reorganization of the judicial districts, that it should be made at no other time." The Constitution of 1894 changed the rule by requiring the apportionment to be made at the first regular session after the enumeration, thus intending to prohibit an apportionment at an extraordinary session of the legislature. If, as held in the Rumsey Case, the apportionment provision in the former Constitution was directory, the same rule would doubtless be applied to the corresponding provision in the present Constitution.

New counties and towns.-Under the Constitution of 1846 the legislature had power to erect new counties. In Rumsey v. People (1859) 19 N. Y. 41, the court, construing the act of 1854, chap. 386, erecting Schuyler county, in connection with the constitutional provision that "no new county shall hereafter be erected unless its population shall entitle it to a member," say that the last decennial enumeration does not furnish to the legislature the only guide in determining the population when considering the propriety of erecting a new county. "It is left to the legislative bodies to ascertain the population in the best way they can." In this case parts of three counties were included in the new county, and towns were also divided in carving out the new territory. No separate census had been taken of these distinct portions of the new county, and it was impracticable for the legislature to attempt to follow the last enumeration. "The legislature was undoubtedly the appropriate tribunal to make the requisite inquiry, in order to ascertain whether their proposed act would be in conformity with the constitutional requisition. It is to be presumed that due inquiry was made, and the statute must be considered as a legislative declaration that the population of the proposed new county was sufficient." De Camp v. Eveland (1854) 19 Barb. 81.

The Schuyler county act was again considered in Lanning v. Carpenter (1859) 20 N. Y. 447, where its constitutionality was directly in issue, and the act was held invalid on the ground that the legislature had exceeded its authority in the alteration of senate, assembly, and judicial districts.

"The power to divide counties or towns and to erect new counties and towns, or to change their boundaries, is legislative in its character and is conferred upon the senate and assembly by the general grant of legislative power; and unless restrained in a particular case by other provisions or arrangements of the Constitution, the time and mode of its exercise is in the discretion of the legislature. The power of the legislature to erect new counties, although not conferred by any express grant, is implied in the prohibition in § 5 of

article 3, relating to members of assembly, that 'no new county shall be hereafter erected unless its population shall entitle it to a member.'" The act of 1895, chap. 934, which annexed a portion of Westchester county to the city and county of New York, was sustained so far as it related to municipal affairs, but the act did not affect the status of the annexed territory as a part of existing assembly, senate, and judicial districts. People ex rel. Henderson v. Westchester County (1895) 147 N. Y. 1, 30 L. R. A. 74, 41 N. E. 563.

The power of the legislature to erect new towns was again affirmed in Fort v. Cummings (1895) 90 Hun, 481, 36 N. Y. Supp. 36. Wards. In the chapter on the Convention of 1846, I have noted the proposition to prohibit the division of wards in creating assembly districts, and its rejection by the Convention. In the Whitney Case (1894) 142 N. Y. 531, 37 N. E. 621, the division of wards in establishing assembly districts was sustained. The Constitution of 1894 does not prohibit the divison of a ward, but the prohibition applies only to the division of a block.

§ 6. [Compensation of members.]-Each member of the legislature shall receive for his services an annual salary of one thousand five hundred dollars. The members of either house shall also receive the sum of one dollar for every ten miles they shall travel in going to and returning from their place of meeting, once in each session, on the most usual route. Senators, when the senate alone is convened in extraordinary session, or when serving as members of the court for the trial of impeachments, and such members of the assembly, not exceeding nine in number, as shall be appointed managers of an impeachment, shall receive an additional allowance of ten dollars a day.

[Const. 1821, art. 1, § 9; 1846, art. 3, § 6; Am. 1874.]

The subject of the compensation of members of the legislature was for many years left to the legislature itself. The history of this subject, and the development of a movement finally resulting in fixing the compensation in the Constitution, will be found in the first and

second volumes. The subject was considered not only in convention, but in numerous independent amendments proposed in the legislature.

