[1] Power of legislature to compel expenditures.

It is within the power of a state legislature to create special taxing districts and to charge the cost of a local improvement, in whole or in part, upon the property of said district.- Cleveland, C. C. & St. L. R. Co. v. Porter, 210 U. S. 177, 28 Sup. Ct. R. (U. S.) 647, affg. s. c. 38 Ind. App. 226, 74 N. E. 260, 76 N. E. 179.

An act of a state legislature making a certain bridge and causeway a free public highway, providing for the condemnation of the franchise and property of the company operating said bridge and for the apportioning of the damages against certain benefited towns, is valid.-Williams v. Eggleston, 170 U. S. 304, 18 Sup. Ct. R. (U. S.) 617, affg. s. c. 68 Conn. 131, 35 Atl. 24, 421, 48 L. R. A. 465n.

Municipal corporations are creatures of the state, and exist and act in subordination to the sovereign power. The legislature may determine what moneys they may raise and expend, and what taxation for municipal purposes may be imposed, and it does not exceed its constitutional authority when it compels a municipality to pay a debt which has some meritorious basis to rest on.- Mayor v. Tenth National Bank, 111 N. Y. 446, 18 N. E. 618.

A statute directing the construction of highways in a certain town and imposing a tax upon that town to pay the expenses of the work is within the power of the legislature. That local expenditures and improvements should, in general, be left to the discretion of the locality, is manifestly just and in accordance with the theory of our government, but when power is conceded, the courts have no right to inquire into the motives and reasons for doing the particular act.-People ex rel. McLean v. Flagg, 46 N. Y. 401.

[2] What constitutes a city purpose.

The construction, management and control of rapid transit railways by a municipality is " a city purpose."- Sun Publishing Assn. v. Mayor, 152 N. Y. 257, 46 N. E. 499, 37 L. R. A. 788, affg. s. c. 8 App. Div. (N. Y.) 230, 40 N. Y. Supp. 607.

When the legislature authorizes an expenditure for some public improvement, it is the exclusive judge of its propriety and utility.-Waterloo W. M. Co. v. Shanahan, 128 N. Y. 345, 28 N. E. 358, 14 L. R. A. 481.

As the dividing line between what is a municipal purpose and what is not, is in many cases doubtful and uncertain, great weight should be given by the courts to the legislative determination, and its action should not be annulled unless the purpose appears clearly to be one not authorized. People ex rel. Murphy v. Kelly, 76 N. Y. 475.

The legislative determination as to what is a municipal purpose will not be annulled by the courts in any doubtful case, but only where it

appears to be clearly erroneous.- People ex rel. Murphy v. Kelly, 76 N. Y. 475.

Any doubt whether a given expenditure is for a city purpose must be resolved in favor of the legislative action.- Sun Publishing Assn. v. Mayor, 8 App. Div. (N. Y.) 230, 40 N. Y. Supp. 607; affd. 152 N. Y. 257, 46 N. E. 499, 37 L. R. A. 788.

"Section 10 of Art. VIII of the State Constitution provides in part as follows: Nor shall any such county, city, town or village be allowed to incur any indebtedness, except for county, city, town or village purposes.' The question which arises is, whether the payment of the expenses of the Commission of the First District by the Comptroller of the city of New York is for a city purpose. This is a question which merits a great deal of careful consideration and one which is not entirely free from doubt. I believe, however, that the courts will be inclined to follow the decision of the Court of Appeals in the Sun Printing & Publishing Co. v. The Mayor, etc., 152 N. Y. 257 [46 N. E. 499, 37 L. R. A. 788]. It was there held that railroads being necessary for the common welfare of the people, required for their use and public in character, are for a 'city purpose,' within the meaning of the Constitution, when authorized. by the legislature and constructed and owned by the city in whose territory they are located. If I understand the Public Service Commissions Law correctly, all the powers possessed by the Board of Rapid Transit Railroad Commissioners are transferred to and vested in the Public Service Commission in the First District. It would therefore follow, it seems to me, that any expenses incurred by the present Commission in carrying out the duties of the Rapid Transit Board were necessarily for a city purpose.' Assuming that the expenses to be incurred by the Commission are not for a 'city purpose,' a proposition which I do not decide, I know of no way at present in which the expenses of the Commission can be divided so as to show what are necessary for a 'city purpose,' and what are not. It seems to me, however, without directly passing upon the question, that the ruling of the Court of Appeals in the Sun Printing & Publishing Association case is sufficiently comprehensive to include the present situation. I have stated the effect of the Sun Publishing Company decision, but I have some doubt as to whether it is necessary to resort to that decision to meet the objection suggested under this section of the Constitution. The intent of the section was to prevent the giving of the money of municipal corporations for other than municipal purposes, and probably the real question to be solved under this point is whether the money to be raised by the city is to be used for a public purpose. That the purpose of the Public Utilities Act is public cannot be disputed."- Opinion of Corporation Counsel F. K. Pendleton, rendered to Comptroller H. A. Metz, July 13, 1907.

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[3] Discretion of paying officer as to payments duly audited.

The Comptroller of the United States, in passing upon vouchers duly itemized and approved by the chairman of the Interstate Commerce Commission, has not authority to inquire whether the expenses were necessary or the business charged for official. These were matters for the chairman of the Commission to determine.- Mosely v. U. S., 35 Ct. Cl. (U. S.) 347.

