New York (1895) 89 Hun, 460, 35 N. Y. Supp. 817, where it was held that the board of aldermen of New York had no power to include the annexed territory in an assembly apportionment of that city.

Under the Constitution of 1894, which contains more rigid rules relating to assembly apportionments, boards of supervisors may still exercise some discretion, though more limited than under the previous Constitution, in establishing assembly districts. The court observes that the words "which from their location" disclose "the manifest intent to vest in the board discretion to determine whether the location of a town is such as to justify placing it in a district that will more nearly secure numerical equality, or whether the demands of convenience, contiguity, and compactness require a reasonable departure from an equal division of the number of inhabitants between two districts." Smith v. St. Lawrence County (1896) 148 N. Y. 187, 42 N. E. 592.

Boards of supervisors.-The provision vesting in the board of supervisors power to establish assembly districts in counties entitled to more than one member was incorporated in the Constitution by the Convention of 1846, and a sketch of the discussion relating to it will be found in the chapter on that Convention. The powers of the board were considered in Kinne v. Syracuse (1866) 3 Keyes, 110, where, construing the act of 1858, chap. 341, amending the charter of Syracuse by excluding therefrom certain territory and making it a part of the town of De Witt, which had the apparent effect to change assembly district lines, the court say that "the only power conferred upon boards of supervisors respecting assembly districts is the power to form them at the time fixed in the Constitution, and to reorganize them at such time as shall be prescribed by the legislature at its first session after each decennial enumeration. That duty being performed, the authority of the board of supervisors over the subject is at an end till another enumeration. They have no power of alteration in the interim."

Constitution directory as to time.-In Rumsey v. People (1859) 19 N. Y. 41, considering the apportionment act of 1857, and replying to the argument that it was invalid for the reason that it was not passed at the first session after the enumeration of 1855, Judge S. B. Strong says the constitutional direction "has not generally been considered so peremptory as to prohibit the performance of those acts at another time," and that "it is apparent that no such restriction was designed, as to the time when such apportionment of assembly districts and formation of senate districts should be established, from the omission of a direction contained in the provision relative to the VOL. IV. CONST. HIST.-23.

reorganization of the judicial districts, . . that it should be made at no other time." The Constitution of 1894 changed the rule by requiring the apportionment to be made at the first regular session after the enumeration, thus intending to prohibit an apportionment at an extraordinary session of the legislature. If, as held in the Rumsey Case, the apportionment provision in the former Constitution was directory, the same rule would doubtless be applied to the corresponding provision in the present Constitution.

New counties and towns.-Under the Constitution of 1846 the legislature had power to erect new counties. In Rumsey v. People (1859) 19 N. Y. 41, the court, construing the act of 1854, chap. 386, erecting Schuyler county, in connection with the constitutional provision that "no new county shall hereafter be erected unless its population shall entitle it to a member," say that the last decennial enumeration does not furnish to the legislature the only guide in determining the population when considering the propriety of erecting a new county. "It is left to the legislative bodies to ascertain the population in the best way they can." In this case parts of three counties were included in the new county, and towns were also divided in carving out the new territory. No separate census had been taken of these distinct portions of the new county, and it was impracticable for the legislature to attempt to follow the last enumeration. "The legislature was undoubtedly the appropriate tribunal to make the requisite inquiry, in order to ascertain whether their proposed act would be in conformity with the constitutional requisition. It is to be presumed that due inquiry was made, and the statute must be considered as a legislative declaration that the population of the proposed new county was sufficient." De Camp v. Eveland (1854) 19 Barb. 81.

The Schuyler county act was again considered in Lanning v. Carpenter (1859) 20 N. Y. 447, where its constitutionality was directly in issue, and the act was held invalid on the ground that the legislature had exceeded its authority in the alteration of senate, assembly, and judicial districts.

"The power to divide counties or towns and to erect new counties and towns, or to change their boundaries, is legislative in its character and is conferred upon the senate and assembly by the general grant of legislative power; and unless restrained in a particular case by other provisions or arrangements of the Constitution, the time and mode of its exercise is in the discretion of the legislature. The power of the legislature to erect new counties, although not conferred by any express grant, is implied in the prohibition in § 5 of

article 3, relating to members of assembly, that 'no new county shall be hereafter erected unless its population shall entitle it to a member.'" The act of 1895, chap. 934, which annexed a portion of Westchester county to the city and county of New York, was sustained so far as it related to municipal affairs, but the act did not affect the status of the annexed territory as a part of existing assembly, senate, and judicial districts. People ex rel. Henderson v. Westchester County (1895) 147 N. Y. 1, 30 L. R. A. 74, 41 N. E. 563.

