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Gornell Law School Library
Cornell isp Library

KFN5780.A56 1872

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NEW BOOKS

JUST PUBLISHED BY

BANKS & BROTHERS,

144 NASSAU STREET, NEW YORK,

AND

473 & 475 Broadway, Albany.

—_———__-—<-e.

 

WE beg leave to call the attention of the Profession to the following new works:
Mew Vork Court of Appeals Reports.

Fiery VoLumMeEs. Price reduced to $101.50 net. ,

Being Reports of Cases argued and determined in the Court of Appeals of the
State of New York, from the organization of the Court in 1847 to the present
time. Comprising the following Reporters :

COMSTOCK’S REPORTS.
SELDEN’S REPORTS.
KERNAN’S REPORTS.
SMITH’S REPORTS.
TIFFANY’S REPORTS.
HAND’S REPORTS.
SICKLES’ REPORTS.

bs
Of the value of these Reports nothing further need be said, than that they
contain the cases determined in the highest tribunal in the State of New York, -
composed of our most distinguished Judges. These Reports are well gotten up
in every respect, and uniformly bound, and at the price now offered at, no lawyer
should b e without them.

Lansing’s Supreme Court Reports.
Four VouuMes. Price $10 net.

Report of Cases argued and determimed in the Supreme Court of the State
of New York, by ABRAHAM LANSING, Counsellor-at-Law (Official Reporter),
from 1869 to 1872. These Reports contain all GENERAL TERM DECISIONS, and
are of very particular importance, and are the only authorized Reports of the
Supreme Court of New York State.

McCaWs Practical Forms.

‘Tarrp Eprrion. Price $5.50.

Precedents or Practical Forms in Actions at Law in the Supreme Court of
the State of New York, the Superior Court and Court of Common Pleas, for the
City of New York, adapted to the Code and Rules of 1871, and to the practice
of States having a similar Code; with Forms in proceedings against Ships and
Vessels; Partition of Infants’ Estate; Sale of Infants’ Estate; Admeasurement
of Dower; Foreclosure by advertisement; Determination of Claims to Real
Estate, and Appeals from Surrogates’ Courts, and in Surrogates’ Courts, &c., &e.,
by H. 8. McCau1, Counsellor-at-Law.

 

 
 

 

 

2 LAW BOOKS PUBLISHED BY

 

Cowen’s Treatise.
FirtH Eprrron. In Two VOLUMES,
By Hon. Lewis Krnas ey, of the New York Bar.

This new~edition of a work so long in use, and so highly esteemed for its
great and intrinsic merit, has been carefully and thoroughly prepared with
express reference to its use, not only in New York, but in all the States of the
Union.

To this end it has been entirely re-written, and such changes and additions
(some of them most practical and important) made to the text as the changes in
the law here and elsewhere have made necessary; and it embodies, especially,
copious references to the decisions in all, but especially in New York and the
Western States, down to the time it was passing through the press, —

And not this only; the o!d forms are adapted to the present practice, and such
ones added as these changes demand.

An examination of the work, as it is now presented, will, we are sure, show
that it is worthy the approbation of justices of the peace and practitioners in
their courts, and also of the members of the legal profession; for we are per-
suaded that in no other similar space can so much practical legal knowledge be
found as in this treatise.

Upon the common questions of JURISDICTION, CONSIDERATION, AGENCY,
CONTRACTS, PARTNERSHIPS, BILLS AND NOTES, SALES, BAILMENTS, CARRIERS,
THE DOMESTIC RELATIONS, THE COMMENCEMENT AND TRIAL OF CAUSES, THE
RULES OF EVIDENCE AND OF DAMAGES, EXECUTIONS, APPEALS, &c., &c., the
work is reliable, comprehensive and complete.

It is equally so with reference to those special questions, so embarrassing at
times to justices and to practitioners in their courts, and even to the learned
members of the profession. Among these are those relating to SURETYSHIP,
TENDER, PRESUMPTIONS, ARBITRATIONS, SET-OFF, &c., &e. It also embraces
the most recent decisions in regard to FIXTURES, what is REAL and what is
PERSONAL ESTATE, (including the mooted questions of hops, hop-rovts, growing
grass and fruits,) exempt property, line trees, injuries by or to animals, division
fences, and a variety of similar topics, which require daily elucidation and de-
cision in the town as in the higher courts.

In all these respects, and others, the work of the editor has been faithfully
and intelligently performed, making the treatise an indispensable aid to those for
whose use it is designed, and a valuable addition to any law library.

Crocker on Sheriffs.
$7.50.

The Duties of Sheriffs, Constables and Coroners. By G. G. CRocKER.
vised and enlarged, and adapted to the Western and Southern States.

CONTENTS.

TAR DUTIES OF SiERIFFS.—CHAPTER I. Of | duties under the election laws.
their election, qualifications and entering upon | prisoners to bail, IX. Of their duties in courts of
their duties. II, Of their resignation and removal | special sessions, X. Their duties in courts of
from office. ILI. Of the under sheriff, deputies | record. XI. Drawing and summoning jurors. XIL.

$10.

Price . . .

SEconD EDITION. Price . .

Re-

VIIL. Of letting

and jailors, IV. Of the powers and dutics of
sheriffs, V. Their powers and duties in serving
process. VI. Of the return of process. VII.
Their duties as peace officers and on arrests for
crime—When they may act without warrant—Of
the warrant of arrest—Of the arrest—Of bringing
the prisoner before the magistrate—Search war-
rants—Fugitives from justice from other States—
Where religious meetings are distnurbed—Their
duties under peace warrants—Disorderly persons
—Beggars and Vagrants—To prevent gaming—
To prevent racing—To prevent prize fighting—To
prevent cruelty to animals—To prevent intempe-
rance—To investigate the origin of fires—Their

Of compelling the attendance of witnesses. XIII.
Their duties as keepers of the jails. XIV. Their
duties as keepers of the jails in criminal cases,
XV. Of the execution of sentence. XVI. Of the
execution of process in civil cases. XVIL. Of
arrests in civil cases. XVIII. Arrest and buil.
XIX. Of theservice ofthe summons. XX. Claim
and delivery of personal property. XXI. Attach-
mente—Attachments against foreign corporations,
non-resident or absconding or concealed defend-
ants—Attachments against absconding, concealed
or non-resident defendants—Attachments against
foreign corporations—Warrants on demand against
ships. XXII. Of writs of neexcat. XXIII, OF

 

 

 

 
 

 

 

 

BANKS & BROTHERS, 3

 

the execution. XXIV. Of the levy. XXV. Of
the personal property subject to levy. XXVI. Of
sales under executions. XXVII. Sale of personal
property. XXVIII. Of the sale of real estate.
XXIX. Of the redemption of lands sold. XXX.
Sale of lands under decrees, XXXI. Executions
against the body. XXXII. Writ of p ion
XXXIII. Imprisonmentin civilactions, XXXIV.
Liberties ofthe jail, XXXV. Escapes. XXXVI.
Writs of habeas corpus and certiorari. XXXVII.
Writs of inquiry—Writ of inquiry to assess dam-
ages in an action—Writ of ad quod damnum—
Writ of inquiry upon the goods and chattels of one
convicted or outlawed for treason, XXXVIII.
Special proceedings—Warrant under the non-im-
prisonment act—Proceedings supplementary to the
execution—Process in actions for penalties—Arrest
in an action for a penalty under statutes relative
to the manufacture of salt—Execution of process
of judicial officers—Proceedings in cases of in-
solvents—Summoning jurors under a writ de luna-
tico inquirendo—Summoning jurors in plank road
cases—Warrant for the delivery of official books
and papers—Warrant to deliver possession of canal
premises, books and papers—Forcible entries and
detainers—Summary proceedings to obtain posses-
sion of lands—Collection of fines—County treas-
urer’s warrant against collectors—Warrant to col-
lect unpaid taxes—Notifications and warrants of
the comptroller—Their duties concerning State
lands—Distraining inanimate property—Wrecks—
Their powers and duties under the Military Code
—Elections. XXXIX. Of their duties in surro-
gates’ courts. XL. Bonds taken by sheriffs.
XLI. Attachments for contempt. XLII. Actions
by sheriffs. XLIII. Actions against sheriffs,
Tux DUTIES ov CononzERS. —I. Of the election,
qualification and duties of coroners, II. Crimes
cognizable by coroners—Murder—Manslaughter in

 

the first. degree—Manslaughter in the second de-
gree — Manslaughter in the third degree — Man-
slaughter in the fourth degree—Justifiable homi-
cide—Excusable homicide—Wounding—Concealing
the death of a bastard child—Suicide—Principals
—Accessories. III. Coroners’ inquests. IV. Arrest
and examination of offenders. V. E jon of
process where sheriffs are parties. VI. When
coroners to execute the office of sheriff.

THR DUTIES OF CONSTABLES.—I. Of the elec-
tion and duties of constables. II. Service of the
summons. III. Service of attachments. IV. Ser-
vice of warrants. V. Proceedings for the recovery
of personal property. VI. Venire and trial. VII.
Compelling the attendance of jurors and witnesses,
and punishing contempts, VIII. Justices’ execu-
tions. IX. Duties of constables in special proceed-
ings—In bastardy cases—In cases of lunacy—
Habitual drunkards—Idle and truant children—
Hawkers and pedlers—Under the highway laws—
Summoning jurors to assess damages on opening
highways—Encroachments upon highways—Drain-
ing swamps—Search warrants for goods pawned—
When summoned to attend courts. X. Actions
against constables.

Fres OF SHERIFFS, CORONERS AND CONSTA-
BuLus.—I. Of the fees of officers generally. II.
Fees of sheriffs—Tor services rendered the state—
For services rendered the county—Fees for sum-
moning jurors—Fees in civil actions—Fees on
executions—Fees on attachments against foreign
corporations, non-resident or absconding or con-
cealed debtors; and against ships—Fees on writs
of habeas corpus und certiorari—Fees in other
cases. III. Coroners’ fees, IV. Constables’ fees,

Torms.—Forms for sheriffs—Forms for coro-
ners—Forms for constables,

INDEXES.—General index—Index to forms.

 

 

Benedicts Admiralty Practice.
SEeconD Eprrion. Price $7.50.

“The American Admiralty, its Jurisdiction and Practice,” with practical forms
and directions. By Erastus C. BENEDICT, LL.D. A new and enlarged edition.

This book, so long and favorably known as the standard work on the subject
of the American Admiralty, has been so long out of print, that for some years
occasional second-hand copies of the first edition have been readily sold at three
times the original price. The author was unwilling to reprint before some
doubtful questions had been settled by Congress or the courts. The organization
of the courts, the jurisdiction and the practice being now established for appa-
rently long years to come, he has prepared this edition, sparing no pains to make
it as worthy of professional favor now, when the national domain has been so
greatly extended and the admiralty jurisdiction embraces our vast extent of
navigable lakes and rivers, as the first edition was, when a few classes of cases,
arising on the high seas, were practically the limit of that peculiar and beneficial
jurisdiction.

The text has been carefully revised and adapted to the present state of the

. subject, with considerable additions on the subject of prize causes, in which the
nation has recently had so large an experience. The authorities cited, including
about four hundred new cases, have been verified and more correctly referred to.
The collection of court rules and statutes relating to the practice is much more
complete—the practical forms and directions have been much improved and .
extended, and a new and most copious general index to the whole work has been
prepared. ;

The publishers offer it to the profession as a work invaluable to the student,
and of the highest utility and convenience to the admiralty lawyer.

 

 

 
 

 

 

 

 

 

4 LAW BOOKS PUBLISHED BY BANKS & BROTHERS

CONTENTS.

CHaprer I. General View. II. Jurisdiction.
III. Constitutional Construction. IV. Admiral-
ty and MaritimeLaw. V. The Ancient Juris-
diction of the English Admiralty. VI. The strife
between the Common Law Courts“and the Admi-
ralty, in the 16th and 17th Centuries. VII. The
English Admiralty at the time of the American
Revolution. VIII. The Admiralty Jurisdiction of
Scotland and Ireland. IX. The Admiralty and
Maritime Jurisdiction of the British Colonies. X.
The Jurisdiction of the State Courts of Admiralty.
XI. The Admiralty and Maritime Jurisdiction of
France and other portions of Continental Europe.
XII. ‘Admiralty’ and ‘ Maritime.” XIII.
Trial by Jury—Suits at Common Law—Suits in
Personam—Commer-e, XIV. The Maritime Law
Maritime Contracts. XV. Ships and Vessels.
XVI. Seas—Lakes—Rivers, XVII. The Question
considered on Authority in Special Cases, XVIII.
Admiralty Practice—The Organization of the
Courts. X1X. The practice of the American Ad-
miralty Courts historically considered. XX. The
General Character and Course of Admiralty Pro-
ceedings. XXI. Practice of the District Court—
The Libel. XXII. Commencement of the Suit.
XXIII. Meme Process. XXIV. Interlocutory

 

Sale or Delivery of Property. XXV. Return of
Process—Default—aA ppearance. XXVI. The
Pleadings after the Libel. XXVII. - Amendments
and Supplemental Pleadings. XXVIII. Stipula-
tion and Bail, XXIX. Seamen's Wages. XXX.
Prize Causes. XXXI, Hearing. XXXII. Decree.
XXXIII. Execution, XXXIV. 'Petitions—Mo-
tions—Orders—Rules—Notices. XXXV. Admi-
ralty and Maritime Crimes. XXXVI. Limitations.
XXXVII. The Circnit Courts of the United States
—Their Jurisdiction and Practice in Admiralty
and Maritime Cases. XXXVIII. The Supreme
Court of the United States—Its Jurisdiction and
Practice in Admiralty and Maritime Cases,

APPENDIX.—Admiralty Rules established by
the Supreme Court—Rules of Practice of the Su-
preme Court—Rules of the Circuit Court for the
Southern District of New York, on Appeals—Rules
of the District: Court for the Southern District of
New York—Rules of the Circuit Court for the
Northern District of New York—Rules of the
District Court for the Northern District of New
York—Rules of the Circuit Court for the Eastern
District of New York—Rules of the District Court
for the Eastern District of New York—Statutes—
Practical Forms.

Goddard on Easements.
Price $5.50.
A Treatise on the Law of Easements, by JouN LEYBOURN GODDARD, of the

Middle Temple, Barrister-at-Law.

Smith & Soden’s Landlord and Tenant.
Price $6.

A Manual of the Law of Landlord and Tenant, by Horace Surru, B.A, and
THomas SPOONER SODEN, M.A., edited by Lewis W. Cave, B.A.

In Press.

Barbour’s Chancery Practice. 2 Vols,
Lansing’s Supreme Court Reports. Vol. 5.

Dayton on Surrogates.

Fourth Edition.

New York Court of Appeals Reports. Vol. 47.

BANKS & BROTHERS,

144 NASSAU STREET, NEW vYoRK CITy,

AND Si

473 & 475 BROADWAY, ALBANY.

 

 

 

 
QPINIONS

OF THE

ATTORNEYS-GENERAL

STATE OF NEW YORK,

from the Sormation of the State Government to
Sebruary, 1872,

TAKEN FROM OFFICIAL RECORDS AND PUBLIC DOCUMENTS.

*

Wits Notes AND PuLy JNDEX.

Compiled and Arranged by

HIRAM EH. SICKELS.

ALBANY:
BANKS & BROTHERS, 478 & 475 BROADWAY
NEW YORK: 144 NASSAU STREET.

"1872.
 

Entered according to act of Congress, in the year one thousand eight hundred and seventy-two,
By BANKS & BROTHERS,
in the office of the Librarian of Congress, at Washington.

 

 

THE ARGUS COMPANY,
PRINTERS AND STEREOTYPERS,
ALBANY, N. ¥.

 
PREFACE.

The office of Attorney-General of the State of New York
has been filled by some of its ablest and most distinguished
jurists; men whose opinions have the weight of authorities,
and have been and are frequently cited as such. Many impor-
tant causes have been decided upon the strength of those opin-
ions, and Constitutions and laws have been controlled and
changed in consequence thereof.

No record of such opinions was kept in the Attorney-
General’s office until 1842, and since then the record is, by no
means, complete. Many, of the most valuable therefore have to
be sought for in legislative and other public records. The labor
of unearthing them has often been a severe and annoying one.
This first suggested the propriety and necessity of a publication
of these opinions. It was thought that, aside from its interest
and value to the legal profession, such a compilation would be
of practical benefit to nearly all classes of public officers whose
powers and duties are therein treated of.

Having determined to undertake the task, a communication
was addressed to the late Attorney-General, asking permission
to take copies of the records in his office. Letters were also
addressed to the former Attorneys-General now living; copies
of which letters and of the answers received are here given.

I have been unable to find any opinions delivered prior to
1821 (save the brief one of Attorney-General Hoffman, with
iv ‘PREFACE.

which the work commences), excepting some few scattered
through the Senate and Assembly journals, given upon referred
claims, in which no general questions were discussed.

Dated Atzany, February 10th, 1872.
H. E. SICKELS.
COMMUNICATIONS.

Atzany, August 2d, 1871.
Hon. Marsuart B. Caamprainy, Attorney-General :

Dear Sm.—tThe suggestion has been frequently made that a
compilation of the opinions of the Attorneys-General of this State
would form a work of great value, not only to the legal profession,
but to all public officers.

The numerous and important questions that have been submitted
to them, the careful preparation and exhaustive research displayed
in those opinions, and the distinguished character of their authors,
would give to such a work an authority second only to the reports
of the decisions of our courts of last resort; while, in many
instances these opinions have controlled legislation and have been
accepted as conclusive upon the questions considered, so that there
are no adjudications by the court thereon. Such a work, I submit,
will also be of value in the public offices of the State, as many of
the most valuable decisions must be sought for in the published
documents of the Senate and Assembly.

The collection, in a convenient form for reference, would save
much labor, and the publication would tend to relieve you and
your successors from the annoyance of answering frequent inquiries
upon points already thus settled.

Having determined to undertake the task of preparing such a
work, I respectfully ask leave to take a copy of the opinions
recorded in your office, also permission to publish them, or such of
them as may be of public interest.

Respectfully your obedient servant,

H. E. SICKELS.
vi COMMUNICATIONS.

Arrorney-GrneRAaL’s Orricr,
Axsany, N. Y., August 4th, 1871.

Hiram E. Stcxers, Esq. :

Dear Srx.—Your favor of the 2d instant was duly received.

The opinions of the former Attorneys-General, so far as the same
are preserved, will, if collected and published, form a valuable
compendium of law, of practical application to the powers and
duties of many public officers and the construction of statutes.
Questions too of great constitutional import are ably discussed and
answered in these opinions. Aside from the importance to the
general public, such a collection and publication would relieve this
office of a great amount of labor in answering inquiries upon
questions already settled, but repeated because notoriety has not
been given to these opinions.

So far as I have official control over the opinions, I cheerfully
consent to the publication, and authorize you to take copies of the
same.

Respectfully yours,

MARSHALL B. CHAMPLAIN.

Atsany, N. Y., January 16th, 1872.

Dear Sir.—With the consent and at the suggestion of the late
Attorney-General, prompted on his part, by a desire to relieve his
office of the task of answering repeated inquiries upon questions
that have already been disposed of, and also by the advice of
prominent members of the bench and bar who thought such a work
would be both interesting and useful, I have undertaken the task
of preparing for the press a volume containing the opinions of the
Attorneys-General of this State.

Although these opinions are gathered mostly from public records,
yet I deem it but a proper courtesy toward those gentlemen who
have filled that distinguished position, who are now living, to ask
their permission to thus use their own productions. Will you
Kindly give me snch permission? You would confer a favor, also,
COMMUNICATIONS. vil

by making any suggestions you may think proper in reference
to the proposed publication.
I am, respectfully, your obedient servant,
H. E. SICKELS.

Axpany, January 17th, 1872.
H. E. Sicxzzs, Esq. :

Dear Sir.—Your favor of yesterday is received. I concur, fully,
with the late Attorney-General as to the publication of a volume
containing the opinions of the Attorneys-General of this State, and
L am pleased to learn that you have undertaken such a work.

You have my full permission to publish any of the opinions
delivered by me while I held the office. Many of these may be
found among legislative documents during the period of my official
term, others I think, were recorded in a book kept in the office for
that purpose, while doubtless, others are not preserved at all.

Wishing you success in your undertaking, I am,

Yours very truly,
LYMAN TREMAIN.

New York, January 21st, 1872.
H. E. Stcxexs, Esq. :

Dear Srr.—You have my full and free consent to use or pub-
lish any opinions prepared by me while I was Attorney-General.
I have not one of them in my possession, and deem them, and all
similar opinions, to be public property. When published, I shall
be grateful for a copy of your work.

Very truly, etc.,

L. 8. CHATFIELD.
viii COMMUNICATIONS.

New York, January 21st, 1872.
H. E. Stoxzts, Esq. :
Dear Sm.—I have received yours of 16th inst., and am pleased
to accord you the permission you request. I presume, however,
that, as I recollect, my opinions are neither very numerous nor

valuable.
Truly yours,

JOHN COCHRANE.

OaprnsgurGH, January 27th, 1872.
H. E. Sroxets, Esy., Albany:

Drar Sm.—I have yours of 16th inst., and, when in Albany
this week, at the suggestion of Judge Miller, attempted to answer
it in person, but was not so fortunate as to find youin. I think
the publication you propose will be a very useful one. The opin-
ions are public property, and I see no reason why any of the —
gentlemen who placed them on file should object to their publica-
tion; certainly I do not.

Your obedient servant,

CHAS. G. MYERS.
ATTORNEYS-GENERAL OF THE STATE OF NEW YORK.

 

Under the First Constitution.

 

 

 

 
 
  

 
 

 

 

 

 

 

 

 

 
   
 

 

NAMES. Residences. Appointed,
Egbert Benson*...............-. Jamaica, Queens county.........-.6..+- May 8, 1777.
Richard Varick............ .| New York .............. .| May 14, 1789,
Aaron Burr............020006 New York ...... .....-065 September 29, 1789.
Morgan Lewis........... : .| Rhinebeck, Dutchess county. .| November 8, 1791.
Nathaniel Lawrence.... .. ..| Hempstead, Queens county. . ....| December 24, 1792.
Josiah Ogden Hoffman..... .-| New York ..........:.0006 ...| November 138, 1795.
Ambrose Spencer ......... -| Hudson, Columbia county .| February 3, 1802.
John Woodworth ......... Albany, Albany county...............6. February 8, 1804,
Matthias B. Hildreth...... Johnstown, (then) Montgomery county.) March 18, 1808.
Abraham Van Vechten.... ..| Albany, Albany county................. February 2, 1810.
Matthias B. Hildreth...... ..| Johnstown, (then) Montgomery county.| February 1, 1811.
Thomas Addis Emmett.... so) INOW, NOL s.cce decease (saver secaeweace August 12, 1812.
Abraham Van Vechten.... .| Albany, Albany county. .| February 13, 1813.
Martin Van Buren .............. Albany, Albany county........ -| February 17, 1815.
Thomas J. Oakley...... .......- Poughkeepsie, Dutchess county .| July 8, 1819.
Samuel A. Talcott........ ......| Utica, Oneida county................. .| February 12, 1821.

$ Under the Second Constitution.

NAMES. Residences. Appointed.
Samuel A. Talcott. ............ Utica, Oneida county ....... id sohnSeistesa’eyateve February 8, 1823.
Greene C. Brongon.............. Utica, Oneida county... -| February 27, 1829.
Samuel Beardsley............+..+ Utica, Oneida county..... .| January = 12, 1836.
Willis. Hall sc. cccnawscxac tee 20% New York... ...ssc000.0005 .| February 4, 1889.
George P. Barker ..,............ Buffalo, Erie county ..... February 7%, 1842.
Jobn Van Baren ................ Albany, Albany county ................. February 3, 1845.

Under the Third Constitution.

NAMES. Residences. Elected.
Ambrose L. Jordan ............. Hudson, Columbia county ..............] November 2, 1847.
Levi S. Chatfieldt............... Laurens, Otsego county..... ..| November 6, 1849.
Gardner Stow $ ......... 2.2... Troy, Rensselaer county...... .| December 8, 1853.
Ogden Hoffman ............ .... New York ...........02. 000005 November 8, 1853.
Stephen B. Cushing.............] Ithaca, Tompkins county..... ..| November 7, 1855.
Lyman Tremain................. Albany, Albany county ........... ..| November 3, 1857.
Charles G. Myers... .......0.65 Ogdensburgh, St. Lawrence county.....| November 8, 1859.
Daniel S. Dickinson,............ Binghamton, Broome county ..... ..| November 5, 1861.
John Cochrane......... ......45 New York ................0005 .| November 3, 1863.
John H. Martindale............. Rochester, Monroe county.. November 7%, 1865.
Marshall B. Champlain..... .... Cuba, Allegany county...... November 5, 1867.
Francis C. Barlow.............. -| New York..... .... Gain Meas PatieaaIG November 7, 1871.

 

 

 

 

* Appointed by ordinance of Convention, commissioned January 15th, 1778.
+ Resigned November 23d, 1853.
¢ Appointed vice Chatfield, resigned.
OPINIONS

OP THE

ATTORNEYS-GENERAL OF THE STATE OF NEW YORK.

e

A report from the Attorney-General, on the petition of Edward
Potter, was read, in the words following:

“ That admitting the allegations contained in the said petition to
be true, any legislative interference in behalf of the petitioner
would, in the opinion of the Attorney-General, be improper. The
grant from Ennis Graham, stated in said petition, contains a condi-
tion in itself legal, and its construction ought to be governed by
rules of law. To avoid or destroy this condition by reason of sub-
sequent events now existing, and possibly unforeseen by the grantor,
would render the construction of grants capricious and uncertain,
and in effect would contravene those rules of law, the due observ-
ance of which is essential to the preservation of the rights of
property.*

All of which is respectfully submitted.
JOS. OGDEN HOFFMAN.

March 18th, 1796.

1See opinion of Attorney-General Talcott, page 2, as to legislative power to
interfere with vested rights.
2 OPINIONS OF THE ATTORNEYS-GENERAL

(Assembly Journal, 1821, p. 961.)

The Attorney-General, to whom was referred the petition of
Martha Bradstreet, and the memorial and remonstrance of Gerard
Walton, on behalf of himself and others, respectively reports :?

That it appears, from the documents submitted to him, and from
an examination of the records in the office of the Secretary of this
State, that on the 12th day of January, in the year 1786, letters
patent were issued, under the great seal of the State, conveying
unto Agatha Evans, wife of Charles John Evans, Elizabeth Livius,
ewife of Peter Livius, Samuel Bradstreet, and Martha Bradstreet,
the petitioner, who were described therein as heirs and devisees
of Major-General John Bradstreet, deceased, and their heirs and
assigns, two certain tracts of land, particularly described in said
letters patent, to have and to hold the same, as a good and indé-
feasible estate, in fee simple, forever.

That afterward, on the 5th day of May, 1786, an act was passed
by the Legislature of this State, reciting in its preamble that a con-
troversy had subsisted between the heirs and devisees of the said
John Bradstreet, and their representatives, of the one part, and
William Walton and Gerard Walton, relative to the lands
described in sdid letters patent, both parties respectively laying
claim to them before the board of commissioners of the land office,
while they remained unpatented; and that, for settling such con-
troversy, Charles John Evans, one of the persons interested under
the heirs and devisees of the said John Bradstreet, by an agree-
ment, executed under his hand and seal, had covenanted to convey,
in fee simple, to the said William Walton and Gerard Walton
10,000 acres of the said land, particularly described in the
said act; and that the said William and Gerard Walton, for
themselves and their associates, had relinquished their claims
to the said land. The preamble further set forth, that several

1 This opinion is deemed of sufficient interest to warrant its publication, as giv-
ing the history of a title which frequently came before the courts, and attracted a
good deal of attention; and also as a masterly exposition of the rights of the pri-
vate citizen to his property, unaffected by legislative enactment, unless taken for
public use, and compensation made therefor. It was cited in, and doubtless influ-
enced, the action of the convention that framed the Constitution of 1821, in throw-
ing a safeguard around those rights.
or THE State or New York. 8

of the. representatives of Martha Bradstreet, one of the devisees
of the said John Bradstreet, were then minors; but that the said
agreement was entered into by the consent and with the approba-
tion of the attorneys of Sir Charles Gould, the sole executor of the
last will and testament, to dispose of all the real estate of the said
Martha Bradstreet; and that it was represented that the agree-
ment so entered into was beneficial to the said minors. After
which preamble, it was enacted that it should be lawful for the
said Charles John Evans, and Agatha, his wife, to convey unto the
said William Walton and Gerard Walton, their heirs and assigns
forever, the said 10,000 acres of land, and that from and
after the said Charles John Evans, and Agatha, his wife, should
have conveyed the same, all and every person or persons claiming
or deriving title under the said letters patent, should be barred and
precluded therefrom, and such title should be vested in the said
William Walton and Gerard Walton, their heirs and assigns for-
ever, as fully and absolutely as if all the persons deriving title
under the said letters patent, had become parties to said conveyance.

