REPORT, &c.

"STATE OF NEW-YORK, Į IN SENATE, April 20, 1832.

"Resolved, That the committee on the judiciary be discharged from the further consideration of the engrossed bill from the Assembly, entitled "An act relative to the election of justices of the peace;" and that the same be referred to the Attorney-General, for him to report thereon at the next session of the Legislature.

"By order,

JOHN F. BACON, Clerk."

The Attorney-General, in obedience to the foregoing resolution of the Senate, respectfully submits the following

REPORT:

In each of the towns in this State, the term of one justice of the peace expires annually with the close of the year; and a person to supply his place is elected at the preceding annual town-meeting. Besides the case of the regular expiration of the term for which a justice was elected, vacancies sometimes happen by death, resignation or removal; and in such cases, two or more persons are to be elected justices; the one for the regular term of four years, and the other or others for three, two or one year, or even a shorter period. Under the existing law, the class to which they respectively. belong, is to be determined by lot: and it may chance that the person who was intended by the electors to supply an existing va cancy for only a single year, or even a shorter period, obtains the longest term; while the person who was intended by the voters for the longest term, obtains only the lot of the shortest period.

But this is not the only difficulty in the present system. It often happens that the electors wish to retain a faithful magistrate whose term will expire at the close of the year, and at the same time an existing vacancy is to be filled. If in such case the person already

a justice draw the shortest term, the intention of the electors as to the place he shall occupy is not only defeated, but the vacancy is not filled. The justice already in office is under no obligation to abandon what remains of his former term, and accept the vacancy: And should he do so, the number of acting justices is not increased; for the other person elected, having drawn the regular term, cannot enter upon the duties of his office before the first day of January next following his election.

The engrossed bill mentioned in the resolution of the Senate, was designed to remedy these evils. The first section is in the following words:

"At any election for more than one justice of the peace at the same time in any town, there shall be written or printed on the ballot containing the name of the person voted for, a designation of the term or vacancy for which he is to be elected; [and the words "first vacancy" shall mean four years, "second vacancy" shall mean three years, "third vacancy" shall mean two years, and "fourth vacancy" shall mean one year;] and the persons elected shall be deemed chosen to the term or vacancy thus designated on the ballots given for them respectively." Accompanying the bill is a proposed amendment, to strike out the words enclosed in brackets, and insert the following; "which designation shall specify the number of years for which it is intended that such justice shall be elected,"

The proposed amendment would simplify the bill, so that the electors would be less likely to fall into any mistake in expressing their intention. But there are serious difficulties in the way of requiring any designation of the term upon the ballot. It is not improbable that some voters, not conversant with the laws, would omit to make the necessary specification, or make it in an imperfect or insufficient manner, and thus lose their votes. And it conse quently might happen that a person receiving only ten votes properly prepared, would be elected, over a man who had received ten times as many votes, imperfect for want of the proper designation,

But if it be supposed that every elector will make the proper designation, the bill is still subject to objection. If required by law to designate the term, then the elector not only votes for a particular person for the office of justice, but he votes for him in reference

to a particular term or vacancy; and the canvassers must determine which person has the greatest number of votes, not generally, but for that particular term or vacancy. And thus it may be that a person receiving a majority of all the votes, may nevertheless fail of an election, for the reason that his friends did not agree as to the place which he should fill. To exemplify this in a case. where two justices are to be elected, one for four, and one for three years: Let it be supposed that there are one hundred electors; that 60 of them vote for A and B, and the remaining 40 vote for C and D. Should the 60 voters differ about the term-half of them designating A for four years, and B for three; and the other half designating B for four, and A for three years; and should those who vote for C and D agree in their designations of the term intended for each, then C and D, with only 40 votes each, would be elected against A and B, who respectively received 60 votes.

