66

permit the election of a supervisor by either one of the three specified methods of voting, so far as towns were concerned." People v. Westchester County, (1893) 139 N. Y. 524, 34 N. E. 1106, affirming 69 Hun 143, 23 N. Y. S. 419. Purpose of clause allowing other methods than ballot.-Adverting to the clause or by such other method as may be prescribed by law, provided that secrecy in voting be preserved," the Court of Appeals has said: That the object of this addition in the last constitution was not to create any greater safeguards for the secrecy of the ballot than has hitherto prevailed, but solely to enable the substitution of voting machines, if found practicable, is too clear for discussion.” People v. Wintermute, (1909) 194 N. Y. 99, 86 N. E. 818, reversing 127 App. Div. 933, 111 N. Y. S. 1135. Under this clause, therefore, the legislature may authorize voting by machine. In re Taylor, (1896) 150 N. Y. 242, 44 N. E. 790, affirming 3 App. Div. 244, 38 N. Y. S. 348. Impeachment of official canvass.- The examination of voters in an action in the nature of quo warranto as to how they voted in an election does not violate the secrecy of the ballot. On the contrary, the right to make such an examination "is in affirmance and vindication of the essential principle of the elective system, that the will of the majority of the qualified electors shall determine the right to an elective office." People v. Wintermute, (1909) 194 N. Y. 99, 86 N. E. 818, reversing 127 App. Div. 933, 111 N. Y. S. 1135. The court there approved earlier decisions to the same effect but rendered in the absence of any constitutional provision requiring the maintenance of the secrecy of the ballot. The cases particularly examined and approved were: People v. Cook, 8 N. Y. 67, 59 Am. Dec. 451; People v. Pease, 27 N. Y. 45, 84 Am. Dec. 242; People v. Thacker, 55 N. Y. 525, 14 Am. Rep. 312; People v. Ferguson, 8 Cow. 102. The court further held that it was competent so to impeach the official returns where the voting had been done by a voting machine and not by ballot. "When the constitutional convention authorized the employment of methods of voting otherwise than by a ballot it never contemplated or sanctioned a method that would impair the rights which the voter had enjoyed under the previous constitutions."

§ 6. Bipartisan election boards.

All laws creating, regulating or affecting boards of officers charged with the duty of registering voters, or of distributing ballots at the polls to voters, or of receiving, recording or counting votes at elections, shall secure equal representation of the two political parties which, at the general election next preceding that for which such boards or officers are to serve, cast the highest and the next highest number of votes. All such boards and officers shall be appointed or elected in such manner, and upon the nomination of such representatives of said parties respectively, as the Legislature may direct. Existing laws on this subject shall continue until the Legislature shall otherwise provide. This section shall not apply to town meetings, or to village elections.

Const. 1894, Art. II, § 6.

Scope of section.— The history and language of this section indicate that its design was to provide for those local election boards which were familiar to all the people and were common to every voting district. "It has no relation whatever to boards of election created for the purpose of performing in large cities the duties, with some additions, which are generally imposed upon county clerks and similar officers. The language of the section is limited to all laws creating, regulating or affecting boards of officers charged

Art. III, § 1

Legislative Power Generally

with the duty of registering voters, or of distributing ballots at the polls to voters, or of receiving, recording or counting votes at elections,' clearly none of these duties are cast upon the board of elections of the city of New York." Appointments to that board need not be on the nomination of representatives of the two dominant political parties of the state as is required in the case of the officers charged with the duties mentioned above. Kane v. Gaynor, (1911) 144 App. Div. 196, 129 N. Y. S. 280.

The Supreme Court is not a bipartisan board within the requirements cf this section. Accordingly, chapter 538 of the Laws of 1907, providing for a recount and recanvass by the Supreme Court of the votes cast for the office of mayor at the election of the 7th of November, 1905, in all cities of the first class in which the ballots have been preserved, is unconstitutional if construed as authorizing a recanvass of the votes cast at an election. Metz v. Maddox, (1907) 189 N. Y. 460, 82 N. E. 507, 121 A. S. R. 909, reversing 121 App. Div. 147, 105 N. Y. S. 702, 120 App. Div. 814, 105 N. Y. S. 702.