On the 20th day of April, 1787, an act was passed, directing a
partition of the residue of the lands granted by said letters patent,
recognizing the before mentioned statute and reciting, that a con-
veyance had been executed by the said Charles John- Evans, and
Agatha, his wife, in pursuance thereof.

The passage of the act, enabling Charles John Evaris and his
wife to make the conveyance above mentioned, and barring the
claim of all persons deriving title under said letters patent to any
part of the 10,000 acres to be granted by such conveyance,
the petitioner complains of as a violation of the vested rights which
she had acquired under the patent; and she alleges that all the
recitals in the preamble of the act, excepting one, to wit, that seve-
ral of the representatives of Martha Bradstreet were minors, are
unfounded and incorrect; and that, from strong attendant cireum-
stances, she has good grounds to believe that the whole transaction
was the result of a fraudulent contrivance between one Edward
Gould, Charles John Evans and the said Waltons.

Asa reason for not having presented her claims at an earlier
period, the petitioner alleges, and has furnished proof of the facts,
that at the time of passing the act complained of she was an infant,
4 OPINIONS oF THE ATTORNEYS-GENERAL

of about five years of age, residing with her guardian in England;
that she continued to reside within the British dominions until
after her marriage, which was at the age of nineteen, and that she
remained a femme covert from that time until the 16th day of
June, 1817, when her marriage was dissolved by a decree of the
court of chancery of this State.

And she prays, that the Legislature would either make her suita-
ble compensation for the injury and loss which she has sustained
by the said act, or afford her such other redress as may be deemed
proper.

From the memorial and remonstrance of Gerard Walton, it fur-
ther appears that the said William Walton is now dead; and that,
as well during the said lifetime of the said William as since his
decease, sundry alienations of parts of the said 10,000 acres
of land, as well by lease as absolute sale, have been made; and he
remonstrates against the passing of any act of the Legislature which
shall in any way affect the title to the lands conveyed to himself
and the said William Walton, in pursuance of the act before men-
tioned, by Charles John Evans, and Agatha, his wife.

In order that the importance and bearing of the recitals, in the
preamble of that act, may be more distinctly seen, it becomes
necessary to state some further facts in relation to the lands in con-
troversy, and the claims of the grantees under the letters patent.

It appears that those lands were claimed as included within the
limits of an original purchase from the six nations of Indians, made by
General John Bradstreet and his associates, under a license from
Sir Henry Moore, then Governor of the province of New York,
on or about the 29th of October, 1768. But the necessary pro-
ceedings were not had effectually to confirm that purchase, and
vest the full title to the lands comprised within it in the purchasers.
General Bradstreet, by his last will and testament, devised all
his real estate, except a certain farm therein mentioned, to his two
daughters, in fee, as tenants in common. One of these daughters
was Martha Bradstreet, the elder, whose representatives are
alleged to be minors, in the act of the 5th of May, 1789, authorizing
the conveyance as aforesaid, by Charles John Evans, and his wife.

Martha Bradstreet, the elder, by her last will and testament,
devised, one-third part of her real estate, to Samuel Bradstreet,
 

or THE State oF New York. 5

and Martha Bradstreet, the petitioner, one of the grantees named
in the aforesaid letters patent. She also, in that will, appointed
Sir Charles Gould, her sole executor; and authorized him to sell’
and dispose of such’real estate as she might be entitled to, in North
America, or elsewhere, and to execute conveyances for the same,
and to place out her moneys upon such securities as he should
deem proper, and in such manner and form, as to the shares devised
to her sister Agatha, and to her nephew and niece, Samuel and
Martha, the petitioner, as should be conformable to the provisions
she had before made with respect to each of said shares. This will
was regularly proved, after her death, on the 30th of March, 1782,
and letters testamentary were then granted to Sir Charles Gould,
as executor thereof.

From a copy of the agreement between Charles John Evans,
and the Waltons, alluded to in the preamble of the act of the 5th
of May, 1786, and made the principal basis of that act, which has
been submitted on the part of the remonstrant, Gerard Walton, it
appears that the agreement was executed on the 23d day of Novem-
ber, 1785; and that, by that agreement, the Waltons and their
associates, were to relinquish their claims to all the lands in con-
troversy, excepting the said 10,000 acres, in favor of the said
Charles John Evans, upon condition that he should sue out a grant
from the State to himself, of at*least 24,000 acres of those lands,
to include the said 10,000 acres, which, by the same agreement he
covenanted to convey to the said William and Gerard Walton.

From a bill of exceptions taken on trial in the circuit court of
the United States, for the southern district: of this State, in Sep-
tember, 1816, it appears more than probable, that the attorneys of
Sir Charles Gould, the executor of Martha Bradstreet, the elder,
who are supposed by the preamble of the act in question, to have
consented to, and approved of the agreement above mentioned,
between Charles John Evans and the Waltons, were appointed by
a power of attorney, executed by Sir Charles Gould on the 17th
day of February, 1786. .

The power given to Sir Charles Gould, in the will of Martha
Bradstreet, the elder, to sell and dispose of her real estate, and to
put out her moneys upon security, conformably to the provisions
which she had made with respect to the shares of the devisees,
6 OPINIONS oF THE ATTORNEYS-GENERAL

seems to have contemplated only a disposal of the property for a
moneyed consideration, which could be thus placed out upon security,
and can hardly be considered as authorizing him to consent to a dis-
position of the property upon terms essentially different. But in
addition to this, the lands in question were never the estate of
Martha Bradstreet, the elder, nor had she any title to any part
of them. They were the property of the crown or of the State,
until the granting of the letters patent above mentioned in 1786.
The will of Martha Bradstreet, the elder, could therefore convey no
power over the subject-matter of the present controversy ; and as
the consent of Sir Charles Gould, himself, to the agreement
between Charles John Evans, and the Waltons, would have been
ineffectual, the consent of his attorneys, had it been given, must
have been equally so. Besides which it is difficult to see with
what propriety it can be alleged that an agreement, executed on the
23d day of November, 1785, was entered into with the consent and
approbation of the attorneys of Sir Charles Gould, when Sir Charles
Gould did not appoint those attorneys until the 17th of February
following.

Nor does it appear, from the papers submitted, that any particu-
lar benefit was to result to the infant representatives of Martha
Bradstreet, the elder, from an agreement by which Charles John
Evans was to take out a patent for the land in his name alone,
without any provision for the security of their interests.

It is worthy of remark also that although Elizabeth Livius is one
of the grantees under the patent, and was of full age at the time,
no notice whatever is taken of her interest in the act which makes
the conveyance of Charles John Evans and his wife a bar to the
claims of all persons deriving title under that patent.

Under these circumstances, a question of serious importance
arises, involving the validity of the act of the 5th of May, 1786, so
far as it was intended to operate in destruction of any portion of
those rights which the petitioner had previously acquired under the
letters patent above mentioned.

It was not suggested in the preamble of that act, nor is it pre-
tended at the present time, that the patent under which the peti-
tioner claims was obtained by misrepresentation or fraudulent
practices of any description. Indeed, the validity of it appears
or THE STATE oF NEW York. 7

never to have been questioned. And the subsequent acts of the
Legislature, as well as the proceedings of the parties themselves,
are all bottomed upon the idea that it was a valid and effectual
grant.

It will be recollected that the act complained of was passed
before the adoption of the Constitution of the United States, and
is therefore free from any objections to its validity which might
have arisen from the particular provisions of that instrument, had
the act been subsequently passed.

But it has been already seen, that the act can derive no support
from the alleged consent of the attorneys of Sir Charles Gould,
and it is not pretended that the consent of any person having a
right to. manaye the concerns of the petitioner in relation to the
property in question, was ever obtained or even applied for; or,
that any provision has been made to secure to her an equivalent
for that portion of her interest under the. patent which was to be
divested by the conveyance of Charles John Evans and his wife.

This case, therefore, presents the question whether the citizens
of a free State can be supposed to have delegated to their repre-
sentatives in the Legislature an arbitrary power of seizing the
property of an individual, fairly and honestly acquired, not for
objects of public utility, but to transfer it to other individuals,
without the consent of the owner, and without any adequate or
even nominal compensation.

It may be safely asserted that the legitimate power of all free
governments, when traced to first principles, will be found to rest
upon an implied or express surrender of those individual rights
alone, which it is supposed to be necessary for the government to
possess, in order to protect the interests of the community at large.
Such an unlimited power over private property can hardly be con-
sidered as among that number. The Legislature is especially con-
stituted to act upon general subjects for the promotion of the pub-
lic good. And the extent of its authority, while confined in ope-
ration to the accomplishment of such purposes, it is unnecessary
now to discuss. When public exigencies require it, government
may possess itself of the property of an individual citizen; because,
whatever is his is his country’s. But the nature of society, in an
enlightened age, and those principles which lie at the foundation of
8 OPINIONS oF THE ATTORNEYS-GENERAL

all free governments, must necessarily prescribe some limits even
to the legislative power. And it is difficult to imagine where those
limits are to be found, if a State can virtually resume its own grant,
and transfer the property honestly acquired under it from one indi-
vidual to another, without even a nominal compensation.

In the case of Jackson v. Catlin (2 Johns., 263), it was con-
tended that an act of the Legislature, passed the 22d of March,
1788, directing a eale by the Surveyor-General of certain lands
described in it, operated to bar the claim of an individual who was
not a party to the act. But it was held that the language of the
statute did not necessarily require a construction so replete with
injustice. And the present chancellor, in delivering his opinion,
says that if the act had declared the sale to be a bar to such claim,
“a very serious question would have arisen on the validity of a sta-
tute taking away private property without the consent of the owner,
and without any public object or any just compensation.” And
when the case afterwards came before the Court of Errors, the late
chancellor, in reference to the same subject, expressed himself in
the most decided and energetic language. ‘It is not presumable,”
said he, “that the Legislature will ever be guilty of such a palpable
violation of the Constitution. If they should do so, it may present
an interesting epoch in the history of our jurisprudence; but it can-
not be useful to anticipate it.” It ought here to be remarked that
the act discussed in the case referred to, was passed before the
Constitution of the United States went into operation. And the
language of the late chancellor can only be considered, as alluding
to those general principles of freedom which pervade the Constitu-
tion of this State, and which produced and regulated its formation.
The doctrine, therefore, is fully applicable to the statute now under
consideration. And in the case of Fletcher v. Peck (6 Cranch, 143,
etc.), Judge Jounson, in declaring his opinion that a State cannot
thus resume or impair the rights which have been acquired under
its own grant, expressly disclaims all support from the Constitution
of the United States, and rests that opinion wholly upon general
principles, and on the reason and nature of things. The present
chief justice of this State, in the case of The People v. Platt (17
Johns., 215), considers the decision of the Supreme Court of the
United States as establishing the doctrine, to which he also gives the
or THE STaTeE oF NEw York. 9

sanction of his own authority, that a State is prohibited not only
by the Constitution of the United States, but by the general princt-
ples cominon to our free institutions, from passing any law to
impair without compensation a title held by virtue of a grant from
such State. And the same doctrine is fully and emphatically
enforced by the chancellor in the case of Gardiner v. The Village
of Newburgh (2 Johns. Chancery, 166).

Upon a question so delicate, as well as so important, the Attorney-
General has thought that the respect always due to the acts of the
supreme power of the State, requires that he should fortify himself
with the authorities which have been recapitulated, before express-
ing the opinion which he now gives, that the act of the 5th of May,
1786, as far as it professes to make the conveyance of Charles John
Evans and his wife, a destruction of those rights, which the peti
tioner had previously acquired under the letters patent above men
tioned, transcended in its nature and object, the legitimate power
of a Legislature under a free government, and is, so far, inoperative
and invalid.

If this opinion be correct, it will be perceived that there is no
necessity for legislative interference to relieve the petitioner, as she
is still at liberty to pursue her remedy in the ordinary course of
justice, in the same manner as if the act complained of, had never
been passed.

And, on the other hand, if that act is to be considered as a valid
exercise of the legislative authority, unrestricted as that was by the
Constitution of the United States, it follows that vested rights
have been acquired by the conveyances under it, which, since the
adoption of that Constitution, the Legislature of the State have
clearly no power to annul or to impair.

The Constitution of the United States has expressly prohibited
the several States from passing any law impairing the obligation of
contracts; and the Supreme Court of the United States, which pos-
sesses a paramount and controlling authority upon all cases involy-
ing a construction of that instrument, have decided in the case of
Fletcher v. Peck, already alluded to, that a grant of certain lands
made by the Governor of the State of Georgia, in pursuance of an
act of the Legislature of that State, was an executed contract, within
the intent and meaning of the above mentioned prohibition, and
10 OPINIONS OF THE ATTORNEYS-GENERAL

that any subsequent act of the Legislature, annulling or impairing
the estate of those holding bona side under that grant would be
unconstitutional and void. The same principle was again main-
tained by them in the case of the State of Wew Jersey v.
Wilson (7 Cranch, 174), and has been since fully adopted by the
Supreme Court of this State in the case of Zhe People v. Plait,
before cited. ;

The justice, as well as the constitutionality of this doctrine, so far
as it relates to the rights of those who have become bona fide pur-
chasers under the Waltons, is too evident to stand in need of eluci-
dation ; for, if we assume as a fact that the act complained of, was

(~ obtained, as suggested in the petition, by a fraudulent contrivance
” between Evans, the Waltons and Edward Gould, still those to
“whom parts of the estate have been since transferred without notice
and for a valuable consideration, are, in every sense, free from the
guilt which is alleged to have polluted the original transaction.
And a court of equity, in the application of some of its cardinal
maxims, would be bound to leave them unmolested in their pos-
sessions, whatever sentence justice might require to be pronounced
upon the parties to the fraud.

Whether the Legislature possesses the power, in case such fraudu-
lent combination should be proved, to abrogate the act, so far as
the parties who procured its passage are concerned, is a question,
perhaps, of greater difficulty. But admitting such power to exist in
that branch of the government, it is not, in the opinion of the
Attorney-General, necessary to exercise it in the present case. For
it appears to be now well settled in England, and from the language
of the late chancellor, in the case of Catlin v. Jackson (Cruise Dig.,
tit. 33, §§ 49, 50, 52; 8 Johns., 557), there seems to be little doubt
that the same principle would be maintained in this State; that
where the passage of a private act is procured by fraudulent sug-
gestions, the Court of Chancery will relieve against its operation.
And the mode of administering justice in that court is so pecu-
liarly adapted to the detection and punishment of fraud that it
seems advisable to leave all causes within its jurisdiction to be deter-
mined by the salutary rules which that tribunal has adopted.

In no point of view, therefore, does it seem proper for the Legis-
lature to interpose, to vary the situation of any of the parties claim-
or THE STate or NEW Yoru. 11

ing to hold under the above mentioned conveyance of Charles John
Evans and his wife.

How far it may be expedient, under the circumstances of this
ease, to authorize an extinguishment of the whole or any part of
the petitioner’s claim, in order to avoid the complaints and applica-
tions for relief from other quarters, which might possibly arise
from the successful prosecution of it in a court of law, or to provide
for the ultimate remuneration of the petitioner, in case it should be
held that any of her rights have been destroyed by the act above
mentioned, and the conveyance in pursuance of it, is a question
peculiarly within the province of the Legislature to decide, and
one upon which the Attorney-General does not feel himself called
upon to give any opinion.

All which is respectfully submitted.

SAMUEL A. TALCOTT,
Attorney-General.

(Assembly Journal, 1822, p. 278.)

The Attorney-General, to whom was referred the report of the
committee of the honorable the Assembly, on the erection and
division of counties, upon the petition of the freeholders and inhabi-
tants of the towns of Milo, etc, praying for the erection of a new
county, respectfully reports :*

That by the amended Constitution, submitted for the adoption
of the people of this State, by the late convention, it is provided in
the fifth section of the first article, that the State shall be divided
into eight senate districts; which are particularly designated, the
county of Ontario being attached to the seventh and the county of
Steuben to the eighth district ; and by the sixth section of the same
article, in which provision is made for the future alteration of the
districts, according to the number of inhabitants, excluding aliens,
paupers and persons of cvlor not taxed, it is provided that the dis.
tricts shall consist of contiguous territory, and that no county shall |
be divided in the formation of any such district.

1 See post, pp.67 82, and note, p. 119.
12 OPINIONS oF THE ATTORNEYS-GENERAL

It appears that the territory which the petitioners propose to
have erected into a new county, comprises a part of the county of
Steuben and a part of the county of Ontario, and is situated in dif-
ferent senate districts.

Under these circumstances, the committee of the honorable the
Assembly, entertaining doubts of the legality of any division and
erection of a new county from adjacent counties, which compose
parts of two senatorial districts, submitted the question to the
House, whether a division, as prayed for by the petitioners, would
interfere with the meaning and spirit of the new Constitution, in
case the same should be adopted.

It must be obvious, that if the spirit and meaning of that instru-
ment are, in any particular, doubtful, there can scarcely be a safer
guide to its true interpretation than the sentiments of those who
framed it, while the subject in question was under their discussion.
It is probably within' the recollection of the House, and may
be seen by recurring to the published account of the debates and
proceedings of the convention, that one of the leading principles
which governed that body, in determining the number of senato-
rial districts into which the State should be divided, was the pro-.
priety of preserving counties entire; and the principal objection
urged against the project of dividing the State into thirty-two dis-
tricts, was that it could not be carried into effect with a due regard
to the just apportionment of the senators, according to the number
of inhabitants, without breaking in upon the integrity of counties,
and splitting them into territorial sections. Upon the same prin-
ciple it was, that the convention, in regulating the future altera-
tions of the senatorial districts, provided that no county should be
diyided in the formation of such districts. And, indeed, it apyears,
from the whole discussion of this subject in the convention, that
the division of counties in such a manner as to place parts of the
same county in different senatorial districts was an evil, which, in
the opinion of that body, ought to be sedulously avoided.

It is true, that the letter of the amended Constitution only pro-
hibits the division of counties in the formation of senate districts,
But if that instrument is to receive such a construction as will per-
mit the Legislature, after those districts are formed, to erect new
counties, from territory situated in different districts, it is obvious
or THE STarE or NEw Yorx. 13

that all the evils apprehended by the convention, and which it was
intended to guard against, may still be introduced. For it can
make no difference whatever, as far as relates to the inconveniences
to result from having part of a county in one senate district and
part in another, whether this division is produced by running the
line of a senate district through a ‘county already erected, or by
erecting a new county to lie on each side of that line.

It ought not to be forgotten, in the consideration of this ques-
tion, that the convention, in parceling out the districts as desig-
nated in the amended Constitution, deviated from a strict appor-
tionment of the senators, according to the number of inhabitants
(not aliens, etc.), in the territory from which they were to be
elected, for the sole purpose of avoiding the division of counties.
And it can hardly be thought that they would have varied so much
from that principle of apportionment, for the sake of preventing
that inconvenience, if it had been supposed that, notwithstanding
their caution, the very same evil was to be introduced by the next
Legislature which was to follow them.

The Attorney-General is, therefore, of opinion, from a view of
the provisions of the amended Constitution, in connection with the
sentiments of its framers, while this subject was under discussion
in the convention, that the erection of a new county, composed of ©
parts of two senatorial districts, as prayed for by the petitioners
before mentioned, would interfere with the meaning and spirit of
that instrument.

All which is respectfully submitted.

SAM’L A. TALCOTT,
Attorney-General.
14 OPINIONS OF THE ATTORNEYS-GENERAL

(Assembly Journal, 1828, p. 577.)

REPORT?

The Attorney-General, to whom was referred the bill, entitled
“ An act to open and improve the road through the Oil Spring
Indian reservation, in the counties of Allegany and Cattaraugus,”
to report whether the same required the assent of two-thirds of the
members elected to each branch of the Legislature, respectfully
reports :

That the bill referred to him, contains a section making it the
duty of the treasurer of the county of Allegany, to pay to the com-
missioners appointed by the act to open and improve said road, or
to their order, the sum of $420, out of the first money that shall
come to his hands after the first day of October next, for taxes due
to the Treasurer of this State ; and enacting that the receipt or
receipts of the commissioners shall be passed to the credit of the
said county treasurer by the Comptroller, when presented him.

The Attorney-General cannot entertain any doubt that this bill
appropriates the “public moneys,” within the sense and spirit in
which the terms “ public moneys” are used in the Constitution ;
notwithstanding the moneys which it is contemplated to appropri-
ate are not yet in the treasury, and are not, in fact, raised from the
taxes which are expected to produce them. Any other construc-
tion, reducing the safeguard which the Constitution has provided
for the protection of the public moneys and property against unad-
vised or hasty legislative interference, to a mere provision against
the appropriation, without a vote of two-thirds of the members
elect, of the moneys in the treasury at the time, or the property
owned by the State at the time, would only change the operation
of the evil intended to be guarded against, without materially alter-
ing its nature or lessening its effects. If the Legislature can, by

1Tn the many cases wherein the meaning and application of the words “local
or private,” as used in section 9 of article 7 of the old Constitution, and in section
9 ofarticle 1, and in section 16 of article 3, of the present one, have been in
question, this opinion and the next succeeding one have been frequently cited.
It was freely quoted by the counsel for the appellant in the case of The People v.
Allen (42 N. Y., 378), and the reasoning and conclusions were substantially
adopted by the court. See, also, The People v. Supervisors of Chautauqua (43 N.
¥., 10), where most of the decisions are collated and commented upon.
or THE STATE oF NEw Yoru, 15

the vote of an ordinary majority, dispose of the moneys mentioned
in the bill, because they are not collected, then they have the
power, in the same way, always to dispose of the whole com-
ing revenue of the year. Such an interpretation of that arti-
cle of the Constitution which relates to the subject in question,
would, it is apprehended, render it of comparatively small value.
For the result would be, that although the Legislature could not
appropriate the moneys now in the treasury, to private or local pur-
poses without a vote of two-thirds, yet they might, in effect, bring
about a result similar in its consequences by the vote of a bare
majority, appropriating the same amount of the expected revenue
of the next year. And it matters but little to the interests of the
State, whether a given sum now in the treasury should be applied
to public disbursements, that would otherwise be satisfied by the
future revenue thus anticipated and applied to such private or local
purposes. Another question, however, presents itself under the
reference made by the Assembly, and that is whether the appro-
priation of public moneys, as directed by the bill referred to, is an
appropriation of them to local or private purposes within the mean-
ing of the Constitution.

As the road to the improvement of which these moneys are to be
applied is not a private road, but one to be devoted to the general
and common use of our citizens and others who may find it con-
venient to travel it, it may be safely said that the moneys are not to
be appropriated to a private purpose. But, in the opinion of the
Attorney-General, the purpose to which they are to be appro-
priated is a local one, within the meaning of that provision of the
Constitution alluded to.

The words of the provision are: “The assent of two-thirds of the
members elected to each branch of the Legislature shall be requisite
to every bill appropriating the public moneys or property for local
or private purposes.”

A cardinal principle to be observed in the interpretation of a
Constitution (as well as of less solemn instruments between indivi-
duals) is to give it such a construction as will give meaning and
efficacy to every phrase contained in it, provided that can be done
without manifest contradiction of the sense of other passages, or
such an extraordinary encroachment upon the rights of individuals,
16 OPINIONS oF THE ATTORNEYS-GENERAL

or the leading principles of government or law, as no man can rea-
sonably believe was in the contemplation of the framers of the
instrument, or of those who adopted it.

By applying that principle to the present case, it will be seen
that the introduction of the word “local” into the provision in
question, was not for the purpose of leaving the extent and effect of
that provision the same as if only the words “private purposes”
had been inserted init. And if it was not intended to leave its
extent the same, then it must have been intended either to narrow
it by confining it to purposes which should be both local and pri-
vate, or to enlarge it by extending it to purposes which might be
local, though not private.

It can scarcely be supposed that it was intended to limit the ope-
ration of the clause to such appropriations only as are both local
and private, for such a construction would exclude all appropria-
tions of money for individual purposes and uses where there are no
provisions in the bill requiring its expenditure in any particular sec-
tion of country. And it is not believed that it was the object of
those who framed or who adopted the Constitution to leave such
cases without restriction. If this be correct, then it follows that the
intention was, to extend the effect of the clause to cases of appro-
priation of public moneys for purposes which, though public and
not private, were still loca? Such is believed to be the true inter-
pretation of this article of the Constitution, and that the bill in
question falls immediately within it.

The Attorney-General finds himself supported in this opinion, by
a practical construction given to that article by both Houses of the
last Legislature. The act of March 15th, 1822, entitled “An act
for completing the military road leading from Plattsburgh to the
county of Franklin,” contains a section directing the treasurer to
pay, on the warrant of the Comptroller, to the commissioners, or
their order, the sum of $3,500, to be by them applied and expended
in making, completing and extending the said road to the west
bounds of Clinton county. It was deemed requisite in both Houses
of the Legislature that the bill, on account of this provision, should
receive the assent of two-thirds of the members elected, and by
reference to the original act in the secretary’s office it will be found
to be regularly certified by the proper officers, that that number of
or THE Srare or. New Yors. 17

members in each branch of the Legislature voted in the affirmative
on its passage.

All which is respectfully submitted.

SAMUEL A. TALCOTT,
Attorney-General.

(Assembly Journal, 1823, p. 705.)

The Attorney-General, to whom was referred an act authorizing
the construction of a basin in the city of Albany at the termination
of the Erie and Champlain canals, to report to the Assembly
whether it requires the votes of two-thirds of the members elected
to each branch of the Legislature to pass it, respectfully reports :*
That the bill empowers certain commissioners named in it, to raise
by subscription a sum of money to be expended in the construction
of a mole or pier in the Hudson river, within the city of Albany,
extending from the State arsenal dock to a point opposite Hodge’s
dock, in the line of Hamilton street, and opposite to the docks
fronting the harbor.

The fifth section of the bill directs, that as soon as the said mole
or pier and a sloop lock and certain bridges mentioned in the bill
shall be finished in a good and workmanlike manner, and one of
the acting Canal Commissioners shall give a certificate thereof,
which shall be recorded in the office of the secretary of this State,
and the commissioners appointed by the act shall have filed in the
office of the Comptroller, an account of the expenditures of erecting
said mole or pier and the sloop lock connected therewith, the com-
missioners of the land office shall grant, by letters patent, to the
board of commissioners appointed by the act, the land under the
water of the Hudson river occupied by the said mole or pier and
sloop lock, subject to such reservation or condition as in the said
act is after mentioned.

The condition referred to is contained in the tenth section, which
provides that if the Legislature of the State shall, within five years

1 See post, p.188, also Corning v. Green (23 Barb., 88), where the act is held
unconstitutional because it alters a corporation and was not passed by a two-
thirds vote as required by the Constitution of 1822; but the points here discussed
are decided in accordance with this opinion. (See p. 52.) —

2
18 OPINIONS OF THE ATTORNEYS-GENERAL
®.

from the first day of May next, make provision for the repayment
to the said commissioners of the amount expended by them in erect-
ing the said mole or pier, bridges and sloop lock, the grant of the
commissioners of the land under the mole as aforesaid shall be void.

The sixth section of the act provides for the collection of double
wharfage by the dock master for all vessels and other craft navigat-
ing the Hudson and entering the basin, and the payment of one-
half the amount, after deducting a compensation for his services, to
the proprietors of the pier, in proportion to their respective rights
and interests therein. This section also authorizes the proprietors,
to charge wharfage for vessels lying at the pier on the east side
of it.

The seventh section of the act directs the commissioners as soon

as the grant of the land under water shall have been made, or as
soon thereafter as they shall deem it for the interests of the subscri-
bers to the fund, to divide the pier into lots not exceeding forty
feet in width, and sell the same at public auction, and divide the
money arising from such sale among the subscribers to the fund or
~ their legal representatives.
‘The eighth section enacts that a space of at least twenty-five feet
in width on the east side of said pier, shall be forever kept open and
clear for the use of teams and all persons who may have occasion to
use the same as a passway.