§ 7. [Members not to receive certain civil appointments.]—No member of the legislature shall receive any civil appointment within this state, or the Senate of the United States, from the governor, the governor and senate, or from the legislature, or from any city government, during the time for which he shall have been elected; and all such appointments and all votes given for any such member for any such office or appointment shall be void.

[Const. 1821, art. 1, § 10; 1846, art. 3, § 7; Am. 1874]

This provision had its origin in the Convention of 1821, where the committee on the legislature reported the following proposed section: "No member of the legisiature shall receive any civil appointment under the government of this state during the term for which he shall have been elected." Mr. Birdseye proposed to limit the prohibition by stating it in the following form: "No member of the legislature shall receive any civil appointment from the governor and senate, or from the legislature, during the term for which he shall have been elected." This was adopted and included in the Constitution of 1821. Mr. E. Williams, discussing the section, said "the judiciary officers, the attorney general, the comptroller, the secretary of state, canal commissioners, etc., are the great honorable and valuable offices" to which members of the legislature might reasonably aspire, "and on the examination of the subject it will be found that nineteen out of twenty of these offices have been filled out of the legislature from year to year. It has been continued until the people have expressed their disapprobation from one part of the state to the other;

and although they have selected, in many instances, fit and suitable candidates for office, yet, inasmuch as they were taken from the legislature,-the body who superintends and manages the appointing power, they have been considered improper selections. An idea is entertained that the legislature has been rendered subservient to the appointing power for the promotion of political views and the advancement of individuals in that body." It should be noted that during the period covered by these observations the power of appointment was vested in the Council of Appointment, composed of the governor and four senators, chosen by the assembly. The council was abolished by this Convention. Mr. Williams thought the principle of the objection to the appointment of members of the legislature would apply with equal force under the new provision for appointments by the governor and senate. Mr. Bacon said it might sometimes happen "that in point of talent and capacity, a member of the legislature would be rather better adapted to some executive or judicial office which was to be filled than any other person to be found who was not a member, but the case would not be so frequent, nor the disparity so great, as to produce any serious public inconvenience, or prevent the state from being at all times well served.

Whether its character had heretofore been tarnished by sacrificing its independence to the desire of office, and whether subserviency to the purposes of party had been made the price of a commission from those who had it to bestow, it might perhaps be difficult directly to prove; but when we see, as we have done at no remote period, more than one third of a legislative body returning home with their commissions in their pockets, the people would inevitably draw from it some unkind inferences." The Convention of 1846 amended the section by declaring the effect of appointments made contrary to its provisions,

and also by applying it to appointments to the Senate of the United States. The Commission of 1872, whose amendments, so far as they were approved by the legislature, were adopted in 1874, further modified the section by applying it to appointments under a city government, and by changing the word "term" to "time." The power prohibited by the section is political, and relates only to qualifications for office. The section imposes a specific disqualification, and the prohibition is not likely to be disregarded by the appointing power. It seems clear that the disqualification applies during the entire time for which a member of the legislature is elected, and would not be removed by his resignation. It also seems clear that a person elected to the legislature is not disqualified by this section prior to the first day of January following his election, which date is fixed by § 6 of article 10 as the beginning of the legislative term. This term must, I think, be deemed the "time" for which he is elected, as prescribed in the foregoing section.

A question has arisen in our recent political history whether a person elected to the legislature may, after the beginning of the legislative term, and before he takes the oath of office, receive an appointment under this section. In January, 1899, an assemblyman-elect, who had been chosen at the general election in 1898, was a candidate for appointment by the governor to fill a vacancy in the office of district attorney. In January, 1900, another assemblyman-elect, who had been chosen in 1899, was a candidate for appointment to the office of special county judge. Neither of them had taken the oath of office as a member of assembly. In both years I held the position of legal adviser to the governor, and gave the question some consideration, but in both cases a decision became unnecessary because the candidates for appointment concluded to remain in the assembly. I am not aware of