substantially vested in city officers at the time of the adoption of the Constitution, and that therefore the power of appointment could not be vested in the governor. The plain intention of the Constitution "was to preserve to localities the control of the official functions of which they were then possessed, and this control was carefully preserved, consistent with the power of the legislature to make needful changes, by restricting the power of appointment of other officers to perform the same functions to the people or some authority of the locality. . . . It is not enough that the name of the officer is changed or the powers enlarged to authorize the legislature to confer upon the governor the appointment of officers to discharge the duties performed by city officers at the adoption of the Constitution."

In 1867 the legislature, by chap. 806, extended to the board of metropolitan police a large number of powers then exercised by the mayor, common council, and other officers of the city of New York in relation to a great variety of subjects. In People v. Acton (1867) 48 Barb. 524, the court say that "the powers and duties which, by this act, are taken from the municipal authorities and are intrusted to the board of police, have been exercised by these authorities alone since there was any authority for the execution of them by any public body." The legislature cannot confer the power to discharge duties, and make regulations and pass laws relating thereto, upon state officers, no matter how appointed, whether by the governor and senate or by the legislature; and, although the legislature might have the power to take the discharge of such duties from the mayor or common council, they were required to place the performance of them with local officers or boards, and could not vest officers appointed under authority of the state with the performance of such duties.

The act of 1870, chap. 382, authorized the mayor of New York to appoint four commissioners to take charge of the completion of the new county courthouse, and these commissioners were to supersede the board of supervisors. In New York v. Tenth Nat. Bank (1888) III N. Y. 446, 18 N. E. 618, it was held that the courthouse was a county building, and the persons appointed were county commissioners, "engaged in disbursing county moneys, and discharging functions devolved upon them as county officials or agents." The court say "it matters not that they were appointed by the mayor of the city. It was for the legislature to determine how they should be appointed. It could have named them in some act, or could have

devolved their appointment upon the board of supervisors, or the sheriff, or some other local officer."

The act of 1884, chap. 522, extended the jurisdiction of the New York department of parks over certain newly acquired territory in Westchester county. The park police did not thereby become Westchester county officers, but remained New York officers. The act did not affect the powers and jurisdiction of Westchester county officers, nor abridge the local government of that county. Re New York (1885) 99 N. Y. 569, 2 N. E. 642.

"Local functions cannot be transferred to a state officer. The legislature has the power to regulate, increase, or diminish the duties of the local officer, but it has been steadfastly held that this power is subject to the limitation that no essential or exclusive function belonging to the office can be transferred to an officer appointed by central authority." The special franchise tax act of 1899, chap. 712, authorizes "the assessment or valuation, for the purpose of general taxation, of all special franchises by a state board of taxing commissioners appointed by the governor." The new law "created a new system of taxation, brought within its range a new character of property, and assigned the duty of making the valuation to the state board of tax commissioners, composed of tax experts already in office, whose sole duty related to the subject of taxation in all its phases throughout the entire state." It required the exercise of functions that had never belonged to local assessors. The valuation of special franchises had never been attempted before, but presented a new field of action and called for the exercise of new and different functions. This function "is no part of local self-government as known to history. . . . It did not come within the experience of former times, and was not contemplated by the framers of our Constitutions." The supreme power of taxation which belongs to the legislature should be considered in connection "with the home rule provision of the Constitution, and neither should be so construed as to embarrass or cripple the other, . . . and the right to create a new system of taxation and bring in property of a new character, hitherto untaxed, with some other property incidental thereto, and worthless without it, cannot, as we think, be denied upon principle, and should not be withheld from the legislature." The act was valid and did not infringe upon the home rule provisions of this section. 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.

The same construction had been given to the statute by Justice

Kenefick at special term (Buffalo Gas Co. v. Volz [1900] 31 Misc. 160, 64 N. Y. Supp. 534).

By the act of 1901, chap. 178, certain municipal boards in Saratoga Springs were consolidated and combined in one board and commissioners were designated for the first year. This was unconstitutional. The functions of the new commissioners were "functions which had theretofore existed and had been exercised by local officers appointed by local authority." The legislature could not appoint the commissioners. Saratoga Springs v. Van Norder (1902) 75 App. Div. 204, 77 N. Y. Supp. 1020.

In 1901 the legislature, by chap. 402, authorized and directed several persons therein named to determine the deficiency in certain city funds and audit all outstanding claims against the city of Syracuse which the city was legally or equitably obligated to pay, and which were incurred between the 1st day of January, 1899, and the 1st day of January, 1900. The validity of this statute was considered in Syracuse v. Hubbard (1901) 64 App. Div. 587, 72 N. Y. Supp. 802, where the court, replying to the argument that the persons designated became city officers, say the power of audit conferred by the act, “and which, if anything, made them city officers, was beyond the auditing power possessed by the common council in 1899, or at the time of the adoption of the Constitution. . . . If the legislature, in providing for the accomplishment of a particular specific object which it has power to accomplish, designates some person to perform a specific duty that might be performed by a local city or town officer, the fact that such person is charged with that duty does not make him a city or town officer within the meaning of the Constitution, so long as the general duty or functions of the local officers are not interfered with." There is no constitutional requirement that a claim against a city must be audited by its own auditing officer.