The ninth section adopted instead of that in the printed bill pro-
vides for the construction, by the commissioners appointed by the
act, of a sloop lock at the southern termination of the basin; directs
the Canal Commissioners to charge tolls on canal boats, etc., enter-
ing the basin from the canal or which shall leave the basin for
transportation on the canal; computing the length of the basin in
the same manner as if it were a part of the canal; and that the
increase of tolls, paid into the treasury in consequence of such
charges, shall be paid on the warrant of the Comptroller to such
person as shall be authorized by a majority of the owners of the
pier to receive the same; and the amount, after deducting a sum
sufficient to repay the expense of attending the sloop lock and
draw bridges, and for necessary repairs of the lock and pier, shall

be divided among the proprietors of the pier according to their
rights and interest therein.
or THe SraTe or New Yorx. 19

The last section renders the commissioners liable to pay to the
proprietor of land adjacent tothe basin, the damages which may
be sustained by them, in consequence of their lands being over-
flowed, by reason of the erection of the pier and lock, to be
appraised in the manner therein specified.

These, it is believed, are all the sections of the act which can
become material in the consideration of the question submitted.
And it will be seen that there is no provision in any of them for
the collection of any moneys for the benefit of the public. For,
although the tolls charged by the Canal Commissioners are to be
paid into the treasury, they are to be paid over again for the sole
benefit of the proprietors of the pier, and to repay their expenses,
leaving the residue, if any, to be divided among them.

Neither the commissioners, nor the proprietors, are constituted
@ corporation by the act; and it becomes, therefore, only material
to inquire, whether it contains any provision for appropriating the
public property or money for local or private purposes, within the
spirit of the Constitution. .

By directing the commissioners of the land office to make a
grant of the land under the pier, the bill assumes that it is public
property, and renders it unnecessary that any remarks should be
submitted to the Assembly upon that subject.

It has -been suggested, however, that the bill does not make a
complete and absolute appropriation of the land, inasmuch as the
State has reserved the power of resuming it within five years, upon
certain conditions; and that, for this reason, it does not come
within the restriction contained in the Constitution.

It will very readily occur, that if this cireumstance is to exempt
the present bill from the operation of that restriction, it would be
an easy matter for a bare majority of the Legislature, in effect, to
accomplish the very thing which the framers of the Constitution
intended to divest them of the power to do. Nothing more would
be necessary, in case of an act appropriating public land to the use
of an individual, than to reserve to the State the right of resuming
it at a future time, taking care, however, to clog the exercise of
that right with conditions so disadvantageous, that the State would
never comply with them, and the land would in effect, be granted
to the individual forever. It may be urged that such an improper
20 OPINIONS oF THE ATTORNEYS-GENERAL

exercise of power, by the majority of a Legislature, ought not to be
anticipated. To this may be answered, that the Constitution itself,
inthe article alluded to, contemplates the possibility, that a majority
of the Legislature may be disposed to make improper grants of
public property, and this was the very evil which that provision
was intended to check.

The history of some of our sister States, furnishes abundant evi-
dence, that such legislative grants have sometimes originated from
motives sufficiently powerful, (to say the least of them) to produce
all that would be necessary, under such a construction, to make the
grant effectual here. It is impossible, therefore, to foresee how
much the value of the constitutional check would be diminished,
by adopting such an interpretation of that instrument, as would
make ita guard only against cases of mere mistake or improvi-
dence. As to the grant contemplated by the present bill, it will
be seen however, that it is only to become void on condition that
the Legislature make provision by law, for the repayment to the
commissioners of the amount expended by them. As it can hardly
be supposed that the Legislature would make provision for paying
the purchase-money of a right to be bought by the State, otherwise
than out of the funds of the State, it seems to follow that the
appropriation in the bill is an absolute appropriation either of the
public Zand or the public money, which is to be paid to get the
land back again. In either view, it would be an appropriation
within the spirit of the Constitution, provided it shall appear to
be for a local or private purpose, within the meaning of that
instrument.

Upon this part of the subject it has been suggested, that as the
act requires, after building the mole or pier, that twenty-five feet
of it in width, on the east side, should be forever kept open as a
public highway, that an equivalent is thus paid by the proprietors
for the grant of the land under the pier, and that such grant cannot
be considered in the light of a mere gratuity or donation to the
individuals concerned. It has been contended that this is virtu-
ally a sale of the land, and that the bill therefore, no more requires
the assent of two-thirds of the members elect, than a bill author-
izing a sale in the ordinary manner of any part of the public pro-
perty. Upon reflection however, it is believed that a material
or THE STATE oF New Yoru. 91

distinction will be found to exist between the two cases. It is
true that whatever is granted upon a consideration, whether that
consideration consists in the payment of money or building a pier
and keeping open and repairing a road, cannot be considered as,
technically a gratuity. But it is believed that the equivalent to be
given, to take a case out of the effect of this clause of the Constitu-
tion, must be something more than a mere accommodation, to a
’ particular place, or to individuals who may happen to trade with
that place. It is difficult perhaps, to lay down any precise rule
upon the subject, which may be applied with strictness to every
case, and the terms of which, shall effectually guard against every
possible attempt to infringe upon the spirit and meaning of the
Constitution. It is, however, a principle too clear for elucidation,
and too well settled to need support, that a provision of a statute
or a constitution, which is intended to prevent or to remedy an
evil, ought to receive a liberal construction, to extend it to all cases
in which that evil may be found. And, indeed, upon general
grounds, it must evidently be the duty of the representatives
of the public, whether in a legislative or other capacity, to
give such a construction to the Constitution, as will most .effectu-
ally save the rights and property of those who adopted it, when-
ever it can be done without compromiting other and more valuable
interests or principles. Keeping this doctrine in view, the Attor-
ney-General has come to the conclusion, that to take a case out of
the restriction in the Constitution, the equivalent to be given for
property ownéd by the State, in its capacity of a body politic, must
at least be an equivalent from which the State is to derive some
benefit, in the same capacity. It is true, that this rule does not,
in its terms, necessarily preclude every abuse. The Legislature
might grant property to an immense amount to an individual, for
so small a benefit to the State as to render the grant, for all
substantial ends, an appropriation of the property to private
purposes. But whenever such a case shall arise, it will be
time enough to inquire what other rule of construction will
reach it. It is sufficient for the present purpose to say, that the
mere erection of the mole and keeping open a public highway upon
it, however beneficial this. may be to the citizens of Albany, and to
individuals transacting business at that place, is not necessarily and
22 OPINIONS oF THE ATTORNEYS-GENERAL

of itself such a benefit to the State, in its capacity-of a body politic,
as will exempt the bill from the operation of the restriction in the
Constitution. But without dwelling longer upon this part of the
subject, the Attorney-General begs leave to refer the Assembly, to
the report which he had the honor to make to that House at their
present session, upon the bill for opening a road through the Oil
Spring Indian reservation, and to add, that he can perceive no dif
ference in principle, between giving land to construct a road of
stone and giving money to construct one of earth. ,

But there is another view of the provisions of this bill, in relation
to the constitutional question which has grown out of them, which
is not only of consequence as regards the present application, but is
important also for the settlement of some general principle, by
which certain classes of future applications may be tested.

The phraseology of that part of the Constitution, which has given
rise to the present reference, is in the following words: “ The assent
of two-thirds of the members elected to each branch of the Legisla-
ture shall be requisite to every bill appropriating the public moneys
or property for local or private purposes.” Every expenditure of
money for the purpose of erecting works of any description, may
be considered in one point of view a local expenditure, because the
money is expended in the construction of works within a particular
location. But still it must depend upon the object which is to be
answered by those works, whether the purpose of the expenditure
isa local one. For instance, if the Legislature should think that a
toll bridge across the Iludson would be a profitable source of reve-
nue to the State, and should make provision for the erection of one,
directing the tolls to be paid into the State treasury, the expendi-
ture of the money might, in one sense, be called a local expendi-
ture; but the purpose of the expenditure would be to benefit the
State as a body politic, by bringing more revenue into the coffers
of its treasury. So an appropriation of money to build a lock upon
one of the great canals, to facilitate the passage of boats upon it,
and thereby increase the quantity of merchandise to be trans-
ported, and consequently the amount of tolls to be received, would
not come within this provision of the Constitution, as an appropria-
tion of money for either a local or private purpose, although the
money would be expended within a particular district of country ;
or THE STATE or New Yoru, 93

-and the same principle must be applied to an appropriation of other
public property, by which similar objects are to be attained.
Taking this principle in connection with what has been already
remarked, that the equivalent which is to be given for property,
owned by the State in its capacity of a body politic, in order to
farnish a sufficient reason for exempting the case from this restric-
tion of the Constitution, should be something from which the State
is tu derive some benefit in the same capacity, and applying them
together to the circumstances of this case, it is believed will furnish
a solution of the present question.

The State derives a benefit, as a body politic, from everything
which directly increases its annual revenue, or which increases the
value of its public property, or diminishes the amount of its neces-
sary public expenditure. A bill therefore, appropriating public
property for the promotion of either of these purposes, is not a bill
requiring the assent of two-thirds, as a bill appropriating public
property, either to local or private purposes, within the true intent
and meaning of the Constitution. The Legislature appears to have
acted upon this view of the subject, in passing the act of April 5th,
1822, to authorize grants for the purpose of promoting the settle-
ment on public lands in the counties of Essex and Franklin. By
that act, the persons applying for grants, were required to make
certain improvements on the lots, but no money was required to
be paid by them into the treasury, in order to entitle them to let-
ters patent. And the fifth section of the act declares, that the
intent of it was to augment the value of the public property in
those counties, by forming actual settlements and improvements
thereon. The act was not considered as requiring a vote of two-
thirds, and was not certified to have received such a vote, by the
speaker or president of the Senate. It was thought to be a case
not coming within this particular provision of the Constitution,
because, although it was an appropriation of public property to
private persons, it was not supposed to be an appropriation for a
private or local purpose, inasmuch as the object to be answered by.
it was an augmentation of the value of other lands, then owned by
the State as a body politic, in which every member of the State
must of necessity be interested. The Legislature appears, also, to
have proceeded upon the like grounds in passing the act of 17th of
24 OPINIONS or THE ATTORNEYS-GENERAL

April, 1822, to authorize and encourage the construction of the
harbor at Buffalo creek, the expected western termination of the
great canal. So far as this act relates to the Buffalo harbor, it
seems to have a very strong bearing upon the case now under con-
sideration, upon the general principle of increasing the value of
public property. The object was to render the canal as profitable
as possible. In order to this, it became of great importance, that
every facility should be afforded to get merchandise upon it; and
one of the means by which this would be in some measure accom-
plished, was to construct a safe and commodious harbor at
the termination of that great work. The act therefore pro-
vides, that in case certain persons should complete a passage
across the sand bar near the mouth of Buffalo creek, of sufi-
cient depth and breadth to admit vessels drawing eight feet
water, to pass at all times with convenience, from Lake Erie
into the deep water of the creek, by such works as the Canal Com-
missioners should think reasonably permanent, then it should be
the duty of the commissioners to certify such fact, and proceed to
audit and allow, all reasonable expenses incurred in the construction
of the works; and the amount thus to be allowed, not exceeding
$12,000, is directed to be indorsed on certain bonds, given to the
people of the State for money loaned to the Buffalo harbor com-
pany, provided the persons constructing the works should first”
relinquish their claims in them to the State. Such an indorsement
on the bonds is certainly equivalent, in principle, to the appropria-
tion of so much money or property, as it is the relinquishment of a
right which would have produced the money. And although the
circumstance, that the claims of the individuals in the works were
to be ceded to the State, prevents all possible objection to the appro-
priation, upon the ground of its being for merely private purposes,
yet it does not determine the question, whether it is an appropria-
tion for a local purpose. That question depends upon the general
principles before stated. The expenditure of the money was
undoubtedly a local expenditure; but if the object of it, was to
facilitate the communication between the other ports of Lake Erie,
or the lakes still farther west and the great canal, thus of course to
increase the quantity of merchandise to be transported on it, and
consequently the revenue and property of the State, by augmenting
or THe STATE oF NEW Yor:. 95

the amount of tolls to be received by the State, the purpose was
not a local purpose, but one in which the State as a body politic
was deeply interested, and one from which it expected to derive
important benefits in that capacity. Under this view of the subject
the Legislature considered the act as not coming within the consti-
tutional restriction, and accordingly it will be found not certified to
have been passed by the votes of two-thirds. To apply these prin-
ciples to the bill now under consideration, it will be found, perhaps,
upon reflection, to be quite as important, though not as difficult or
expensive, to make a free and full communication with the canal at
‘its eastern, as at its western termination. And whatever tends to
facilitate his communication and reduce the expense of it, by
“enabling,” to use the language of the Canal Commissioners in
their report upon this subject, “transhipments to be made between
canal and river craft without the delay and expense of cartage and
storage,” will consequently, in some degree, by rendering the trans-
portation cheaper and more speedy, increase the quantity of mer-
chandise that will find its passage on the canal, and of course the
amount of toll that will be received. The case therefore seems, for
this reason, to come within the principles acted upon in passing the
two bills of the last session, which have been referred to.

If the question was now presented for the first time, it might be
matter of serious consideration, how far it would be consistent with
prudence, to give such a construction to this clause of the Constitu-
tion as would exempt from its operation bills framed with a view to
contingent, or merely probable benefit, or even to a certain one
where there are no sufficient data by which to estimate its value.
In the present case however, the discussion of that question does
not become necessary ; and since the doctrine has been sanctioned by
the Legislature, and the council of revision, in passing the two acts
referred to, and especially that for promoting settlements on the pub-
lic lands at the north, perhaps such a discussion would be improper.

But in relation to the bill now referred, there is yet another con-
sideration of public benefit to be presented, which is fortunately
susceptible of more definite computation. By referring to the
report of the Canal Commissioners, upon the subject of this basin,
dated 11th February, 1823, and which has been already alluded to,
the House will find that the Canal Commissioners will be under
26 OPINIONS of THE ATTORNEYS-GENERAL
/

the necessity of incurring a considerable expense, in connecting the
boat and lot navigation at the arsenal lot. This expense they
estimate at nearly as much as the construction of the sloop lock, in
the manner contemplated by the bill. And as the construction of
the works now proposed would, as may be inferred from that
report, save that expense at the arsenal lot, ora part of it, and at
the same time answer the purpose of preventing expense and delay
in transhipments, they thought it might be proper for them to
construct the sloop lock at the expense of the State, reserving a
right to exact toll. The case therefore, is simply this: The inte-
rests of the State, in regard to this great inland navigation by the
canal, and the revenue to be derived from it, require the construc-
tion of certain works to connect the boat and sloop navigation.
Provision is already made for this in the powers of the Canal Com-
missioners, who may do it at the arseral lot; but in that case, they
will pay the expense out of the public moneys. But there is
another, and from the report of the Canal Commissioners, it would
seem, a more beneficial way of accomplishing the same object,
wholly or in part, in the same manner proposed in this bill, for
which no public moneys are to be expended, and no other public
property granted, than this strip of unprofitable land under the
waters of the Hudson. This therefore, is not an appropriation of
this land to a local or private purpose. It is indeed appropriated
to private individuals; and so would the money be, which must
otherwise be paid out by the Canal Commissioners at the arsenal
lot. But neither would be an appropriation, within the restriction
of the Constitution, because the purpose, is the building of works
to increase the revenue and property of the State. The appropria-
tion of the land, as contemplated in the bill, will save to the
treasury the public money which must otherwise be expended at
the arsenal lot. It will connect the sloop and boat navigation, in a
more advantageous manner than that proposed at the arsenal lot.
And if the expenditure of so much public money can be saved, and
the object better answered, by granting a strip of land yielding no
profit to the State, and which will probably never produce any
benefit to the public funds, unless disposed of in this or some simi-
lar way, such a purpose, it is believed, is neither local nor private,
within the intent and meaning of the Constitution.
or Tay. State or Nuw Yor. 27

The Attorney-General is therefore of opinion, that the bill
referred, does not require the assent of two-thirds of all the mem-
bers elected to each branch of the Legislature.

All which is respectfully submitted.

SAMWL A. TALCOTT,
Attorney-General.

NS

(Senate Journal, 1824, p. 494.)

The Attorney-General, to whom was referred the bill entitled,
“ An act to lay out and improve a road from Chace’s Patent to
Lake Pleasant, in the county of Montgomery,” to report his opinion
on the constitutionality of the same, respectfully reports:

That the bill proposes to appropriate, for the making and
improvement of the road, every second lot of the lands belonging
to this State, through which the road shall pass.

The resolution of the honorable the Senate does not specify, the
particular constitutional question upon which the opinion of the
Attorney-General is required ; but from the report of the commit-
tee, which accompanied the bill, it would seem that the only ques-
tion is, whether setting apart every second lot, for the purpose
above mentioned, would violate that part of the tenth section of
the seventh article of the amended Constitution, which is expressed
in the following words: “The proceeds of all lands belonging to
this State, except such parts thereof as may be reserved or appro-
priated to public use, or ceded to the United States, which shall
hereafter be sold or disposed of, together with the fund denomi-
nated the Common School :Fund, shall be and remain a perpetual
fund, the interest of which shall be inviolably, appropriated and
applied to the support of common schools throughout this State.”

The construction to be given to this part of the Constitution, in
relation to the bill in question, is a matter of importance to the
interests of the State in various points of view, which renders it
worthy of serious consideration. And while on the one hand,
such an interpretation ought not to be given, as will destroy the
perpetuity and inviolability, intended to be secured to that fund by
the Constitution, it seems equally proper, on the other hand, to
avoid such a construction as might defeat the intention of those
28 OPINIONS oF THE ATTORNEYS-GENERAL

who framed and adopted that instrument, by rendering any part of
the fund wholly unproductive, or of comparatively little value.

It will be observed, that the proceeds of the lands are appropri-
ated to the school fund, by an application of the interest accruing
thereon to the support of common schools. The Constitution,
therefore, evidently contemplates such a disposition of the land, as
will produce proceeds from which interest may be received ; and,
of course, such a disposition of those proceeds, when received, as
will produce interest. It could not be intended that the purchase-
money of the lands, when sold, should lie idle in the treasury, and
that annual interest upon the amount should be paid from the
general funds of the State. The Legislature must therefore, have
a discretionary power in relation to this subject; in the first place,
to dispose of the lands in the manner, which they may deem best
adapted to enhance those proceeds; and in the second place, to
dispose of the proceeds, when received, in the manner supposed to
be best calculated, to secure the payment of that interest upon
them, which is to be applied to the benefit of the schools.

From the report of the committee of the Senate, it appears, that
the tract of country through which the intended road is to be laid,
has been long surveyed and offered for sale at public auction ; but
on account of its inferiority in quality, it remains unsold and unset-
tled, and will probably continue a wilderness for a century to come,
without producing any revenue whatever, unless something is done
to invite settlers, by giving one-half of it to make roads, and induce
purchasers for the remainder.

The question then seems to be, whether this land thus set apart
for the benefit of the school fund, which is at present unproductive
and likely long to remain so, may be rendered beneficial to the fund
which it was intended to benefit, by appropriating a part to such a
purpose, as will give value to the residue, or in other words, whether
an appropriation of the proceeds of lands, from which no proceeds
can be realized in their present state, deprives the Legislature of
the power of disposing of a portion of those lands in such a manner
that proceeds may be realized from the tract.

The commissioners of the land office, in their report to the honor-
able the Senate upon the petition of Peter Young, on the 9th of
April, 1823, in speaking of the school fund, express themselves
or THE StTaTE or NEW York. 99

thus: “The act of 1819 and the Constitution also, it will be per-
ceived, speak only of the proceeds of the lands; but still the com-
missioners are of opinion, that the spirit of the latter instrument not
only prohibits the Legislature from a different appropriation of the
proceeds of the land, literally speaking, but equally prohibits such a
disposition of the land itself as will prevent any proceeds being
received from it.” It will be recollected, however, that this was
said in regard to an application, the effect of which would have
been, in the view which the commissioners were then taking of it,
to give the land to an individual, without any proceeds, direct or
indirect, and without any prospect of benefit to the school fund in
any shape whatever. To such a case the decision of the commis-
sioners applies, and in the opinion of the Attorney-General, is
undoubtedly correct. But the present question is presented under
different circumstances. Here the result of the application, as it
appears from the report of the committee, is not that the land,
designated and set apart for making the road will be lost to the
school fund, but that in fact it will be appropriated in such a way,
as to produce the greatest possible advantage to that fund that can
ever be expected from it.

By recurring to the language of the Constitution, it will be found to
reserve to the school fund the proceeds of lands, which may be sold
or disposed of, thereby evincing that the framers of it, had in view
not only direct sales of the public lands, but other modes of dispos-
ing of them, from which in effect proceeds might be expected. To
dispose of property, when the terms are used unqualifiedly, gene-
rally though not necessarily, includes the idea of a complete trans-
fer of the property to some other person; but perhaps, the
expression in the present case may be most reasonably interpreted,
to import not merely a disposal of the lands in such a way as
includes the absolute transfer of the title, but in a larger and more
beneficial sense, to authorize also a temporary disposition of the
use of the property, as by lease or otherwise, for the benefit of the
fund. With any mode of disposing of the lands, which may fall
under the latter description, the present bill has no connection ; but
if the Constitution admits, in any case, of the absolute transfer of
the title, otherwise than by direct sale, it would seem to allow
of such a disposition as is contemplated by the bill, viz.: The appli-
30 OPINIONS oF THE ATTORNEYS-GENERAL

cation of a part of the lands, from which no proceeds can be
expected in their present state, to such a purpose as will produce
proceeds from the residue.

To illustrate this idea by an example, applicable to the present
case, suppose the State to own two lots of land, each of which is
worth, in its present condition, only $100, and that by appropri-
ating one lot for the purpose of making a road through the other,
that other might be sold for $300; the additional sum for which
the second lot can then be sold, proceeds from this appropriation
of the first, and may therefore, be considered, in substance and
effect, the “proceeds” of the first lot, within the spirit of the
Constitution.

It is believed that the proceedings of the Senate, in 1823, in
relation to the bill entitled “An act to improve a road through the
St. Regis reservation, and for the benefit of the common school
fund,” may be regarded as, in some measure, corroborating the
foregoing opinion. To judge of this however, it is necessary to
give the substance of the bill, and trace its progress in the
Legislature.

After reciting that the making and improvement of the road
through the St. Regis reservation, would enhance the value of the
property of the State in those lands, and render them productive
of immediate revenue to the Common School Fund, it proceeds with
an enactment, that $2,000 shall be appropriated out of the first
avails of lots, which might thereafter be sold, belonging to the
State, in the St. Regis reservation, for the purpose of improving
the said road. Thus far, it will be seen, that the bill for improving
the St. Regis road, in 1823, and that now under consideration
(taking into view the accompanying report of the committee), are
similar in principle. For, although the former proposed to appro-
priate, for the improvement of the road, the actual proceeds of the
lands, and the latter to appropriate the land itself, a fair and liberal
construction of the Constitution will reach both cases, if it reaches
either.

But the bill for improving the St. Regis road, differed from
the present bill in this respect: It contained a section, direct-
ing the Comptroller and Treasurer, to charge to the general fund
of the State, and pass to the credit of the Common School Fund, a
or THE STATE oF New Yorg. 81

sum or sums equal to the amount of moneys, thus to be paid out
from the avails of the lands of the State. This section was intro-
duced by the committee of the Assembly, who presented the bill,
for the purpose of obviating the constitutional objection now raised
to the bill referred. —

Whether the introduction of this clause made any difference in
regard to that objection, becomes now a subject of inquiry, in order to
determine how far the votes upon that bill, may be considered as fur-
nishing a legislative opinion, upon the general objection now raised
against the bill to lay out the road in Montgomery. And at this
time the Attorney-General feels bound to express the opinion,
which he has long entertained, that. the insertion of the section
alluded to, could make no difference with the constitutional question
upon the bill, and for this reason the Constitution specifically
appropriates a particular fund to a particular purpose, and declares
that it shall be inviolably and perpetually applied to that purpose.
If therefore, the Legislature takes a part of that fund, thus identi-
cally set apart, and apply it to another purpose, the Constitution is
violated, and it is no answer to say, that they have given to common
schools, a charge against the general funds of the State, in lieu of
that fund which the Constitution had specifically pledged. The
Legislature have no right to divert to other purposes, a fund which

-the Constitution has thus appropriated to common schools, The.
framers of that instrument selected the fund to be thus appropriated,
and the Legislature have no constitutional power to substitute
another in its place.

In this view of the subject therefore, the introduction of the sec-
.tion referred to in the bill for improving the St. Regis road, could
have no operation upon the constitutional objection presented, and
the constitutionality of that bill must have depended, upon the
general question presented by the bill now under discussion. This
appears to have been so considered by the judiciary committee of
the Senate, who reported upon it on the 18th day of*April as fol-
lows: “That they have had the said act under consideration, and
they are of opinion that: the appropriation prayed for by the bill
will be beneficial to a section of country, through which the road is
contemplated to be made, and may tend to the benefit of the Com-
mon School Fund.
32 OPINIONS oF THE ATTORNEYS-GENERAL

“But the committee conceive, that there may be constitutional
objections to the passing of this bill, upon which an honest differ-
ence of opinion may exist, and without committing themselves upon
the subject they respectfully beg leave, to refer the consideration of
this bill to the Senate in committee of the whole.”

From a perusal of this report, it would seem that the committee
had in contemplation only the general question, whether the Legis-
lature had power to appropriate a part of the lands, to increase the
value of the residue; and which; according to the view of that bill,
which has been taken by the Attorney-General, was the only ques-
tion which could properly grow out of the section of the Constitu-
tion setting apart the Common School Fund. According to his
recollection, the bill was discussed upon the general ground in com-
mittee of the whole, where the first enacting clause was lost upon
the vote, ten members voting in the negative and ten in the
affirmative. But upon a subsequent day, the 28d of April,
the Senate proceeded to a consideration of the report of the
committee of the whole, and refused to concur in it. And,
upon the third reading of the bill, twenty members voted for
its passage, thereby evincing their opinions that it was not
unconstitutional. The bill however, was considered as lost, in
consequence of a belief, that it required the votes of two-thirds of
the members elected. From a fair construction therefore, of the
act for improving the St. Regis road, and a full consideration of the
principles contained in it, accompanied by a view of its progress in
the Assembly and in the Senate, the final vote of the latter body,
in relation to it, seems to indicate an opinion of the majority, upon
the general question involved in the bill now referred, and against
the validity of the objection that has been raised.

Upon the whole therefore, the Attorney-General is of opinion,
that according to the preseat situation of the lands, through which
the road now contemplated is intended to be laid, as their situation
has been represented by the committee, there is no constitutional
prohibition, forbidding the Legislature to set apart a portion of
those lands in the manner proposed, for the purpose of enhancing
the proceeds from the tract. The object intended to be secured by
the Constitution, was an appropriation of the lands to the benefit
of common schools; and it cannot be a violation of the spirit of
or Tam SvaTe or NEw York. 83

that Constitution, or an improper diversion of the property from
the purpose intended, to use it for promoting the increase of that
very fund, for whose benefit it was thus set apart. -

It may perhaps be urged, that the advantage anticipated from
this appropriation of the land, is of uncertain amount, and in some
measure contingent. The answer to this is, that if the Legisla-
ture possess any power over the subject, it is like all their other
powers, to be regulated by the exercise of sound discretion and pru-
dence. That the benefit to be expected is uncertain or of doubtful
value, will furnish strong reasons for the exercise of caution and
vigilance. But after all, the Legislature must decide, with the
best lights which can be procured, upon the propriety of the mea-
sure proposed ; and if, in sincerity and good faith, they now believe
that the interests of the school fund, would be advanced by the
appropriation, they have the right to make it, and their present
constitutional power cannot be made to depend upon future
contingencies.

