tion of the colony so far as the gubernatorial succession was concerned, and is stated in the commission, as follows:

“And in case of your death or absence out of our said province (all persons are) to be obedient, aiding and assisting unto such person as shall be appointed by us to be our lieutenant governor or commander in chief of our said province; to whom we do therefore by these presents Give and Grant all and singular the powers and Authorities herein granted, to be by him executed & enjoyed, During Our pleasure or until Your Arrival within our said Province and Territories. And if upon Your Death, or Absence out of Our said Province and Territories, there be no Person upon the place, commissionated or appointed by us to be our Lieutenant Governor or Commander in Chief of the said Province, Our Will and Pleasure is that the Eldest Councillor whose name is first placed in Our said Instructions to you, and who shall be at the time of Your Death or Absence residing within our said Province of New York, shall take upon him the Administration of the Government and Execute our said Commission and Instructions, and the several powers and Authorities therein contained, in the same manner and to all intents and purposes, as other our Governor or Commander in Chief should or ought to do, in case of Your Absence, until Your Return, or in all cases until our further pleasure be known therein."

I have examined several commissions issued to subsequent governors and they all contain this provision, but I do not find that on any occasion the president of the council became acting governor in consequence of the death or absence of both the governor and lieutenant gov

Sometimes there was no lieutenant governor, and the president then became acting governor upon that officer's death or departure from the colony. Sometimes

the lieutenant governor was also a member of the council. The rule of succession devolved on the president of the council all the powers and duties of the governor whenever there was not in the colony either a governor or a lieutenant governor, and, under this rule, if the governor and lieutenant governor were both absent at the same time, the president of the council became acting gov

ernor.

It seems clear, however, that the framers of the first Constitution did not intend to adopt the colonial policy to its full extent, and that they did not intend to devolve on the temporary president of the senate the office of governor when the only occasion of his exercise of executive powers was the temporary absence of the governor and lieutenant governor. The vacancy mentioned in article. 21 of the first Constitution does not seem to include a case where the governor is only absent from the state, for it is expressly provided that where the temporary president becomes entitled to act, he shall continue to act "until others shall be elected by the suffrage of the people at the succeeding election." If the governor and lieutenant governor were both only absent from the state, they or one of them might return and resume official functions, and it could scarcely have been intended that such an absence would create a vacancy which might be filled by an election by the people. The assumption of executive duties by the temporary president of the senate in case of the absence of the lieutenant governor does not seem to have been contemplated by the framers of the first Constitution, for if the temporary president became acting governor at all he was, at least by the letter of the provision, entitled to hold the office until there had been an election by the people.

The Convention of 1821 made an important change in the provision, by omitting the clause which entitled the

president of the senate to perform the duties of the office of governor in the cases mentioned "until others shall be elected by the suffrage of the people, at the succeeding election," and substituting for it a provision that “if, during a vacancy of the office of governor," the lieutenant governor should become disqualified or be absent from the state, the president of the senate "shall act as governor, until the vacancy shall be filled or the disability shall cease." The vacancy here mentioned seems to be a vacancy in the office of governor, and the disability is apparently the disability of the lieutenant governor; hence, if the office of governor be vacant, and the lieutenant governor, while acting as governor, should be absent from the state, the president of the senate may act as governor until the lieutenant governor returns. If the absence of the governor creates a vacancy in his office, and the lieutenant governor assumes executive duties, his absence from the state entitles the president of the senate to act, and he would then be acting as governor during the absence of both the governor and the lieutenant governor. While it seems clear that the framers of the first Constitution did not intend to confer on the president of the senate the power to act as governor upon the mere absence from the state of both the governor and lieutenant governor, the practical construction of the present constitutional provision, which was adopted in 1821, gives the president of the senate the right to act in case of the absence from the state of both the governor and lieutenant governor, and this practical construction has been applied to the speaker of the assembly, who was added to the line of succession by the Constitution of 1894. In 1902, while the governor, lieutenant governor, and president of the senate were all absent from the state at the same time, the speaker performed executive functions, which, however, were limited to extradition cases, including either

requisitions upon governors of other states or mandates issued on the requisitions of such governors for the surrender of fugitives from justice alleged to be in this state. This practical construction assumes that if the governor is absent from the state his office is vacant, at least so far as this provision is concerned, and that it is "filled," within the meaning of the Constitution, when he returns to the state.

A provision recommending the extension of the succession to the speaker of the assembly was suggested in the Convention of 1821. I have already, in the second volume, referred to the fact that in 1849 Governor Fish made the same recommendation, and that the legislatures of 1849 and 1850 agreed to an amendment intended to accomplish this result, but that it was not submitted to the people. I have also in the third volume quoted Mr. Vedder's statement in the Convention of 1894 when this subject was under consideration, that if by any contingency "the governor, lieutenant governor, and temporary president of the senate were either absent or incapable of acting as governor, the speaker of the assembly could, for the time being, assume and exercise the duties of the office." The question of the speaker's power to act as governor is not likely to arise very frequently, for it does not often happen that the three officers prior to him in the line of succession are all absent or incapable of acting as governor.

§ 8. [Lieutenant governor's compensation. ]-The lieutenant governor shall receive for his services an annual salary of five thousand dollars, and shall not receive or be entitled to any other compensation, fee, or perquisite, for any duty or service he may be required to perform by the Constitution or by law.

[Const. 1846, art. 4, § 8; Am. 1874.]

The office of lieutenant governor during the colonial period seems to have been honorary, though somewhat onerous. The colonial records show that a lieutenant governor was required to perform whatever duties might be demanded by the governor, and although the lieutenant governor was appointed by the Crown, he might be suspended by the governor, who was authorized to appoint another in his place pending a royal appointment. But it seems that the lieutenant governor received no compensation for his services, except while acting as governor. Lieutenant Governor Colden, in a letter to the Earl of Dartmouth, dated December 1, 1772, says: "There is no salary annexed to the office of lieutenant governor of this province; and when the governor is in the province, he has not a single perquisite." Referring to the case of Lieutenant Governor Oliver, of Massachusetts, who had recently been appointed with a salary of £300, Mr. Colden said that, in view of his own "services and losses," he was entitled to equal consideration, and he requested the grant of a salary, to begin on the accession of the governor (Lord Dunmore, October 18, 1770), and he suggested that it might be paid from customhouse duties and quit rents. The Earl of Dartmouth, replying to this letter February 3, 1773, said he had laid it before the King, but it was not the "King's intention to annex salaries to the office of lieutenant governor in the colonies;" that Mr. Oliver's case could not be taken as a precedent, because the grant to him was made in consideration of his having resigned a lucrative office, and not with the intention of attaching a salary to the office of lieutenant governor. The early state statutes gave the lieutenant governor fees for specified services. The subject of a fixed salary for this office was considered in the Convention of 1867, and it was there pointed out that the lieutenant governor received large compensation for