The power of the legislature to erect new towns was again affirmed in Fort v. Cummings (1895) 90 Hun, 481, 36 N. Y. Supp. 36. Wards. In the chapter on the Convention of 1846, I have noted the proposition to prohibit the division of wards in creating assembly districts, and its rejection by the Convention. In the Whitney Case (1894) 142 N. Y. 531, 37 N. E. 621, the division of wards in establishing assembly districts was sustained. The Constitution of 1894 does not prohibit the divison of a ward, but the prohibition applies only to the division of a block.

§ 6. [Compensation of members.]-Each member of the legislature shall receive for his services an annual salary of one thousand five hundred dollars. The members of either house shall also receive the sum of one dollar for every ten miles they shall travel in going to and returning from their place of meeting, once in each session, on the most usual route. Senators, when the senate alone is convened in extraordinary session, or when serving as members of the court for the trial of impeachments, and such members of the assembly, not exceeding nine in number, as shall be appointed managers of an impeachment, shall receive an additional allowance of ten dollars a day.

[Const. 1821, art. 1, § 9; 1846, art. 3, § 6; Am. 1874.]

The subject of the compensation of members of the legislature was for many years left to the legislature itself. The history of this subject, and the development of a movement finally resulting in fixing the compensation in the Constitution, will be found in the first and

second volumes. The subject was considered not only in convention, but in numerous independent amendments proposed in the legislature.

§ 7. [Members not to receive certain civil appointments.]-No member of the legislature shall receive any civil appointment within this state, or the Senate of the United States, from the governor, the governor and senate, or from the legislature, or from any city government, during the time for which he shall have been elected; and all such appointments and all votes given for any such member for any such office or appointment shall be void.

[Const. 1821, art. 1, § 10; 1846, art. 3, § 7; Am. 1874.]

This provision had its origin in the Convention of 1821, where the committee on the legislature reported the following proposed section: "No member of the legislature shall receive any civil appointment under the government of this state during the term for which he shall have been elected." Mr. Birdseye proposed to limit the prohibition by stating it in the following form: "No member of the legislature shall receive any civil appointment from the governor and senate, or from the legislature, during the term for which he shall have been elected." This was adopted and included in the Constitution of 1821. Mr. E. Williams, discussing the section, said "the judiciary officers, the attorney general, the comptroller, the secretary of state, canal commissioners, etc., are the great honorable and valuable offices" to which members of the legislature might reasonably aspire, "and on the examination of the subject it will be found that nineteen out of twenty of these offices have been filled out of the legislature from year to year. It has been continued until the people have expressed their disapprobation from one part of the state to the other;

and although they have selected, in many instances, fit and suitable candidates for office, yet, inasmuch as they were taken from the legislature,-the body who superintends and manages the appointing power,-they have been considered improper selections. An idea is entertained that the legislature has been rendered subservient to the appointing power for the promotion of political views and the advancement of individuals in that body." It should be noted that during the period covered by these observations the power of appointment was vested in the Council of Appointment, composed of the governor and four senators, chosen by the assembly. The council was abolished by this Convention. Mr. Williams thought the principle of the objection to the appointment of members of the legislature would apply with equal force under the new provision for appointments by the governor and senate. Mr. Bacon said it might sometimes happen "that in point of talent and capacity, a member of the legislature would be rather better adapted to some executive or judicial office which was to be filled than any other person to be found who was not a member, but the case would not be so frequent, nor the disparity so great, as to produce any serious public inconvenience, or prevent the state from being at all times well served.

Whether its character had heretofore been tarnished by sacrificing its independence to the desire of office, and whether subserviency to the purposes of party had been made the price of a commission from those who had it to bestow, it might perhaps be difficult directly to prove; but when we see, as we have done at no remote period, more than one third of a legislative body returning home with their commissions in their pockets, the people would inevitably draw from it some unkind inferences." The Convention of 1846 amended the section by declaring the effect of appointments made contrary to its provisions,