The Albany Law Journal. ALBANY, JANUARY 26, 1895. -Current Topics. [All communications intended for the Editor should be ad dressed simply to the Editor of THE ALBANY LAW JOURNAL. All letters relating to advertisements, subscriptions, or other business matters, should be addressed to THE ALBANY LAW JOURNAL COMPANY.] UDGE HERRICK, on Wednesday, January 23, 1895, decided that notaries public, as public officers, could not have free transportation over railroads under section 5 of article 13 of the Constitution. It is a matter of great interest to carefully examine the well-written opinion in this case, and to realize that the spirit of the Constitution is to be upheld by such a judicial interpretation. The history of this amendment is rather brief, but most interesting. During the last part of the session of the convention an amendment had been proposed which on its face prohibited certain public officers from accepting passes from the railroads of this State, when Hon. De Lancey Nicoll, of New York, formerly district attorney of that county, called the attention of the members of the convention to the fact that the proposed amendment which was then before them could easily be nullified, as it was improperly drawn, and was not sweeping enough in its terms to cover all officers in the employ of the State. Mr. Nicoll presented the existing provision, and said that he believed that it was one which could not be easily made a subterfuge, but that he was willing to accept any amendment which might strengthen the language used in framing the section. This amendment was passed by the convention, and subsequently ratified by the people. From the circumstances of its passage and from the sweeping language contained in its provisions, we cannot see how it is possible for any public officer to accept free transportation over the road of any company in this State, or to take any of the passes, which were formerly considered as emoluments due to an office-holder. The principle of the amendment is good, its language is strong, and the decision of Mr. Justice Herrick in interpretation of its provisions is one which, we trust, will be followed by the opinions of any judge who may VOL. 51 No. 4. hereafter be called upon to construe the section. In the decision of Judge Parker in regard to the railroad commissioners we think that the different reasoning was proper, as the expense of the commission, under the provisions of the law creating it, was to be borne by the railroads of the State, and the statute existing at the time of the passage of the amendment to the Constitution in regard to passes was one which the members of the convention were deemed to be cognizable of, and which did not, in effect, make exception to the anti-pass provisions of the Constitution. Judge Herrick's opinion in regard to notaries public using passes is as follows: 'This is an action commenced by the attorney-general of the State, to forfeit the office of the defendant as notary public. The plaintiff alleges that in January, 1894, the defendant was appointed a notary public in and for the county of Albany, by the governor of the State, and was confirmed by the Senate. That thereafter he took his oath of office as notary public and filed the same in the office of the county clerk of Albany county, and since then has been acting as notary public in and for the county of Albany. That at the time of his appointment as notary public he was possessed of a free pass, which entitled him to free transportation over the lines of the D. & H. C. R. Co., and that on the 2nd day of January, 1895, the defendant, while traveling over the tracks of the D. & H. C. R. Co., a railway corporation organized under the laws of the State of New York, from the city of Albany to the city of Troy, in this State, made use of such free pass and received free transportation from such railroad company, which the complaint asserts to have been in violation of section 5 of article 13 of the Constitution of the State of New York, and asks the judgment of the court that it adjudge and decree that the defendant has forfeited his office of notary public, and that he be evicted therefrom. The defendant demurred to the plaintiff's complaint upon the ground that it does not state facts sufficient to constitute a cause of action.' The section of the Constitution which it is alleged has been violated reads as follows: 'No public officer, or person elected or appointed to a public office under the laws of this State, shall directly ask, demand, accept, receive or consent to receive for his own use and benefit, or for the use and 6 responsibility. To expedite both public and private business, and for the purpose of authenticating business transactions for the public. benefit, as well as for the benefit of individual citizens, this particular office has been created, and the powers of the persons holding it defined. It seems to me, therefore, that a notary public is a public officer. It is contended on behalf of the defendant that he is not a public officer within the meaning of the Constitution, and it is argued that in order to discover the true intent and meaning of the section we must examine into the reason for its adoption and the evils it was intended to cure; and it is asserted that the mischief intended to be guarded against was the possibility of persons discharg benefit of another, any free pass, free transportation, franking privilege or discrimination in passenger, telegraph or telephone rates, from any corporation, or to make use of the same for himself or in conjunction with another. A person who violates any provision of this section shall be guilty of a misdemeanor, and shall forfeit his office at the suit of the attorneygeneral.' Art. 13, § 5, of the Constitution. The first question that arises is, whether a notary public is a public officer. Every man is a public officer who hath any duty concerning the public.' 