellate Division. These are the changes which have been proposed by the Committee. All of them have been indorsed by all of the lawyers and all of the judges who appeared before the Committee and we recommend them to your careful consideration.

This was recom

Mr. Cullinan - Mr. Chairman and gentlemen: The report of the Committee provides for the retention of the present judicial departments as they were territorially provided for heretofore. Now, it seems to me that there ought to be a little more elasticity with reference to the departments in the upper part of the State, for it provides here that a rearrangement or alteration can only occur once in each ten years. The Fourth Department of this State extends from Herkimer county to Lake Erie and from Lake Ontario down to the southern part of the State of New York, a very large territory and one in which there is a large number of growing cities and villages. I want to call attention to the fact that the last enumeration shows that these villages, beginning with Herkimer, the cities of Rome, Little Falls, Utica, Syracuse, Watertown, Oswego, Rochester, Buffalo, Jamestown and other cities in the southern tier, are growing at a rate which indicates that, if this provision remains as it is, the Fourth Department will be crowded in the discharge of its business precisely to the extent that the First Department is crowded. I also want to call your attention to the fact that after the Barge canal is opened and navigation therein conducted by the large units carrying 3,000 tons, and the Welland canal around Niagara Falls, now nearly completed, perinits the great units on the upper lakes to come down into Lake

Ontario, we are going to have on the southern shore of Lake Ontario, taking in Syracuse, Sodus, Rochester, Charlotte, Pultneyville and other places, a number of little Pittsburghs, for the reason that these great units will bring down the iron ore of the west at these very points. I now understand that the Rockefeller interests are obtaining options on certain points on the southern shore of Lake Ontario where they expect to have large iron and rolling mills. In addition to that fact, these points on Lake Ontario, on the southern shore will be able to get coal from Pennsylvania at a very short haul. So that, from an economic standpoint, we may expect in the very near future to see on the southern shore of Lake Ontario at these places I have named a series of little Pittsburghs and a great growth ensue immediately after the opening of the Barge canal. Now, gentlemen, it would seem to me that under those circumstances, where this growth is very nearly absolute in comprehension, we should, instead of saying that these districts. can only be altered but not increased that provision is too rigid and I have prepared an amendment providing that once in each five years there may be an arrangement of the judicial departments of the State. The language at present is that once in every ten years the Legislature may alter the judicial departments but without increasing the number thereof. Now my amendment provides that once in every five years the Legislature may rearrange the judicial departments of the State and may increase the same. I will send my amendment up to the desk.

Mr. Wickersham-We continued in this regard the provision in the existing Constitution. It seemed to the Committee that there ought to be a permanency in the division of the State into the judicial departments and it seems to me, speaking now in response to Delegate Cullinan's suggestion that it would be unfortunate to leave it open to the Legislature every five years to enter into a readjustment of the counties of the State into the different departments. Now, Mr. Chairman, as bearing on this, let me call the attention of the Convention to the statisties regarding the judicial business of the Appellate Division of the Fourth Department. It may be that in the future there will be this large increase which the delegate apprehends, but there has not been such in the past. I have here a report from the clerk of the Appellate Division of the Fourth Department in which he gives me the number of cases disposed of by that court every year for six years past. I will read it. 1909, 591 cases decided, enumerated and non-enumerated: 1910, 598: 1911, 385; 1912, 598: 1913, 581; 1914, 600.

Mr. Cullinan Does that include the motions?