ARTICLE III.

§ 1. Legislative power.

The legislative power of this State shall be vested in the Senate and Assembly.

Const. 1777, Art. II; amended, Const. 1821, Art. I, § 1; amended, Const. 1846, Art. III, § 1; amended, Const. 1894, Art. III, § 1.

I. In general, 210.

1. Plenary power, 210.

2. Distribution of powers, 217.

3. Delegation of power, 220.

II. Police power, 226.

1. In general, 226.

2. Public health, 236.

3. Public safety, 244.

4. Public morals and peace, 247.

5. Public convenience and comfort, 249.

6. Extraordinary emergency; public nuisance, 250.

7. Public business, 252.

III. Taxation, 254.

1. In general, 254.

2. Apportionment, 257.

3. Purpose, 259.

4. Uniformity, 261.

5. Classification, 264.

I. IN GENERAL.

1. Plenary Power.

Generally. The people, in framing the constitution, committed to the legislature the whole law-making power of the state, except as expressly or impliedly withheld in that instrument. Hence, plenary power in the legisla ture for all purposes of civil government is the rule. People v. Bradley, (1913) 207 N. Y. 592, 101 N. E. 766, affirming In re Bergdorf, (1912) 206 N. Y. 309, 99 N. E. 714, affirming 149 App. Div. 529, 133 N. Y. S. 1012;