7 Bacon Abr., Offices and Officers; Tomlyn Law Dict.; Hall v. Wisconsin, 103 U. S. 5. An office is simply an appointment or authority on behalf of the government to perform certain duties at and for a certaining public duties being affected in such discompensation. Smith v. Mayor, 37 N. Y. 518; People v. Nostrand, 46 N. Y. 375-81. And the person who holds such office, appointment or authority may properly be said to be a public officer. It seems to me that a notary public comes within these definitions of what constitutes a public office and a public officer. He is appointed by the executive authority of the State and confirmed by the Senate; he is appointed to perform certain public duties; some arising under the laws of the State; some under the laws of nations; some under commercial usage, and some are to be performed in pursuance of the laws of other governments and States. See chap. 683, Laws of 1892, §§ 81 and 85. Some of his duties may be performed in any part of the State; others are limited to the county for which he shall have been appointed; he may protest commercial paper, take affidavits and acknowledgments, and, in some instances, take testimɔny in actions pending in other States. These are essentially public duties, and the argument that was made before me that the duties performed by him are at the instance and for the benefit of private persons, does not conflict with the idea that a person who is appointed for the purpose of performing such offices for the benefit of private citizens is a public officer. Most of the duties imposed upon pub-cers; it makes no distinction, but includes lic officers, most of the acts that they do, are at the instance and for the benefit of private persons. The duties and powers conferred upon notaries public are of a character that it would not be safe to permit every citizen to discharge for their mutual benefit without any sense of official charge by consideration for railroad companies or other companies of that class, giving them free passage or privileges. To constitute such mischief it is absolutely necessary that the one prohibited from receiving such privileges should be an officer discharging a duty to the public, and it would seem to be equally necessary that it should appear that the duty was of such a character that there would be reason to apprehend that the acceptance and use of it would tend to such a discharge of the duty as would be against the interests of the people and favorable to the company.' And it is contended that the duties of a notary public can in no way be influenced by the granting or withholding of a pass, and, therefore, that the holder of such office does not come within the intent of the constitutional provision. If there was any ambiguity in the language used in the Constitution; if the phraseology was indefinite or uncertain, there might be some reason for our attempting to inquire into the reasons for adopting this provision, and the abuses it was intended to correct; but there is no such uncertainty; the language used is, 'no public officer or person elected or appointed to a public office under the laws of this State;' that is equivalent to any and all public offi every and all officers within the boundaries of the State. When we are asked to look beyond or behind the language used, for the purpose of ascertaining the mischief against which the prohibition was directed, and thus restrict its operation, we are asked to go into an exceedingly dangerous field of inquiry. The danger of seeking a meaning and interpretation by such means is very forcibly presented by Chief Justice Bronson in People v. Purdy, 2 Hill, 31. Each class or kind of public officers in the State could be taken in turn, and as to each it might be held that it did not refer to them, because the mischief intended to be prevented could not be worked by them in their particular official positions; and as to others, the court might well say that it would not presume that such officials could be guilty of the mischief aimed to be prevented, and, therefore, that such officials did not come within the meaning of the Constitution. One class after another might be thus eliminated until the clause in question would be a dead letter. The language used is apt, broad and comprehensive, and we are not at liberty to presume that the framers of the Constitution, or the people who adopted it, did not understand the force of language.' People v. Purdy, 2 Hill, 31. The language is so clear and precise here that there is no need of interpretation. 'It is not allowed to interpret what has no need of interpretation. When an instrument is worded in clear and precise terms — when its meaning is evident and leads to no absurd conclusions - there can be no reason for refusing to admit the meaning which the words naturally import. To go elsewhere in search of conjectures, in order to restrict or extend it, is but to elude it.' Vattel, bk. 2, chap. 17, 263; Newell v. People, 7 N. Y. 9. Courts will not seek to elude or evade the Constitution, but rather to enforce and uphold its true intent and meaning, and where the language is clear and unambiguous, that intent and meaning is to be gathered from the language used; and where plain, ordinary words are used, they will give them the meaning that is ordinarily attached to them at the time they were used, and not attempt to inject into them a new force and meaning, or by judicial construction deprive them of their full power and significance. In this case plain, ordinary, comprehensive words have been used, words with a well-understood meaning, and the only function for the court, therefore, is to declare the law as it is written; as the Constitution has recognized no difference between public officers, the court can recognize none." It is a fact which must be admitted that Bryce's American Commonwealth gave to many Americans the first inkling of an idea how the affairs of state are administered