That this construction of the Constitution does not preclude ~
every possible abuse of legislative power is readily admitted; but
‘it is to be added, that no construction can be found that would do
so. If it is feared that the Legislature may be tempted, if they
have the power, to make grants of land, when in fact the real
object is not to benefit the school fund, it may be feared, also, that
they might be induced to make improper and improvident loans
of the proceeds, if the lands had been sold. And if we could sup-
pose them capable of voluntarily, sacrificing the interests of the
school fund in one way, they might be equally willing to sacrifice
them in another. If they would be willing to give away the lands,
they would be willing to sell them at half price. So that in any
way of considering the matter, this power, like others, can never
be restricted beyond the possibility of abuse ; but the people of the
State must depend, in this as in other cases, for a fair and honest
exercise of the power, upon the integrity, discretion and prudence
of the representatives, to whom they choose to commit the legisla-
tive management of their concerns. _

Hitherto it will be perceived, that the opinion of the Attorney-
General, has been founded upon the report of the Senate in relation
to the probable effects of the bill, and upon an assumption that the

3
34 OPINIONS oF THE ATTORNEYS-GENERAL

object of the Legislature in passing it, would be to produce that
advantage to the school fund, which the committee anticipate. This
course has been taken from a belief, that the reference was made
with a view to obtain his opinion, upon the principle involved in the
passage of bills, for such a purpose, rather than upon the manner in
which the bills should be drawn, or the method in which that pur-
pose should be evinced. It will not be considered however, as
traveling out of the subject, to suggest to the honorable the Senate,
the expediency of requiring in all such bills, a clause or recital that
like the preamble to the bill for improving the St. Regis road, will
show on the face of the act itself the object of the Legislature in
passing it.

Of this it may be said, as has been before said, in relation to bills
falling within other provisions of the Constitution, that “such a clause
may be inserted by a Legislature determined on the measure,” when
in reality the purpose is such as to come within the restriction.
Still it must be admitted that a course, which requires from those
who pass the bill a solemn declaration by their votes, that the pur-
pose of it is such, as will take the case out of this prohibition of the
Constitution “by increasing the value or income of the School
Fund,” and of course, their belief that the bill will answer that
purpose, is at least an additional safeguard, and as such worth
something. It will be seen too, that this course will prevent all
mistake upon the subject, as each member will see upon the face of
the bill, the grounds upon which it must be supported, if at all, and
will give his vote a full knowledge of the principles involved in its
passage. And for the purpose also of forming precedents for future
Legislatures, “there seems to be a propriety in holding, that those
who pass a bill for such a purpose should declare that purpose on
the bill itself, rather than leave it to be guessed at, from other docu-
ments or extrinsic facts, by persons who may not have so full a view
of the subject as the Legislature themselves.”

For these reasons and others, perhaps the most prudent course
to be taken in relation to bills, appropriating the public lands in such
a manner, as only to produce to the school fund a contingent and
indefinite benefit, without any means of estimating with exact pre-
cision, whether the benefit when received will be equivalent to the
_appropriation, would be, not to assume in the first instance that such
or THE Stave of NEw Yorx. 35

an uncertain object is the purpose of the act, unless the Legislature
declare it to be so. At the same time, as the proper management
of this fund may, and must sometimes require, that the Legislature
should act upon the best opinions, which they can form from informa-
tion without sufficient data for precise calculation, if in such cases,
they declare the object in the bill, it furnishes the means of deter-
mining at once, that they act with a_view to the constitutional pro-
vision, and for the accomplishment of a purpose not prohibited by
it. At present it only appears, that the committee have acted upon
principles and for purposes which authorize the appropriation, and
if the Attorney-General is correct in his opinion, as to the most
prudent course to be adopted in the case, the bill itself should be
amended so as to contain a clause, which would show in ease it
should pass, that it passed upon those principles, and for those
purposes.

All which is respectfully submitted.

SAMUEL A. TALCOTT,
Attorney-General.

(Assembly Journal, 1826, p. 936.)

The Attorney-General, in obedience to the resolution of the
honorable the Assembly, directing him to report his opinion,
whether the provisions of the several acts relative to lotteries can
be enforced, consistently with the provisions of the Constitution of
the United States, and if so, to report any alteration or new pro-
visions, which in his opinion, are necessary to carry into effect the
intention of the Legislature, in passing the several acts in relation
to this subject, respectfully reports :

That by the forty-second section of the act relative to lotteries,
passed the 13th day of April, 1819, the several acts of the Legisla-
ture then in force, in relation to lotteries, were repealed, with
a proviso, merely preserving the liabilities of the lottery man-
agers and others, which might have been incurred under those
acts.
36 OPINIONS of THE ATTORNEYS-GENERAL

Upon an examination therefore, of the act of 1819, and the sub-
sequent statutes which have been passed,’ the opinion which the
honorable the Assembly has called for has been formed. And in
order to present more clearly the grounds of it, the Attorney-Gene-
ral has thought it proper, to give a brief abstract of those parts of
the different laws, as they now stand, which he deems important
to be considered in answering that call.

First. As to the prohibitions in the several acts; and,

Secondly. As to the means of enforcing those prohibitions.

The second section of the act of 1819, prohibits all persons from
opening, setting on foot, carrying on, promoting, drawing or
making, publicly or privately, within this State, any lottery, game
or device of chance, of any nature, kind or name whatsoever; and
from exposing or setting to sale, by any such means, any real estate,
goods, wares or merchandise, or any other thing whatever.

The third section, prohibits all persons from vending, selling or
bartering, or offering so to do, any ticket or tickets of any lottery
not authorized by the Legislature of this State, or of any game or
device of chance; and also prohibits all persons from purchasing
such tickets, or becoming adventurers, or being in any way con-
cerned in any such lottery or game of chance, either by printing,
writing, or in any way publishing an account thereof, or where
tickets may be had or obtained, and generally, from being in any
way aiding and assisting in the same.

The sixth section, prohibits opening or keeping any office or
other place for registering the numbers of tickets in any lottery not
authorized by the laws of this State; and also the publishing in
any way the setting up or using any such office or place.

The seventh section prohibits insurances, etc., on tickets ; which
prohibition was extended, in 1822, so as to include insurances, etc.,
upon tickets in lotteries authorized by this State; and the ninth
section forbids the vending of tickets by persons not duly licensed.
The eighth section contains a proviso, that nothing in the act shall
be construed, to affect any lottery established, or to be established,
by or under the authority of the United States, in Congress assem-

1Incorporated in article 4, title 8, chapter 20, part 1 of Revised Statutes (1
Edmonds’ Statutes, 618, e¢ seg). See also chapter 504, Laws of 1851, as amended
(4 Edmonds’ Statutes, 40).
oF THE STATE oF NEW York. 37

bled, or any act done, or to be done, by any person in relation
to such lottery.

This proviso of the eighth section was repealed in 1820, by the
fourth section of the act to amend the act of 1819 (Session Laws of
1820, p. 25); thus leaving the existing prohibitions applicable to
lotteries authorized by the general government, as well as to private.
lotteries and those authorized by the governments of other States.

These prohibitions still continue, without any material alteration,
except as to the venders of tickets, which it is unimportant to
particularize ; and the first question to be answered is, whether they
can be enforced without a violation of the provisions of the Consti-
tution of the United States. .

Upon this question, the Attorney-General is of opinion, that so
far as those prohibitions go to forbid the vending, in this State, of
tickets in any lottery, authorized by Congress in the exercise of its
general legislative powers, for a national object, and clearly express-
ing its intention, that the tickets shall be vendible throughout the
Union, such prohibitions cannot be enforced, and the law of the
State must yield to the paramount law of the general government.

But in relation to lotteries established under the laws of any of
our sister States, the case admits of a very different consideration.
In regard to each other, and without reference to the general gov-
ernment, the several States which form our confederacy are distinct
and independent sovereignties, each possessing full powers to regu-
late its internal police, and to repel, by penal sanctions, the effects,
within its own territory, which might result from the laws of any
other. In the language of the Supreme Court of the United States,
in the case of Martin v. Hunter’s Lessee (1 Wheaton, 325), “the
sovereign powers vested in the State governments, by their respec-
tive Constitutions, remained unaltered and unimpaired, except so
far as they were granted to the government of the United States.”
It cannot be doubted, that each State originally possessed the power
to prohibit the sale of lottery tickets within its own territory; and
it will not be pretended, that since the adoption of the Constitution,
this power is exclusively delegated to Congress, to be exercised by
that body alone. Hence, it seems necessarily to follow, that the
States still possess that power, and may freely exercise it in all cases,
where it does not interfere with the means adopted by Congress, in
38 OPINIONS of THE ATTORNEYS-GENERAL

the legitimate execution of the powers delegated to the general
government.

This opinion is fortified by the fact, that some of the most enlight-
ened Legislatures of other States have enacted similar prohibitions ;
and is directly supported by the decision of the Supreme Court of
the United States in the case of Oohens v. Virginia (6 Wheaton).

That case was shortly this: Congress, in the act to incorporate
the inhabitants of the city of Washington, authorized the raising
of money by lotteries, to effect an important improvement in the
city. Under this power, a lottery was duly created by the corpo-
ration of Washington; and the Cohens were indicted for selling
some of the tickets in Virginia, under a law of that commonwealth,
prohibiting all persons from buying or selling, within it, any ticket,
or part of a ticket, except in such lottery or lotteries as might be
authorized by its own laws. The State court gave judgment against
them, and this judgment was affirmed by the Supreme Court of
the United States. In giving the opinion of the court, Chief Jus-
tice MarsHAtt, in reference to the act incorporating the inhabitants
of Washington, expresses himself thus: “Two questions arise on
this act: Ist. Does it purport to authorize the corporation, to force
the sale of these lottery tickets in States where such sales may be
prohibited by law? If it does, 2d. Is the law constitutional?”
The court decided the first point in the negative, upon the ground
that, had it been intended to interfere with the penal laws of a
State, where they were not leveled against the legitimate powers of
the Union, but had for their sole object the internal government
of the country, such an intention would have been clearly and
unequivocally expressed; and that the act in question contained
nothing to warrant such a construction.

If then, tickets in a lottery established in the District of Colum-
bia, under the authority of Congress, which has power to legislate
over the whole Union, and exclusive power over that district, could
not be legally sold within a State, against the prohibitions of a law
of that State, it seems clearly to follow, that such a sale of tickets
in a lottery, authorized only by another State having no power of
legislation whatever except over its own territory, would be equally
within the prohibition, and the seller equally liable to punishment
for a violation of that prohibition.
oF THE STATE OF NEW York. 39

Having disposed of that part of the subject, upon grounds which
have been the more extensively presented, from a belief that a
different opinion had been expressed by some, it remains to con-
sider.

Secondly. The means of enforcing the prohibitions of the law.

The fourth section of the act of 1819, makes void every transfer
of property in pursuance of any unauthorized lottery, game or
device of chance before mentioned.

For the violation of the second section by setting on foot, pro-
moting, drawing, etc., any such lottery or game of chance, the
offender, on conviction, is to forfeit the amount of the whole sum
or value for which the lottery was made; and if that sum or value
shall not be satisfactorily ascertained to the court at the time of
trial, then the forfeiture is $2,500; and in either case the offender
is to be committed to the common jail until the forfeiture, with
the costs of prosecution, shall be paid.

For a violation of the third section, by selling or offering to sell,
or by purchasing any ticket or tickets in such lotteries, etc., or by
publishing an account of them, or where such tickets may be had,
the forfeiture is $250.

For a violation of the sixth section as to unlawful register offices,
the punishment is a fine not exceeding $1,000, or imprisonment
not exceeding twelve months.

For a violation of the seventh section forbidding insurances, ete.,
the punishment isa fine not exceeding $2,000, or imprisonment
not exceeding twelve months, or both.

And the penalty upon an unlicensed vender in those places where
licenses are yet required, is the sum of $100 for every ticket he
shall sell, or be concerned in selling, to be recovered by any person
who will prosecute for the same.

The other penalties are to be adjudged upon a conviction or
indictment ; and by the first section of the act, it is made the duty
of all justices of oyer and terminer or gaol delivery, and the justi-
ces of the general sessions in the respective counties in all their
charges to grand jurors, in their respective courts, strictly to charge
them diligently to inquire of, and to present, or indict alt offenses
against that act. And by the seventh section, all justices of the
peace, mayors, sheriffs, etc., are directed to use their utmost endea-
40 OPINIONS oF THE ATTORNEYS-GENERAL

vors, to prevent the setting on foot or drawing of any such lotteries,
etc., and the sale of tickets in them.

But it is believed, that of late, the courts have seldom, if ever,
charged the grand juries to inquire into such offenses. And the
Attorney-General is at a loss to account for this omission, unless it
has arisen from a mistake as to the second section of the act of
1824 (session of 1824, page 55), to amend “the act to suppress
duelling ;” in which it is enacted, among other things, that from
and after the passing of this act of 1824, it shall not be necessary
specially to charge the grand jury, to inquire into any offenses
against the act entitled, “an act to prevent private lotteries, and to
restrain insurance of lottery tickets.” Why this was inserted he is
unable to conjecture, for the act referred to is not that which has
just been the subject of comment, but is one of the revised laws of
1813, and was repealed five years before the act of 1824 by the
forty-second section of the act of 1819.

There is, also, a provision in the act of 1819 (see thirty-seventh
section), making it the express duty of the managers of lotteries
then already appointed, or who might thereafter be appointed, to
collect proofs of offenses against that act in respect to private lotte-
ries. In respect to the sale of tickets in the lotteries of other
States. In respect to the vending of tickets without license; and
in respect to the insurance of lottery tickets. And also to prosecute
and bring to justice all persons offending in the premises. The
managers were not exonerated from the duty, by the third section
of the act to limit the continuance of lotteries, passed in 1822,
which transferred the literature lottery to the institutions interested
in it. The Attorney-General is not informed that any managers
have instituted prosecutions or collected any proofs.

In 1822, by the act to prohibit the drawing of lotteries, etc., the
Legislature made still further provisions for the suppression of the
illegal practices complained of. The first section enacts, that if any
person shall, within this State, vend, sell, barter, etc., any ticket of
any lottery or other game or device of chance, other than such as
have been authorized by the Legislature of this State; the person so
offending shall forfeit the sum of $2,000, to be sued for and recovered
in an action of debt. But the act does not declare by whom or in
whose name the suitis to be prosecuted. If it should be supposed
or THE STATE OF NEw York. 41

that it might be prosecuted in the name of the people by their law
officer, it will be readily seen that when the offense was such that,
notwithstanding the law of 1819, judges did not charge against it,
grand juries did not indict for it, peace officers did not endeavor
to prevent it, managers did not prosecute for it, nor collect proof
of it, it could scarcely be expected that proof would be volunta-
rily furnished to him who had no power, like that of grand juries,
to compel the attendance and disclosure of witnesses.

There is also, another provision in this last mentioned act, the
third section, which enacts that all penalties incurred under the act
of 1819, may be recovered in an action of debt by any person prose-
cuting therefor, to be applied, when recovered, according to the
provisions of that act; 2. ¢., one-half to the informer, etc. But this
does not seem to have produced any suits. And indeed it may be
remarked in relation to it, that most of the penalties in that act are
uncertain, in depending upon the value for which the lottery was
made in one case, and in others upon the discretion of the court.
And there seems also, some incongruity, or at least, something not
usual in legislation, as the two laws now stand. For example, the
seller of tickets in an unauthorized lottery, is by the act of 1819,
to be indicted, on conviction to be fined $250 and the costs of prose-
cution, and to be committed to the common jail until the amount
shall be paid; then by the act of 1824, which does not profess to
alter the act of 1819, he is, under the first section, to forfeit $2,000,
to be recovered in an action of debt; and under the third section
he is to be prosecuted by any common informer, in another action
of debt, to recover the penalty incurred under the act of 1819.

It is believed that these are all the provisions of the different
lottery acts, which are important to be considered under the resolu-
tion calling for this report. The Attorney-General has thought it
proper to present them thus fully, that the honorable the Assembly
might have a view of the whole subject at once, to enable them the
more easily to decide whether any, and what, further provisions
ought to be made in the premises.

In relation to that part in the resolution, which calls upon him to
report any alteration or new provisions that, in his opinion, are
necessary to carry into effect the intention of the Legislature in their
former prohibitions, he confesses that, when he looks back upon the
42 OPINIONS OF THE ATTORNEYS-GENERAL

penalties which are already affixed to their violation, and the injunc-
tions upon different officers in relation to those measures which
would seem likely to bring offenders to justice, he feels himself at
a loss what farther provisions to recommend, unless it be to increase
the penalties, and give a greater proportion of them to the persons
who shall give information of the violations of the law, or to appro-
priate money to defray the expenses of collecting the testimony and
giving the necessary information, to the district attorneys or grand
juries of the different counties, where such offenses may be com-
mitted. He submits, also, to the honorable the Assembly the pro-
priety of so amending the law of 1824 as to free it from the
objections hereinbefore suggested.

All which is respectfully submitted.

SAMUEL A. TALCOTT,
Attorney-General.

(Senate Document, 1832, No. 8.)
REPORT

‘Of the Attorney-General concerning the power of the Legislature
over corporations, submitted in obedience to a resolution of the
Senate.

The Attorney-General, in obedience to the resolution of the
Senate, requiring him to submit “an opinion on the legal effect of
the provision in section eight, at page 600 of the first volume of
the Revised Statutes, on acts of incorporation, in cases where the
acts themselves contain no such provision ; and also an opinion on
the legal effect of those provisions, by which the Legislature reserves
to itself the right to alter, modify, or annul certain acts in cases
where such reservation is contained within the act,” respectfully
submits the following opinion:

Title three of chapter eighteen of the first part of the Revised
Statutes, relates to “the general powers, privileges, and liabilities of
corporations ;” and is applicable in all its provisions to corporations sub-
sequently created, though some of the sections do not extend to char-
ters previously granted. One object ofthe Legislature in making this
or THE STATE or NEw York. 43

enactment, seems to have been to declare what powers and privi-
leges might properly be exercised by every corporation, and under
what restrictions and limitations, without the necessity of repeating
those matters in every subsequent act of incorporation. And,
accordingly, the second section declares, that the several powers
enumerated in the first section, “shall vest in every corporation
that shall hereafter be created, although they may not be specified
in its charter, or in the act under which it shall be incorporated.”
And in many of the acts of incorporation, which have been passed
since the Revised Statutes went into operation, the powers enume-
rated in the first section have been omitted, although some of them
are essential to the very existence of a corporation.

Section eight, referred to in the resolution of the Senate, is in the
following words: “The charter of every corporation that shall
hereafter be granted by the Legislature, shall be subject to altera-
tion, suspension, and appeal, in the discretion of the Legislature.
No reason is perceived why this should not apply to a subsequent
grant, in which it is not expressly mentioned, as well as the provi-
sion conferring privileges not specifically contained in the charter.
And the Attorney-General entertains no doubt, that this section (as
well as the first and second), is of the same force and effect in rela-
tion to all corporations which have since been created, as though it
had been re-enacted in each particular charter, except in cases (if
any such exist), where the act of incorporation has modified the
general provision, either in express terms or by necessary impli-
cation.

A similar case of a law, containing general provisions applicable
to corporations that might afterward be created, will be found in
the act relative to turnpike companies, passed in the year 1807 ; and
which, with some modifications, has continued to the present time.
(5 Web. Laws 50; 1 R. L., 1813, p. 228; 1 R. S., 577.) Since
the passing of this act, charters for turnpike companies have usually
contained little more than the names of the persons incorporated,
a designation of the route of the road, the amount of capital stock,
the names of the commissioners for receiving subscriptions, and the
rate of tolls which the company might demand; while most of the
general powers, privileges, and duties of the corporation were only
to be found in the general turnpike act. It is true that laws incor-
44 OPINIONS oF THE ATTORNEYS-GENERAL

porating turnpike companies, usually contain a clause giving to the
corporation all the privileges, and subjecting them to all the condi-
tions and restrictions contained in the general law. And the like
remark is applicable to other corporations created since the enact-
ment of the Revised Statutes. Such a course might have been
adopted by way of more abundant caution, or merely as a reference
to those general provisions, without which the charter would be
apparently imperfect. But it is believed that such a clause or refe-
rence is, in no case, necessary ; and that without it the corporation
created would be entitled to all the powers and privileges, and be
subject to all the limitations and restrictions granted or contained
in the general law.

II. The legal effect of reserving to the Legislature, in the charter,
the right to alter, modify, or annul the same, remains to be con-
sidered. This reservation has usually been made in the following
form: “ The Legislature may at any time alter, modify or repeal this
act ;” or in words of the like import. In such cases it cannot be
questioned that the Legislature has the power, with no other limi-
tation than its discretion, to take away all or any of the privileges
granted, and to put an end to the corporation at pleasure. The
provision in question cannot properly be considered a condition,
and void on the ground, that it is repugnant to the grant, but it
operates by way of limitation, and determines the extent of the
franchise. Thus, where corporate powers are granted for twenty
years, with a reservation of the right to repeal the act, both pro-
visions taken together amount to no more than this, that those
powers may be exercised for twenty years unless the Legislature
shall sooner terminate the grant. And where certain privileges
are given, and the power to alter is coupled with that to
repeal, it only amounts to a grant of those privileges, until the
Legislature shall deem it proper to change, alter, or take them
away.

In this mode of considering the question, it is obvious that the
repeal or alteration of an act, creating a corporation does not, in any
proper sense of the terms, interfere with vested rights, nor impair
the obligation of the contract, between the State and the persons on
whom the franchise was conferred ; for charters of this description
confer no rights, but such as the corporators have consented to hold
or THE STATE oF NEW YorE. A5

at the will of the legislature, and the compact with them is but an
agreement, that they may use their privileges until they shall be
recalled.

The right to resume the grant, where that power is reserved in
the charter, has been admitted by several eminent jurists, and has
been adjndged by the present chancellor of the State; and it is
believed that it has never been judicially questioned.t And a pre-
cedent of high authority, and directly to the point, will be found in
the Senate journal of 1824, pages 537, 538, where that body, by a
vote nearly unanimous, adopted a resolution in the following words:

“ Resolved, That, by the reservation of the right to alter, modify
or repeal [a particular act mentioned in the resolution], the Legis-
lature have the power to alter, modify or repeal said act (at their
will and pleasure, without assigning any reasons therefor), and that
the question of repealing is not a question as to right, but as to the
expediency.”

The senator who moved the resolution, calling for this opinion,
mentioned to the Attorney-General, that the power under consider-
ation had been questioned in some legal opinions published in the
newspapers the last year. In this he was mistaken. The opinions
alluded to, were given upon a charter which did not reserve the
power to repeal, but only those to alter, amend or modify. And
the question discussed was, whether the power to alter, amend or
modify, would extend so far as to authorize the taking away of a
material part of the privileges granted by the charter. That matter
was examined by gentlemen of great eminence in the legal profes-
sion; and although they entertained different opinions upon the
merits of that particular case, it was virtually conceded by all, that
had the power to repeal been also reserved, the authority of the
Legislature to take away the corporate privileges could not have been
questioned.

Respectfully submitted.

GREENE C. BRONSON,
Attorney-General.

1 See 21 N. Y., 9, 16; 22 id., 9.
46 OPINIONS oF THE ATTORNEYS-GENERAL

(Senate Document, 1832, No. 45.)
OPINION

Of the Attorney-General, in relation to grants of land under water,
submitted in obedience to a resolution of the Senate.

The Attorney-General, in obedience to the resolution of the Sen-
ate, requiring “an opinion on the following questions, relative to
grants of land which have heretofore, or may hereafter be, given
by the Commissioners of the Land Office, under the act authorizing
them to grant land under water around the county of Richmond:

“1st. What rights and privileges are given to the holders of those
grants? and,

“9d. How far the public rights and privileges heretofore enjoyed
for fishing and other purposes are affected by grants so given ?”

Respectfully submits the following opinion :

By the Revised Statutes, page 208, section 67, it is enacted, that
“the Commissioners of the Land Office shall have power to grant, so
much of the lands under the waters of navigable rivers or lakes, as
they shall deem necessary to promote the commerce of this State.”
And by section 69 it is declared, that the “ powers of the commis-
sioners shall also extend to the lands under water adjacent to and sur-
rounding Staten Island.” The first statute upon this subject, after
the revolution, was passed May 5, 1786, and was substantially like
the present law, with the exception that navigable lakes and the
waters surrounding Staten Island were not included. The power
of the commissioners was first extended to those waters by the act
of 1815. The following references will show the progress of legis-
lation on this subject: Laws of New York, 1 I. and V., 332, section
18, act of 1786; 1 Gr. 284, same act; 1 R. L., 1801, page 299,
section 11; 5 Web. (1809), 273; 1 R. L., 1813, page 298, section
4; Laws, 1815, page 201; 1 R. S., 208, article 4, the present
law."

Grants of land under water have uniformly been made without
pecuniary consideration, or any other advantage to the State than
such as should result from the promotion of its commerce. The
letters patent issued in such cases have been in the form usually

1 See chapter 282, Laws of 1838; power limited to authorizing the erection of
docks.
or THE STATE oF NEw Yorr. AZ

employed for conveying an estate in fee, and with few exceptions,
have contained no condition or reservation.

It does not appear, what method was pursued at an early day, for
ascertaining the real intention of the applicant, or how much land
it was proper to grant, in any particular case; but in the year 1818
the commissioners adopted the following general regulations, which
have been adhered to ever since:

“« Resolved, That no grant of lands under water be hereafter made,
unless the applicant makes affidavit, that he intends forthwith to
appropriate the lands applied for to the purposes of commerce, by
erecting thereon a dock or docks ; and shall also produce an affidavit
from the first judge of the county, or the supervisor and town clerk,
or two of the assessors of the town in which the said lands are situ-
ate, stating that the lands applied for are not more than what are
necessary for the purposes aforesaid, and that they believe that it is
the bona fide intention of the applicant to appropriate the said lands
to the purposes of commerce.

“ Resolved, That this board will not act upon any application for
lands under water, unless the same be accompanied with an accu-
rate map and full description of the lands applied for, and those
adjoining.”

It was believed that these regulations would furnish a sufficient
safeguard against fraud and imposition: and that no man would
apply for a grant with the secret intention, contrary to his oath, of
appropriating the land either in whole or in part to any other pur-
pose than that contemplated by the statute. But a case is said to
have occurred the last year where a patentee, without having done
anything whatever for the advancement of commerce, has set a
claim to the exclusive right of fishing, which was before cominon
to all the citizens. Should the facts of this case prove to be such
as have been mentioned, the patent may be repealed by scire faczas,
on the ground, that it was obtained upon false and fraudulent sug-
gestion; and the proper legal measures will be taken for that
purpose. 3

But fraud in obtaining the patent, is not the only ground on
which the grantee of lands under water may lose his rights ; for it
is believed that a condition is implied by law in every such grant,
that the land shall, within a reasonable time, be applied to the pur-
48 OPINIONS oF THE ATTORNEYS-GENERAL

poses contemplated by the statute; and that the neglect to make
such appropriation will work a forfeiture of the estate.

Independent of the consideration, that patents of this description
may be annulled on the ground of fraud or forfeiture, the Attorney-
General is inclined to the opinion that such grants do not, under
any circumstances, confer on the holders, the exclusive right to use:
the lands for any purpose other than that mentioned in the statute.
And if this opinion be well founded, it follows as a consequence,
that until the premises are actually appropriated to the specified
object, such rights and privileges as were before enjoyed in common
with the citizens, are neither taken away or impaired by the grant.

For the purpose of obviating all doubt on this subject the
Attorney-General has prepared, and the Commissioners of the Land
Office have adopted, a new form of letters patent to be issued
in future, which will effectually guard the public againt all impo-
sitions.

Respectfully submitted.
GREENE C. BRONSON,
Attorney-General.

(Senate Document, 1833, No. 33.)

The Attorney-General, in obedience to a resolution of the Senate,
requiring “his opinion whether the exemption from taxation, granted
by the ninth section of title four of chapter thirteen of the first part
of the Revised Statutes, to certain incorporated companies, extends
so far as to exempt the lands and real estate of said companies from
taxations,” respectfully submit, the following report.

The section referred to is in the following words: “If the presi-
dent or other proper officer of any incorporated company named in
the assessment roll, shall show to the satisfaction of the board of
supervisors, at their annual meeting, within two days from the com-
mencement thereof, by the affidavit of such officer, to be filed with
the clerk of the board, that such company is not in the receipt of
any profits or income, the name of such company shall be stricken
out of the assessment roll, and no tax shall be imposed upon it.
And the assessment of every moneyed or stock corporation autho-
or THe SraTe or New Yorr. 49

rized to make dividends on its capital, from which no such affidavit
shall be received, shall be conclusive evidence that such corporation
was liable to taxation, and was duly assessed.” (1 R. S., 416,
8. 9.)

