that it "was intended merely to define the general qualifications of voters for elective officers or upon questions which may be submitted to the vote of the people which affect the public affairs of the state to the gen

But we

eral governmental affairs of the state. are of the opinion that that article was not intended to define the qualifications of voters upon questions relating to the financial interests or private affairs of the various cities or incorporated villages of the state, especially when, as in this case, it relates to borrowing money or contracting debts."

SO

If it was the intention of the court to limit the application of this provision to qualifications of voters "throughout the state" to entitle them to vote for officers and "upon public questions relating to general governmental affairs," and to exclude municipal elections, the construction is apparently contrary to the intention of the framers of the provision. The clause-"and upon all questions which may be submitted to the vote of the people”—was introduced in the Convention of 1867 by Sanford E. Church, who, in 1870, became the first chief judge of the new court of appeals. Judge Comstock moved to amend by adding the words "of the state at large. as to avoid the question of municipal charters," apparently intending to exclude municipal corporations from the operation of the new provision. Mr. Church, after quoting the existing provision relating to the qualifications of voters for officers, said it seemed to him "proper that the same qualifications should exist upon all questions. which may be submitted to the vote of the people," and that "we should have the same rule applied to the election of all officers and to all other questions on which the people will vote." The clause, as modified by Judge Comstock, omitting the phrase "at large," so as to read "and upon all questions which may be submitted to the vote of

the people of the state," was adopted by the Convention, and included in the proposed Constitution. If this Constitution had been approved by the people, the application of the new clause would evidently have been limited to questions submitted to the people of the state, and would not have affected the power of the legislature concerning municipal corporations. The Commission of 1872 reported the amendment in the same form, but while the Commission's amendments were under consideration by the senate of 1873 the words "of the state" were stricken out. The assembly agreed to this change and the clause was adopted in 1874 without this limitation.

If the Church amendment is to be limited to questions submitted to the people of the whole state, its inclusion in the Constitution was hardly necessary, for, by the provision limiting the creation of state debts (article 7, § 4), a law to create a debt exceeding $1,000,000 must be submitted to the people of the state, and even without the new clause in the suffrage section, the legislature would not be likely to attempt to limit to taxpayers only the right to vote on a question which the Constitution requires to be submitted to the people. The Constitution already prescribed the qualifications of voters on the question of calling a constitutional convention and on constitutional amendments. The court had decided in Barto v. Himrod (1853) 8 N. Y. 483, 59 Am. Dec. 506, that the legislature could not delegate to the people the question whether a certain bill should become a law, for the reason that the legislative power had been vested in the senate and assembly, and the people had not reserved to themselves any power to ratify or confirm proposed legislation; therefore the legislature could not transfer to the people the responsibility of making the laws. Other questions, like the question of continuing the contract labor system in the state prisons, which was submitted to

the people in 1883, could only be useful in ascertaining public opinion, and the result could not bind the legislature. The exclusion of municipal elections from the scope of the Church amendment seems to give it the same practical effect as if the words "of the state" had been retained as a part of the clause.

As an additional reason for sustaining the Fulton act, the court cited § 1 of article 12, which provides for the incorporation of cities and villages, and authorizes legislation restricting the power of taxation, etc. The suffrage article was deemed by the court to have only a general application, while the other provision was deemed to be local, and to vest the legislature with ample authority to regulate all matters relating to taxation, the creation of municipal debts, and the protection of taxpayers. A village is a subordinate governmental agency, created by the legislature, and subject to destruction by the same power. The legislature may specifically designate the parts of the functions of government to be committed to the village, and may regulate the methods and details of its administration. It may not only regulate the power of taxation, as expressly authorized by the Constitution, but it may also prescribe the extent of taxation and the means by which questions relating to taxation are to be determined. It may vest in the board of trustees or other local officers the power to determine questions of taxation, or it may delegate that power to a larger body composed not only of village officers, but also of all the taxpayers. The question thus submitted to the taxpayers is not submitted to the people within the meaning of the suffrage section, but the taxpayers thus authorized to vote become, as to such questions, a part, and the controlling part, of the governing body of the village. By the Fulton act and the general village law the taxpayers control the larger questions of taxation, but all qualified electors

share in the government to the extent that they may vote for village officers. It is a mixed system of local administration; namely, by officers chosen by the vote of all the electors, whether taxpayers or not; but such officers are subject to the control of the taxpayers alone on important financial subjects.

Possibly the decision in the Spitzer Case may have a controlling influence in determining the validity of the act of 1901, conferring on women taxpayers the right to vote on tax questions in towns and villages, and several local statutes by which women have been given the right to vote on financial questions, for if the legislature is not bound to submit questions of taxation to all the people of a municipality, but may vest taxpaying men only with the right to determine these questions, it may not be easy to discover any good constitutional reason for excluding taxpaying women from the exercise of the same right. The court intimates that even as to the qualifications of voters at an election of officers, the suffrage section has only a general, and not a local, application. This question was not involved in the Fulton Case, but would be presented if the legislature should exclude electors qualified under the Constitution from the right to vote for municipal officers.

§ 2. [Exclusion from right of suffrage.]-No person who shall receive, accept, or offer to receive, or pay, offer, or promise to pay, contribute, offer, or promise to contribute to another, to be paid or used, any money or other valuable thing as compensation or reward for the giving or withholding a vote at an election, or who shall make any promise to influence the giving or withholding any such vote, or who shall make or become directly or indirectly interested in any bet or wager depending upon the result of any election, shall vote at such election; and upon

challenge for such cause, the person so challenged, before the officers authorized for that purpose shall receive his vote, shall swear or affirm before such officers that he has not received or offered, does not expect to receive, has not paid, offered, or promised to pay, contributed, offered, or promised to contribute to another, to be paid or used, any money or other valuable thing as a compensation or reward for the giving or withholding a vote at such election, and has not made any promise to influence the giving or withholding of any such vote, nor made or become directly or indirectly interested in any bet or wager depending upon the result of such election. The legislature shall enact laws excluding from the right of suffrage all persons convicted of bribery or of any infamous crime.

[Const. 1821, art. 2, § 2; 1846, art. 2, § 2; Am. 1874]

A history of this section will be found in previous volumes.

§ 3. Voting residence.]-For the purpose of voting, no person shall be deemed to have gained or lost a residence, by reason of his presence or absence, while employed in the service of the United States; nor while engaged in the navigation of the waters of this state, or of the United States, or of the high seas; nor while a student of any seminary of learning; nor while kept at any almshouse, or other asylum, or institution wholly or partly supported at public expense or by charity; nor while confined in any public prison.

[Const. 1846, art. 2, § 3.]

"The plain reading of the Constitution is that a sojourn in a seminary of learning has no effect whatever, one way or the other, on the question of legal residence for the purpose of voting. A person who is a legally qualified voter may leave his home in any part of the state and enter an institution of learning as a student;