There seems to be a confidence of the people that the government is conducted in a manner which does little harm and perhaps but little more good. Reformers spring up like the noxious weed only to fade away in egotistical self-satisfaction and with an indistinct mysterious idea that some unforseen, unknown disaster has been averted by their action, and either pass into obscurity without having finished the work which they started to accomplish, or become anxiously patriotic to serve their country in consideration of a return, great or small, of the filthy lucre. Every country needs a body of citizens conversant with the affairs of state and Senator intelligent in perfecting the laws. John L. Mitchell, of Wisconsin, wrote an article in the North American Review on the passage of a bill through Congress, which is not only interesting but most instructive, and which we have the pleasure of printing. "The course of Take, for instance, a private bill that has had a bill through Congress is most interesting. its origin in the Senate (and for the purpose of illustration the Senate will do as well as the House, for in both of these bodies the system is practically the same.) A private bill is, as the term indicates, for the relief of some individual, while a general or public measure is far-reaching in its effect. In nine cases out of ten the senator who introduces a private bill is solicited to do so by one of his constituents who wants a pension, or who desires the charge of desertion removed from his military record, or who has a claim against the government of some kind or another. The bill may or may not be properly drafted, but whether it is or not, it is usually introduced by the senator without careful consideration. Any error in language or intention is left to the committee to correct by amendment. There is a legend printed on the bill that the senator first asked. and obtained consent to introduce the bill; but, in fact, the senator does nothing of the kind. He rises in his place during the morning. hour, when the introduction of bills is in order, and simply reads the title of the bill and asks that it be referred to the proper committee. It is true that an objection might be raised to the first reading of the bill, but that has not been done for years, if, in fact, it was ever done. However, this is a safeguard against objectionable legislation. The reason, perhaps, why the rule has never been enforced is that no bill is ever considered in the Senate that has not first received consideration by one of the committees of that body. It is not difficult to get a bill introduced in the Senate. If the senator does not care to be responsible for it, he states that he introduces the bill by request, and it is so printed. There are many people, ignorant of the course of legislation, who believe that the mere introduction of the bill insures its passage, and it is a lamentable fact that there are senators who give false hope to their constituents by simply introducing the measure, sending a copy of it to the claimant, and then dismissing the whole matter from their minds. The life of a bill terminates with the Congress in which it was introduced, and it is customary with some senators to reintroduce in the new Congress all the old bills which were not favorably acted upon. In the Fifty-second Congress one senator from a middle State, probably through the zeal of his private secretary, introduced an old bill four times. In each case the bill was referred to the same committee and was for exactly the same relief. When the bill is referred by the President of the Senate to the committee, it is usual for the chairman of that committee to send it to the proper executive department for the purpose of obtaining information that will justify either a favorable or an unfavorable report. This is the course when the bill is new; but if it should be a measure that has been before Congress at some previous time, the archives of the Senate are searched for the purpose of ascertaining what prior action has been taken upon it. When adverse action has been taken on a bill, two or three Congresses are sometimes permitted to intervene before it is reintroduced. In the meantime new evidence may have been secured, or the old facts may be susceptible of a stronger presentation and in a more favorable light. The old bill is usually accompanied by a mass of papers that have upon them the earmarks of preceding Congresses. These papers cannot be withdraw from the files of the Senate if at any previous time the measure has been reported upon adversely. They are retained in evidence of that adverse action, but if a measure has been reported favorably the papers may be withdrawn upon a motion of a senator. Old claims may or may not be meritorious, but they are invariably regarded with suspicion as well as dislike. The multitudinous duties of a senator leave him but little time to delve into musty papers and to prepare written reports which will stand the test of the committee, let alone the Senate. But there was once a senator who did take the time to thoroughly investigate a number of these stale claims. He found what none of his predecessors on the committee had found, that there was undoubted merit in them. It is true that he sat up for many nights to make these investigations, and that it took him a long time to write his reports. But each report contained such a lucid and concise presentation of the facts, and was so logical and convincing in its reasoning, that the bills were passed by the Senate, and became laws. This senator made so lofty a reputation among his colleagues in dealing with these old claims that when a vacancy occurred in the Federal judiciary they united in urging the President to nominate the industrious senator to that high position, and to-day he is a member of the Supreme Court of the United States. It is a hard matter to get a bill out of committee, for