The language of this section is broad enough to include the lands
and real estate, as well as the capital, of incorporated companies ;
but there is reason to believe that such was not the intention of the
Legislature. And the intention of the makers, rather than the letter
of a statute, should govern in its construction.

The title of which this section forms a part, relates particularly to
a tax on the capital of moneyed or stock corporations ; and general
words should be restricted in their operation to the particular sub-
ject for which the title provides, unless a contrary intention has
been plainly: manifested.

The first title of the chapter, section 1, declares, that “all lands
and all personal estate within this State, whether owned by indi-
viduals or corporations, shall be liable to taxation. The second title
specifies, the place and manner in which the property of individuals
and corporate bodies shall be assessed. And the third title provides,
for the collection of the taxes and the disposition of the moneys
collected. Had the Legislature proceeded no farther, there would
have been a complete system of taxation in relation to all tangible
property ; and the lands of incorporated companies would, beyond
all doubt, have been subject to assessment.

But experience had shown, that the stock owned by individuals in
corporate bodies, could not be effectually reached by any general
provisions for subjecting all personal property to the payment of
taxes. The policy was consequently adopted of relieving individuals
from assessment on account of stock (title 1, § 7; title 2, § 15), and
imposing a tax directly on the capital of the corporation. The general
provisions of the first three titles, subjecting all real and personal
estate to assessment, and directing the manner of levying and collect-
ing the tax, were, for the most part, applicable as well to corporations
as to individuals. But the assessment of the capital of a corpora-
tion required further and special provisions, suited to that particular
description of property. Those regulations were consequently

1 This section is repealed by chapter 456, Laws of 1857.
4
50 OPINIONS Of THE ATTORNEYS-GENERAL

reserved for a separate title. The adoption of that policy had noth-
ing to do with the propriety of taxing the real estate owned by cor-
porations; and the fourth title was not designed to interfere with
that question, either the one way or the other. Lands are indeed
mentioned, but only for the purpose of reducing the assessment on
capital, by the amount which had been invested in real estate.
Without such a provision, the corporation would, in effect, be sub-
ject to a double assessment, so far as concerned its real estate.
When, therefore, the legislature, in providing for a tax on capital,
declares that a corporation shall, under certain circumstances, be
exempted from the burden, the exemption should be understood to
apply to the tax on capital only, and not be extended to the real
estate of the company, which was not the subject in hand, and
which had been fully disposed of in the previous titles of the
chapter,

A further argument against extending this exemption beyond
the capital of a corporation, will be found on recurring to the first
title. The first section subjects “all lands” owned by corporations
to taxation, “subject to the exemptions hereinafter specified.”
This specification is made in the fourth section, in which the Legis-
lature evidently intended to include all the exemptions which were
to be allowed. And those exemptions do not extend to the real
estate of the corporations mentioned in the ninth section of the
fourth title.

It may be further remarked in relation to this title, that the first
section only, subjects to taxation those corporations “deriving an
income or profit from their capital, or otherwise.” And the ninth
section was not added so much for the purpose of declaring the
exemption, which was clearly implied in the first section, as for the
purpose of prescribing what proof should be made, that the cor-
poration was “not in the receipt of any profits or income.” The
president or other proper officer of the company was to furnish an
affidavit of the fact on which the exemption depended; and the
neglect to do so, was declared to be conclusive evidence, that the
corporation was liable to taxation, and had been duly assessed.

The Attorney-General is of opinion that the exemption granted
to those moneyed or stock corporations, which are “ not in the receipt
of any profits or income,” applies only to a tax on capital; and
or THE STATE or NEw York. 51

does not extend so far as to exempt the lands and real estate of such
corporations from taxation.

Respectfully submitted.

; GREENE C. BRONSON,
Attorney-General.

(Senate Document, 1833, No. 18.)

The Attorney-General, in obedience to the resolution of the
Senate, requiring “his opinion whether under the Constitution of
_ this State a member of the Legislature is eligible to the office of
Senator in the Congress of the United States,” respectfully submits
the following report :

The President and Vice-President, and Senators and Representa-
tives in the Congress of the United States, although appointed by
the States, are officers of the general government. Those offices
are created, their tenures declared, and the qualifications of the
persons to fill them are prescribed by the Constitution of theUnited
States. That instrument also directs the manner in which those
officers shall be elected or appointed. The President and Vice-
President are to be chosen by electors, which “each State shall
appoint in such manner as the Legislature thereof may direct.”
Senators are to be “chosen by the Legislature,” and Representa-
tives are to be “chosen by the people.” And “the times, places,
and manner of holding elections for Senators and Representatives
shall be prescribed in each State by the Legislature thereof.”
(Const. U. S., art. 1, sec. 1 to 5.; art. 2, sec. 1, amendment 12.)
Upon all those matters the Constitution of the State of New York
is silent, unless a provision hereafter to be noticed indirectly affects
the qualifications of a Senator in Congress.

The Constitution of the United States declares, that “no person
shall be a Senator who shall not have attained to the age of thirty
years, and been nine years a citizen of the United States ; and who
shall not, when elected, be an inhabitant of that State for which he
shall be chosen.” The question is, whether the Constitution of this
State (supposing such a right to exist), has added to these disquali-
52 OPINIONS oF THE ATTORNEYS-GENERAL

fications the further one, that the person shall not be a member of
the State Legislature.

The only provision from which such a disqualification can be
inferred, is the following: “No member of the Legislature shall
receive any civil appointment’ from the Governor or Senate, or
from the Legislature, during the term for which he shall have been
elected.” (Const. N. Y., art. 1, sec. 10.)

There can be no doubt that the office of Senator in Congress is a
civil office ; and the person to fill it is elected by the Legislature.
Still it is believed that the words “any civil appointment” were
not intended to extend to the office of Senator in Congress.

First. The use of general words in the State Constitution in rela-
tion to offices and officers, broad enough in their signification to
include officers of the general government, does not necessarily
establish an intention to include such officers. On the contrary,
several examples may be given, where general words must necessa-
rily be restricted to offices created by or under the Constitution of
this State. “AJ officers holding their offices during good behavior,
may be removed by joint resolution of the two Houses of the Legis-
lature.” (Art. 1, sec. 13.) The words “all officers” are sufficiently
comprehensive to include the officers of the general government ;
and yet no one would think of removing the judges of the Supreme
Court of the United States, by joint resolution of the two Houses
of our Legislature, ‘The Governor shall nominate by message in
writing, and with the consent of the Senate, shall appoint all judi-
cial officers.” (Art. 4, sec 7.) But this must be understood of
judicial officers under the Constitution of this State. No minister
of the gospel shall be eligible to, or capable of, holding any civil
or military office, or place within this State.”? (Art. 7, sec. 4.)
This provision must be limited to offices under our Constitution, for
there can be no doubt, that a minister of the gospel may hold an office
under the general government, the duties of which are to be dis-
charged within the State of New York.

The language in these several examples is as comprehensive as is

1Tn sec. 7, art 3, the corresponding section of the present Constitution, the words
‘‘ within this State or to the Senate of the United States,” areinserted. These words
were inserted to remove the doubts stated in this opinion.

’ This prohibition not contained in the present Constitution.
OF THE STATE oF NEW York. 53

that of the tenth section of the first article. Still the cases are not
parallel ; and the examples are only given for the purpose of showing
that the words, “any civil appointment,” do not necessarily evince
an intention, to exclude a member of the Legislature from the office
of Senator in Congress.

Second. The office of Senator in Congress is not held by “ appoint-
ment,” but is conferred by election. Such is the uniform language
of the Constitution of the United States; and it is applied alike to
Senators and Representatives.

All legislative power is vested in “a Congress of the United
States, which shall consist of a Senate and House of Representa-
tives.” “The House of Representatives shall be composed of mem-
bers chosen every second year by the people of the several States.”
A Representative must, “when elected, be an inhabitant of that
State in which he shall be chosen.” Senators are to be “chosen by
the Legislature” of each State. When assembled, “in consequence
of the first election, they shall be divided into three classes, so that
one-third may be chosen every third year.” A Senator must,
“when elected, be an inhabitant of that State for which he shall be
chosen.” “The times, places, and manner of holding elections for
Senators and Representatives, shall be prescribed in each State by
the Legislature thereof; but the Congress may at any time, by law,
make or alter such regulations, except as to places of choosing
Senators.” “Each house shall be the judge of the elections, returns
and qualifications of its own members.” “No Senator or Repre-
sentative shall, during the time for which he was elected, » (Const.
U.S., art. 1, §§ 1 to 6.)

All the laws passed in this State in relation to senators in Con-
gress have adopted the same language. In July, 1789, a bill
passed the two Houses of the Legislature, entitled “An act pre-
scribing the manner of holding electcons for senators to represent
this State in the Senate of the United States.” This bill was
returned by the council of revision with objections, and was lost.
(Assembly Journal, 1789, p. 21.) The first act on this subject
was passed in 1793, and is entitled “An act prescribing the times,
places and manner of holding elections for senators to represent
this State in the Congress of the United States of America.” (3
Green. Laws, 20.) The act of 1801 was substantially like that of
54 OPINIONS OF THE ATTORNEYS-GENERAL

1793. (1 R.8., 1801, p.199.) This act was continued in the next
revision of the laws. (1 R. S., 1813, p. 142.) In the Revised
Statutes the office of senator in Congress is provided for in chapter 6
“ Of elections other than for militia and town officers.” Title 6 of
that chapter is entitled “Of the election of representatives in Con-
gress, electors of president and vice-president, and senators in Con-
gress.” Article 4 is entitled “Of the election of senators in
Congress,” and speaks of the time for which a senator “was
elected,” and directs that “an election shall be held.” In case of a
vacancy “another senator shall be edected in his room.” “Such
election shall be made by the Legislature in the following manner.”
(1 R. S., 126, 145, 148.)

This reference to the laws establishes, that the Legislature has
always noticed and followed the language of the Constitution of the
United States, in relation to the manner of filling the office, and it is
not to be presumed in the absence of the evidence of the fact, that
the convention in deliberately setting the frame of our government,
overlooked the Constitution of the United States and the whole
course of our legislation on this subject.

It is also worthy of remark, that a distinction is taken in the
Constitution itself between appointments and elections to office by
the Legislature. “The Secretary of State, Comptroller, Treasurer,
Attorney-General, Surveyor-General, and Commissary-General,
shall be appointed as follows: The Senate and Assembly shall
each openly nominate one person for the said offices respectively.
After which they shall meet together, and if they shall agree in
their nominations the person so nominated shall be appointed.”
(Art. 4, § 6.) “All votes for any elective office given by the Legis-
lature or the people.” (Art. 5, § 7.)

When, therefore, the framers of the Constitution in the section
under consideration, speak of a “civil appointment from the Legis-
lature,” they must have intended the appointments which they
had directed to be made in that form; and it would be going
very far to say, that it was also intended to exclude a member of
the Legislature from the elective office of senator in Congress.

Third. Whatsoever doubts may be entertained about the true con-
struction of the tenth section when considered alone, the following
section leaves little room for question, that the framers of the Con-
OF THE STATE OF New Yorn. 55

stitution did not intend to disqualify a cider of the Legislature
from receiving the office of senator in Congress. “No person being
a member of Congress, or holding any judicial or military office
under the United States, shall hold a seat in the Legislature ; and
if any person shall, while a member of the Legislature, be elected
to Congress, or appointed to any office, civil or military, under the
government of the United States, his acceptance thereof shall
‘vacate his seat. (Art. 1, § 1.)! Although the words “mem-
ber of Congress” and “elected to Congress” are in common par-
lance applied more particularly to representatives, it has already
been seen that in the Constitution of the United States and the
laws of this State, those words apply as well to senators as repre-
sentatives in Congress. “All legislative powers herein granted shall
be vested in a Congress of the United States, which shall consist of
a Senate ane House of Representatives.” “The Congress shall
have power.” “The House of Representatives shall be composed
of members chosen every second year by the people.” “The Sen-
ate of the United States shall be composed of two senators from
each State, chosen by the Legislature.”

There can be no room for doubt that the constitutional meaning
of the terms “member of Congress” and “elected to Congress,”
will include senators as well as representatives, and they must in
this place have been used in their legal rather than in their popular
sense. To suppose otherwise, and limit them to a representative
in Congress, will conduct us very nearly to an absurdity. Upon
that construction @ senator in Congress might hold a seat in the Legis-
lature, while a representative in Congress would be excluded. And
under the latter branch of the section, the election of a member of
the Legislature to the House of Representatives, and his acceptance
of the office, would vacate his seat in the Legislature ; while a mem-
ber elected to the Senate of the United States might still tetany his
place in the Legislature.

If the language of the eleventh section applies as well to senators
as representatives in Congress, then the Constitution, instead of dis-
qualifying a member of the Legislature, from receiving the office of
senator in Congress, supposes that he may be elected to that office.

1 Art. 3, § 8, of present Constitution.
56 OPINIONS OF THE ATTORNEYS-QENERAL

and declares that his acceptance “shall vacate his seat” in the
Legislature.

Another question of some interest connected with this subject is,
whether a State has the power, to add to the disqualifications for the
offices of senator and representative in Congress, as prescribed by the
Constitution of the United States. The Attorney-General com-
menced the examination of the question proposed by the Senate,
with an impression, against the existence of such a power. A
contrary opinion from a source entitled to the highest consideration
on all constitutional questions, has induced a doubt upon that point,
and the view taken of our own Constitution, has rendered it unne-
cessary at this time to decide the question. The opinion alluded
to is contained in a letter from Mr. Jefferson to Joseph C. Cabell,
dated January 31, 1814, Jefferson’s Writings, vol. 4, p. 238, letter
118.

The Attorney-General is of opinion, that, “under the Constitution
of this State,a member of the Legislature is elegible to the office of
senator in the Congress of the United States”

GREENE 0. BRONSON,
Attorney-General.
OF THE STATE oF New York. 57

(Senate document, No. 4, 1885.)
Stare or New York, 1n Senate, May 38, 1834.

“Resolved, “That the bill entitled ‘An act in addition to the act
relative to incorporations for manufacturing purposes’ be referred
to the Attorney-General, and that he be requested to submit to the
Senate, in his opinion, whether the provisions contained in said
bill and the law which it proposes to amend are constitutional, and
also whether any company can be incorporated without the concur-
rence of two-thirds of the members elected to each branch of the
Legislature to each act of incorporation.

“By order

“JOHN F. BACON,
Clerk.”

The Attorney-General, in obedience to the foregoing resolution
of the Senate, respectfully submits the following report:

By the act entitled “An act relative to incorporations for manu-
facturing purposes,” passed March 22, 1811, it was provided that
any five or more persons, who should be desirous to form a company,
for the purpose of manufacturing woolen and various other articles
mentioned in the act, might become a body politic and corporate,
for the term of twenty years, on complying with certain prescribed
terms.

The provisions of this act were, on the 14th of April, 1817,
extended to associations “for the purpose of manufacturing morocco
and other leather,” but such companies were not allowed “to locate
their establishments in any other counties than Greene and Dela-
ware.” On the 7th of April, 1819, the right to locate leather fac-

1The clause in the original section of the Constitution of 1822, considered in this
opinion and in the similar ones of Attorney-General Beardsley, p, 71,and Van Buren,
p.125,§ 9, art. 7), requiring a two-thirds vote to every bill “creating, continuing, alter-
ing or renewing any body, politic or corporate,” does’ not appear in the similar sec-
tion of the Constitution of 1846; and by section 1, article 8, of the latter, “corpora-
tions may be formed under general laws, but shall not be created by special act,”
except in certain specified cases. This radical change in the manner of creating
corporations rendered these opinions of perhaps little practical value. But at the
request of prominent members of the bench and bar, who were consulted in refer-
ence thereto, and who thought the powerful arguments of these distinguished men
would be of great interest to the profession, they are inserted.
58 OPINIONS oF THE ATTORNEYS-GENERAL

rories was extended to the county of Oneida. The act of 1811, so
far as it related to the right of forming associations, was originally
limited to the period of five years. After having been several
times revived and continued in force, it was rendered perpetual by
an act passed January 26, 1821, 3 Revised Statutes, 310 to 314.

The bill referred by the Senate provides, that “any number of
persons who may associate together for the purpose of carrying on
the business of tanning and manufacturing leather in the counties
of Orange or Sullivan, or either of them, may become a body cor-
porate” on complying with the requisitions of the act of 1811; and
that “such corporation shall be entitled to and possess all the rights,
privileges, immunities and benefits, and be subject to all the lia-
bilities and restrictions”? mentioned in the acts of 1811 and 1821.

The Constitution, so far as it affects the present inquiry, went
into operation on the first day of March, 1822, and is in the follow-
ing words: “The assent of two-thirds of the members elected to each
branch of the Legislature shall be requisite to every bill appropriat-
ing the public moneys or property for local or private purposes, or
creating, continuing, altering or renewing any body, politic or cor-
porate.” (Art. 7, § 9.)

The resolution of the Senate presents three general subjects of
inquiry. 1st. Whether the Legislature can by one act create more
than one corporation? 2d. Whether the act of 1811 was so abrogated
by the Constitution adopted in 1822 that associations for manufactur-
ing purposes can no longer be formed under it? 3d. Whether the
Legislature can now extend the provisions of the act of 1817 beyond
the counties of Greene, Delaware and Oneida?

First. The Attorney-General can perceive no substantial ground
for doubt that the Legislature may, by one act, create two or more
corporations. The Constitution says nothing on that subject. It
only prescribes the number of votes, which shall be necessary to
every bill creating a corporate body, leaving all other questions
about the passing of such laws, as they stood before, to the discre-
tion of the Legislature. It must be conceded that it would in gene-
ral be unwise, if not unsafe, to legislate concerning several corpo-
rations at the same time. For that reason, as may be presumed,
the two Houses have, for several successive years, adopted a joint
rule, declaring that “the same bill shall not create, renew or continue
oF THE State or New York. 59

more than one incorporation, nor contain any provisions in relation
to the altering of more than one incorporation.” This rule must
have been adopted on the ground, that the subject had not been
regulated by the Constitution, but rested in the discretion of the
Legislature. ;

Second. All laws repugnant to the Constitution were abrogated
by that instrument ; all other laws remained in force until altered
by the Legislature. (Const., art. 7, § 13.)

It is believed that the act of 1811 is not repugnant to that clause
of the Constitution, which is now under consideration, but that both
may well stand together. —

At the time the Constitution was framed and adopted, there were
two modes of creating corporate bodies, both well understood by the
people of this State; the one by the direct act of the law making
power, and the other by the voluntary association of individuals,
under general laws which had been previously enacted for that pur-
pose. The Constitution only relates to those corporations which
were created by “bill,” or, in other words, by the direct act of the
Legislature, leaving untouched those associations which might
acquire a corporate capacity by the mere act of the parties, without
any special grant from the Legislature. The corporations which
had been provided for by general laws previous to the adoption of
the Constitution, and which might be created without the direct
intervention of the Legislature, were the following:

1. Colleges and academies. These were incorporated by the Regents
of the University. (8R.S8., 235; 2 R. L., 263, §§ 10, 11, revised and
amended; 1 R. S., 461.)! Since the adoption of the Constitution
in 1822, the Regents have granted charters to one college, six
academies, and two Lancaster schools. The Regents have not
acted in this manner, without full consideration of their powers, as
will be seen by their report on this subject to the Senate in 1825.
(Senate Journal of 1825, p. 188.) This may be properly regarded
as high authority on the point in question.

2. Religious societies. These may be incorporated by the mere
act of the parties, which is required to be certified, acknowledged
and recorded in the clerk’s office of the county where the society is

13 Edmonds’ Stat., 476.
60 OPINIONS OF THE ATTORNEYS-GENERAL

situated. (3 R. §., 292.)!| The number of societies incorporated
under this act since the adoption of the Constitution, can only be
ascertained by examining the clerks’ offices in the several counties ;
but the number probably exceeds 500.

3. Library associations. Incorporated by the mere act of the
parties, and on making, acknowledging and recording a certificate,
as in the case with religious societies. (3 R.S., 288.)? It is pre-
sumed that the number of such associations since 1822 does not fall
short of 100.

4. Medical societies, of which one may be formed in each county
by the voluntary association of the physicians and surgeons residing
within it. (8 R.8., 304.) §

5. Manufacturing corporations. These may be incorporated by
the voluntary act of the parties, on making, acknowledging and
filing in the office of the Secretary of State, a certificate in the
form prescribed by law. (3 R.S., 310.) On examination in the
secretary’s office, it appears that eighty-four corporations for manu-
facturing purposes have been formed, since the adoption of the Con-
stitution.

If it could for one moment be supposed, that the framers of the
Constitution were ignorant of the existence of the laws in question,
it appears from the debates in the convention, published by Messrs.
Carter & Stone, that one at least of those laws was mentioned,
when this clause of the Constitution was under consideration. Mr.
King, chairman of the committee who reported the section, was
called upon to explain the reasons which had governed the ecommit-
tee. After doing so, and in answer to an objection that the lan-
guage was too broad, he replied, that he “had understood that a law
of this State had already provided for turnpikes and religious socie-
ties, that they may be formed without coming to the Legislature for
an act of incorporation.” (Debates, p. 446.) When the subject was
thus distinctly presented to the notice of the convention, it is
impossible to suppose that the clause in question, was intended to
reach these corporations which could be created without the direct

13 Edmonds’ Stat., 687 ; supplemental act, chap. 45, Laws 1863, 6 Edmonds’ Stat.,
54; amendments chap. 803, Laws, 1868, 7 Edmond’s Stat., 349.

*3 Edmond’s Stat., 834; see also chap. 395, Laws 1853, 3 Edmonds’ Stat., 839.

*3 Edmond’s Stat., 710.
or THE STATE oF NEW York. 61

act of the Legislature. Had this been designed, the language of
the section would not have been confined to those corporate bodies,
which could only be created by “ bill,” but would have extended to
all corporations.

At the time of the revision it was proposed to revise all the gene-
ral laws which have been mentioned for the creation of bodies poli-
tic, without the direct intervention of the Legislature. (See Revi-
ser’s Report of chap. 15 of the first part; title 1, arts. 2, 3, “of
the foundation of colleges;” arts. 4, 5, “of the foundation of
academies ;” also, report of chap. 18 of the first part, title 1, of
“religious corporations ;” title 2, “of the incorporation of library
societies ;” title 3, “of the incorporation and powers of medical
societies,” and title 4, “of manufacturing corporations.”)

From these reports it will be seen, that the revisers, who were
gentlemen of high standing in the legal profession, entertained no
doubt upon two points, first, that the existing general laws for cre-
ating corporate bodies were still in force, and, secondly, that they
might be revised and amended in the same manner as the other
public statutes. These chapters were before the Legislature at two
different sessions, and it is understood that the members generally,
if not universally, agreed with the revisers on the first point, but
some doubted the power of the Legislature to revise and amend
these general laws. It appears, however, by the journal that a plan
of a revision was at one time adopted by both Houses, but, before
the chapters were finally passed, the project was rejected by the
Assembly, and these laws were then republished in the third vol-
ume, among the other general laws in force which were not revised.
It may be proper to remark that the Legislature was not entirely
consistent on this question ; for, while the plan of the revisers was
for the most part rejected, their proposition to revise the law, autho-
rizing the Regents of the University to incorporate academies, was
adopted by the Legislature. (See 2 Rev. Laws, 263; §§ 10, 11,
Reviser’s Reports, chapter 15, title 1, arts. 4,5; 1 R. S., 461.)

From what has been said, it appears, that the several laws pro-
viding for the creation of corporate bodies without a special grant
from the Legislature, have been acted upon for the twelve years,
which have elapsed since this part of the Constitution went into
operation, and it is believed that the validity of those laws, or the
62 OPINIONS OF THE ATTORNEYS-GENERAL

right to form associations under them, has never been seriously
questioned.

Third. Before examining the provisions of the bill referred by
the Senate, it may be proper to consider, whether the Legislature
can now authorize the creation of corporate bodies in any other
mode than that of a direct legislative grant. In other words,
whether the Legislature can now do what was done before the
adoption of the present Constitution, provide by general laws for
the incorporation of voluntary associations, either with or without
the assent of some public body other than the Legislature.

The Attorney-General is of opinion, that that cannot be done;
that corporate bodies, save such as are authorized by existing laws,
can only be created by the Legislature itself, acting directly upon
each particular case.

The Attorney-General is aware that there is high authority in
favor of a contrary opinion. The revisers, in their report of chap-
ter 18 of the first part, provided in title six, for the incorporation
of “obituary societies.” It was declared in substance that any five
or more persons might form an association “for the purchase and
inclosing of a burial-ground,” and that on making, acknowledging
and recording in the clerk’s office of the county, a certificate, in a
prescribed form, the trustees named therein, and their successors,
should be a body corporate, with all the ordinary powers and privi-
leges of a corporation, and such other specified powers as were
adapted to the particular objects of the association. As this was
an entirely new provision in our laws, it went the whole length of
asserting a right in the Legislature, to pass general laws for the
creation of corporations, in the mode which had been practiced
previous to the adoption of the present Constitution.

This title was proposed by the revisers on the ground, that such
corporations would prove beneficial to the public, and to avoid the
necessity of legislating in every case where persons should be desir-
ous of forming such associations.

That such corporations might prove both useful and harmless
will be readily granted. But the character or object of the corpo-
ration is wholly unimportant in the decision of this question. The
Constitution has made no distinction between those corporate fran-
chises, which are granted almost as a matter of course, and those
or tHE STATE oF New Yorn. 63

which are conferred with greater caution; and if the Legislature
can, by general laws, provide for the incorporation of such persons
as shall associate for the purpose of forming an obituary society, it
can in like manner provide for the incorporation of such persons, as
may associate for the purpose of carrying on the business of bank-
ing, insurance, or receiving and executing trusts. Although this
remark may prove nothing against the power of the Legislature to
pass laws of this description, it shows that the question is one of
more than ordinary importance, and that it ought to be very care-
fully considered, before yielding to the contrary opinion from that
which has been expressed in this report.

The argument in favor of the right to legislate in the manner
which has been mentioned, must proceed on the ground that the
Constitution has made no change in relation to corporations, except
in thé number of votes necessary to their creation ; and that, if
general laws passed for that purpose, receive the assent ‘of two-
thirds of all the members, the constitutional requirement is satisfied.
It is believed, however, that the assent of two-thirds of the mem-
bers to a bill, under which an indefinite number of corporations may
spring intu existence, does not answer the requirement of the Con-
stitution, but that such assent must be given to a bill creating some
one or more corporations in particular.

In the interpretation of the Constitution we ought, as far as pos-
sible, to enter into the mind and intention of those who framed the
instrument, and adopt that construction, which will best fulfill the
end for which it was nfade. The construction should be such as
will not suffer any provision to be eluded, and in doubtful cases,
the consequences of a particular interpretation may properly be
regarded, in attempting to ascertain the meaning of the instrument.

The inquiry then is, what was the intention of the convention in
adopting the provision under consideration, and what construction,
consistent with the letter of the instrument, will most fully carry
that intention into effect ?

The language of the section, omitting the parts which are not
material to the present inquiry, is as follows: “The assent of two-
thirds of the members elected to each branch of the Legislature
shall be requisite to every bill creating any body politic or corpo-
rate.”
64 OPINIONS oF THE ATTORNEYS-GENERAL

It is impossible to read the clause without perceiving, that the
design of the convention was to impose a check on the increase of
corporate bodies. The future grant of such franchises was not
wholly prohibited, for the reason that these artificial bodies have,
to some extent, been found useful, if not absolutely necessary to the
advancement of the public interests. They furnish a convenient,
if not the only practicable mode of organizing and giving a legal
capacity to colleges and other seminaries of learning, to religious
societies, and various other associations connected with the social
and moral condition of the people. A partnership for those pur-
poses, with the legal consequences which result from that relation,
would often deter individuals from entering into such societies.
Corporate bodies, under proper regulations, have also been found
useful in all commercial countries, as the best means of aggregating
the necessary amount of capital for the rapid and full development
of the resources of the State ; and nowhere will this remark apply
with greater force than in our own country, which is comparatively
new, and where the laws do not favor the accumulation of estates
in the same family. Still, it cannot be denied, that there is an
admixture of evil in almost every grant of corporate privileges.
The stockholders enjoy a partial exemption from the responsibility
which attach to individuals carrying on the same business, and the’
legal remedies against corporations are in some cases, less certain
and efficient than they are against natural persons. When they are
created for ends which might, with equal success, be attained by
other means, they enter into injurious competition with individual
enterprise. When such grants are made with an exclusive reference
to the interests of the applicants, and when, however laudable may
be the object, they are multiplied beyond the public wants, a posi-
tive injury is done to the whole community. ,

The subject must have been regarded in this light by the framers
of the Constitution ; and without wholly prohibiting future grants,
they imposed such a check on the Legislature, as was deemed best
calculated to secure the people against the unnecessary increase of
corporate franchises. Bills for the creation of corporations were
separated from the mass of legislation and subjected to a new rule,
and that rule ought to be expounded in the manner best calculated
to give full effect to the intention of the convention.
oF THE STATE oF New York. 65

The construction which more certainly than any other will attain
this end, is that which requires the Legislature, in cases not already
provided for by law, to act directly on every question of this
description, and which requires the assent of the members, not to a
bill under which an indefinite number of corporations may spring
into life, but to a bill creating some one or more corporate bodies
in particular. This construction, while it is inconsistent with the
letter of the Constitution, is best calculated to give full effect to
the intention of the convention, and secure the public against the
unnecessary increase of corporate franchises.

