department." But aside from this question, the court said that the evidence showed that Roberts was properly convicted, and that, on the facts, the award of the board of claims was, for that reason, erroneous. If the claimant "was not improperly convicted and imprisoned, he had no valid claim."

Suspension of sentence.-The act of 1893, chap. 279, amending the Penal Code by authorizing the suspension of sentence in certain cases, was a valid exercise of legislative power, and it did not interfere with the governor's prerogative to grant reprieves, commutations, and pardons. People ex rel. Forsyth v. Court of Sessions (1894) 141 N. Y. 288, 23 L. R. A. 856, 36 N. E. 386.

Uniformity not required.-Punishment for crimes need not be uniform throughout the state. The court sustained the act of 1880, chap. 456, under which petit larceny in Cohoes was punishable by an imprisonment not exceeding one year, although elsewhere, under the general law, the maximum imprisonment could not exceed six months. The act was valid if it applied to all persons in Cohoes. Re Bayard (1881) 25 Hun, 546. See Williams v. People (1862) 24 N. Y. 405.

DECLARATORY STATUTE.

The legislature has no judicial powers, and cannot, upon any pretense, interpose its authority respecting questions of interpretation pending in the courts. People ex rel. Mutual L. Ins. Co. v. New York (1857) 16 N. Y. 424.

DELEGATION OF LEGISLATIVE POWER.

The Constitution in terms vests legislative power in the senate and assembly; but, by recent amendments, extensive powers of local legislation may be delegated to municipal corporations. In addition to these specific constitutional provisions the courts have had frequent occasion to determine the validity of statutes which, in effect, delegated legislative power to subordinate governmental agencies or other departments of the government. These statutes include various aspects of administration, both local and general, and many of them have not received judicial attention. The following cases present numer

ous questions relating to the delegation of power, and show some diversity of judicial construction.

Boards of supervisors.-The application of principles relating to the delegation of power was considered with reference to boards of supervisors in People ex rel. Wakeley v. McIntyre (1898) 154 N. Y. 628, 49 N. E. 70, and the court there said that within the limits of the power delegated to such boards by the Constitution, they are "clothed with the sovereignty of the state, and are authorized to legislate as to all details precisely as the legislature might have done in the premises;" and therefore that such a board, in authorizing a town to borrow money for the construction of highways, might prescribe conditions for the protection of taxpayers and to insure proper administration.

Cemeteries.-A statute conferring on the municipal authorities of New York the right to make by-laws regulating or prohibiting interments in that city was sustained in Coates v. New York (1827) 7 Cow. 585.

The legislature may delegate to cemetery associations power to make ordinances in relation to the administration of their affairs, but they are binding only on members. Johnstown Cemetery Asso. v. Parker (1899) 45 App. Div. 55, 60 N. Y. Supp. 1015.

Corporations.-"The legislature cannot confer upon a moneyed corporation power to enact by-laws contravening, repealing, or in any wise changing the statutory or common law of the land." Seneca County Bank v. Lamb (1858) 26 Barb. 595.

Courts. The act of 1884, chap. 439, authorizing the supreme court and county court to require railroad corporations to station flagmen at certain crossings, did not vest legislative power in those courts. The power is judicial. People v. Long Island R. Co. (1892) 134 N. Y. 506, 31 N. E. 873.

Eminent domain.-The power of eminent domain may be delegated to corporations. Re Union Ferry Co. (1885) 98 N. Y. 139. Additional citations on this point will be found under the heads of "Eminent Domain" and "Public Use," in the note to § 6 of article 1.

Foreign insurance companies.-The act of 1875, chap. 60, which required the superintendent of insurance to collect from outside insurance companies taxes, license fees, etc., equal in amount to those imposed in the home state of such companies on New York insurance companies doing business there, when such amount charged is

greater than our own, was held not to be objectionable because the amount to be paid by such outside companies was subject to the discretion of the legislature of another state. The legislature of this state may take the legislation of another state as the basis for the regulation of our internal affairs, and may therefore make the payment of such a tax dependent on the action of another state. People v. Fire Asso. (1883) 92 N. Y. 311, 44 Am. Rep. 380.

Free school law. The proposed free school law of 1849, chap. 140, by its own terms was not to become operative until approved by the people at a general election. This delegation of power from the legislature to the people was sustained in Johnson v. Rich (1851) 9 Barb. 680, but was held unconstitutional in Thorne v. Cramer (1851) 15 Barb. 112; Bradley v. Baxter (1853) 15 Barb. 122, and by the court of appeals in Barto v. Himrod (1853) 8 N. Y. 483, 59 Am. Dec. 506.

Local approval.-Several cases are reported in which the courts considered the validity of statutes delegating to the people of a municipality the power to determine whether certain local bills passed by the legislature should become laws, or whether certain specified provisions of laws should be in force as to a given locality.