The transfer of power from one local board to another is not a violation of this section. Re Zborowski (1877) 68 N. Y. 88; Re Roberts (1879) 17 Hun, 559; Re Lester (1880) 21 Hun, 130. The legislature had power to transfer the choice of the commissioners of charities of the county of Kings from the people to county authorities, and to provide for their appointment by the president pro tem. of the board of supervisors and by the supervisor at large. Such president is a county authority. Re Carboy (1882) 27 Hun, 82.

Uniformity.-Section 1392 of the revised New York charter of 1901, chap. 466, provided for the election of city magistrates in the borough of Brooklyn by congressional districts, but in the boroughs

of Manhattan and the Bronx such magistrates were to be appointed by the mayor, as before. In People v. Dooley (1902) 171 N. Y. 74, 63 N. E. 815, it was held that the legislature could not prescribe both methods of selection in the same city. Officers may be elected or appointed, but the same system must be applied in all parts of the city. The method of selection must be uniform.

Vacancies.-This section grants to the legislature complete power as to filling vacancies in office other than the offices mentioned in § 1. People ex rel. Kehoe v. Fitchie (1894) 76 Hun, 80, 28 N. Y. Supp. 600.

The appointment of superintendents of the poor, including the filling of vacancies, might properly be devolved upon boards of supervisors, as was done by the act of 1847, chap. 498. People ex rel. Hatfield v. Comstock (1879) 78 N. Y. 356.

The office of police justice of Wappingers Falls is a local office. By the Constitution it must be filled by election or appointment, as the legislature shall direct. The right to vote for candidates for this office cannot be made to depend upon the action of political conventions or primaries, and the right of an elector cannot be affected by the failure of nominating conventions, nor of the local officers whose duty it is to distribute ballots. People ex rel. Goring v. Wappingers Falls (1894) 83 Hun, 135, 31 N. Y. Supp. 758.

§ 3. [Duration of certain offices; how fixed.]-When the duration of any office is not provided by this Constitution, it may be declared by law; and if not so declared, such office shall be held during the pleasure of the authority making the appointment.

[Const. 1777, art. 28; 1821, art. 4, § 16; 1846, art. 10, § 3.]

This section was first included in the Constitution in 1821 and has been continued without change, except that "provided" has been substituted for "prescribed." The first Constitution contained a similar provision, though less general in its application. It was declared in § 28 of that instrument that "where, by this Constitution, the duration of any office shall not be ascertained, such office shall be construed to be held during the pleasure of the

Council of Appointment." That council, as already pointed out, had practically the absolute power of appointment and removal of nearly all public officers, both civil and military. The principle of the provision was retained in later Constitutions, substituting for the Council of Appointment the authority making the appointment, which is now various and widely distributed.

In People ex rel. Lyndes v. Comptroller (1839) 20 Wend. 593. Chief Justice Nelson says that the "duration of office here obviously refers to the period of time the incumbent shall hold, that being the proper measure of it. This period has been previously prescribed in the Constitution in respect to many of the officers, and the scope of the section is to provide for the case of officers whose term of office is left at large, as well those that might be created by statute as those to be found in the Constitution." If there is no fixed time during which officers are to hold, they are removable at the pleasure of the appointing power.

Application of section. This section applies "not only to offices existing at the time of its enactment, but also to offices created since.... It does not apply to cases where the tenure of office is fixed by the statute." The act of 1889, chap. 453, provided for a board of commissioners of improvements of the town of Westchester, to be appointed by the supervisor after sixty days. The statute fixed the duration of the office, which was unlimited. After the original creation of the board the supervisor had no power of appointment, except to fill vacancies. Re Jarvis v. Waterbury (1895) 84 Hun, 462, 32 N. Y. Supp. 389.

Assessors of New York.-The New York consolidation act (1882, chap. 410) authorized the board of tax commissioners to appoint four assessors. Appointments were made and afterwards incumbents of the office were removed by resolution, without notice and without charges. The duration of the office was not fixed by the Constitution nor by statute. The assessors were subject to removal at pleasure by the tax commissioners. People ex rel. Cahill v. Barker (1896) 5 App. Div. 227, 39 N. Y. Supp. 140, affirmed in (1896) 150 N. Y. 570, 44 N. E. 1127.

Assistant aldermen.-The New York revised charter of 1873, chap. 335, abolished the board of assistant aldermen and transferred