It has been remarked, that in doubtful cases, the consequences of
a particular interpretation may properly be regarded. If the
Legislature can delegate its power to institute corporations, as was
formerly done, by the laws authorizing the Regents of the Univer-
sity to incorporate colleges and academies, then laws may be passed
authorizing a majority only of the members of the Legislature to
create corporate bodies ; or, going still further, and delegating that
power to a joint committee of the two Houses, or to their presiding
officers. Such laws, if not in direct conflict with the letter of the Con-
stitution, would be plainly calculated to elude the provision under
consideration and defeat the end for which it was framed and adopted.

This objection applies with equal, if not greater, force to laws
granting corporate privileges to any individuals who may choose to
associate for a particular purpose, as was formerly done by the laws
in relation to manufacturing corporations, religious societies, and
the other voluntary associations which have been mentioned. In
such cases, neither the Legislature, nor any public body or officer,
exercises any discretion about the creation of a particular corpora-
tion, but they come into being through the mere will of interested
individuals. .

There may be cases where the public interests would be promoted,
by extending the existing laws in relation to voluntary associations,
to other objects than those for which provision has already been
made ; but this cannot be done without asserting a principle extend-
ing to corporations of every description, and when such a principle
shall be sanctioned and carried into practice, that part of the Con-
stitution which relates to the creation of corporate bodies will, for
all valuable purposes, become a dead letter.

5
66 OPINIONS oF THE ATTORNEYS-GENERAL

The only remaining inquiry relates to the bill referred by the
Senate. Associations under the act of 1811, may be formed in any
part of the State, but the certificate of their organization must
specify, “the name of the town and county in which the manufac-
turing operations of the company are to be carried on.” This act
does not extend to associations for the manufacture of leather.
These were provided for by the act of 1817, under which, associa-
tions may be formed in any part of the State; but there is a pro-
viso, that “no company or companies who shall become a body cor-
porate under this act, shall be allowed to locate their.establishment
in any other counties than Greene and Delaware. By the act of
1819, this proviso was extended to the county of Oneida. The
bill referred by the Senate declares that “any number of persons .
who may associate together, for the purpose of carrying on the
business of tanning and manufacturing leather in the counties of
Orange and Sullivan, or either of them, may become a body corpo-
rate,” on conforming to the requirements of the act of 1811.

Although associations for the same general object, the manufac-
ture of leather, may now be formed in any part of the State, yet,
as they cannot locate their works in the counties of Orange or Sul-
livan, the bill does, in effect, provide for associations which are not
now authorized by law. The bill is either utterly useless, or else it
proceeds on the ground that associations will be formed under it,
which would not be formed without it, and it is subject to the
objection already stated against this mode of creating corporations.

If the Legislature can authorize the increase of these voluntary
associations, by extending the field of their employment, it is not
perceived why they may not also be increased, by multiplying the
objects for which such associations may now be formed. There is
no difference in principle between the two cases.

It is not doubted that the Legislature may amend the present
system for the incorporation of voluntary associations, nor that those
laws might have been revised as well as other public statutes. But,
under color of amendment, the system cannot be extended so far,
as to provide for the incorporation of associations which are not
now authorized by law. This would bean attempt to do indirectly
that which the Constitution has prohibited.

This construction may render it necessary to legislate specially
or THE STATE oF NEw York. 67

for several manufacturing and other corporations which, independ-
ent of the Constitution, might with safety to the public, be provi-
ded for by general laws; but the inconvenience which the Legisla-
ture will suffer, is a matter of no moment when compared with the
principle involved in the adoption of a different rule.

What has been said in this report may be briefly summed up as
follows :. 1st. The Legislature may, by one act, create two or more
corporate bodies. 2d. The existing general laws for the incorpora-
tion of voluntary associations have not been abrogated, and asso-
ciations may now be formed under them in the same manner, and
with like effect, as was done before the present Constitution was
‘adopted. 3d. The Legislature cannot now provide by general laws
for the incorporation of voluntary associations, but must act directly
in every grant of corporate privileges creating some one or more
corporations in particular. 4th. The existing laws for the incorpo-
ration of voluntary associations may be amended, but not in such
a manner as to authorize associations which are not now provided
by law. .

The bill referred by the Senate authorizes associations which could
not be formed under the existing laws, and consequently goes
beyond the constitutional power of the Legislature.

Respectfully submitted.

GREENE C. BRONSON,
Attorney-General.

(Assembly Document, No. 181, February 7, 1837.)

The Attorney-General, to whom was referred by the Assembly,
sundry petitions for the formation of a new county, to be composed
of “parts of Madison, Chenango and Otsego counties,” submits the
following report :

The resolution of the Assembly directing the reference of these
petitions, calls for the opinion of the Attorney-General “on the
question whether the Constitution does or does not prohibit the
erection of a county, to be composed of parts of different counties.” *

1 See Post, p. 119, note.
68 OPINIONS oF THE “ATTORNEYS-GENERAL

The creation of new counties is manifestly within the general
scope of the legislative power, and there is not, to the knowledge
of the Attorney-General, any constitutional restraint upon this
power, when exerted to create a county from parts of several coun-
ties, which does not exist against its exercise for a similar purpose
on part of asingle county. If the Legislature may divide a single
county, and thus create a new one, as surely they may, no constitu-
tional impediment is perceived, to their producing a similar result by
the union of parts of several counties.

But the doubt indicated by the resolution is supposed to arise on
the seventh section of the first article of the Constitution. This
section declares, that members of “Assembly shall be chosen by
counties,” and that “‘no new county shall be erected unless its popu-
lation shall entitle it to a member.” This last provision is an
express restriction upon the general power of the Legislature to
create new counties at pleasure, and is the only restraint of that
character in the Constitution.

The section referred to has further provisions. It declares:

1. That “an apportionment of members of Assembly shall be
made by the Legislature at its first session, after the return of every
enumeration.”

2. That this apportionment shall be “ among the several counties
of the State.”

8. And that, “when made,” it shall remain unaltered until
another enumeration shall have been taken.

As this apportionment is to be made among the counties of the
State, so that each shall be represented, and as it is to be “unal-
tered” for ten years, how it is asked, can a new county be created
within that period? The new county must have at least one mem.
ber, and to make room for this member, the county, or some one
of the counties out of which the new one is to be formed, must be
deprived of a member. The representation of the county thus
reduced will therefore not remain “unaltered” for ten years ; and,
hence it is objected, that the Legislature is incompetent to erect a
new county during that period.

These provisions of the Constitution were not designed to restrain
or qualify the power to create counties. They had other objects
and purposes in view. Their bearing upon the present question
or THE STATE oF New Yorx. 69

cannot be regarded as direct and absolute, but as oblique and inci-
dental, and should not be permitted on slight or doubtful grounds,
to wrest from the Legislature one of its ordinary and salutary
powers. Nor have they hitherto been regarded as imposing any
such restraint upon the Legislature: In 1824 the county of Orleans
was erected out of a part of the county of Genesee, one member
of the Assembly being assigned to the new county, and the former
representation of Genesee at the same time reduced from four to
three members. The apportionment of members of Assembly
which had previously been made to the county of Genesee, did no:
remain “ unaltered,” but by this law was changed, and the number
reduced ; yet this was not regarded as a violation of the Constitu-
tion. No change was made in the aggregate number of members |
in the State, nor indeed, in the number which had been appor-.
tioned to the territory comprised in the old county of Genesee.
And in the case under consideration, should a new county be
formed, as is proposed, by taking parts from three different coun-
ties, and should this new county be entitled, in point of popula-
tion, to three members, there could not, in the opinion of the
Attorney-General, be any constitutional objection to reducing the
representation of each of the old counties, and thus apportioning
its just representation to the new one. If, instead of three mem-
bers for the new county, its population should be found entitled to
but one or two, the representation of one or two of the three old
counties must necessarily be reduced accordingly; and it would be
a question of legislative justice, and not of constitutional power,
which of the old counties should submit to this reduction in its
representation. In the opinion of the Attorney-General, there-
fore, the Constitution “does not prohibit the erection of a new
county, to be composed of parts of different counties.”

It is proposed to erect the county of “ Unadilla,” not only out of
parts of three different counties, but out of parts of different Sen-
ate districts, and it has been supposed that this is prohibited by the
sixth section of the first article of the Constitution. By this sec-
tion the Legislature is directed, “at the first session after the return
of every enumeration,” to alter and, “as nearly as may be, equalize
the Senate districts ;” but “no county shall be divided in the
formation of a Senate district ;” and the districts so to be formed
70 OPINIONS OF THE ATTORNEYS-GENERAL

shall “remain unaltered until the return of another enumeration.”
This section requires, that the districts as formed shall be bounded
by county lines: “no county shall be divided in the formation of
a Senate district ;” and they are to be equalized, as far as may be
practicable, without dividing counties.

These are rules for the formation of Senate districts. They are
founded in public convenience, apply throughout the whole State,
and at the return of every enumeration. Counties shall not be
divided in the formation of districts, in order to secure a more per-
fect equality in population, or to give a particular political com-
plexion to a district. One object of the Constitution was to defeat
the latter purpose, and the inconveniencies to which counties would
be exposed, if divided for the purpose of electing senators, were
supposed to outweigh the advantages of an absolute equality in
population. Asa general rule it was certainly wise, to guard, as
the Constitution has done, against the division of counties in the
formation of districts. Yet a case may arise in which it would be
very proper, to erect a new county out of parts of counties in dif-
ferent Senate districts. That a county may be so created, at the
session next after the return of an enumeration, is conceded; and,
in the opinion of the Attorney-General, this power of the Legisla-
ture is not confined to any particular session, but is possessed and
may be exerted at any and at all times.

The Constitution forbids the division of a county in the forma-
tion of Senate districts. It supposed that the power, if possessed,
might be exerted for an improper purpose ; but it does not, in
terms, prohibit the formation of a new county out of parts of dis-
tinct Senate districts.. The improper purpose which was intended
to be guarded against by the constitutional restraint, is in no degree
countenanced or aided by the formation of a county out of parts of
different districts. These districts must “remain unaltered until
the return of another enumeration.” The formation of the new
county is, therefore, not within the spirit of the constitutional pro-
hibition. Until the return of another enumeration, different: parts
of the new county must remain as before, in different Senate dis-
tricts. And as the population of the district is the same as before
the creation of the new county, its political character must be sup-
posed to remain unchanged and unaffected by that event.
oF THE STATE OF New York. ] 71

Subject to the restrictions which have been suggested, the Attor-
ney-General does not perceive any constitutional impediment to
the creation of the county of “ Unadilla,” according to the prayer
of the petitioners.

8. BEARDSLEY,
Attorney-General.

(Assembly document, 303—in Assembly, April 18, 1887.)

ATTORNEY-GENERAL’s Orricz,
Agany, April 18, 1837.

The Attorney-General, in compliance with a resolution of the
honorable the Assembly, of the 13th inst., directing a reference to
him of the bill entitled “An act to authorize associations for the
purpose of banking,” with instructions to report his opinion as to
the constitutionality of the provisions of said bill, and also whether
in his opinion the passage of the said bill, requires the assent of two-
thirds of the members elected to each branch of the Legislature,
and if in his opinion any of the provisions of the said bill are
unconstitutional, that he specify in what respects particularly, sub-
mits the following report:

The Constitution of this State declares, that “the assent of two-
thirds of the members elected to each branch of the Legislature
shall be requisite to every bill” creating, continuing, altering or
renewing any body politic or corporate. (Art. 7, § 9.)

If such associations as one contemplated: by the bill under con-
sideration, would not be corporations in the legal sense of the term,
it is clear that the assent of two-thirds of the members cannot be
requisite to its passage. On the other hand, if they would possess
the powers of a private corporation, it is equally clear that the bill
can only be passed by a vote of two-thirds of the members. It is
material, therefore, to ascertain the qualities and attributes of these
associations, in order to determine their legal character.

Corporations are of various kinds. One division of those of a
civil nature, and it is not necessary to look beyond this class, is
into public and private, the former existing for purposes of local
72 OPINIONS oF THE ATTORNEYS-GENERAL

government, the whole interest being in the public, while the lat-
ter, although their objects and operations partake of a public
nature, are nevertheless, in point of interest, strictly private.

A corporation aggregate, and all the existing banks in this State
are of this description, is an artificial, legal being, composed of
individuals united in interest under a common name, but which
union of membership, however diversified or frequent, can in any
degree affect the existence or the powers and capacities of the legal
being.

A corporation is an artificial being, “invisible and intangible,
existing only in contemplation of law.” Like a natural person, it
may acquire and hold property, transact business, contract debts,
sue and besued. All its acts are acts of the corporate body, and
not of the individual corporators.

A private corporation aggregate, is composed of divers indivi-
duals, the stockholders for the time being. Collectively they com-
pose but one legal body, and the rights and privileges of that body
are in no degree varied by the death or change of the individual
members.

It has a common name, and may have more than one; one by
which it may contract and grant, and another by which it may sue
and be sued. <A name, indeed, is indispensable to the very being
of a corporation, and without which it cannot perform its functions.
It is perpetual in duration, or rather is capable in its nature, of
being perpetual, and may exist during the period for which it is
created, whatever it may be. .

“No particular form of words is requisite to create a corpora-
tion. A grant of a rent to a chaplain or his successors, and a
grant to a body of men, to hold mercantile meetings, have been .
held to confer a corporate capacity.” A grant of land by the king’s
charter to the good men of Islington, rendering rent, confers on
them a capacity to take and hold such lands as a corporation.

There are some rights, powers and capacities which are insepara-
bly incident to every corporation, and being tacitly annexed to it,
need not be expressly conferred. The Revised Statutes are in this
respect in precise accordance with the principles of the common-
law. They declare (vol. 1, pp. 599, 600), that

Ҥ 1. Every corporation as such has power,
or THE SraTE oF New Yorn. 73

“1, To have succession by its corporate name for the period
limited in its charter; and when no period is limited, perpetually.

“2. To sue and be sued, complain and defend, in any court of
law or equity.

“3. To make and use a common seal, and alter the same at
pleasure.

“4, To hold, purchase and convey such real and personal estate,
as the purposes of the-corporation shall require, not exceeding the
amount limited in its charter.

“5. To appoint such subordinate officers and agents as the busi-
ness of the corporation shall require, and to allow them a suitable
compensation.

“6. To make by-laws, not inconsistent with any existing law, for
the management of its property, the regulation of its affairs, and for
the transfer of its stock.”

“82. The powers enumerated in the preceding section shall vest
in every corporation that shall hereafter be created, although they
may not be specified in its charter or in the act under which it
shall be incorporated.”

These powers and capacities are the essentials of every private
corporation aggregate, and wherever they are found to exist in an
association of individuals, that association possesses corporate powers.

The bill referred to the Attorney-General declares, that associa-
tions for banking may be formed by twenty or more persons, “ with
the rights and powers, and subject to the conditions and liabilities,”
in said bill prescribed. (§ 1.) The capital stock of the association
is to be divided into shares, and which shares are to be personal
property. (§§ 3, 31.) It shall continue for twenty-five years, and
“be composed of the persons who shall, from time to time, be
stockholders.” (§ 4.) It shall not be “dissolved by the death or
act of any stockholder.” (§ 31.) Its concerns are to be conducted
by directors, and to whom the capital stock is to be paid. (§§ 2, 8.)
The association “‘ shall have power to carry on the business of bank-
ing in all its branches, including the issuing of bills, notes and
other evidences of debt, and may exercise such other incidental
powers as shall be necessary to carry on such business.” It may
make by-laws for the management of its property, the regulation
of its affairs, and for the transfer of its stock. (§11.) It may pur-
74 OPINIONS OF THE ATTORNEYS-GENERAL

chase, hold and convey real estate for particular purposes, and
under particular circumstances; but not “in any other case or for
any other purpose.” (§ 12.) It shall take a name, and by which
it must contract, but it must sue and be sued in the name of the
office of president of the association, “ without naming the indi-
vidual.” Suits by and against the “company” are to be prose-
cuted, “in the same manner and with the like effect as suits and
proceedings by and against corporations ;” and judgments and
decrees therein shall be executed in the same manner. (§§ 3, 14.)
Officers and stockholders shall be liable and answerable in the same
cases, to the same extent, and in like manner, as the officers and
stockholders of incorporated banks created since the year 1828.
(§ 15.) The obligations and contracts of the association “shall be
obligatory on the association, and be assignable and negotiable in
like manner as if made or issued by a private person.” (§ 17.)
These associations are declared to be subject to the provisions of
the safety fund law of 1829, and to all gencral laws in force in rela-
tion to incorporated banks. (§§ 27,1, 37.) Their capital is to be
taxed like that of incorporated banks, and the stockholders are in
like manner exempt from taxation. (§ 34.) °

The bill was manifestly designed to confer on banking associa-
tions, which may be organized under its provisions, every essential
attribute of a corporation.

Every such association is to have succession by the name it takes
for twenty-five years. It “shall be composed of the persons who
shall, from time to time, be stockholders in the same.”

It may sue and be sued, complain and defend, in the name of the
office of president of the association.

It may hold personal property, and also hold and convey certain
real estate, in the name it assumes.

It may appoint subordinate officers and agents to transact the
business of the association.

It may make by-laws for the management of its property and the
regulation of its affairs.

It may enter into contracts, incur debts, and carry on the business
of banking in all its branches.

It is taxable like a moneyed corporation.

An artificial legal person is thus created. As @ person it has the
or rH Srare or New York. 75

ordinary rights of property. It may enter into contracts, prosecute
and defend suits, and do all other things contemplated by the bill,
as a natural person may.

Title to property and rights of action can vest only in natural or
artificial persons; there is no intermediate state or condition in
which they can exist. An unincorporated association has none of
the attributes or capacities of a legal being; it cannot sue; as an
organized assemblage it is unknown to the law. The individuals
of which it is composed have rights, but the association, as such,
has none. | ‘

If the word corporations had been used in this bill, as a substi-
tute for associations, no one, surely, would doubt that the Legisla-

_ ture intended to authorize the creation of bodies corporate. Yet
no particular words are requisite for that purpose; the powers and
attributes of a corporation, the essentials of its being, and which
alone evince its existence, may be conferred without resorting to
any peculiar terms or phrases.

Associations under this bill, if valid for any purpose, would, in
the opinion of the Attorney-General, be corporations in the strict
sense of the word. If this opinion is correct, it would seem to fol-
low as a consequence, that the assent of two-thirds of the members
elected to each branch of the Legislature is requisite to its passage.

In a report by the late Attorney-General (Senate Documents,
1835, No. 4),*he observes: “At the time the Constitution was
formed and adopted, there were two modes of creating corporate
bodies, both well understood by the people of this State; the one
by the direct act of the law-making power, and the other by the
voluntary association of individuals under general laws, which had
been previously enacted for that purpose. The Constitution only
relates to those corporations which were created by “bill,” or, in
other words, by the direct act of the Legislature, leaving untouched
those associations, which might acquire a corporate capacity by the
mere act of the parties, without any special grant from the Legisla-
ture.’ The report then proceeds to enumerate the various “ corpo-
rations which had been provided for by general laws previous to
the adoption of the Constitution, and which might be created with-
out the direct intervention of the Legislature.” These were:

1. Colleges and academies.
1 Ante, p. 57.
76 OPINIONS oF THE ATTORNEYS-GENERAL

2. Religious socicties.

3. Library associations.

4. Medicai societies.

5. Manufacturing corporations.

Waiving all questions as to the validity of bodies corporate,
which have sprung into existence in virtue of general statutes
passed anterior to the adoption of the Constitution, the present
inquiry is, whether the passage at this time of a general law,
authorizing the creation of an unlimited number of these bodies by
the voluntary association of individuals, and without any direct act
of the Legislature upon them, would be in accordance with the
constitutional provision which has been cited.

In the opinion of the Attorney-General, such a law would not be
in conformity with, but would be a violation of the Constitution.

The Constitution had reference to such corporations as could
only be created by future legislation, and which must necessarily
be by “bill.” In its strict terms the clause is confined to bills,
which assume to create corporate bodies, and does not extend to
one which authorizes their creation by the voluntary association of
individuals. But this, in the opinion of the Attorney-General,
would be too narrow a construction of that instrument; it would
disregard its spirit and object, and adhere with rigid technicality
to the letter. As understood by the Attorney-General, it re:juires
that all corporations thereafter to be formed by the Legislature,
should receive the direct assent of two-thirds of the members in the
passage of bills, indicating and creating each particular institution.
This is the spirit of the provision, and is consistent with its letter.

The mischief which the Constitution designed to prevent was
the inordinate increase of private corporations. To effect this
object a new, unusual restraint was imposed on the legislative
power. A majority of each House is known to be competent to
transact all the ordinary, and indeed with but few exceptions the
extraordinary business of legislation. One of these exceptions
relates to bodies corporate, and for their creation or modification
the assent of two-thirds of all the members elected is required.

Not that corporations are denounced by the Constitution as
absolute evils. Had they been so regarded, their future creation
would have been prohibited. But they were not so viewed by the
or THE STATE oF New York. 77

framers of that instrument or by the people who adopted it. In
suitable numbers and with powers justly meted out and adapted to
the ends sought to be attained, they were regarded, as they have in
many respects proved to be, salutary in their effects and highly
conducive to the public welfare. The restraint is upon their undue
multiplication.

The Constitution demands, that the legislative discretion and
judgment shall be applied to every corporation, which must be
created by bill. If the contemplated institution is approved: by the
requisite number of members, the bill should pass into a law. But
the discretion and judgment which are thus invoked, and the exer-
cise of which is thus enjoined, can in no sense be exerted in the
creation of institutions which spring into existence at the bidding
of individuals.

The restraint imposed by the Constitution may be an unwise one,
and unsuited to the present condition and wants of the community.
It may have been imposed without adequate cause, and have
proved to be illusory and mischievous. These are all possible.
Yet the constitutional provision remains unchanged in its terms
and unabated in its force; and no considerations of policy or expe-
diency, however cogent they may be, can vary the meaning of those
terms or relax’ the obligation they impose.

The opinion of the Attorney-General is,

1. That the associations which this bill assumes to authorize
would be bodies corporate.

2. That as it thus assumes to create corporations, it requires the
assent of two-thirds of the members elected to its passage.

3. That the bill is unconstitutional, as it assumes to authorize
the creation of an indefinite and unlimited number of bodies corpo-
rate, and should it pass into a statute, and associations be formed
under it, they would, for the purposes contemplated, be absolutely
null and void.

All which is respectfully submitted.
SAMUEL BEARDSLEY.
78 OPINIONS OF THE ATTORNEYS-GENERAL

(Assembly Document, No. 304.)

AtTroRNEY-GENERAL’s OFFICE, }
Axpany, April 18th, 1837.

The Attorney-General, in obedience to a resolution of the honor-
able the Assembly, of the 14th inst., referring to him the bill
entitled “An act in relation to limited partnerships, and to
authorize assignable interests therein,’’ “ with instructions to report
his opinion on the constitutionality thereof; and whether the same
requires the assent of two-thirds of the members elected to each
branch of the Legislature to become a law; and if, in his opinion,
any of the provisions of the said bill are unconstitutional, to specify
the same,” submits the following report :

The bill referred to the Attorney-General, authorizes limited
partnerships for the purpose of receiving deposits, discounting
moneyed securities, and making loans on mortgage. They may be
formed “upon the terms, with the rights and powers, and subject
to the conditions and liabilities ” prescribed in said bill. (§1.) The
bill declares, that “every such partnership shall consist of two or
more persons, who shall be called partners, and who shall contribute
in actual cash payments, a specific sum as capital to the common
stock ; but no one of such partners shall be liable for the debts of
the partnership, beyond the sum so contributed by such partner to
the capital.” (§ 2.) The partners are to sign articles of partner-
ship, which shall contain, amongst other things, the partnership
name, “the number of shares, if any, into which such capital stock
is divided,” and “the periods at which the partnership is to com-
mence and terminate.” (§ 38.) The business of the copartner-
ship may be conducted under a partnership name, and the partners,
or a majority in amount of the shareholders, may appoint such
officers and agents as they may think proper, with power to con-
duct the concerns of said partnership, and to make by-laws, rules,
and regulations for its government. (§$7.) A person who becomes
a partner, but whose share of the capital is not paid as required,
“shall be held responsible as a general partner.” (§8.) The net
profits of the partnership “may be distributed among the part-
ners,” but the capital stock must not thereby be diminished. (§ 9.)
Suits by or against the partnership, may be prosecuted and con-

-
or THE SraTu or New York. 79

ducted “by and against the chief agent of such partnership,”
which suits may be prosecuted to final judgment or decree, and
enforced by execution, notwithstanding the death, resignation or
removal of such agent, The joint stock or property of said part-
nership shall be liable on such judgments and decrees. (§ 10.)
Mortgages given to, or purchased by said partnership, “shall be
made or assigned to the partnership, in its partnership name; and
may be discharged, released or assigned by the chief agent or
other fiscal officer of said partnership.” (§13.) The partnership
may purchase and hold real estate under special circumstances and
for a definite purpose, and conveyances for such as it may sell and
dispose of, “shall be executed by the chief agent.” (8§14, 15,
16.) “The interest of any partner, or of his legal representatives”
in any such partnership, shall-be personal property, and assignable
assuch. (§17.) No such “partnership shall be dissolved by the
death or act of any partner.” (§18.) Partners and agents are
made liable, civilly and criminally, for fraud in the affairs of the
partnership, and are declared to be liable as “general partners,”
for giving or attempting to give, a preference in cases of insolvency
or contemplated insolvency, to one creditor over other creditors of
the partnership. (§§ 20, 21, 22.)

Before proceeding to submit his views upon this Dill, the
Attorney-General begs leave to refer the Assembly to his report
of this date, upon the bill entitled “ An act to authorize associa-
tions for the purpose of banking.” Many of the suggestions con-
tained in that report, the Attorney-General deems opposite to the
subject, and pertinent to the questions arising on the present bill,
and he respectfully asks that it may be regarded as forming a part
of this report.

This bill does not purport to be an amendment of any existing
statute, it is complete of itself; and the legal qualities of the part-.
nerships which it authorizes, must be deduced from the bill alone,
aided as far as may be, by such common law principles as are
applicable. It is essentially unlike any statute now in force, or
which has ever been enacted in this State; and although designa-
ted as “an act relative to limited partnerships,” it bears but a slight
analogy to the present statute upon that subject.

By that statute (1 R. 8., p. 764), limited partnerships are
80 OPINIONS OF THE ATTORNEYS-GENERAL

authorized, to “consist of one or more persons, who shall be called
general partners, and who shall be jointly and severally responsible
as general partners now are by law; and of one or more persons
who shall contribute in actual cash payments, a specific sum as
capital to the common stock, who shall be called special partners,
and who shall not be liable for the debts of the partnership beyond
the fund so contributed by him or them to the capital.” (§ 2.)

“The business of the partnership shall be conducted under a
firm, in which the names of the general partners only, shall be
inserted.” (§18.)

General partners only, are authorized to transact business and
bind the partnership. (§3.) Suits in relation to its business may
be brought and conducted by and against the general partners, in
the same manner as if there were no special partners. (§ 14.)

