The subject of charitable uses was considered in Holland v. Alcock (1888) 108 N. Y. 312, 2 Am. St. Rep. 420, 16 N. E. 305.

The common law of England in relation to the easement of light and air was not in force in the colony of New York on the 19th of April, 1775, and therefore was not continued by this section of the Constitution. Myers v. Gemmel (1851) 10 Barb. 537.

"In the absence of proof of the statute law of another state, it will be presumed that the common law prevails therein" (citing Whitford v. Panama R. Co. [1861] 23 N. Y. 465; Waldron v. Ritchings [1870] 3 Daly, 288); also that the common law of a particular state corresponds with our own. Holmes v. Broughton (1833) 10 Wend. 75, 25 Am. Dec. 536; Cahill Iron Works v. Pemberton (1893) 30 Abb. N. C. 450.

It seems that the English statutes of mortmain were not in force in the colony of New York. Phænix v. Columbia College (1903) 87 App. Div. 438, 84 N. Y. Supp. 897.

§ 17. [Royal grants and charters preserved.]—All grants of land within this state, made by the King of Great Britain, or persons acting under his authority, after the fourteenth day of October, one thousand seven hundred and seventy-five, shall be null and void; but nothing contained in this Constitution shall affect any grants of land within this state, made by the authority of the said King or his predecessors, or shall annul any charters to bodies politic and corporate, by him or them made, before that day; or shall affect any such grants or charters since made by this state, or by persons acting under its authority; or shall impair the obligation of any debts contracted by the state, or individuals, or bodies corporate, or any other rights of property, or any suits, actions, rights of action, or other proceedings in courts of justice.

[Const. 1777, art. 36; 1821, art. 7, § 14; 1846, art. 1, § 18.]

This subject was included in the first Constitution. It was modified in some respects by the Convention of 1821, but, as adopted by that Convention, has not since been changed.

Questions relating to the effect of this provision were considered

in Demarest v. New York (1878) 74 N. Y. 161; People v. Clarke (1853) 9 N. Y. 349.

§ 18. [Damages for injuries causing death.]- The right of action now existing to recover damages for injuries resulting in death shall never be abrogated; and the amount recoverable shall not be subject to any statutory limitation.

[New.]

A sketch of the origin of this provision has been given in the chapter on the Fourth Constitution, 1894.

This provision does not act retrospectively, and therefore does not affect causes of action which had accrued when it took effect. Isola v. Weber (1895) 147 N. Y. 329, 41 N. W. 704; O'Reilly v. Utah, N. & C. Stage Co. (1895) 87 Hun, 406, 34 N. Y. Supp. 358.

The section did not affect the power of the supreme court to supervise and reduce verdicts for damages. Medinger v. Brooklyn Heights R. Co. (1896) 6 App. Div. 42, 39 N. Y. Supp. 613.

The employer's liability act of 1902, chap. 602, does not violate this section. Gmaehle v. Rosenberg (1903) 83 App. Div. 339, 82 N. Y. Supp. 366.

An interesting discussion of this question will be found in Rosin v. Lidgerwood Mfg. Co. (1903) 89 App. Div. 245, 86 N. Y. Supp. 49, where the court doubts the power of the legislature to require notice as a prerequisite to a common law action to recover damages for injuries resulting in death.

ARTICLE II.

[SUFFRAGE.]

§ 1. [Qualifications of voters. ]-Every male citizen of the age of twenty-one years, who shall have been a citizen for ninety days, and an inhabitant of this state one year next preceding an election, and for the last four months a resident of the county, and for the last thirty days a resident of the election district in which he may of

fer his vote, shall be entitled to vote at such election in the election district of which he shall at the time be a resident, and not elsewhere, for all officers that now are or hereafter may be elective by the people, and upon all questions which may be submitted to the vote of the people, provided that in time of war no elector in the actual military service of the state, or of the United States, in the Army or Navy thereof, shall be deprived of his vote by reason of his absence from such election district; and the legislature shall have power to provide the manner in which and the time and place at which such absent electors may vote, and for the return and canvass of their votes in the election districts in which they respectively reside.

[Const. 1777, art. 7; 1821, art. 2, § 1; Am. 1826; 1846, art. 2, § 1; Am. 1864; Am. 1874]

Scope of section.-This section "specifies the qualifications necessary to the elective franchise, provides who shall have the right to vote, and one duly qualified cannot be deprived of that right by any inferior tribunal." An inmate of the Soldiers' Home in the town of Bath was held not to be a resident of that town, and therefore not entitled to vote. Silvey v. Lindsay (1887) 107 N. Y. 55, 13 N. E. 444.

"The right of a citizen of this state to vote is protected by most careful provisions of the Constitution and the statutes. The legislature has no power to enact a law by which a person thus qualified can be deprived of his vote, and no person can lawfully exercise power conferred upon him in such a way as to prevent a duly registered citizen from exercising that right." People v. Hochstim (1902) 76 App. Div. 25, 78 N. Y. Supp. 638, 986, per Ingraham, J., construing the powers conferred on the superintendent of elections under the metropolitan election district act of 1898, as amended in 1899.

