pears in the third volume. The subject has there been considered in two parts; namely, the choice of local officers, and the powers of local government, including not only constitutional provisions, but also various statutes showing the development of the policy relating to each class of subjects. Home rule was an important subject of discussion in the Convention of 1894, but was limited to the consideration of propositions which were finally stated in § 2 of article 12. It was not proposed to change § 2 of article 10, consequently there was no discussion of that section.

This section has been a fruitful source of judicial discussion in construing numerous statutes relating to the election of local officers, and several judges have taken occasion to express their views concerning the scope and purpose of the section. These views may profitably be examined in considering the validity of statutes creating offices, and in distributing the power of appointment.

One of the most valuable contributions to the judicial literature on this subject will be found in the opinion by Judge Vann in People ex rel. Metropolitan Street R. Co. v. State Tax Comrs. (1903) 174 N. Y. 417, 63 L. R. A. 884, 67 N. E. 69 (affirmed [1905] 199 U. S. 1, 50 L. ed 65, 25 Sup. Ct. Rep. 705), construing the special franchise tax law of 1899, with particular reference to its effect upon the powers of local assessors. The judgment of the court is fortified by a strong array of historical facts bearing upon the evolution of popular government, and intended to elucidate the policy which has been crystallized in this section of the Constitution. The opinion deserves to be widely read, not only by lawyers, but by laymen; for it expresses with great force and clearness the principles underlying our representative form of government. Among other things Judge Vann says:

"The principle of home rule, or the right of self-gov

ernment as to local affairs, existed before we had a Constitution. Even prior to Magna Charta some cities, boroughs, and towns had various customs and liberties which had been granted by the Crown or had subsisted through long user, and among them was the right to elect certain local officers from their own citizens, and, with some restrictions, to manage their own purely local affairs." Many of these rights and privileges were specifically protected by Magna Charta and are set forth in the opinion by extracts from that famous instrument which will be found in another part of this work. "The rights thus secured after a long struggle and by great pressure, although at times denied and violated by the ruling monarch, were never lost, but were brought over by the colonists the same as they brought the right to breathe; and they would have parted with the one as soon as the other." They were expressed in various rights, privileges, and customs exercised by the people at town meetings. The various provisions relating to home rule incorporated in the Constitutions of New York "show that the object of the people in enacting them was to prevent centralization of power in the state, and to continue, preserve, and expand local self-government."

The following notes of other cases present the views of several courts concerning the scope of this section:

was to secure to

"The obvious purpose of the provision the people of the cities, towns, or villages of the state the right to have their local offices administered by officers selected by themselves, and in no case was it to be done by officers appointed by the direct action of the legislature. . . . It was left to the legislature to decide as to which of the two modes of selection should be adopted. It could change the mode of selection from an election to an appointment by local authorities, or from an appointment to an election. It could declare the duration of the term of office in cases where the Constitution was silent; it could shorten the term of the incumbent of the office, and could abolish the office

itself unless it existed by force of the Constitution. But it could not appoint a city, town, or village officer in any case where the office existed at the adoption of the Constitution." People ex rel. Williamson v. McKinney (1873) 52 N. Y. 374

The purpose and object of this section "was to secure to the several recognized civil and political divisions of the state the right to local self-government, by requiring that all county, city, town, and village officers whose election or appointment was not provided for by the Constitution, save those whose offices might thereafter be created by law, should be elected by the electors of the respective municipalities, or appointed by such authorities thereof as the legislature should designate. . . . Faithfully observed, and effect given to it in its spirit as well as in its letter, it effectually secures to each of the governmental divisions of the state the right of choosing or appointing its own local officers, without let or hindrance from the state government, and none can be deprived of the rights and franchises thus guaranteed to all. The theory of the Constitution is that the several counties, cities, towns, and villages are of right entitled to choose whom they will have to rule over them; and that this right cannot be taken from them and the electors and inhabitants disfranchised by any act of the legislature, or of any or all departments of the state government combined." People ex rel. Bolton v. Albertson (1873) 55 N. Y. 50.

An interesting discussion of several questions relating to the power of appointment and removal of city officers will be found in Judge Cullen's opinion in People ex rel. Devery v. Coler (1903) 173 N. Y. 103, 116, 65 N. E. 956, where it is said that the governor cannot be constitutionally vested with the absolute power to remove without charges a city officer whose appointment must be made in one of the modes prescribed by this section, namely, by popular election or appointment by city authorities; but it is intimated that the same rule would not be applied where the governor's power of removal is based upon charges of official misconduct.