These provisions of the present statute exhibit the essential
characteristics of the limited partnerships which are now tolerated
by law. The general partner is a trustee for the special partner,
and as such may receive and employ his funds in any description
of business which the statute authorizes. The entire legal interest
in the capital and property of the partnership, including the share
advanced by the special partner, vests in the general partner; the
business is conducted in his name, and suits, as in ordinary cases,
are prosecuted by and against him alone.

But the present bill is of a different stamp. There are to be no
general partners under it; all-are spectal. “The partnership shall
consist of two or more persons, who shall be called partners, and
who shall contribute, in actual cash payments, a specific sum, as
capital to the common stock.”

The business of the partnership is to be conducted in a “ part-
nership name.” This name is to indicate and represent, not the
individual partners, as it ordinarily does, but an artificial being,
arising from the peculiar union of these partners, and invested with
a legal capacity to hold property and transact business.

In general partnerships, the legal title to partnership property
vests in the copartners, as in such limited partnerships as are now
authorized by law, it does in those who are general partners. But
this bill, as understood by the Attorney-General, is designed to
divest the individual partners of all legal title to the capital stock,
or THE STATE or Nuw Yorx. 81

and place that title in the legal being indicated by the “ partnership
name.”

This legal being, for the purpose of prosecutions, is represented
by the name of the “chief agent” of the concern, and prosecutions
thus instituted may be carried to judgment and execution against
the ‘capital stock of the partnership, whether the “chief agent,”
whose name is thus strangely used, be numbered with the living
or the dead.

Conveyances and mortgages of real estate must be made “to the
partnership in the partnership name ;” but, in the opinion of the
Attorney-General, no title to the estate so conveyed or mortgaged
would thereby vest in the general partners. It would pass directly
to the legal person, which had sprung from the singular conjunction
of individual interests authorized by this bill. »

As understood by the Attorney-General, the bill aims to confer
on these partnerships, as persons in law, the ordinary attributes and
capacities of a civil corporation. A capacity to transact business
like a natural person; to take and hold property, sue and be sued,
and to have succession during the period of time limited in the arti-
cles of partnership. ,

These capacities and attributes constitute a legal person, a body
corporate, in the constitutional sense of the terms. Such, at least,
is the opinion of the Attorney-General.

Tf such partnerships are not bodies corporate, it may be asked,
what are they? Not copartnerships, in the ordinary sense of the
word. In every description of partnerships now known to the
law, title to the copartnership property is vested in some or all of
the individual copartners, and in whose names as individuals, the
business of the firm must be transacted. As individuals they must
contract and grant, as individuals prosecute and defend. As indi-
viduals, too, they are responsible to the full amount of their private
property for the partnership debts and liabilities. But under this
bill, the powers:and rights of the individual partners are in all
respects dissimilar; and they are only responsible as general part-
ners under very special circumstances, or in cases of fraud.

If bodies thus organized or constituted are not in law corpora-
tions, the Attorney-General freely confesses, that he is unable to
discover what they are. With the attributes and capacities of a

6
82 OPINIONS or THE ATTORNEYS-GENERAL

legal person, he however, deems it not uncharitable or unjust to
regard them as such.

It is the opinion of the Attorney-General :

1. That such partnerships as are contemplated by the bill would
be bodies corporate, and that the assent of two-thirds of all the
members elected is requisite to the passage of a bill for their
creation.

2. As the bill assumes to provide for the creation of an unlimited
and indefinite number of these corporations, at the mere pleasure
of individuals, it is for that reason unauthorized by and in deroga-
tion of the Constitution.

All which is respectfully submitted.
SAWL BEARDSLEY.

(Assembly document, No. 22’7.)
February 18, 1839.

The Attorney-General, who was required by resolution of the
Assembly, to report to that House his opinion, “as to the legality
of erecting new counties from contiguous territory lying in different
Senate districts,” submits the following report :1

Establishing new counties has been practiced since the origin of
the State, and is expressly sanctioned by the seventh section of the
first article of the Constitution. Nor is it material whether the -
new county is made a part of one county or of parts of two or
more counties; but in all cases the section above referred to,
requires the population of the new county should entitle it to one
member of Assembly, and that the apportionment of members
before existing shall not thereby be altered.

Whether a new county can thus be erected out of fragments
which lie in different Senatorial districts, is a grave question of
more difficult solution.

The objection lies in the last clause of the sixth section of the
first article of the Constitution, which is, “No county shall be

1 See post, p. 119, note.
or THE Srate or New Yorx. 83

divided in the formation of a Senate district.” But it is said this
does not forbid such division in the formation of a county.

The result is the same in both cases, although the manner of
arriving at it is different. If the language of the Constitution had
been, no county shall be divided between two Senate districts, it
would readily be admitted that such divisions could not be made,
either in the formation of a county or a district, or in any other
way. The whole question, therefore, is this, is the manner of mak-
ing the division material ?

The Attorney-General is of opinion that the manner is immate-
rial; that the intent of the Constitution is to prevent, and that its
language does in fact prohibit, the division of a county between
two Senate districts.

By the previous part of the same section, ditenona’ in the Sen-
ate districts are forbidden, except at a session next after the decen-
nial State census. The whole scope and object of the section is to
establish the Senate districts, and regulate their reestablishment
from ten years to ten years, so as to keep them adjusted as near as
may be to the increasing and varying population of the State. The
term formation, used in the closing paragraph before cited, refers
not only to the original establishment, but to the subsequent altera-
tions contemplated in that section. Or, perhaps, more precisely
speaking, the word refers to the alterations alone, as the formation
had been made by the fifth section of the same article. It would
hardly occur to the makers of the Constitution, that a county could
be divided by a Senate district, except by the way the line of that
district was run, and having prohibited such division in every per-
mitted case of the formation or alteration of a district, they must
have supposed that they had prohibited it in every case which
could arise.

When the meaning of a law is not ster from its language, resort
must be made to the intention of the legislator and the reason of
the law. But before resorting to this species of illustration it is
proper to remove an objection to this rule of interpretation.

It may be said that constitutions are to be construed strictly and
literally ; that under our national Constitution, Congress have no
power which is not expressly granted to them} but under our State
Constitution, the Legislature have all power which is not expressly
84 OPINIONS OF THE ATTORNEYS-GENERAL

\

prohibited them; and therefore, that inasmuch as our Constitution
does not, in so many words, prohibit the Legislature from erecting
counties, parts of which lie in different Senate districts, that power
remains to them.

As to its Uteral or verbal argument, it may be met with one at
least equally cogent. The Constitution prohibits, in so many words,
the alteration of Senate districts, except at the specified session,
which is not the present one. The formation of a county in the
manner proposed will alter a Senate district, not in territorial
limits, but in description. For example, if the town of Bushwick,
in Kings county, is added to Queens county, the description of the
first Senate district is no longer New York, Richmond and Kings,
but New York, Richmond, Kings, and the town of Bushwick in
Queens. This is an argument to the letter of the Constitution, and
if words without regard to substance are to settle this question, it is
conclusive against the constitutionality of the proposed law.

As to the doctrine of strict construction, applied to constitutions,
it is probably this, that it reverses the rule of construction ; and as
ordinary grants are construed most strongly against the grantor,
these large grants of power from the people to their agents are, on
the contrary, construed most strongly against the grantees.

The rule is doubtless a most salutary one, but is totally misap-
plied in this case. It may be admitted that the national Constitu-
tion is an instrument of grants; that the national government is
the creature of that instrument of prohibitions; that the State is
older than the Constitution, and that the Legislature was at its
origin omnipotent, in the same sense that the English Parliament
is said to be now; that the object of our State Constitution was,
not to create a government, but to limit and regulate its powers.
Now apply strict construction or an interpretation against the
agent and in favor of the people to the two cases. In the former
it guards against the assumption of any power by the Legislature,
which is prohibited by the letter, spirit or intent of the instrument.

So far, therefore, from the doctrine of strict construction taking
a particular case, under our State Constitution, out of a general
restriction, because it is not literally included, it forbids the exer-
cise of such a power, unless literally excepted.

We may now proceed to examine this clause in the ordinary way,
or THE STATE or New York. 85

by ascertaining the reason of it and the intention of those who
made it.

The clause forbidding the division of counties in the formation
of Senate districts, is one of the amendments of the Constitution,
introduced by the convention of 1821.

By the first Constitution of 1777, the State was divided into
four unequal Senate districts and the number of Senators limited
to twenty-four; but authority was given to the Legislature, to
increase the number as the population in any district increased,
and also to divide the districts into such other and further districts
as they might deem proper.

By the third amendment adopted by the convention of 1801, the
number of Senators, which at that time had increased to forty-four,
was reduced and permanently fixed at thirty-two, the present num-
ber. But thus far, it was not required that the Senate district
should consist of contiguous territory, nor prohibited to divide a
county in the formation thereof. ‘

In the convention of 1821, Rufus King, chairman of the commit-
tee on the legislative departments, reported a plan providing for
seventeen Senatorial districts, but in other respects containing the
provisions substantially as they now stand. The requisitions, that
alterations should be made only at the session next after the State
census, and so made as most to equalize the number of inhabitants
in each district, and that territories not contiguous should not be
united in the same district, and that no county should be divided,
were added to the Constitution after twenty years’ experience of
violent party warfare, and were intended no doubt among other .
things to prevent what was in those days called “ gerrymandering.”
This motive, however, does not appear from the debates on the sub-
ject, to have been the principal one against the division of counties.
There is a single fact which illustrates very strongly the object and
meaning of the members of the convention. It is this: The favo-
rite plan of division was into thirty-two districts; that is, as many
districts as Senators; but it was rejected, simply because it would
involve (if made at all proportionable in population) the necessity
of dividing counties.

Mr. King, on introducing his plan, remarks: “With regard to
the districts, the committee would have preferred to make as many
86 OPINIONS oF THE ATTORNEYS-GENERAL

as there were Senators, if they could have found it to be practicable
without dividing counties. As the inhabitants of counties were
associated and brought together for various purposes, they were
better acquainted with each other than they could .be with persons
of an adjoining county, even if less remote in point of distance.
This fact was observable in the intercourse between towns. The
committee had, therefore, thought it inexpedient to break in upon
the counties, and had adjusted the ratio of population as well as
they could consistently with that principle.” (Debates of Con., p.
401.) Gen. Tallmadge, Judge Platt, Judge Van Ness, Gov. Tomp-
kins, and several other leading members of that convention,
expressed their strong desire for a division of the State into thirty-
two Senate districts, but the insuperable objection with a majority
was the necessity of dividing counties. The remarks of Mr. Duer
are worth quoting: “‘ He was very certain that whether the num-
ber of thirty-two or thirty-six were adopted for the number of the
Senate, it would be impossible upon that principle (a district for
each Senator), to avoid breaking in upon the unity of the counties.
Ifany gentleman should doubt this fact, he would discover by refe-
rence to the census, that it could not be accomplished without
dividing more than thirty: counties in the State. It would also be
worth consideration, that the voice of the fractional part of one
county annexed to another would be entirely lost and disregarded.”

Colonel Young declared “that he was in favor of the greatest
number of Senatorial districts that could be formed without break-
ing up counties; but he was convinced that it was inexpedient to
dissolve and disunite those associations.”

Elisha Williams remarked “ that there had been a general expres-
sion in favor of having single districts, if that object could be
effected without disturbing the lines of counties. The honorable
chairman (Mr. Van Buren) had been expressing himself in favor of
such an arrangement, if the plan could be devised for doing so
without dividing and cutting up counties, or making them too
unequal. But he has told us that this cannot be ‘done, etc.,” ete.

In the course of the debates General Tallmage, who introduced
the proposition which was adopted, used the following argument:

“Tf some towns of one county, were annexed to another county,
to compose a Senate district, it would thus often happen, that the
or THH STATE or New Yorr. 87

representation of the single district, thus composed, would oppose
the very wishes of those towns, annexed to a county with which
they had no alliance. This was sufficient to show the impropriety
of dividing counties and setting off towns.”

These citations are only excusable because of the importance, of
showing clearly the object and intention of those who made the
Constitution, in order to see if the project in view will contravene
that object, or evade that intention.

The subject is one of great importance, and opinions entitled to the
utmost weight have been given in favor of the power required.

Another quotation from the same debates will not be deemed
superfluous, inasmuch as it goes to show that this amendment of
tle Constitution, which on the point of dividing counties by senate
districts was unanimous, was not made without experience of the
evils of a contrary course. Allusion was made in the course of
debate, to several cases in which counties were divided by Con-
gressional districts, especially the district which was then constitu-
ted of the county of Columbia, and three towns in Dutchess.
Peter R. Livingston, the member from Dutchess, replied: “The
allusion had been unfortunate. Ifa marriage had ever taken
place, in which there had not been a consent of parties, and where
a divorce was devoutly wished for by the fairer, but weaker party,
it was in the case to which the honorable gentleman had referred.”

Judge Van Ness, the member from Columbia retorted: “The
desire of divorce could not possibly be stronger, on the part of the
towns of Dutchess, than that of the county of Columbia; that
county had not sought for the connection, and had no wish to con-
tinue it.”

From all these discussions, it is manifest that the evil to be pre-
vented, was the having parts of the same county.in different Sen-
ate districts. Even the political consequences which it has been
supposed was the motive, are not adverted to at all in the debates.
on this point, nor is it perceived how they can be very materially
affected; for in the one case, that of dividing a county in the forma-
tion of a Senate district, the political character of that district may
be thereby changed ; butin the other, that of the formation of a
county by uniting parts of two counties their political character
may be changed, which (considering the county officers as well as
88 OPINIONS oF THE ATTORNEYS-GENERAL

the representatives) would be of at least as much importance as @
Senate district. So that if the sole object of the prohibition was,
as has been contended, to. prevent the system of gerrymandering,
even that would be evaded and defeated by the plan proposed.

The objections to thus dividing counties are, that it breaks the
anity of the counties, dissociates in political action those who are
united in interest, and associates those who are opposed in their
interests ; interferes with fair representation, by unequal combina-
tions, in which the just claims of the weak fragment will be
unheard and disregarded, and imposed upon the representing sena-
tor the impossible duty of acting as the agent of antagonistic
and irreconcilable interests.

Not one of these objections has any relation to the manner in
which the division is effected. They exist to the thing itself, and
if we have regard to the reason and intention of the Constitution,
we must pronounce it unconstitutional to create a severance of a
county between two Senate districts, no matter how it is effected.

There is another point of view in which this subject presents
itself. It was evidently an object with the framers of the Consti-
tution, next in importance to the integrity of counties, that the
Senate districts, as they send an equal number of senators, should
contain an equal number of electors. For this reason, and to effect
this purpose, they have made it imperative on the Legislature, at
the session next after each census, to alter and apportion the dis-
tricts anew. There is no such requirement in the formation of
counties; consequently, in forming a county in the manner pro-
posed, out of the parts of two Senate districts, 5,000 may be taken
from one, and 20,000 from the other. Now, when that session comes,
at which the Legislature are commanded to readjust the Senate
districts, they will be compelled by the express letter of the Con-
stitution, to alter this line, running through the county, to coin-
cide with the county boundary ; whereby the population of that
district becomes disproportionate. They may, it is true, be able
to make compensation by alterations in some other part, or they
may not. All that is intended to be shown is, that the proposed
plan is liable to throw the districts into confusion, to thwart
another important object of the Constitution, and to defeat, to
some extent, the great principle of equal representation.
or THE STATE oF New Yor. 89

Alterations of this kind, provided they do uot interfere with the
just apportionment of the population of the districts, can be legally
made once in ten years, by altering the districts and the counties at
the same time. The only thing to be gained, therefore, by exer-
cising- this disputed power, is to anticipate, by a few years, the
period fixed by the Constitution for making these changes.

WILLIS HALL.

ATTORNEY-GENERAL’s OFFICE,
Axsany, March 10, 1842.

To his Excellency, Wmu1am H. Szwarp, Governor :3

Sm.—Agreeable to your request, the Attorney-General has
examined the report of the Commissioners of the Land Office, in
relation to the lands belonging to the State of New York, situate
on Staten Island, including the premises on which are situate Forts,
“Tompkins” and “Richmond,” and Batteries “Hudson” and
“Morton.”

From the correspondence accompanying this document, received
from your excellency, he learns that an appropriation, proposed by
the military committee, and recommended by the war department
to the Congress of the United States, at its last session, for the pur-
chase of the sites on which said forts and batteries are situated, and
for completing the fortifications thereon, was defeated, on the ground
that those lands and fortifications, or some portion thereof, had
been already ceded to the United States. He understood your
excellency to desire the opinion of the Attorney-General as to the
legality and justice of this claim, on the part of the government of
the United States, and whether, in his opinion, the legal title to
those lands and fortifications, had become vested in the government
of the United States, discharged of all claim on the part of the
government of New York.

In order to understand this question, and arrive at an accurate

1 This opinion, although perhaps not of practical importance, yet as giving a
complete resume of the facts, out of which grew an interesting controversy between
the United States and this State, which at one time excited much attention, is
deemed of sufficient interest to authorize its publication.
90 OPINIONS oF THE ATTORNEYS-GENERAL

conclusion, in answering the inquiry of your excellency, it becomes
necessary, in the first instance, to inquire into the history of legis-
lation, on the part of the government of New York, in relation to
those lands and fortifications, and to ascertain what has been the
general understanding, as well on the part of the government of
the United States as on the part of the government of New York,
in relation to the question, whether the title to those lands and for-
tifications, had in fact passed from the government of New York to
the government of the United States, under the act of session of
1807, hereinafter referred to, and which he understands to be the
act upon which the claim of the government of the United States
is predicated.

The facts connected with this title, as derived from the report of
the Commissioners of the Land Office, and other documents, are
understood by the Attorney-General to be as follows, viz. :

On the 26th day of March, 1794, the Legislature of the State of
New York passed an act, entitled “ An act authorizing the erection
of fortifications within this State.” By this act £30,000 were
appropriated for the purchase of lands for that purpose. George
Clinton and others were appointed commissioners to carry this act
into effect. Those commissioners, on the 24th of November, 1794,
purchased of Ann Jacobson and Catharine Vandeventer twenty-
five acres of land on Staten Island, situate in the town of Southfield,
county of Richmond, embracing the premises in question, for which
the State of New York paid £1,295.

Subsequent to this, and on the 20th of March, 1807, an act was
passed by the Legislature of the State of New York, entitled “ An
act to cede the jurisdiction of certain lands in this State to the
United States.” The first section of this act declares, “that the
persons administering the government of this State, the Lieutenant-
Governor, the Chancellor, the Chief Justice of the Supreme Court,
and the Mayor of the city of New York for the time being, be and
hereby are appointed commissioners, with full powers to them, or
any of them, whereof the person administering the government for
the time being shall always be one, in their discretion, and as they
shall judge the safety and defense of the city of New York to
require, and in such manner and form as they shall judge necessary
and proper, to declare the consent of the Legislature of this State,
OF THE STATE or NEw York. 91

that such parcels of land on Staten Island and Long Island as they
shall judge necessary for the purpose aforesaid, shall be subject to
the jurisdiction of the United States, and thereupon the jurisdic-
tion of said lands shall be vested in the United States.”

- This section limits the quantity of land to be ceded to 200 acres,
and contains a proviso that such cession shall not be deemed to
extend to prevent the execution of process, civil or criminal, under
the authority of the State of New York.

Section 2 provides, “that such declaration of the consent of the
Legislature shall. explicitly define, by accurate metes and bounds,
the situation of the lands, the jurisdiction whereof shall be ceded
in virtue of this act, which description shall be filed in the Secre-
tary’s office of this State.

By.section 3 it is enacted, “that the lands belonging to the peo-
ple of this State, at Bluff Point, on Staten Island, which shall, by
the President of the United States, be deemed necessary for
fortifications, are hereby granted to the United States for that
purpose.”

The Attorney-General understands, that the government of the
United States asserts its claim to the premises in question, under
the last section of this act, and insists that under it those lands
were granted without reserve, and became vested absolutely in the
government of the United States, discharged of all claim on the
part of the State of New York.

On reference to Revised Statutes, first part, passed 3d December,
1827, the Attorney-General finds that the revisers, in a note to
section 6, title 3, chapter 3 of first part, Revised Statutes, which is
a literal transcript of the foregoing third section of the act of 1807,
viz.: “ The lands of the State at Bluff Point which the President —
should deem necessary for fortifications, were granted without
reserve by the act of 20th March, 1807. But it does not appear
that the United States have ever taken possession of the preimises
or accepted the grant. Inquiries have been made in all the depart-
ments in Washington, but no information was obtained.”

From the documents and papers submitted to the Attorney-Gene-
ral by your excellency, it appears that the Secretary of War, on
the 23d of January, 1841, referred to the engineer bureau, at
Washington, whether the cession of 1807, or any other act of ces-
92 OPINIONS OF THE ATTORNEYS-GENERAL

sion from the State of New York, did embrace the works on
Staten Island, where the site of those forts and batteries are situated.
The engineer department referred for information on that subject
to Captain Lee, captain of the engineers in New York harbor.
Captain Lee, in a letter addressed to Colonel Joseph G. Trotter, of
Washington city, chief engineer, under date of January 2, 1842,
after reciting the above named third section of the act of 1807,
remarks: “I believe the point herein referred to, to be the south-
eastern extremity of Staten Island, which forms the site of batteries
Hudson and Morton, and forts Tompkins and Richmond. This
point has been long known by the pilots and inhabitants under the
name of “The Bluff,” and I know of no other point on the island,
which could be required by the United States for fortifications. It
was originally granted by the crown of England to Lockman and
Vandeventer, from whom it descended, by inheritance, to John V.
Jacobson, who sold it to the State of New York. * * * The
cession of this land, however, seems never to have been perfected.
It is stated in a note (Revised Statutes of New York, page 68),
not to be designated by any instrument of acceptance, or by any
act of possession.”

That the government of the United States, as well as the govern-
ment of New York, has never supposed that the title to the
premises in question had vested in the former government; under
’ the act of cession of 1807, in the opinion of the Attorney-General,
will be manifest, by resort to two sources of information; the one
derived from the history of subsequent legislation on the part of
the latter government, in relation to the premises and fortitication
in question ; the other, from the correspondence that has passed
between the two governments subsequent to the act of 1807, and
the subsequent acceptance by the government of the United ‘States,
from the government of New York, of a portion of the same
premises, and a negotiation for a grant of the residue thereof.

It appears that on the 8d day of February, 1809, an act was
passed by the Legislature of New York, entitled “An act relative
to the fortification erecting under the authority of this State.”
This act authorizes the persons administering the government of
this State, to purchase, on account of this State, as much land, not
exceeding twenty-five acres, adjacent to the public land at the Nar-
or Tay Stare or Nuw York. 93

rows, in Richmond county, as he may deem useful, for the purpose
of fortifications erecting there.

In pursuance of this act, the State of New York, by a grant from
John V. D. Jacobson and wife, acquired title to twenty-two and
one-half acres of land on Staten Island, adjoining the premises in
question, on the 20th of November, 1809.

On the 11th February, 1811, Governor Tompkins, in a commu-
nication to the Legislature of the State of New York, relative to
the disposition of the fortifications on Staten Island, suggests the
propriety of authorizing a cession to the United States, upon such
terms as the Legislature shall deem proper, so that in case Staten
Island should be selected for the site of the military academy, ade-
quate power might be vested somewhere, to negotiate without delay
the terms of a transfer to the United States for that purpose.

Agreeable to this suggestion of Governor Tompkins, the Legisla-
ture of New York, on the 30th March, 1811, passed an act autho-
rizing the Governor, Lieutenant-Governor, Chancellor, and the
Chief Justice of the State, and the Mayor of the city of New York,
or any three or more of them, to cede to the United States, the title
and the jurisdiction of the State to all the lands belonging to the
State, situate on or near the southern point of Staten Island, con-
taining about fifty acres, together with the fortifications thereon, to
be held by the United States, as long as the principal military aca-
demy of said United States should be established, suitably endowed
and continued on said island, upon such terms as should be con-
cluded upon between them, or any three of them; and the person
or persons duly authorized and empowered by the government of
the United States to accept of such cession. °

On the 12th June, 1812, an act was passed, by the Legislature of
New York, entitled “An act to provide for the defense of the fron-
tier and other purposes.” By section ten of this act provision is
made for guarding the fortifications at the Narrows. By section
11 it is declared “that the possession of said fortifications and .
public lands at the Narrows” shall be deemed to be in the person
administering the government, and he is vested with power to
direct the guard, or such other persons as may have the immediate
charge and superintendence of said fortifications and public grounds,
to remove therefrom by force any person or persons who shall tres-
94 OPINIONS OF THE ATTORNEYS-GENERAL

pass thereon. Section 13 of this act appropriates $25,000 “ for
the completion of the fortifications on Staten Island erecting under
the authority of this State.”

On the 15th April, 1814, the Legislature of New York made
another appropriation of $50,000 for the completion of the for-
tifications on Staten Island.

On the 24th October, 1814, it made another appropriation of
$50,000 for the completion of the fortifications on Staten Island.

On the 15th April, 1815, it appropriated $25,000 “for the comple-
tion and equipment of the works and fortifications erecting by the
State on Staten Island.” .

On the 17th April, 1816, it again appropriated $2,000 “ for the
preservation of the works and fortifications erecting by the State
on Staten Island.”

On the 10th February, 1818, an act was passed by the Legisla-
ture of New York, entitled “An act respecting the demands of' this
State against the United States, and for other purposes.” By sec-
tion 2 of this act it is enacted “that it shall and may be lawful for
the persons administering the government of this State, to institute a
negotiation with the government of the United States, for the sale of
the fortifications and buildings belonging to this State at the Nar-
rows on Staten Island and the land connected therewith, and to
report the same to the next Legislature for their consideration.”

Under this act Governor Clinton appointed Colonel Ferris Pell
“agent for the State to negotiate for the sale of the fortifications
and lands belonging to the State on Staten Island.”

The Attorney-General will have occasion hereafter to advert to
the correspondence and proceedings under this act.

On the 15th April, 1826, the Legislature of New York passed
an act, entitled ‘“‘An act to provide for the expenses of a survey of
the fortifications on Staten Island, and for other purposes.” This
act appropriated $100, to defray the expenses in procuring a survey
and map of the fortifications, belonging to the State on Staten
Island, together with an estimate of their value. It required the
Governor to employ some one for that purpose. Section 3 of this
act repeats: “The act of 10th February, 1818, so far as the same
authorizes the employment of an agent.”

On the 15th April, 1828, the Legislature of New York passed
oF THE STATE oF New Yorx. 95

an act entitled “An act ceding to the United States the property
and jurisdiction of certain ground for the erection of a light-
house.” This act is substantially as follows: “Section 1. The
Commissioners of the Land Office are hereby authorized and
directed to select and cause to be surveyed a suitable site for
a light-house on or near the southern part or projection of
Staten Island, to be laid out in such manner as not to inter-
fere with the appropriate use of the military grounds of
Fort Tompkins, and thereupon execute a deed of conveyance
of the same to the United States, inserting therein a proviso,
that the government of the United States shall erect and main-
tain a light-house on said ground, and on failure to do so the title
to said premises shall revert to the people of this State.” § 2. “The
jurisdiction over the grounds to be thus conveyed shall, from the
date of such conveyance, be vested in the government of the United
States. But this cession of jurisdiction shall not be so construed as
to prevent the execution of any process, civil or criminal, issuing
under the authority of this State.” .

Capt. R. E. Lee, of the engineer department, in a letter to Joseph
G. Trotter, under date of 2d January, 1842, says: “The tract of
one acre situate at or near the south-eastern point of Staten Island,
which was ceded to the United States for the erection of a light-
house on the 15th April, 1828, once formed a part of the land
belonging to the State of New York at the Narrows. It is occu-
pied by the United States for the purposes for which it was ceded,
and has on it a light-house and a keeper’s house. Its limits
embrace the house next to and nearly in the prolongation of the
south branch of Battery Hudson, as laid down on the maps of the
fortifications on Staten Island, showing the metes and bounds of the
State line, which is on file in the engineer’s department.

On 5th January, 1830, Gov. Throop, in his annual message to
the Legislature of New York, calls the attention of the Legislature
to the subject of these fortifications, from which message the fol-
lowing extracts are taken: —

“During the session of 1818, the Governor was authorized, to
settle the claims of the State against the United States for aid of
various kinds afforded them during the late war. Negotiations
were entered upon and considerable repayments were made on that
96 OPINIONS OF THE ATTORNEYS-GENERAL

account, although claims to’ a considerable amount remain to be
adjusted. Further negotiations were suspended by the repeal of
that law, in 1826. * * * It is submitted to your consideration,
whether you will authorize the negotiation to be renewed for that
purpose, at the same time a matter of much moment might be
made the subject of negotiation.”

