powers of local legislation and administration as the legislature may, from time to time, deem expedient.

[Const. 1846, art. 3, § 17; Am. 1874]

This section, except as to the provision relating to general laws, was included in the Constitution by the Convention of 1846, and was one expression of the result of a discussion concerning the distribution of the powers of government which engaged the attention of the statesmen of that period, and was a reaction from the policy of centralized authority which was such a conspicuous feature in the first and second Constitutions. But it will be observed, as noted in the article on home rule in the third volume, that the provision, as it came from that Convention, conferred no authority on the legislature which it did not already possess, and imposed on that body no duty in respect to the powers which might be vested in boards of supervisors. The Commission of 1872 made the provision mandatory instead of permissive, and required powers to be conferred on boards of supervisors by general laws. The legislature had, before the Convention of 1846, conferred on boards of supervisors extensive powers of local legislation and administration, and that policy has since been continued in a large number of statutes, with the result that such boards have now become very important subordinate governmental agencies.

Within the limits of the power delegated to it under this section, a board of supervisors "is clothed with the sovereignty of the state, and is authorized to legislate as to all details precisely as the legislature might have done in the premises. The evident intent of the framers of the Constitution in permitting the legislature to delegate certain of its powers to the local boards was to carry out a public policy which assumes that the interests of a particular locality are best subserved by those who are familiar with its affairs. It would

be quite impossible for a board of supervisors to properly legislate in regard to local affairs if it were not at liberty to resort to those implied powers within the limits of its jurisdiction vested in the legislature of the state." People ex rel. Wakeley v. McIntyre (1898) 154 N. Y. 628, 49 N. E. 70. A further illustration of this rule is found in People ex rel. Oneida County v. Oneida County (1902) 170 N. Y. 105, 62 N. E. 1092, in which the court sustained the act of 1901, chap. 89, appointing commissioners to erect a courthouse in that county. The legislature had power to provide in this manner for the erection of a courthouse, notwithstanding the general provisions of the county law under which the board of supervisors may provide for the erection of county buildings without special legislative action.

It is a "general theory of our legislation that, so far as practicable, matters of administration specially affecting the public interests of a particular locality should be controlled by the local government, subject to such general regulations as may be necessary for the common good. But the legislature, unless restrained by constitutional limitations, may resume powers delegated to localities, and assume the direct control of matters pertaining to local government." People ex rel. Morrill v. Queens County (1889) 112 N. Y. 585, 20 N. E. 549.

The same subject was considered in Re Reddish (1899) 45 App. Div. 37, 60 N. Y. Supp. 1111, where the court say that "the legislature may, by general laws, confer upon boards of supervisors powers of local legislation. But when it does so it is not a surrender of its own power over the same subject. Its power only lies dormant; it may resume it at any time, and take direct control of the subjects theretofore committed to the boards of supervisors.

This it may do in specific terms, or by general laws inconsistent with those passed by the supervisors upon the same subject." The rule that a general law does not repeal a special law unless the intent to repeal it is clearly manifest does not apply when general statutes of the state come into conflict with local statutes passed by boards of supervisors. "The powers of legislation granted to boards of supervisors do not empower them to pass laws inconsistent with the laws of the state. When they have passed laws upon which no state legislation existed, and the state legislature thereafter passes laws upon the same subject, inconsistent with those passed by boards of supervisors, the state law supersedes those passed by the boards of supervisors upon the same subject."

There is nothing prohibitory in this section, but under it the legisVOL. IV. CONST. HIST.-29.

lature may confer on boards of supervisors general powers of local legislation and administration; the discretion of the legislature is not limited. Seneca County v. Allen (1885) 99 N. Y. 532, 2 N. E. 459, sustaining the act of 1875, chap. 605, relating to the salaries of the treasurers of the counties of Monroe and Seneca.

"Originally and as one of the attributes of sovereignty, the power to lay out highways and to build bridges connecting them over streams, for the use of the public, and to levy taxes for that purpose,” inheres in the legislature, which may, "in the exercise of its own discretion, or under the direction of a written Constitution, delegate the exercise of such power to the board of supervisors, the subordinate local legislature of the several counties of the state." Our Constitution restrains the general legislature from passing any private or local bill for the building of a bridge, but powers of local legislation on this subject may be and have been conferred on boards of supervisors. Kirkwood v. Newbury (1890) 122 N. Y. 571, 20 N. E. 10.

The legislature, acting under this section, may confer on the board of supervisors powers of local legislation in regard to the opening, grading, construction, and improvement of streets and highways in towns, and when the local power of legislation is exercised by the board, a law regularly passed by it has the same force and effect as if passed by the legislature. Roberts v. Kings County (1896) 3 App. Div. 366, 38 N. Y. Supp. 521.

