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Corporations, art. VIII, så 1, 3; loan of credit, art. VIII, 8 10. it may have been more at the time, since in such a case the court can take judicial notice of nothing but facts authenticated by the public records. Adams v. Elwood, 176 X. Y. 106.
Surrogate practicing law.— The Appellate Division has not jurisdiction, under section 67 of the Code of Civil Procedure, to suspend from practice, or remove from his office as attorney, a surrogate who practices law during his term of office, in violation of the provision of the above section, to the effect that a surrogate in a county having a population exceeding 120,000 shall not practice as an attorney or counselor in any court of record of this state. Matter of Silkman, 88 App. Div. 102, X. Y. Supp.
Art. VIII, S 1. Corporations, formation of. (C. & G. Gen. Laws, p. 109.)
Consolidation of school districts.— The power conferred upon the legislature to create municipal corporations and to alter and abolish the same authorizes the legislature to provide by special act for the creation of a union free school district made up of parts of two or more school districts. L. 1898, ch. 576, entitled “ An act to locate and establish the boundaries of Union Free School District No. 7, in the town of Cortland," is constitutional Board of Education v. Board of Education, 76 App. Div. 355, 78 N. Y. Supp. 522.
Art. VIII, § 3. Corporations, definition of term. (C. & G. Gen. Laws, p. 107.)
Power to sue. The power conferred by the above section upon corporations to sue does not include the general power to maintain all kinds of actions, but only those relating to their corporate rights. Board of Education v. Board of Education, 76 lpp. Div. 355, 78 N. Y. Supp. 522.
Art. VIII, § 10. Counties, cities and towns not to give or loan money on credit. (C. & G. Gen. Laws, p. 109.)
Vacating judgment in favor of county.- Chapter 614 of L. 1899, which in effect vacates a judgment upon the merits in favor of a county defendant, and grants the plaintiff a new trial before a referee to be specially appointed for the purpose and directs the levy of a tax to pay any amount found due him, is unconstitutional and void, since it is virtually a bestowal of a gratuity in violation of this and the preceding section of the Constitution. Matter of Greene, 166 N. Y. 485, affirming, 55 App. Div. 475, 67 N. Y. Supp. 291.
Expenses of defense of public officer.-- Chapter 700 of L. 1899, in providing for the payment from the funds of the city of New York of the expenses incurred by a police officer in successfully defending charges preferred against him for official misconduct, constitutes an application of city funds to an individual and not to a city and county purpose, and Loan uf credit, art. VIII, $ 10; inmates of charitable institutions, art. VIII, § 14.
to such extent violates the provisions of the above section of the Constitution. Matter of Chapman v. City of New York, 168 N. Y. 80, affirming, 57 App. Div. 583, 68 N. Y. Supp. 1135.
Payment by county for services of attorney in defending criminal.Section 308 of the Code of Criminal Procedure, authorizing the payment by the county of a certain amount to an attorney assigned to defend a person accused of a capital offense, as compensation for the services of such attorney, does not violate the above section of the Constitution. The payment so authorized is for a legitimate county purpose. People ex rel. Acritelli v. Grout, 87 App. Div. 193, 84 N. Y. Supp. 97.
Contracts for public improvements; pledging credit; existing debt limit.- A contract for a municipal improvement binding the city to pay therefor out of moneys in the treasury properly applicable to that purpose, “and which shall have been collected or paid into said treasury on account of said work or improvement,” is not pledging the city's credit “ in aid of any individual, association or corporation.” The sums to be paid under such a contract do not constitute a part of the city's indebtedness. The special franchises assessed under the tax law, as amended by L. 1899, hapter 712, are real property and should be included as part of the assessable real estate of the city in ascertaining the amount of the property upon which the debt limit is to be computed. Kronsbein v. City of Rochester, 76 App. Div. 494, 78 N. Y. Supp. 813.
Appropriation of municipal fund to volunteer fire companies.— Section 722 of the Greater New York charter, as re-enacted by L. 1901, ch. 466, directing the payment of municipal funds to certain volunteer fire companies, does not violate the above provision of the Constitution. Volunteer fire companies are recognized as discharging a municipal function, and municipal funds may legitimately be used to pay for fire protection afforded by such organizations. People ex rel. Richmond Hook and Ladder Co. v. Grout, 79 App. Div. 61, 79 N. Y. Supp. 1027.