several reasons. Most of the committees of the Senate are composed of nine members. These members are in turn appointed sub-committees, to which are assigned the various bills which have been referred to the whole committee. In the course of a congress these references to the working committees of the Senate consist of from three to nine hundred measures. All of this means a good deal of exacting work. Perhaps in the mass of bills referred to an individual senator, as a sub-committee, there is a large percentage which is not deserving of favorable recommendation. These bills are usually held back out of considration to the senators who have introduced them. If a report is urged upon any of them it means unfavorable action, and that is never desired, as an unfavorable report practically kills the bill. But outside of these bills there are many meritorious measures which lie dormant until the sub-committee in charge is stirred up to make up a report upon them. Sometimes a senator who has become interested in a private bill will appear before the committee, make a statement of the case, the Senate, but in the House only the greatest popularity with the speaker and the representatives can secure such a favor. Sometimes in the Senate, under one of its rules, that body will and personally appeal to have the case acted upon at once. He may go so far as to write the report on the bill, and if a majority of the committee favor its passage, the report may be adopted. When a bill has passed the commit-proceed to the call of the calendar, as it is tee, the senator who prepared the report sub- termed, and if there be no objection to the bill, mits the bill to the Senate, amended or not, as it is only a question of how rapidly it can be the case may be The bill is reprinted with its read to secure its passage. This reading of the amendments, and is given a calendar number. | bill at full length is called the second reading The report is also printed and given the same of the bill. It is then open to amendment, and calendar number, the calendar being a record if none be made, the title is read (which is called of each of the bills in the order in which it is the third reading) and the bill is passed. When reported back to the Senate, with the favorable or the bill has passed either the House or the Senunfavorable recommendation of the committee. ate it becomes an act, and is signed by the At this period in the course of the passage of the clerk of the House if it be a House bill, and by bill the claimant feels hopeful. He believes his the secretary of the Senate if it be a Senate bill. measure is nearly a law, for if it is passed by the The Senate bill has now become an act, and is Senate he will then only have to get it through again reprinted, but still retains its identity as the House. Perhaps he has anticipated the ac- a Senate measure. The only changes are in the tion of the Senate, and has had a similar bill heading, which reads 'in the House of Reprealready introduced in the House. His efforts sentatives,' and affixing the date of passage and may have been successful in that body, and the the name of the secretary of the Senate. While bill may be on the House calendar also. If the reprinted bill is correct in every particular, such is the case, he believes that he stands near it is not recognized as the original, which success. But the work of getting the bill on eventually finds its way into the bound files of both the Senate and House calendars has been the Senate. From the time of the organization the work of months. The committees usually of the Senate up to the beginning of this Conmeet but once a week, and then remain in sesgress the original act was engrossed on blue. sion not over an hour and a half. For weeks sheets of paper, each line being numbered for at a time no legislative business may be consid- convenience in quickly determining where ered by the committee in charge of the bill, on amendments were to be inserted. It was only account of nominations made by the President. by the hardest work on the part of the engrossIn the present Fifty-third Congress the judi- ing clerks that, under this old custom, the work ciary committee of the Senate, on March 1, of the Senate could be kept up. Now the origi1894, had not given up one session to the con- nal act is printed. When the act is ready to be sideration of legislative business; but this action transmitted to the House, the secretary or one is not usual. However, the private claimant of his clerks takes it and appears before the finds that weeks have passed into months, the speaker, who suspends business until the meslong session ended and the short one begun be- sage from the Senate is received. If the claimfore he gets his bill on the calendar of each ant has been active he will have interested house. There is not much time for legislation some member of the House in the passage of of a private character in the short session, ex- the bill by the Senate, and will have requested cept at the beginning. The appropriation bills him to call up the House bill on the calendar, for carrying on the government for the ensuing and ask the unanimous consent of the House to fiscal year must be prepared, and as they have have the Senate bill substituted. Sometimes the right of way over all other legislation. a this consent is given, but more frequently it is private bill must take its chances. But being not. The member may ask that the Senate bill on both the Senate and the House calendars, it lie on the speaker's table and wait for a more has a favorable prospect. The claimant then favorable opportunity to call up the bill. If he urges the senator who has had charge of the again calls up the bill and fails to get considebill to call it up at some odd moment for con- ration, the bill is referred to its committee, and sideration and passage. This is not difficult in is generally considered promptly. It may be |