Appointments by state authority.-A loan commissioner is a county officer. Prior to the adoption of the Constitution of 1846 this officer was appointed by the governor and senate. That power of appointment was changed by the Constitution, which required county officers to be chosen either by the people or by county authorities, and even without action by the legislature to carry the new constitutional provisions into effect, incumbents of this office could not, after the adoption of the new Constitution, be appointed by the governor and senate, and commissioners in office when the Con

stitution was adopted would either hold over or their offices would be vacant. Re Carpenter (1849) 7 Barb. 30.

The legislature had power to prescribe the method of choosing justices of sessions. Nelson v. People (1861) 23 N. Y. 293. office was abolished by the Constitution of 1894.

This

In 1869 the legislature, by chap. 850, appointed commissioners "to lay out and work" Madison avenue in the town of West Farms, Westchester county. In Hanlon v. Westchester County (1870) 57 Barb. 397, this appointment was sustained on the authority of the People ex rel. Wood v. Draper (1857) 15 N. Y. 532, and it is said that the commissioners were not town officers, but had a limited and special jurisdiction, and "it was competent for the legislature to appoint them for the purposes of the act."

Legislation establishing official terms cannot apply to the term of a town officer already elected. It operates only upon future elections. "The legislature has no power to appoint a town officer. The Constitution requires that they shall be either elected by the electors, or appointed by some local authority." A change in an official term must precede the election. People ex rel. Lovett v. Randall (1897) 151 N. Y. 497, 45 N. E. 841.

The legislature had no power, as attempted by the act of 1898, chap. 398, to fix the status of a member of the police force of the town of New Utrecht at the time of its consolidation with Brooklyn, in 1894, and then grade him upon the force in Greater New York. "This in effect names the relator as an officer upon the police force of the town, and then appoints him to office in the city of New York." A police captain is a city officer. "The clear effect of the act is to create an office not existing at the time of its passage, and provide that the relator shall occupy the same." People ex rel. White v. York (1898) 35 App. Div. 300, 55 N. Y. Supp. 10, affirmed in (1899) 158 N. Y. 670, 52 N. E. 1125.

The legislature had no power, as attempted by the New York amended charter of 1901, chap. 466, § 290, to fix the status of detective sergeants as it existed on the 1st of April, 1901, and prescribe the conditions of appointment and promotion of such officers. The legislature could not directly appoint persons to fill that position, nor could they vest the power to make such appointment in any state board or officer. People ex rel. Lahey v. Partridge (1902) 74 App. Div. 291, 77 N. Y. Supp. 691. Followed in People ex rel.

Burns v. Partridge (1902) 38 Misc. 697, 78 N. Y. Supp. 249.

This act was under review again in Sugden v. Partridge (1903) 174 N. Y. 87, 66 N. E. 655, with a result quite different from that VOL. IV. CONST. HIST.-47.

presented by the decisions in the two cases above cited. It was held by the court of appeals that the "office of detective sergeant was created and existed long before the adoption of the Greater New York charter, and that it was continued in the provisions of that act. The manner of selecting and designating the persons to fill the position remained the same, with the exception that, under the last act the selection may be made from the roundsmen as well as from the patrolmen." Their duties and compensation were unchanged, but the act of 1901 effected a substantial change by making the tenure permanent, "except in case of removal, in the manner provided by law for sergeants and other officers of the police force. . . . The act is clearly a continuation of an existing statute upon the subject, maintaining the same general scheme with the single exception alluded to, and as to that it harmonizes the position with that of the other offices of the police force by creating the same tenure of office. The legislature has not, therefore, created a new position or office, and it has not filled that position with new men; but it has continued an old office, existing under prior statutes, with the persons who, at that time, filled the office under appointment or designation from city officers designated by the legislature." The provision in relation to detective sergeants in the act of 1901 is valid.

The act of 1901, chap. 89, designated certain persons commissioners for the erection of a new courthouse in the county of Oneida. By the county law, chap. 686, Laws 1892, boards of supervisors have power to erect courthouses and purchase land for that purpose. The act of 1901 was sustained in People ex rel. Oneida Court House v. Oneida County (1902) 170 N. Y. 105, 62 N. E. 1092. The court say that the "legislature has the power to provide buildings and court rooms in which the courts of the state may hold sessions and dispose of the civil and criminal cases that may be brought to trial. The power to construct these buildings may be delegated to the cities or the counties of the state, or it may be done through such agents of the state as the legislature shall provide." The commissioners are not deemed county officers within the meaning of this section.

The office of commissioner of jurors in Kings county was created by statute in 1858. It became a county office, and when the Constitution of 1894 went into effect this office was in existence and its incumbents were appointed by county authorities. The act of 1901, chap. 602, vested the power of appointment in the justices. of the appellate division in the second department. In Re Brenner