Indebtedness of county within boundaries of city.- The prohibition contained in this section against a county embraced within the boundaries of a city becoming indebted does not apply to statutes making salaried the office of sheriff, register and county clerk of Kings county (L. 1901, chs. 704, 705 and 706). The indebtedness prohibited is one which is created for purposes other than for the maintenance of the political organization and has no reference to the obligation of the county for the current expenses of its offices. McGrath v. Grout, 171 N. Y. 7, affirming, 69 App. Div. 314, 74 N. Y. Supp. 782.
Art. VIII, $ 14. Maintenance and support of inmates of charitable institutions. (C. & G. Gen. Laws, p. 112.)
Payments by city to charitable institution; rules of state board of charities.- A city cannot pay to a private charitable institution public moneys for the care and support of the inmates, who are not received and retained therein pursuant to the rules established by the state board of charities, for the purpose of determining whether such inmates are properly a public charge. The provisions of the charter of the instiSchools, art. IX, SS 1, 4; county officers, art. X, $ 1. tution and of the city charter authorizing the payment annually of a specific sum for the support of children committed to the institution do mot authorize a payment to such institution for the support of such children except in accordance with the rules so established by the state board. Matter of New York Juvenile Asylum, 172 N. Y. 50, affirming, 69 App. Div. 615, 75 N. Y. Supp. 1129, 36 Misc. 633, 74 N. Y. Supp. 364.
Payment of public moneys to orphan asylum.- St. Mary's Boys' Orphan Asylum of the city of Rochester, incorporated under chapter 319 of the laws of 1848, is an orphan asylum within the meaning of the above section, permitting the payment of public moneys for the secular education of inmates therein. Sargent v. Board of Education of city of Rochester, 177 X. Y. 317.
Art. IX, s 1. Common schools. (C. & G. Gen. Laws, p. 113.) Effect of provision.— The above section of the Constitution does not operate to make education a constitutional right rather than a privilege, and is intended merely to secure a continuance and an extension of an existing privilege. The legislature may impose reasonable regulations upon the exercise of this privilege, provided such regulations operate equally upon all persons in the same class and under the same conditions. A statute prohibiting children from attending public schools without having first been vaccinated is a legitimate exercise of this power of regulation. Matter of Viermeister v. White, 88 App. Div. 4, 84 N. Y. Supp. 712.
Art. IX, $ 4. No aid to denominational schools. (C. & G. Gen. Laws, p. 114.)
Orphan asylum, giving instruction to the inmates as an incidental purpose, but giving no religious instruction to them during school hours, is not a
“ school or institution of learning ” under the provisions of the above section. Sargent v. Board of Education, 35 Misc. 321, 71 N. Y. Supp. 954, affirmed, 177 N. Y. 317.
Payment of public moneys to orphan asylums.-- An orphan asylum organized under L. 1848, ch. 319, is not a school or institution of learning within the meaning of the above section prohibiting the payment of public moneys to any denominational school or institution of learning, hut is an asylum within the meaning of article 8, section 14 of the Constitution, permitting the payment of such moneys for the secular education of children in orphan asylums. Sargent v. Board of Education, 76 App. Div. 388, 79 N. Y. Supp. 127, affirmed, 177 N. Y. 317.
Art. X, s 1. Sheriffs, clerks of counties, etc.; governor may remove. (C. G. Gen. Laws, p. 114.)
Removal of county officers by governor; action not reviewable.-- The power vested in the governor by the above section, of removing the officers therein designated upon charges and after a hearing, is execuAppointment or election of officers, art. X, $ 2. tive, not judicial, and the exercise of such power is not reviewable by the courts. Matter of Guden, 171 N. Y. 529, affirming, 71 App. Div. 422, 75 N. Y. Supp. 794.
Art. X, § 2. Appointment or election of officers not provided for by this constitution. (C. & G. Gen. Laws, p. 115.)
Application to city officers.- Officers created by cn. 402 of the L. of 1901 to audit outstanding claims against the city of Syracuse are not city officers subject to the provisions of this section. The section only relates to such officers as existed at the time the Constitution took effect, and does not apply to a person whom the legislature, in providing for the accomplishment of a particular object within its power, designates to perform a specific duty that might be performed by a local city or town oflicer. City of Syracuse v. Hubbard, 61 lpp. Div. 587, 72 N. Y. Supp. 802.