If instead of two, three justices were to be elected, the objection already mentioned might be still greater, as will sufficiently appear from the following table, in which the capital letters represent the candidates; the figures 1, 2, 3, the classes as designated by the electors; and the figures in the left hand column, the number of votes received by each;

In this case, although A, B and C, would have severally rcceived 72 votes out of 100, yet, owing to a disagreement among their supporters about a collateral matter, D, E and F, with only 28 votes each would be elected; and if four justices were required to be chosen the case would be still worse. The project is also subject to the further objection that the same person might be elected to fill different places at the same time.

The engrossed bill under consideration also provides that there shall be a separate box and poll list for the ballots for justices of the peace. But this would not remedy the difficulties that have been suggested.

The most direct and simple method of carrying into effect the intention of the people in choosing and classifying justices, would be to authorise a special town meeting to fill vacancies whenever they arise; but this course is not permitted by the Constitution. And no plan, entirely free from objections has occurred to the Attorney-General. He has however, prepared a bill on that subject, which is herewith respectfully submitted to the consideration of the Legislature.

The first section of the proposed bill, was suggested by the fifth section of an act passed at the last session of the Legislature. Laws 1832, p. 555-6. That section was wholly retrospective in its operation, and furnished no rule for future cases. No sufficient objection is perceived against making the provision general. It is based upon the presumption that when a person then holding the office of justice of the peace for an unexpired term is re-elected, the voters always intend that his new term shall commence when his former one expires. To affirm the contrary, is to suppose that the electors intended to fill an existing vacancy in the office without increasing the number of their justices.

The second section of the proposed bill, in cases not provivided for by the first, allows the electors, without requiring them to do so, to designate on their ballots the person intended for the longest term. The ballots will consequently be sufficient whether they contain any designation of the term or not; and the election, without any reference to that circumstance, will be determined as in other cases, by the greatest number of votes. This will give the electors an opportunity to express their intentions concerning the longest term, if they will exercise the necessary diligence to accomplish the object,

The third section determines in what cases one of the persons elected shall be entitled to the longest term. First: He must have received more designations for the place than any other person elected. Second: Such designations must amount to a majority of all the ballots for justices, or be equal in number to the votes received by either of the other persons elected. The first provision can need no illustration. But that would not be sufficient without the second or something like it. As no one is required to designate the term, but only permitted to do so if he please, it

might happen that a few only of the electors would make the de

signation, and thus a man might obtain the longest term against the will of a majority of the voters. But if such designation appear upon a majority of all the ballots for justices, that must of course express the wishes of a majority of all the electors. This rule however, would be defective in cases where three sets of candidates are supported, for in that case a man may be elected by a plurality, without a majority of the votes: and to make it necessary that the designation should be made on a majority of all the ballots, would be to require that he should have more designations than votes. The alternative was therefore inserted, that such designation should be made upon a number of ballots equal to the number of votes received by either of the other persons elected. This provision may appear somewhat complicated at the first; and cases may arise where mistakes will be made in its application. Still it is believed that it will generally furnish a convenient and safe rule: and a strong desire has been manifested in various quarters, for some means of allowing the electors to determine which of the justices elected shall hold for the longest term, instead of leaving that question to be determined as the law now stands, by a lottery.

The fourth section makes provision for having this question settled by the presiding officers at the town-meeting, in the same manner as they determine on the canvass who is elected. See 1 R. S. 342, 344, sec, 7 to 10.

Section five directs that where no person has been elected for the regular term of four years in either of the ways before mentioned, the classes of all shall be determined by lot as now provided by law.

The sixth section provides for the case where one person has been elected for the regular term, and two or more persons have been elected to fill existing vacancies; and directs the particular vacancy to be determined by lot. No attempt has been made to have that matter settled by the electors, for the reason that it would render the provisions of the bill too complicated for practical utility. And besides it seldom happens that there is more than one existing vacancy to be be filled at the same time; and having provided for that case, no great inconvenience can be experienced from leaving the other matter on its present footing.

The seventh and last section needs no explanation.