ballots, is the essential thing in every election. The day upon which that essential act is performed in the manner prescribed by law is the day upon which the candidate is really elected, though the choice may not be officially declared until a considerable period afterwards." A subsequent change of the official term cannot affect an officer thus elected, though the term be changed before the votes are canvassed. People ex rel. Le Roy v. Foley (1896) 148 N. Y. 677, 43 N. E. 171, where it was also held that "the legislature has the power to prescribe the time and manner of holding town meetings for the election of town officers and the transaction of town business. It may designate a single day for that purpose or provide... for the election of officers on one day, and the transaction of the other general business of the town on the following day." Construing the act of 1897, chap. 439, which provided for changing the time of holding town meetings and for adjusting official terms to conform to the new arrangement, the supreme court, in People ex rel. Clark v. Treacy (1899) 46 App. Div. 216, 61 N. Y. Supp. 288, say: "We know of no instance in which the legislature has assumed to direct that an elective office shall be filled earlier than at the election next preceding the expiration of the term of the present incumbent; and we doubt whether it is within the power of the legislature to make such a direction as to constitutionally elective offices. . . . The provisions of the Constitution limiting offices to fixed terms is entirely inconsistent with such an assumption of authority by the legislature."

EQUAL PROTECTION OF THE LAWS.

A statute prohibiting foreign corporations from transacting business within this state except upon specified conditions is not repugnant to the provision of the Federal Constitution which declares that no state shall "deny to any person within its jurisdiction the equal protection of the laws." A foreign corporation is not a person within this provision, and the legislature may regulate the conditions under which it may do business within the state. People v. Fire Asso. (1883) 92 N. Y. 311, 44 Am. Rep. 380.

Permission granted to a foreign corporation to do business within the state is not a matter of right, but of comity, and may be granted subject to such terms as the legislature may think proper to impose. Horn Silver Min. Co. v. New York (1891) 143 U. S. 305, 36 L. ed. VOL. IV. CONST. HIST.-15.

164, 4 Inters. Com. Rep. 57, 12 Sup. Ct. Rep. 403, affirmed in (1887) 105 N. Y. 76, 11 N. E. 155.

The civil service acts of 1884, chap. 410, and 1887, chap. 464, giving a preference to veterans, do not deny equal protection of the laws. All persons in a given class have an equal right. The statutes give a preference to veterans as a reward for meritorious service in preserving the existence of the nation, and do not infringe any constitutional right guaranteed to other citizens. Re Wortman (1888) 22 Abb. N. C. 137, Daniels, J.

A statute which conferred on taxpayers in the county of New York the right of review of assessments more limited than the right conferred on persons residing in other counties was held not obnoxious to this provision. It prohibits class legislation, but does not prohibit local or special legislation. People ex rel. Second Ave. R. Co. v. Coleman (1889) 21 N. Y. S. R. 178, 4 N. Y. Supp. 417.

The act of 1892, chap. 646, regulating the rendering business, is not objectionable as denying equal protection of the laws. People v. Rosenberg (1893) 67 Hun, 52, 22 N. Y. Supp. 56, reversed on other points in (1893) 138 N. Y. 410, 34 N. E. 285.

Statutes which impose a punishment on persons between prescribed ages, who are sentenced to specified institutions, different from the punishment imposed generally for like offenses, do not deny equal protection of the laws. They create classes, and all persons in the same class are subject to the same rule. People ex rel. Duntz v. Coon (1893) 67 Hun, 523, 22 N. Y. Supp. 865.

License fees imposed under state law on telegraph companies engaged in interstate business are not a violation of this provision. Philadelphia v. Postal Teleg. Cable Co. (1893) 67 Hun, 21, 21 N. Y. Supp. 556.

The act of 1895, chap. 823, prohibiting barbering on Sunday except in the city of New York and in the village of Saratoga Springs, does not deny equal protection of the laws within the meaning of the Federal Constitution. It is not class legislation. It affects alike all persons similarly situated. People v. Havnor (1896) 149 N. Y. 195, 31 L. R. A. 689, 52 Am. St. Rep. 707, 43 N. E. 541. See also Wright v. Hart (1905) 103 App. Div. 218, 93 N. Y. Supp. 60, as to statutes regulating sales of merchandise in bulk.

Statutes which impose a special tax on resident insurance agents do not violate this provision. All persons in the same class are similarly affected. Fire Department v. Stanton (1899) 159 N. Y. 227, 54 N. E. 28.

The state may establish separate schools for white and for colored children, and it does not thereby deny to any citizen equal protection of the laws, provided such schools afford equal facilities for acquiring an education. People ex rel. King v. Gallagher (1883) 93 N. Y. 438, 45 Am. Rep. 232; People ex rel. Cisco v. Queens (1900) 161 N. Y. 598, 48 L. R. A. 113, 56 N. E. 81.

The Code of Civil Procedure, § 3268, authorizing the defendant in a court of record to require security for costs where the plaintiff is an infant (not suing as a poor person) whose guardian ad litem has not given such security, is not class legislation, and does not deny equal protection of the laws. Venanzio v. Weir (1901) 64 App. Div. 483, 72 N. Y. Supp. 234.

The prohibition against poolselling and other forms of gambling in 351 of the Penal Code is not a violation of this provision. People v. Stedeker (1902) 75 App. Div. 449, 78 N. Y. Supp. 316.

The provision of § 384h, subd. I of the Penal Code, which prohibits the contractor with the state from requiring more than eight hours' work for a day's labor, denies equal protection of the laws. People v. Orange County Road Constr. Co. (1903) 175 N. Y. 84, 65 L. R. A. 33, 67 N. E. 129.