Election or appointment of local officers.-- The provision of the above section of the Constitution to the effect that “ city, town and village officers shall be elected by the electors or appointed by such authorities thereof as the legislature shall designate for that purpose," protects all essential or exclusive functions theretofore belonging to local officers and prohibits their transfer whether direct or indirect to state officers. But the special franchise tax act of 1899 does not violate this constitutional provision. People ex rel. Metropolitan St. Ry. Co. v. Tax Commissioners, 174 1. 1. 417, reversing, 79 App. Div. 183, 80 N. Y. Supp. 85.
Appointment of commissioners of jurors in counties having a population of one million or more.-- L. 1901, ch. 602, providing for the appointment of a commissioner of jurors in a county having a population of one million or more by the justices of the Appellate Division in the department in which the county is situated, is not a violation of the above section of the Constitution. This act was passed after the adoption of the Constitution of 1894. It created the office of commissioner of jurors in every county having the required population, which includes the county of New York. It is therefore a new office within the meaning of the provisions of the Constitution, and may be filled by appointment in such
as the legislature may direct.” Matter of Allison v. Welde, 172 N. Y. 421. It was apparently conceded in this case that the justices of the Appellate Division of the First Department did not constitute a local authority with power to appoint county officers in the county of New York under the above section of the Constitution. But see Matter or Brenner, 170 N. Y. 185, affirming, 67 App. Div. 375, 73 N. Y. Supp. 689.
Appointment of detective sergeants.--Section 290 of the Greater New York charter, as re-enacted by L. 1901, ch. 466, providing for a bureau of detectives in New York city, to consist in part of policemen previously appointed or assigned to duty in a detective bureau and acting therein on a certain date, and providing that such policemen shall be known as detective sergeants, with the rank, authority and compensation of sergeants of police, is not the creation of a new office, or the filling of a
Appointment or election of officers, art. X, 8 2. new office by the legislature, and is, therefore, not in violation of the provisions of the above section of the Constitution. Matter of Sugden v. Partridge, 174 N. Y. 87, reversing, 78 App. Div. 644, 80 N. Y. Supp. 1149; see also Matter of Fay, 174 N. Y. 526, reversing, 78 App. Div. 199, 204, 79 N. Y. Supp. 722.
Changing tenure of office of detective sergeant.- Section 290 of the Greater New York charter, as re-enacted by L. 1901, ch. 466, in so far as it changes the tenure of the position of detective sergeant in the New York police force from one existing during the pleasure of the police commissioner to one subject to the same rules and regulations as are applicable to other positions in the police department, and so far as it provides that the force of detective sergeants should consist of those holding that position on April 1, 1901, violates the above section of the Constitution. People ex rel. Lahey v. Partridge, 74 App. Div. 291, 77 N. Y. Supp. 691.
A statute making permanent (Greater New York charter, section 290) the position of detective sergeants who were in office on April 1, 1901, violates the provisions of the above section. Such a detective sergeant is a city officer within the meaning of the Constitution. People ex rel. Burns v. Partridge, 38 Misc. 697, 78 N. Y. Supp. 249.
Designating persons as commissioners in local board.— L. 1901, ch. 178, consolidating certain local commissions of the village of Saratoga, designating certain persons as such commissioners for the first year, is unconstitutional as violating the above section. Village of Saratoga v. Van Norder, 75 App. Div. 204, 77 N. Y. Supp. 1020.
Application to certain judiciai officers.- It would seem that this section does not apply to judicial officers in cities whose election or appointment is provided for in section 17 of article 6 of the Constitution. People v. Dooley, 69 App. Div. 512, 75 N. Y. Supp. 350.
County commissioners to erect a court house, issue bonds therefor, acquire a site, etc., named in a special act (L. 1901, ch. 89) are not county officers within the meaning of this section. People ex rel. Commissioners v. Supervisors, 36 Misc. 597, 73 N. Y. Supp. 1098, 170 N. Y. 105. The Court of Appeals held in this case that the legislature has power to appoint persons to carry out a local improvement who are not thereby constituted county officers, but become the agents of the state, although the power to make such improvements is at the time vested in local authorities elected by the people.
The office of policeman is not one created by the Constitution, but under the acts of the legislature, and the legislature can, therefore, provide for the appointment of policemen and for their removal and discharge. The above section does not apply to such officers. People ex rel. Miller v. Peck, 73 App. Div. 89, 76 N. Y. Supp. 328.
Prolongation of term.-- An act of the legislature (Greater New York charter, section 1392), extending the terms of office of city magistrates, is, in effect, an appointment by the legislature for an additional term, and therefore violates this section. Matter of Kelly v. Van Wyck, 35 Misc. 210, 71 N. Y. Supp. 814.