The act of 1853, chap. 217, proposing amendments to the New York charter, was to be submitted to the people of the city for their approval. In People v. Stout (1856) 23 Barb. 349, the submission was held unconstitutional on the ground that the legislative power of the state could not be delegated to the people of a locality.

The act of 1823, chap. 111, for the construction of the Albany basin at the termination of the Erie and Champlain canals, was, by its terms, to become void unless the corporation of the city of Albany should file its consent to the act within sixty days after its passage. Such consent was duly filed in the office of the secretary of state. The validity of this provision was considered in Corning v. Greene (1856) 23 Barb. 33, and the court there said that a "statute that is not an expression of the legislative will alone has no binding force as a law. It can only become a law, mandatory and obligatory upon those who are subjects of it, by a declaration of the legislative will. An attempt, therefore, to call in another party to aid in the business and divide the responsibilities of legislation, so that the act shall not be the single expression of the legislative will, but the sovereign function is discharged in part, at least, by a party unknown and unrecognized by the fundamental law, would be in contravention of the Constitution, and render the act void." The court held that the act was invalid.

The legislature of 1853 passed an act, chap. 283, authorizing the village of Rome to subscribe for stock in a certain railroad corporation. But such subscription could not be made until the act had been approved by two thirds of the taxpaying voters of the village. This act was sustained in Bank of Rome v. Rome (1858) 18 N. Y. 38, where the court pointed out the distinction between an act which could have no validity until approved by the people, and an act which, by its own terms, is complete in itself, but which vests in a municipal corporation power to do or decline to do what the statute authorizes. The people do not determine that the law shall or shall not take effect; they simply determine whether they will avail themselves of its provisions.

Starin v. Genoa, Gould v. Sterling (1861) 23 N. Y. 439, and Grant v. Courter (1857) 24 Barb. 232, involved the same principle. The only question submitted was whether it was expedient for the town to exercise a new power conferred upon it absolutely by the legislature; namely, whether it would authorize a subscription in aid of the construction of certain railroads.

Clarke v. Rochester (1864) 28 N. Y. 605, belongs to the same class. The act construed authorized the subscription for railroad stock after a vote of the people. The court say that the electors of municipal corporations may be made the "depositories of such powers of local government as the legislature may see fit to prescribe, and the exercise of which is not repugnant to any of the general arrangements of the Constitution."

Another view of this subject was presented by the general village law of 1847, chap. 426, which authorized the people in any existing village to adopt a resolution to apply specified portions of the act to that village. The court of appeals in Bank of Chenango v. Brown (1863) 26 N. Y. 467, sustained the act. Discussing the distinction between a statute which could not take effect without a vote of the people of the state, or which delegated to the people the power to accept or reject it as a part of the law governing them, and the submission of a similar question to the people of a specified locality, the court say that the "people of a particular municipality or local body are not the constituents of the legislature. They are not the people of the state of New York who have irrevocably committed their power of legislation to the legislature by a delegation which does not permit that legislature to remand any legislative question to their constituency. A city or a town or a village is a separate recognized local body, which, without exercising legislative power, may signify, if permitted, its assent or dissent to any grant or withdrawal

of powers or privileges. The vote of the whole people of the state upon a question of the expediency of a general statute may be essentially an act of legislation. The vote of a local constituency is an assent or dissent to an act of grant or deprivation done by the legislature, but affecting themselves." While it was not necessary to have the corporate consent to the adoption of specified statutory provisions, such consent did not invalidate the law. Several statutes were cited which submitted charter provisions to the people of specified localities, or authorized the creation of debts and the subscription for corporate stock, but only on the assent of a specified number of taxpayers or voters. This decision furnished ample judicial authority for similar provisions in the general village law of 1870, chap. 291, and of 1897, chap. 414, under which villages incorporated by special act might reincorporate under the general law.

It is competent for the legislature to delegate to the people of a specified district power to determine whether a license to sell intoxicating liquors shall be granted therein. Gloversville v. Howell (1877) 70 N. Y. 287.

Local boards.-The New York city public health law of 1866, chap. 74, did not contain an unconstitutional delegation of power to the board of health. The board might properly be vested with power to make and enforce by-laws and ordinances relating to public health. Cooper v. Schultz (1866) 32 How. Pr. 107. See also People ex rel. Cox v. Special Sessions Justices (1876) 7 Hun, 214; Re Zborowski (1877) 68 N. Y. 88.

In Schuster v. Metropolitan Bd. of Health (1867) 49 Barb. 450, it was said that the metropolitan board of health "hold office by the appointment of the governor, and are not elected by the people of the city of New York, nor appointed by any power so elected. They are not officers holding from a source permitting the exercise of local legislation to be conferred on them."

The same principle was declared in People v. Acton (1867) 48. Barb. 524, construing the act of 1867, chap. 806, which concentrated in the metropolitan board of police various powers and functions theretofore vested in several municipal bodies. The court say that "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