An act declared that the expenses incurred by the commissioners of records should be paid by the county treasurer upon the certificate of the commissioners.- Held, that the legislative intent was to give them a large discretion in the performance of their duties and make them the sole judges and auditors of their own expenditures. The act being special, and to provide for a special service by an agency outside the ordinary city or county government of New York, it is not repealed in any of its provisions by implication, by general provisions for the government of the city or county, or for the auditing and paying of the ordinary expenses of the two governments.- People ex rel. Kingsland v. Palmer, 52 N. Y. 83.

[4] Application to appellate division.

"In my opinion, while this part of the Act [referring to so much of Public Service Commissions Law, § 14, as relates to the application to the Appellate Division of the Supreme Court] is of very doubtful validity, it is not necessary at this time to pass upon the question of its constitutionality. If the statute is otherwise good, this part, if bad, can be eliminated without destroying the entire fabric of the Act."- Opinion of Corporation Counsel F. K. Pendleton, rendered to Comptroller H. A. Metz, July 13, 1907.

[5] Extent to which the city may be rendered liable.

The New York Rapid Transit Act is open to serious objection in that it imposes no limits on the amount for which the Board of Rapid Transit Commissioners could render the city liable.- Matter of Rapid Transit Comrs., 5 App. Div. (N. Y.) 290, 39 N. Y. Supp. 750.

[6] Proposed expenditures must be at least approximately estimated.

The cost of a proposed rapid transit railway is a vital consideration, on the motion of the Board of Rapid Transit Commissioners favorable to the construction of such railway, and if the cost is not at least approximately estimated, the court will refuse to confirm the report.Matter of Rapid Transit Comrs., 5 App. Div. (N. Y.) 290, 39 N. Y. Supp. 750.

[7] Transfer of present funds.

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The funds heretofore appropriated for the Board of Rapid Transit Railroad Commissioners are by the Act [Public Service Commissions Law] transferred to the credit of the [Public Service] Commission and are available upon its requisition."- Opinion of Corporation Counsel F. K. Pendleton, rendered to Comptroller H. A. Metz, July 13, 1907.

§ 15. Certain acts prohibited *[and defined as grounds for removal; employees of commissions declared to be public officers].- Every commissioner, counsel to a commission, the secretary of a commission, and every person employed or appointed to office, either by a commission or by the counsel to a commission, is hereby forbidden and prohibited to solicit, suggest, request or recommend, directly or indirectly, to any common carrier, railroad corporation or street railroad corporation, or to any officer, attorney, agent, or employee thereof, the appointment of any person to any office, place, position or employment. And every common carrier, railroad corporation, street railroad corporation, gas corporation and electrical corporation, and every officer, attorney, agent and employee thereof, is hereby forbidden and prohibited to offer to any commissioner, to counsel to a commission, to the secretary thereof, or to any person employed by a commission or by the counsel to a commission, any office, place, appointment or position, or to offer or give to any commissioner, to counsel to a commission, to the secretary thereof, or to any officer employed or appointed to office by the commission or by the counsel to the commission, any free pass or transportation or any reduction in fare to which the public generally are not entitled or free carriage for freight or property or any present, gift or gratuity of any kind. If any commissioner, counsel to a commission, the secretary thereof or any person employed or appointed to office by a commission or by counsel to a commission, shall violate any provision of this section he shall be removed from the office held by him. Every commissioner, counsel to the commission, the secretary thereof and every person employed or appointed to office by the commission or by counsel to the commission, shall be and be deemed to be a public officer.

Words in brackets are not a part of section heading as enacted.-Ed.

Prohibition against receiving of passes, etc., by a public officer,- see N. Y. Const., Art, XIII, § 5.

Prohibition on members of former Board of Railroad Commissioners,— see N. Y. R. R. L., § 168.

Certain acts defined as denoting ineligibility of commissioners and employees of commission,- see ante, § 9.

The giving of free passes, generally,- see post, § 33.
Removal from office.- see ante, § 4, notes [6]-[13].

[1] Who are public officers.

Whoever has a public charge or employment, or even a particular employment affecting the public, holds a public office.- Rowland v. Mayor, 83 N. Y. 372.

"Public office," in the constitutional sense, has respect to a permanent public trust or employment, to be exercised generally and in all proper cases. It does not include the appointment, to meet special exigencies, of an individual to perform transient, occasional or incidental duties such as ordinarily are performed by public officers.- Matter of Hathaway, 71 N. Y. 238.

Every officer who is appointed to discharge a public duty and receives compensation, is a public officer.- People ex rel. Henry v. Nostrand, 46 N. Y. 375; Robinson v. Chamberlain, 34 N. Y. 389; People ex rel. Bradley v. Stevens, 51 How. Pr. (N. Y.) 103; People v. Hayes, 7 How. Pr. (N. Y.) 248.

Where a person holds a position created by statute, with the appointing power designated, the salary fixed and the general duties prescribed by law, he is a public officer.- Matter of Hardy, 17 Misc. (N. Y.) 667, 41 N. Y. Supp. 469.

[2] Qualifications.

A statute of North Carolina providing that no railroad commissioner should be employed by or in any way interested in any carrier company, and providing that such relations should be a ground for his removal, is not unconstitutional because it requires of the railroad commissioners qualifications in addition to those prescribed in the state constitution.- Caldwell v. Wilson, 121 N. C. 425, 28 S. E. 554.

[3] Receiving of free transportation.

A public officer who accepts the privilege of riding in a palace or sleeping-car accorded to him by a pass issued by the sleeping-car company, accepts a free pass within the meaning of N. Y. Const., Art. XIII, § 5, forbidding the receiving or using of passes by public officers. People v. Wadhams, 176 N. Y. 9, 68 N. E. 65.