Legislative Power Generally

Art. III, § 1

People v. Becker, (1911) 203 N. Y. 201, 96 N. E. 381, reversing 142 App. Div. 929, 127 N. Y. S. 1139; People v. Prendergast, (1911) 202 N. Y. 188, 95 N. E. 715, affirming 143 App. Div. 935, 128 N. Y. S. 1139; Saratoga Springs v. Saratoga Gas, etc., Power Co., (1908) 191 N. Y. 123, 83 N. E. 693, 14 Ann. Cas. 606, 18 L. R. A. (N. S.) 713, reversing 122 App. Div. 203, 107 N. Y. S. 341; Sherrill v. O'Brien, (1907) 188 N. Y. 185, 81 N. E. 124, 117 A. S. R. 841, reversing 114 App. Div. 890, 101 N. Y. S. 858; People v. Pierson, (1905) 176 N. Y. 201, 68 N. E. 243, 98 A. S. R. 666, 63 L. R. A. 187, reversing 80 App. Div. 415, 81 N. Y. S. 214; In re Davies, (1901) 168 N. Y. 89, 61 N. E. 118, 56 L. R. A. 855, reversing 55 App. Div. 245, 67 N. Y. S. 492; Koch v. New York, (1897) 152 N. Y. 72, 46 N. E. 170, affirming 5 App. Div. 276, 39 N. Y. S. 164; People v. Cannon, (1893) 139 N. Y. 32, 34 N. E. 759, 36 A. S. R. 668; Rogers v. Buffalo, (1890) 123 N. Y. 173, 25 N. E. 274, 9 L. R. A. 579; In re Thirty-fourth St. R. Co., (1886) 102 N. Y. 343, 7 N. E. 172, reversing 37 Hun 442; People v. Cipperly, 101 N. Y. 634, 4 N. E. 107, adopting dissenting opinion 37 Hun 319; People v. Keeler, (1885) 99 N. Y. 463, 2 N. E. 615, 52 Am. Rep. 49, reversing 32 Hun 563; People v. Marx, 99 N. Y. 377, 2 N. E. 29, 52 Am. Rep. 34, reversing 35 Hun 528; People v. Comstock, (1879) 78 N. Y. 356, reversing 18 Hun 311; Bertholf v. O'Reilly, (1878) 74 N. Y. 509, 30 Am. Rep. 323, affirming 8 Hun 16; Demarest v. New York, (1878) 74 N. Y. 161, affirming 11 Hun 19; People v. Stephens, (1878) 71 N. Y. 527; Phelps v. Racey, (1875) 60 N. Y. 10, 19 Am. Rep. 140, affirming 5 Daly 235; People v. Dayton, (1874) 55 N. Y. 367; People v. Flagg, (1871) 46 N. Y. 401; Metropolitan Board of Excise v. Barrie, (1866) 34 N. Y. 657; People v. Devlin, (1865) 33 N. Y. 269, 88 Am. Dec. 377; Bank of Chenango v. Brown, (1863) 26 N. Y. 467; In re Cooper, (1860) 22 N. Y. 67; Leggett v. Hunter, (1859) 19 N. Y. 445, affirming 25 Barb. 81; Rumsey v. People, (1859) 19 N. Y. 41; Sill v. Corning, (1857) 15 N. Y. 297; People v. Draper, (1857) 15 N. Y. 532, affirming 25 Barb. 344; Guilford v. Chenango County, (1855) 13 N. Y. 143; Wynehamer v. People, (1856) 13 N. Y. 378, affirming 20 Barb. 567 and reversing 20 Barb. 168; Smith v. Levinus, (1853) 8 N. Y. 472; Barto v. Himrod, (1853) 8 N. Y. 483, 59 Am. Dec. 506; Leach v. Auwell, (1912) 154 App. Div. 170, 138 N. Y. S. 975; People v. Kennedy, (1913) 154 App. Div. 558, 139 N. Y. S. 896, affirming (1914) 212 N. Y. 1, 105 N. E. 849; Matter of New York, (1910) 140 App. Div. 238, 125 N. Y. S. 210; Rockefeller v. Lamora, (1903) 85 App. Div. 254, 83 N. Y. S. 289. See also Pearce v. Stephens, (1897) 18 App. Div. 101, 45 N. Y. S. 422, affirmed (1897) 153 N. Y. 673, 48 N. E. 1106; People v. Young, (1897) 18 App. Div. 162, 45 N. Y. S. 772; Board of Fire Underwriters v. Whipple, (1896) 2 App. Div. 361, 37 N. Y. S. 712; Schneider v. Rochester, (1895) 90 Hun 171, 35 N. Y. S. 786, appeal dismissed (1898) 155 N. Y. 619, 50 N. E. 291; Bidwell v. Murray, (1886) 40 Hun 190; People v. McGann, (1884) 34 Hun 358; People v. Otis, (1881) 24 Hun 519, affirmed 90 N. Y. 48; People v. Justices, etc., (1876) 7 Hun 214; People v. Learned, (1875) 5 Hun 926; Clark v. Miller, (1864) 42 Barb. 255, affirmed 54 N. Y. 528. In the case of In re Thirty-fourth St. R. Co., (1886) 102 N. Y. 343, 7 N. E. 172, reversing 37 Hun 442, the court said: "It needs no citation of authorities to sustain the postulate, that except as restrained by the constitution, the legislative power is untrammeled and supreme, and that a constitutional provision which withdraws from the cognizance of the legislature a particular subject, or which qualifies or regulates the exercise of legislative power in respect to a particular incident of that subject, leaves all other matters and incidents under its control. Nothing is subtracted from the sum of legislative power, except that which is expressly or by necessary implication withdrawn."

Creation of counties and towns.-"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

Art. III, § 1

Legislative Power Generally

by other provisions or arrangements of the constitution, the time and mode of its exercise is in the discretion of the legislature." People v. Westchester County, (1895) 147 N. Y. 1, 41 N. E. 563, 30 L. R. A. 74. To the same effect, People v. Shepard, (1867) 36 N. Y. 285. Under this section of the constitution the legislature acquired the right to erect new counties. Rumsey v. People, (1859) 19 N. Y. 41. See art. 3, §§ 4, 5.