A franchise tax on savings banks, as imposed by § 1876 of the tax law, added in 1901, does not deny equal protection of the laws. Savings banks are not charitable or benevolent corporations, and there is no discrimination in the tax. People ex rel. Bank for Savings v. Miller (1903) 84 App. Div. 168, 82 N. Y. Supp. 621, citing Monroe County Sav. Bank v. Rochester (1867) 37 N. Y. 365.

In People ex rel. McPike v. Van De Carr (1904) 91 App. Div. 20, 86 N. Y. Supp. 644, the court quotes from Barbier v. Connolly (1885) 113 U. S. 27, 28 L. ed. 923, 5 Sup. Ct. Rep. 357, the statement that by the constitutional provision securing equal protection of the laws it is "undoubtedly intended not only that there should be no arbitrary deprivation of life or liberty, or arbitrary spoliation of property, but that equal protection and security should be given to all, under like circumstances, in the enjoyment of their personal and civil rights; that all persons should be equally entitled to pursue their happiness and acquire and enjoy property; that they should have like access to the courts of the country for the protection of their persons and property, the prevention and redress of wrongs, and the enforcement of contracts; that no impediment should be interposed to the pursuits of any one, except as applied to the same pursuits by others under like circumstances; that no greater burdens

man (1860) 38 Barb. 608, it was held that deeds under it were not presumptive evidence of regularity in the comptroller's proceedings; that there was no vested right in a rule of evidence, but that the legislature might change it at pleasure; and that a grantee in a comptroller's deed given while the act of 1850 was in force was required to make full proof of every fact relating to the comptroller's jurisdiction.

White v. Wheeler (1889) 51 Hun, 573, 4 N. Y. Supp. 405, sustains a statute and cites others making a tax deed presumptive evidence The act of 1885, chap. 448, declaring the effect of conveyances by the comptroller on tax sales, was sustained in People v. Turner (1889) 117 N. Y. 227, 15 Am. St. Rep. 498, 22 N. E. 1022, in which the court say that "the power of the legislature to change rules of evidence as they exist at common law . . . has been uniformly held not to be affected or restricted by the constitutional provisions prohibiting the taking of life, liberty, or property without due process of law." See also Turner v. New York (1897) 168 U. S. 90, 42 L. ed. 392, 18 Sup. Ct. Rep. 38, where the court, sustaining the statute, say it is a statute of limitations, and does not deprive the owner of property without due process of law. Followed in Saranac Land & Timber Co. v. Comptroller (1899) 177 U. S. 318, 44 L. ed. 786, 20 Sup. Ct. Rep. 642.

Discussing the validity of the provision in the excise act of 1857, chap. 628, that whenever any person is seen to drink on licensed premises it shall be prima facie evidence that the liquor was sold by the licensee or his agent with intent to be drunk on the premises, the court, in People v. Lyon (1882) 27 Hun, 180, say that "if the legislature can declare that a certain fact is prima facie evidence of the defendant's guilt, such a declaration means that the jury must convict unless the defendant explains away this evidence; and if they can declare a fact to be prima facie, it would seem to follow that they might declare it conclusive evidence." But this law made an act which was always lawful done by one person, prima facie evidence that another person had committed a criminal offense. The jury, not the legislature, must judge whether the evidence proves the charge. The defendant was indicted and convicted for a violation of the excise law. The conviction was reversed and the provision in question held unconstitutional because it deprived the defendant of the right of trial by jury.

The same provision of the excise law was under consideration again in the court of appeals in an action to recover penalties (Board of Excise v. Merchant [1886] 103 N. Y. 143, 54 Am. Rep. 705, 8 N.

E. 484), and was sustained, the court saying that "the general power of the legislature to prescribe rules of evidence and methods of proof is undoubted. While the power has its constitutional limitations, it is not easy to define precisely what they are. A law which would practically shut out the evidence of a party, and thus deny him the opportunity for a trial, would substantially deprive him of due process of law. It would not be possible to uphold a law which made an act prima facie evidence of crime over which the party charged had no control and with which he had no connection, or which made that prima facie evidence of crime which had no relation to a criminal act, and no tendency whatever by itself to prove a criminal act. But so long as the legislature, in prescribing rules of evidence, in either civil or criminal cases, leaves a party a fair opportunity to make his defense, and to submit all the facts to the jury, to be weighed by them upon evidence legitimately bearing upon them, it is difficult to perceive how its acts can be assailed upon constitutional grounds." The court said that, under the circumstances, the drinking was good common law evidence of a sale in violation of the statute.

"Even in criminal prosecutions the legislature may, with some limitations, enact that when certain facts have been proved they shall be prima facie evidence of the existence of the main fact in question. . . . The limitations are that the fact upon which the presumption is to rest must have some fair relation to, or natural connection with, the main fact. The inference of the existence of the main fact because of the existence of the fact actually proved must not be merely and purely arbitrary, or wholly unreasonable, unnatural, or extraordinary, and the accused must have, in each case, a fair opportunity to make his defense, and to submit the whole case to the jury, to be decided by it after it has weighed all the evidence and given such weight to the presumption as to it shall seem proper." A provision of this kind does not in reality and finally change the burden of proof. People v. Cannon, People v. Quinn, People v. Bartholf (1893) 139 N. Y. 32, 36 Am. St. Rep. 668, 34 N. E. 759, sustaining the bottling act of 1887, chap. 377, as amended, Laws 1888, chap. 181, which made the possession by a junk dealer of certain bottles and kegs presumptive evidence of an unlawful use thereof.

The provision of the general village law of 1870, chap. 291, making the certificate of the second election for the purpose of incorporation "final and conclusive proof of the incorporation of such village, and the regularity thereof, in all courts and places," was