In Gotcheus v. Matheson (1870) 58 Barb. 152, Justice Murray, at special term, discussing the effect of an act of Congress by which a deserter from the Army forfeited his citizenship on failure to return to duty under specified conditions, says: "It is the exclusive province of the state to regulate the qualifications of its voters. It

is the exclusive province of Congress to regulate the question of citizenship of the United States." Congress has no power to prescribe the qualifications of voters in the states. In the same case it is said that it is the duty of inspectors of election "to ascertain who are citizens; not to adjudge, declare, and enforce forfeitures of citizenship. It is their duty to ascertain who are and who are not legal voters, and to reject the votes of those that are illegal, and receive the votes of those that are legal." The plaintiff declined to answer certain questions by the inspectors, involving his supposed desertion from the Army, and his vote was, for that reason, rejected. It was held that this rejection was improper without proof that the plaintiff had been convicted of the offense of desertion.

The electors cannot be deprived of the results of an election by an unwarranted assumption of authority by a county board of canvassers in rejecting returns from an election district. Such a board acts ministerially. People ex rel. Deuchler v. County Canvassers (1882) 64 How. Pr. 334.

"The right of suffrage is one of the most valuable and sacred rights which the Constitution has conferred upon the citizen of the state. About it have been erected safeguards, with the object of ' securing to each qualified elector the fullest and freest exercise of his constitutional privilege, and also of obtaining the greatest protection against the perpetration of frauds at the polls, which shall be consistent with a certainty that every person entitled to vote shall have his ballot received, deposited, and counted. . . . The Constitution of the state provides that the citizen, fulfilling the stated conditions of age, citizenship, and residence, shall be entitled to vote at the election." The inspectors of election have "no discretion to reject the vote of a person who has satisfied the statutory tests, and when that is done, his vote must be deposited, and that is the time when, in legal contemplation, it is finally received. The lawfulness of a vote cannot be determined until it has been received, and the elector's rights cannot be annulled without a trial where he may have an opportunity of bringing forward his proofs and having them passed upon in a proper way and by a proper tribunal." The inspectors may not act on their own opinions or knowledge. "Practically the law leaves it to the conscience of the person offering to vote to decide whether he can or will do so when his right is challenged." The inspectors cannot do more than to make use of the machinery provided by the law to test the voter's legal qualifications, and they cannot decide upon the truth or falsity of the answers to their questions. People ex rel. Stapleton v. Bell (1890) 119 N. Y.

175, 23 N. E. 533, citing People ex rel. Smith v. Pease (1863) 27 N. Y. 45, 84 Am. Dec. 242.

Legislative control.-The legislature cannot add to the disabilities or disqualifications of voters authorized by the Constitution, hence the provision in the constitutional convention act of 1867, chap. 194, which required voters, if challenged, to take an oath of loyalty, was held to be invalid as imposing a disqualification not authorized by the Constitution. Green v. Shumway (1868) 39 N. Y. 418, 425.

A statute which makes a supervisor ineligible to the office of superintendent of the poor does not deprive an elector of his constitutional right to vote for any office. The office of superintendent of the poor is not made elective by the Constitution, and is therefore subject to legislative regulation. The legislature may impose a disqualification to the office which may have the effect to exclude certain persons from eligibility, and the elector's choice is not thereby constitutionally invaded. People ex rel. Furman v. Clute (1872) 50 N. Y. 451, 10 Am. Rep. 508.

"The right to vote, secured to the citizen by the Constitution, must be exercised in the manner and subject to the regulations lawfully prescribed by the legislature in respect to the time when and the method by which his will is expressed, and in order to make his will and intention effectual at the election, he must comply with at least all the substantial requirements of law." People ex rel. Nichols v. County Canvassers (1891) 129 N. Y. 395, 14 L. R. A. 624, 29 N. E. 327, in which ballots intended for one district were used in another, and it was held that under the ballot reform act of 1890, chap. 262, as amended in 1891, chap. 296, the ballots could not be counted, because not properly indorsed for the districts in which they were used.

"The right to vote at an election is derived from the Constitution; the manner of voting is regulated by statute." Every adult male citizen is entitled to vote at every election for every office required by law to be filled thereat. "The Constitution contains no restriction upon this right, and the only express power given to the legislature in reference to it is to enact laws 'for ascertaining by proper proofs the citizens who shall be entitled to the right of suffrage.' There is, of course, an implied power to regulate the manner of voting, but any law which prohibits the right to vote is unconstitutional." Section 104 of the election law, as it stood in March, 1894, authorized a voter to write or paste on the official ballot the name of a candidate who had not been nominated, thus intending to give the voter a right to vote for any person, whether nominated or not.