Power of legislature over local affairs of civil divisions of state. The legis lature " possesses full power, except as restricted by the constitution, to control by direct legislation the local affairs of a public nature of any of the civil divisions of the state." People v. Tweed, (1875) 63 N. Y. 202. To the same effect, People v. Flagg, (1871) 46 N. Y. 401. Therefore, the Act of 1875 (ch. 49, Laws of 1875), authorizing actions to be brought in the name of the people to recover moneys belonging to, and unlawfully obtained from, a municipal or other public corporation, is constitutional. People v. Tweed, (1875) 63 N. Y. 202. Likewise the legislature has power to direct the construction of a highway in any town, to compel the creation of a town debt by the issue of its bonds, and to impose a tax upon the property of the town to pay the bonds, without the consent of the citizens or town authorities. People v. Flagg, (1871) 46 N. Y. 401.

Power of legislature over municipal property. The property of a munici pal corporation is held subject to the discretion of the law-making power of the state. Darlington v. New York, (1865) 31 N. Y. 164, 88 Am. Dec. 248, affirming 2 Robt. 274; Potter v. Collis, (1897) 19 App. Div. 392, 46 N. Y. S. 471, affirmed (1898) 156 N. Y. 16, 50 N. E. 413. A municipality has no private estate or interest in the public streets within its borders. While it is said to hold the title to the bed of the streets, its title is that of a trustee for the whole state. The legislature still has, within constitutional bounds, absolute control of and power over the streets. People v. Kerr, (1863) 27 N. Y. 188, affirming 37 Barb. 357; McCutcheon v. Terminal Station Commission, (1915) 168 App. Div. 301, 154 N. Y. S. 711; People v. Saratoga Springs, (1904) 90 App. Div. 555, 86 N. Y. S. 445; Potter v. Collis, (1897) 19 App. Div. 392, 46 N. Y. S. affirmed (1898) 156 N. Y. 16, 50 N. E. 413; Adamson v. Nassau Electric R. Co., (1895) 89 Hun 261, 34 N. Y. S. 1073. "The authority to make use of the public streets of a city for railroad purposes primarily resides in the state, and is a part of the sovereign power, and the right or privilege of constructing and operating railroads in the streets, which for convenience is called a franchise, must always proceed from that source, whatever may be the agencies through which it is conferred." Beeckman v. Third Ave. R. Co., 153 N. Y. 144, 47 N. E. 277, affirming 13 App. Div. 279, 43 N. Y. S. 174. To the same effect, Fanning v. Osborne, (1886) 102 N. Y. 441, 7 N. E. 307, reversing 34 Hun 121; People v. Kerr, (1863) 27 N. Y. 188, affirming 37 Barb. 357; Adee v. Nassau Electric R. Co., (1902) 72 App. Div. 404, 76 N. Y. S. 589, affirmed in (1904) 177 N. Y. 548, 69 N. E. 1120; Potter v. Collis, (1897) 19 App. Div. 392, 46 N. Y. S. 471, affirmed (1898) 156 N. Y. 16, 50 N. E. 413; Adamson v. Nassau Electric R. Co., (1895) 89 Hun 261, 34 N. Y. S. 1073.

Distribution of powers of local government.— It is for the legislature to distribute the powers of local government, as between city and county governments, as it may deem best, and this discretion, when not restrained or excluded by some provision of the constitution, is absolute. People v. Dunlap, (1876) 66 N. Y. 162. See art. 10, § 2.

Power of legislature over criminal and civil liability. The power of the legislature to define and declare public offenses is unlimited, except in so far as it is restrained by constitutional provisions and guarantees. People v. Persce, (1912) 204 N. Y. 397, 97 N. E. 877, affirming 153 App. Div. 919, 138 N. Y. S. 1135; People v. Rosenthal, (1910) 197 N. Y. 394, 90 N. E. 991, 46 L. R. A. (N. S.) 31, affirming 134 App. Div. 907, 118 N. Y. S. 1132; Rhodes v. Sperry, etc., Co., (1908) 193 N. Y. 223, 85 N. E. 1097, 127 A. S. R. 945, 34 L. R. A. (N. S.) 1143, affirming 120 App. Div. 467, 104 N. Y. S. 1102;