"Boards of supervisors, in auditing and allowing accounts, are limited to the powers conferred upon them by statute; but if the subject-matter of the account be within their jurisdiction and they allow it, the county treasurer has no right to refuse payment on the ground that the allowance was too much or was made upon insufficient evidence." People ex rel. Martin v. Earle (1873) 47 How. Pr. 458.

The Constitution permits the legislature to transfer powers of local legislation so far as it should deem necessary or prudent to the county boards, and what it may do as to all the counties, it may do as to a particular county. The court sustained the act of 1875, chap. 482, as amended in 1881, chap. 554, which conferred on the board of supervisors in any county containing a city of more than 100,000 inhabitants, power to open, grade, and construct streets and avenues which had been laid out in contiguous territory in the county. Re Church (1883) 92 N. Y. 1; Hubbard v. Sadler (1887) 104 N. Y. 223, 10 N. E. 426.

In Queens County v. Petry (1900) 54 App. Div. 115, 66 N. Y. Supp. 1142, 66 N. Y. Supp. 447, sustaining the provision of the act of

1899, chap. 74, by which the general powers of the board of supervisors of Queens county were transferred to and vested in the municipal assembly of the city of New York, the court say: "The legislature has always had the undoubted right to take away statutory powers of boards of supervisors, as well as add to them."

The legislature had, as by the act of 1849, chap. 194, power to confer on boards of supervisors authority to provide for the protection of shell and other fish within the waters of their respective counties, although such waters may be navigable and under the general control of the legislature. Smith v. Levinus (1853) 8 N. Y. 472. "When an act is to be done according to law, or a thing is to be established by law, we all understand that the law intended is a law passed by the legislature, and not by some inferior body acting under powers conferred by the legislature, unless, from the nature of the case, the act of the inferior body is obviously intended." The provision of the act of 1870, chap. 467, giving boards of supervisors power to fix the salaries of county judges, was unconstitutional; that power was vested exclusively in the legislature, and could not be delegated to such boards. The act was not local within the meaning of this section (27). "Legislation, to be local must apply to and operate exclusively upon a portion of the territory of the state and upon the people living therein. . . . A law is not local that operates upon a subject in which the people at large are interested." The county court is not in all respects a local court, but has general jurisdiction. Any resident of the state may be plaintiff, but defendants must, as a rule, reside in the county. A county judge is not a local officer, but may, with certain limitations, exercise his powers in any part of the state. Healey v. Dudley (1871) 5 Lans. 115.

§ 28. [Extra compensation prohibited. ]-The legislature shall not, nor shall the common council of any city, nor any board of supervisors, grant any extra compensation to any public officer, servant, agent, or contractor.

[Am. 1874.]

This subject was included in a section proposed by the Convention of 1867, and was finally incorporated in the

Constitution in 1874, in connection with other amendments reported by the Commission of 1872.

"Extra compensation is compensation over and above that fixed by contract or by law when the services were rendered." The legislature could not, as attempted by the act of 1900, chap. 725, require the payment of pensions to teachers in public schools in the city of New York, who had retired from service prior to the enactment of the pension law of 1894, chap. 296. Such teachers were public servants in the employ of the city. "There was no moral obligation on the city of New York to establish a pension system in favor of teachers. . . . As to such persons [not then in service] the grant of a pension is a mere gratuity." Mahon v. Board of Education (1902) 171 N. Y. 263, 89 Am. St. Rep. 810, 63 N. E. 1107.

The legislature cannot authorize the payment of extra compensation to its clerks and employees, nor compensation prior to their appointment. "Where one is compensated by the day, this compensation is measured by the number of days during which he is in the employment for which he is paid. Anything beyond is a gratuity." People ex rel. Kene v. Olcott (1877) 11 Hun, 610.

The act of 1885, chap. 238, authorizing the board of claims to hear and determine the claims of the captain and harbor masters of the port of New York for services, did not grant extra compensation under this section. "It merely gives jurisdiction to hear and determine a claim for reasonable compensation for services rendered in a case where the compensation attempted to be provided by law failed by reason of the invalidity, under the Constitution of the United States, of the provision for such compensation, and the claimants had consequently rendered beneficial services, accepted and ratified by the legislature, without any valid provision for their compensation." Cole v. State (1886) 102 N. Y. 48, 6 N. E. 277. Giving an officer a clerk does not constitute extra compensation. People ex rel. Masterson v. Gallup (1883) 65 How. Pr. 108.

In Swift v. State (1882) 89 N. Y. 52, and in Gisel v. Buffalo (1888) 15 N. Y. S. R. 561, it was held that the contractor was not entitled to extra compensation.

A resolution of the Rochester common council increasing the salary of the police justice during his term was sustained in Truesdale v. Rochester (1884) 33 Hun, 574. "No extra compensation was provided for or authorized by it. The salary unearned by the officer was fixed by this enactment." There is nothing in the Rochester charter requiring that the salary of a police justice shall