Legislative Power Generally

6

Art. Ill, § 1

"The

Lawton v. Steele, (1890) 119 N. Y. 226, 23 N. E. 878, 16 A. S. R. 813, 7 L. R. A. 134, affirmed 152 U. S. 133, 14 S. Ct. 499, 38 U. S. (L. ed.) 385; People v. West, (1887) 106 N. Y. 293, 12 N. E. 610, 60 Am. Rep. 452; Bertholf v. O'Reilly, (1878) 74 N. Y. 509, 30 Am. Rep. 323; Barker v. People, (1824) 3 Cow. 686. See also People v. Ryder, (1891) 124 N. Y. 500, 26 N. E. 1040, reversing 58 Hun 407, 12 N. Y. S. 48. Thus, the amendment to section 550 of the Penal Code by chapter 326 of the Laws of 1903, now embodied in section 1308 of the Penal Law, which provides for the punishment of a dealer in junk who buys or receives stolen wire or metals of a certain kind belonging to a railroad, or other company names, without ascertaining by diligent inquiry that the person selling or delivering the same had a legal right to do so, is valid. People v. Rosenthal, (1910) 197 N. Y. 394, 90 N. E. 991, 46 L. R. A. (N. S.) 31, affirming 134 App. Div. 907, 18 N. Y. S. 1132. legislature has the undoubted power to declare that various acts, not theretofore so, shall be criminal without proof of other intent as a necessary ingredient of the offense than the intent to commit the prohibited act." People v. Persce, (1912) 204 N. Y. 397, 97 N. E. 877, affirming 135 App. Div. 919, 138 N. Y. S. 1135. To the same effect, People v. Abeel, (1905) 182 N. Y. 415, 75 N. E. 307, 3 Ann. Cas. 287, 1 L. R. A. (N. S.) 730, affirming 100 App. Div. 516, 91 N. Y. S. 1109. "The power of the legislature in the punishment of crimes, is not a special grant, or a limited authority to do any particular thing, or to act in any particular manner. It is a part of the legislative power of this state' It is the sovereign power of a state, to maintain social order, by laws for the due punishment of crimes. It is a power to take life, and liberty, and all the rights of both, when the sacrifice is necessary to the peace, order, and safety of the community. This general authority is vested in the legislature, and as it is one of the most ample of their powers, its due exercise is among the highest of their duties. When an offender is imprisoned, he is deprived of the exercise of most of the rights of a citizen; and when he suffers death, all his rights are extinguished. The legislature have power to prescribe imprisonment or death, as the punishment of any offense. The rights of a citizen are thus subject to the power of the state, in the punishment of crimes; and the restriction of the constitution upon this, as upon all the general powers of the government, are, that no citizen shall be deprived of his rights, unless by the law of the land or the judgment of his peers, and that no person shall be deprived of life, liberty or property, without due process of law. The power of the state over crimes, is thus committed to the legislature, without a definition of any crime, without a description of any punishment to be adopted, or to be rejected, and without any direction to the legislature concerning punishments. It is then a power to produce the end by adequate means; a power to establish a criminal code, with competent sanctions; a power to define crimes and prescribe punishments by laws, in the discretion of the legislature." Barker v. People, (1824) 3 Cow. 686, 15 Am. Dec. 322. "From this grant of legislative power springs the right of the legislature to enact a criminal code, to define what acts shall constitute a criminal offense, what penalty shall be inflicted upon offenders, and generally to enact all laws which the legislature shall deem expedient for the protection of public and private rights, and the prevention and punishment of public wrongs. The legislature may not declare that to be a crime which in its nature is and must be under all circumstances innocent, nor can it in defining crimes, or in declaring their punishment, take away or impair any inalienable right secured by the Constitution. But it may, acting within these limits, make acts criminal which before were innocent, and ordain punishment in future cases where before none could have been inflicted. This, in its nature, is a legislative power, which by the Constitution of the state, is committed to the discretion of the legislative body." Lawton v. Steele, (1890) 119 N. Y. 226, 23 N. E. 878, 16 A. S. R. 813, 7 L. R. A. 134, affirmed 152 U. S. 133, 14 S. Ct. 499, 38 U. S. (L. ed.) 385. The legislature may enlarge