“The fortifying the harbor of the city of New York, the com-
mercial emporium not only of the State, but of the nation on the
eastern border, is of the first importance in case of war, and has
attracted the attention of the general government, which is now
erecting a very strong work, Fort Hamilton, on the east side of the
Narrows. * * * During the late war, the State expended at
least $350,000 on works at that point, known as the fortifications
on Staten Island, which were never entirely finished. * * *
The advanced state of other similar works, and the prosperous
condition of the finances of the general government, indicate the
present as a favorable time to treat for the sale of the works to the
general government. By an act of 1818, the Governor was autho-
rized, to institute a negotiation for the sale of these fortifications
and the lands connected therewith, and was directed to report to
the Legislature ; nothing effectual was done under that law. In
1826, a survey and map and estimate of their valne was directed to
be made. It is submitted to your consideration whether further
negotiation on that subject is not expedient.”

This portion of the Governor’s message was referred to a select
committee in the Senate of the New York Legislature, who, on the
19th April, 1830, made a report thereon, from which the following
are extracts :

“That by an act of the Legislature, passed 10th February,
1818, relative to the settlement of the claims and accounts of this
State against the United States, the Governor was authorized to
appoint an agent to proceed to Washington for that purpose ;
which agent was, under the direction of the Governor, authorized
to institute a negotiation with the government of the United
States for a sale of the fortifications and grounds at the Nar-
rows on Staten Island, in the county of Richmond, and report
his proceedings to the Legislature at the next session. Subse-
quently, and in pursuance of such authority, the then Governor,
oF THE STATE oF New Yorx. ‘ 97

Clinton, appointed Colonel Ferris Pell an agent to discharge such
duties, who accordingly proceeded to Washington, and although
principally devoted to the settlement of the accounts between the
two governments, entered upon a treaty for a sale of said fortifica-
tions.” After stating the substance of a letter from the secretary
of war, Hon. J. C. Calhoun, to Mr. Pell, under date of 2d February,
1821, which is hereinafter referred to by the Attorney-General, the
report proceeded to state: “Nothing further transpired between
them, and the agent returned home without effecting a specific
understanding or agreement on the subject.” Nothing further
appears to have been done until 1825, when Mr. Hammond was
appointed an agent, to liquidate the unsettled claims against the
United States, and renew the negotiations respecting the sale of the
fortifications. * Balk a * * # *
The last communication on the subject from the general govern-
ment is contained in 4 letter from Mr. Barbour, the secretary of
war, to Mr. Hammond, dated 18th November, 1825, in which he
says: “The department of war is prepared to enter into a negotia-
‘tion for the acquisition of Fort Tompkins and the necessary portion
of land around it, and will receive any proposition you may think
proper to make; but you will please to state explicitly, so that a
clear view may be had of the condition and value of Fort Tomp-
kins, and the price per acre for the requisite quantity of ground.”
This committee concluded their report by saying “that it would be
advisable to renew the negotiations with the general government for
the sale of said public property,” and submitted a joint resolution,
which was adopted by both Houses of the Legislature on the same
day, “that a negotiation be opened with the general government,
by or under the direction of the acting Governor, for the sale of the
ground and fortifications at the Narrows, on Staten Island.”
Governor Throop, in his annual message to the Legislature of
New York, on the 4th January, 1831, again alludes to the subject
as follows: “In pursuance of a resolution of the Legislature during
the last session, I issued instructions to the Commissary-General, to
open a negotiation with the general government for the settlement
of the unliquidated ordnance accounts. He commenced a corres-
‘pondence with the subordinate officers, who have heretofore been

7
98 OPINIONS oF THE ATTORNEYS~GENELKAL

charged with that matter, which produced no result for want of
proper authority on their part.”

The Commissary-General, in his annual report, under date 18th
January, 1831; says: “The fortifications and public property, Forts
Richmond and Tompkins, on Staten Island, remain as per last
report.” , ,

The Attorney-General has been unable to find any other report
or allusion to this subject bythe executive of the State of New
York, until the 2d January, 1836, when Governor Marcy, in his
annual message to the Legislature, thus adverts to it:

“ At the request of the President of the United States, I submit
to you the proposition to cede to the general government, the pos-
sessory right to so much of the lands belonging to the State of New
York, upon Staten Island, and heretofore used for military pur-
poses, as may be necessary to construct and maintain proper defense
for the protection of the harbor of New York. I recommend that
you should authorize the sale to the United States, of so much as
they may desire to possess for the proposed object, and to cede to
them such a concurrent jurisdiction as is usually granted in like:
cases.”

In pursuance of this recommendation of Governor Marcy, the .
Legislature of New York, on the 6th February, 1836, passed an
act, entitled “ An act authorizing the sale to the United States of
certain lands on Staten Island,” which act is substantially as
follows :

“Szcrion 1. The Commissioners of the Land Office are hereby
authorized to sell to the United States of America, upon such
terms as they may think proper, so much of the lands on Staten
Island belonging to the State of New York, heretofore used for
military purposes, as may be required by the government of the
United States to construct and maintain proper defenses for the
protection of the harbor of New York.

Ҥ 2. The jurisdiction of such lands as may be sold by virtue of
the first section of this act, from and after the date of such sale,
shall be ceded to the United States of America, for the purposes
for which the same shall have been sold. But such jurisdiction
shall not be construed so as to prevent or impede the execution of
any process, civil or criminal, under the authority of this State,
oF THE STATE oF NEW Yorx. 99

except so far as said process may affect the real and personal pro-
perty of the United States within said tract of land.”

The foregoing history of legislation on the part of the govern-
ment of New York, relative to the lands and premises in question,
shows most conclusively that the Legislature and executive depart-
ment of the government of New York, have always regarded the
lands and fortifications on Staten Island therein referred to, as
belonging exclusively to the government of New York; and that it
‘ has never been understood by them that the legal title had passed
to the government of the United States, under the act of cessiog of

1807.

The Attorney-General will now proceed to inquire, what has been
the general understanding of the executive department of the
government of the United States in relation to this question, and
how far that government has acquiesced in the claim of title on the
part of the government of New York.

For this purpose he will, in as brief a manner as the facts of the
case will admit of, advert to the correspondence which has passed
between the executive departments of the two governments.

It will be remembered that this correspondence originated under
the act of 10th February, 1818, already referred to by the
Attorney-General.

Colonel Ferris Pell, the agent appointed by Governor Clinton,
‘in a letter addressed to Governor Clinton, under the date of 3d
December, 1818, writes as follows: “I have the honor ¢o transmit
the documents relative to the negotiation for the sale of the fortifi-
cations at the Narrows belonging to the State. The board of com-
missioners appointed to examine the whole line of the coast, and
report a general system of defense, were detained so long in the
Chesapeake, that they were unable to complete the survey during
the past season. The general government has, in .consequence,
deferred a definitive reply. In the meanwhile, however, the pro-
position on the part of the State has been received with atten-
tion and favorably entertained.”

It appears that Col. Pell, in a‘letter addressed to the Hon. John
C. Calhoun (then Secretary of War), under date of 19th November,
1818, writes as follows, viz.: “Having already presented to your
consideration, the disposition of the State of New York to transfer
100 OPINIONS or THE ATTORNEYS-GENERAL

upon equitable terms, the fortifications erected by the State, in a
period of danger, for the defense of New York, and the board of
commissioners being now in this city, I have the honor to invite a
communication of the disposition and views of the general govern-
ment on the subject.”

The following is an extract from a letter of Mr. Calhoun addressed
to Col. Pell, in reply to the foregoing, under date 24th November,
1818: “ Your letter of the 19thinstant, offering to dispose of, on
the part of the State of New York, the fortifications owned by it:
in the harbor of New York, has been received. In conversation
on the same subject last winter, I stated to you that the opinion of
the officers of the corps of engineers, who were charged with the
survey of the coast with a view to its effectual and permanent forti-
fication, would be taken relative to the works in question, and
that until their opinion was known, a definitive answer could not
be given. * * * In the meantime I can only repeat what has
already been stated in conversation. It is conceived that from
sound policy, and a just regard to the principles of the Constitu-
tion, the general government ought to assume in the fullest manner,
the burden of the general defense of the country, and that in con-
formity to these views, should the report of the officers be favora-
ble, the government ought to purchase the fortifications at a fair
price.”

On 15th February, 1821, Col. Pell addressed another letter to
Mr. Calhpun, Secretary of War, of which the following is an
extract: “In relation to the negotiation for the sale of the fortifica-
tions belonging to the State of New York, I have the honor to
invite your attention to that part of your letter of the 24th Novem-
ber, 1818, which states: ‘If the report of the engineers should be
favorable the department would make the necessary recommenda-
tions to Congress for the appropriation,’ with the view. to inquire
officially if the report has been received. In the present condition
of the public treasury, it may be found inexpedient to call the
attention of Congress to this subject; but it is desirable to ascer-
tain that the contingent doubts of the department have been
removed, and that the report is favorable to the wishes of the
State.” # * * * * *

On the 21st February, 1821, Mr. Calhoun, in reply to the above
OF THE STATE of NEW York«.

letter, among other things, says: “In answer to yours of the 15th
instant, I have the honor to inform you that the board of engineers
has reported that the fortifications at the Narrows, in New York
harbor, belonging to the State of New York, to be indispensable to
the plan for the defense of that harbor.”

Col. Pell, in a letter to Governor Clinton, under date of. April
2d, 1822, writes: “For the last five weeks I have been. in daily
expectation of having my business here brought to such a point as
would enable me to return home, without the necessity of another
journey to this place, as to that business, the portion of it which
relates to the fortifications. I have abandoned all expectation. of
urging that negotiation further than it now is. There is no money
in the treasury, no disposition in the Congress to appropriate, no
anxiety in the executive to hurry.” |

Governor Clinton, in a communication to the New York Legis-
lature, under date of April 7, 1825, remarks: “ The overtures of :
this State for the sale of the fortifications on Staten Island have not
yet been accepted, as providing that these concerns had not been
attended to for a long time, and that there was no agent to bring
them to a pe emielens I appointed Jabez D. Hammond, Esq., for
that purpose.”

Mr. Hammond, in a report of his proceedings to Governor Clin-
ton, under date of April 5th, 1825, states: “Although more than
five years have elapsed since the report of the engineers was
received by fhe government, I cannot learn that the subject has
been brought before Congress by the Executive of the United
States. I have invited the attention of the President of the United
States and the Secretary of War to this subject, and they have
agreed to give it attention and early consideration.”

In a subsequent report of Mr. Hammond to Gov. Clinton, under
date of 14th March, 1826, he says: “With respect to the nego-
tiations for the sale of the fortifications on Staten Island, offered
by the State to the general government, I have the honor to state,
that on the 9th of November last I addressed a letter to the Presi-
dent of the United States, reminding him of the instructions of the
State of New York, relative to that fortification, to which I
received in reply from the Secretary of War, td? whom it was
referred, dated 18th of the same, which is herewith submitted.”
102 OPINIONS oF THE ATTORNEYS-GENERAL

(Copy-)
“ DeparTMENT oF War, JVov. 18, 1825.

Sre.—Your communication as agent of: the State of New York,
addressed to the President of the United States, on the 9th instant,
with copies of the acts of the Legislature of that State, and a copy
of a letter from the department of war, all relating to the subject
of selling to the United States, the fortifications in the New York
harbor, belonging to the State of New York, has been received by
the President and referred to this department. I find, by reference
to the report of the board of engineers, that Fort Tompkins and
its position, are comprehended in the general plans of maritime
fortifications projected by the board of engineers, as more particu-
larly stated in the letter of 21st February, 1821, to Col. Pell, land
agent of the State of New York in reference to this business. The
department is prepared to enter into a negotiation, for acquisition
of Fort Tompkins and the necessary portions of land around it,
and will be pleased to state the terms very explicitly, so that_a
clear view may be exhibited of the condition and value of Fort
Tompkins, and the price per acre of the requisite quantity of land.
Should the terms upon which the transfer of the property may be
offered to the United States be approved by the executive, they
will be laid before Congress for its sanction.

Iam very respectfully, your obedient serv’t,,
JAMES BARBOUR.

To Jazez D. Hamwonn, Esq., Agent, ete.”

Mr. Hammond adds: “ From this document it will be perceived,
that the national government are ready to negotiate for the pur-
chase of these forts, but they require a description of the land
intended to be conveyed.”

From the fact that so much of the act of the 10th February, 1818,
as authorized the employment of an agent, was repealed by the act
of 25th April, 1826, the Attorney-General presumes, that no
further correspondence in relation to this subject between Mr.
Hammond and the general government took place, and that the
provisions for the survey of the premises under the last named
act were made én pursuance of the suggestion contained in Mr.
Hammond’s last communication. The Attorney-General would
cd

or THE STATE OF New York. 103

here remark, that at this stage of the negotiation between the
two governments, and shortly after, the termination of this
correspondence, the government of the United States accepted
from the government of New York, a cession of a portion of
the same premises under the act of cession of 15th April, 1828,
and went into possession under that legislative grant from the
State of New York. He has been unable to find any further
correspondence between the two ‘governments on this subject,
“anterior to that communicated to the Legislature of New York by
Gov. Marcy in his annual message of 1836, which eventuated in
the passage of the act of cession of the 6th February, 1836, herein
above referred to. ;

It appears that subsequent to the passage of this act, a corres-
pondence on this subject between the two governments was renewed,
to which the Attorney-General will now refer.

Col. Jos. G. Trotter, of the engineer department at Wash-
ington, in a letter addressed to the Hon. John Bell, then secretary
of war, under date of 12th March, 1841, among other things, writes :
“On the Staten Island side are the forts and batteries called Fort
Richmond, Fort Tompkins, batteries Hudson and Morton, all
occupying excellent positions though now in a state of great
dilapidation, capable of being brought by judicious repairs, to con-
tribute in a most important degree to the defense of the harbor.
These sites, on Staten Island, belong however, to the State of New
York, and while thus possessed, it would seem that the United
States cannot engage in their repair, nor indeed, in preparatory
operations tending thereto. I take leave to bring this subject before
you, in order ‘that the government concurring, the proper measures
may be taken for-a transfer of the works to the United States.
The importance of this transfer has often been stated to the gov-
ernment in respect to the defense of the country.”

The Attorney-General understood from your excellency, that
the letter from Col. Trotter from which the above extracts were
taken, was inclosed to your excellency in a letter from the Hon.
John Bell, late Secretary of War, under date of 13th March, 1841.
The following is an extract from that letter: “I submit to your
excellency the inclosed from the chief engineer on the subject of

* the importance, in providing for the proper defense of the harbor
104 OPINIONS oF THE ATTORNEYS-GENERAL

of the city of New York, of transferring to the United States the
four forts and batteries on Staten Island called Fort Richmond,
Fort Tompkins, battery Hudson and battery Morton, in order that
they may be repaired and put in as defensible a condition as the
means at the disposal of the department will admit. At this
juncture it is particularly important, that all the great Atlantic
cities should be placed in as secure a situation as possible from a
sudden attack of the enemy, and this is especially necessary in
regard to the great and wealthy city of New York, to which a°
hostile fleet could so readily penetrate, and lay under contribution.
I therefore beg leave to request, should you concur in their views,
_ that you will urge the necessary measures for having these forts
and batteries transferred to the United States.”

The Attorney-General also understood from your excellency that
the letter from which the foregoing is an extract, on its receipt was
transmitted by your excellency to the commissioners of the land
office; that at a meeting of that board, held on the 17th March,
1841, the following proceedings were had (extract from the minutes) :

“ Application having been made by the secretary of war of the
United States, by direction of the president, for a transfer to the
United States of the four forts and batteries on. Staten Island,
called Fort Richmond, Fort Tompkins, battery Hudson and battery
Morton, to construct and maintain proper defenses for the protec-
tion of the harbor of New York.

“Resolved, That the commissioners of the land office will sell
and convey to the United States of America, pursuant to the
authority given by the ‘act authorizing the sale to the United
States of certain lands upon Staten Island, passed February 6th,
1836, the land upon Staten Island, belonging to the people of this
, State heretofore used for military purposes, conveyed to the said
people by Ann Jacobson and Catharine Vanderventer on the 24th
November, 1794, and by John V. D. Jacobson and Helethay his
wife on the 20th November, 1809, containing in the whole about
forty-seven and a half acres, on receiving from the said United
States the consideration money paid by this State for the said lands
and interest thereon at six per cent per annum, amounting to the
sum of $33,281.874, or on receiving an agreement from the United
States that the said sum shall be paid to this State.”
or THE StaTE or New York. 105

The Attorney-General understood that a copy of the above min-
utes of the proceedings of the said commissioners, was transmitted
by the then Secretary of State to the then Secretary of War, accom-
panied with a letter, of which the following is a copy:

“ Srcrerary’s OFrFice,
Axpany, March 17, 1841. }
Hon. Joun Bunt, Secretary of War:

Sizr.— Your communication to the Governor of this State, of the
13th inst., on the subject of transferring certain forts and batteries
to the United States, was transmitted by him to the commissioners
of the land office. A statute of 1836 authorizes them to sell to the
United States, upon such terms as they should think proper, the
land in question.

If you wish to refer to the act, you will find it in the Session
Laws of 1836, at page 22, chap. 19. The statutes of this State are
in the office of the Secretary of State of the United States and in
the library of Congress.

One of these tracts was purchased November 24, 1794, for

$3,062.50, and the other November 20, 1809, for $7,500. As they
are really wanted for national defense, it has appeared but reasona-
ble to the commissioners, that the State of New York should be
reimbursed the money it advanced, and which is to become national
property, and should be regarded as the agent of the United States
in making this purchase. We have, therefore, supposed it but
right to ask repayment of principal and interest. A certified copy
_of the resolution of the commissioners, offering to sell on those
terms, is herewith transmitted. It is proper to mention that a small
portion of the land, three roods and seven perches, was, on the 14th
of June, 1828, ceded and conveyed to the United States for a light-
house. ‘

Should the government wish to occupy what remains of the
forts and batteries on the grounds for military purposes, before a
cession is made, there will be no objection on the part of the com.
missioners to such occupation.

Very truly your obed’t serv’t,
JOHN C. SPENCER,
Secretary of State’.
106 OPINIONS OF THE ATTORNEYS-GENERAL

In reply to the foregoing letter, the Hon. John Pell, then Secre-
tary of War, in a letter addressed to the then Secretary of State
(John ©. Spencer), under date of 31st March, 1841, says: “I have
the honor to acknowledge the receipt of your letter of the 17th
instant, inclosing a resolution of the -Commissioners of the Land
Office of the State of New York, agreeing to convey to the United
States, on certain conditions therein named, the land on Staten
Island owned by that State. The sanction of Congress to the pur-
chase is necessary, before an agreement can be entered into by the
department. The subject will be presented to that body, and
recommended for its favorable consideration; and no doubt is
entertained that the necessary provision will be made. In the
meantime, I respectfully request that authority be conferred upon
the department, to take possession of the works on Staten Island,
for the purpose of repairing them and improving their efficiency.”

It appears that the preceding communication from the Secretary
of War was laid before.the Commissioners of the Land Office by
the Secretary of State, at a meeting of the said commissioners, on
the 5th of April, 1841, and thereupon the following proceedings
were had:

The Secretary of State having laid before the board a communi-
cation from the Hon. John Bell, Secretary of War of the United
States, in which authority is requested to be conferred upon the
war department, to take possession of the forts and military works
on Staten Island, for the purpose of repairing them and improving
their efficiency,

“ resolved, That so far as this board have any authority on the
subject, its assent is cheerfully given to the occupation of said forts
and military works by the government of the United States, its
officers or agents, for the purpose of repairing and improving them,
until provision be made for the purchase of the title of this State
to the same.”

A copy of these proceedings, it is understood were transmitted
to the Hon. John Bell, Secretary of War.

Such are the facts and circumstances relative to the title to the
premises in question, as understood by the Attorney-General, under
which an appropriation by the Congress of the United States, for
the purchase théreof was referred, on the ground that the title to
oF THE STATE or New York. 107

the premises in question, or a portion thereof, had become vested
in the government of the United States under the act of cession
of 1807.

Tn view of these facts, and after a careful examination of the
documents and papers submitted to him by your excellency, the
Attorney-General cannot see any just or legal foundation for such
a pretense or claim on the part of the government of the United
States. /

He is unable to resist the conclusion, that the object which the —
government of New York had in view in the making of the original
cession of 1807 was to secure to it the immediate erection, by the
government of the United States, of permanent fortifications for the
defense of the city of New York, and its southern and eastern
frontier. That this was the sole consideration of the grant.
That by the decision of the government of the United States, not to
accept the grant, and make the anticipated erections, not only has
the entire consideration of the grant failed, and the object which
induced the government of New York to relinquish its sovereignty
over the premises in question been defeated, but by this recision
on the part of the federal government, the burden has been imposed
on the government of New York, of making those erections at its
own expense, for the defense of its territory against the aggressions
of a foreign foe, during the last contest between the government
of the United States and the crown of England, which it is con-
ceded on the part of the federal government “from sound policy, and
a just regard to the principles of the Constitution, ought to have
been sustained by the government of the United States.”

Were it necessary in this case to assume that the original grant
was absolute, and to be regarded as an executed contract ; when it
is considered that such contract had for its object the attainment
of a specific end, upon the accomplishment of which depended
to a great degree the safety, security, nay more, the very
existence of the government of New York, the preservation and
protection of the property and lives of its citizens; that this object
was defeated by reason of the neglect of: the government of the
United States. It would be a rigid application of the rules of law,
(which have their foundation in reason), to maintain that was beyond
the power of the government of New York, under such circum
108 OPINIONS OF THE ATTORNEYS-GENERAL

stances, to rescind the contract and revoke the grant. Such a
revocation would be the natural dictates of the law of necessity.
It is, however, unnecessary in this case to vest the title of New
York on the right of revocation under such circumstances, for it is
manifest thdt the grant never was complete for the want of
acceptance on the part of the government of the United States, so
that the minds of the constructing parties never have met so as to
render the contract binding on either party thereto.

Taking into consideration the foregoing history in relation to
the premises in question, the continued acts of ownership by
improvements and erections thereon, the repeated assumptions of
title on the part of the government of New York since 1811, the
absence of all evidence of acceptance of the grant by the govern-
ment of the United States, its acquiescence in the claim of title on
the part of New York, its negotiations for and acceptance of a grant
of a portion of the premises under the act of cession of 1828, its
- subsequent request for a grant of the residue under the act of 1836,
its application for possession under that act, and the resolution of
the Commissioners of the Land Office of the 17th March, 1841, the
conclusion is irresistible, that neither the government of New York
nor the executive department of the government of the United
States, ever have supposed, that the grant of 1807 had ever been
accepted on the part of the federal government, or that the title
had been transferred to the latter under sa act of 1807, or any sub-
sequent act.

It appears that the government of New York, from the time of
the passing of the act of the 30th March, 1811, to the 17th March,
1841 (a period of upward of thirty years), has been in the uninter-
rupted possession of the premises claiming title thereto adverse to
the title now set up by the government of the United States, and
that the latter were distinctly advised of that fact by the letter of
Colonel Pell of the 19th of November, 1818 ; that it has acquiesced
in that claim for a period of about twenty-three years since that
time; that no pretense of claim was ever set up until after it had
got into the possession of the premises, by permission of the Com-
missioners of the Land Office in 1841, allowing it a possessing right
for repairs, and that, too, under assurances that it was its interests
to provide the requisite means, to avail itself of the advantageous
or THE STATE or New Yorx. 109

terms upon which the government of New York, with a becoming’
generosity had proposed to transfer the title to the premises; it
cannot be believed that under such circumstances, the government
of the United States will persist in this claim, or that it will seek
to avail itself of that generosity, as a weapon for the defence of its .
possession thus acquired, or enforcing a claim as ungenerous as it
is unjust and inequitable.

It would be a great stretch of the rules of law, to maintain that
the cession of 1807 was beneficial to the federal government, and
that, therefore, its acceptance must be permanent, inasmuch as in
this case the cession was predicated upon the consideration, that the
government of the United States would accept of the grant upon
the term there proposed, and there has been no act on its part
indicative of its intention to yield to the government of New York
the benefit, which it was the object of that consideration to secure,
and the federal government for a period of thirty years has refused
to fulfill the terms of the grant.

Applying to this case the same rules of construction, and the
well settled legal principles, which govern grants from one indi-
vidual to another, there can be no donbt that the government of
the United States would be estopped by its acts and declarations,
from now asserting title in itself, hostile to the claim insisted upon
by the government of New York. There seems to be no good
reason why grants from one sovereignty to another, should not be
subject to the same rules of construction, and be governed by the
same general principles of law, as are applied to grants by indi-
viduals.

For these reasons, and others, which might be deemed original,
were it deemed necessary, the Attorney-General: is of the opinion,
that the claim on the part of the United States cannot be main-
tained ; that the title to the premises in question is absolute in the
people of the State of New York, and can only be divested by a
compliance on the part of the federal government, with the
terms proposed by the Commissioners of the Land Office, con-
tained in the resolution of said commissioners of the 17th March,
1841.

The Attorney-General after having so fully adverted to the
facts in this case, cannot consider it necessary to make a more

.
.
110 OPINIONS OF THE ATTORNEYS-GENERAL

- extended argument, or to refer to the authorities, which in his
opinion, sustains the conclusions at which he has arrived.
With sentiments of regard I have the honor to be,
Your obedient servant,

GEO. P. BARKER.

ArrorNEY-GENERAL’s OFFIOE, }
Apany, July 30, 1842.
O. Huncerrorp, Esq.

Srr.—I have the honor to be in the receipt of your letter of the
15th instant, in which you desire my opinion upon the question,
whether all ministers of the gospel, who have a regular license to
preach, although not in the actual exercise of that right, and who
are engaged in other avocations, are exempt from taxation under
the statutes of this State. The language of the exception is
“minister or priest.” Taking into consideration the particular
phraseology of the statute, I am inclined to the opinion that the
word “priest” is sufficiently comprehensive to include all licensed
ministers of the gospel, though not actually employed in the dis-
charge of the duties of that sacred office. That their exemption
depends upon the right to officiate at the altar, rather than upon the
actual exercise of that right.

I am your obedient servant,

GEO. P. BARKER.

ATToRNEY-GENERAL’s OFFICE, |

Axpany, April 15, 1842.
Davmw L. Stermovr, Esq. .

Dear Sir.—I have the honor to be in the receipt of your letter
of the 10th instant, asking my opinion whether the inspectors of
the State’s prison at Sing Sing, can authorize you to release a claim
against one of the contractors at that prison on receiving twenty-five
per cent of the amount due. Under the provisions of section 9 of
article 7 of the Constitution of this State, such a release cannot be 7
legally executed, without the assent of two-thirds of the members
elected to each branch of the Legistature. The word “property,”
as used in this section of the Constitution, includes not only real
OF THE STATE oF New York. LiL

and personal property, but also all such things as are the subject of
property. “ Personal property” comprehends within its terms a
chose in action. I am, therefore, of: the opinion, that such a release
would be unconstitutional and void.
I have the honor to be, your obedient servant,
GEO. P. BARKER,

ATTORNEY-GENERAL’s OFFICE,
Auzany, September 19, 1842.

Hon. Samvet Youne, Secretary of State:

Str.—Agreeable to your request, I have examined the question
suggested by the letter of Mr. C. B. Stratton, which mostly you
referred to me for an opinion. The question suggested by Mr.
Stratton’s letter is simply this: Whether an action can be sustained
against a hawker or peddler for the penalty given by section 6,
title 4, part 1 of the Revised Statutes, without the complainant’s
adducing affirmative proof of an actual sale of the goods, prohibited
by the first section of that title. The first section of that title pro-
vides: “No person shall be authorized to travel from place to
place within this State, for the purpose of carrying to sell or
exposing to sale any goods, wares or merchandise of the growth,
produce or manufacture of any foreign country, unless he shall
have obtained a license.”

By section 6 of the same title, “every person who shall be found
traveling and trading contrary to the provisions of the first section
of this title, etc., * * * shall for such offense forfeit the sum
of twenty-five dollars to the use of the poor of the town,” etc.

There can be no doubt that it was the intention of the Legisla-
ture, to give the penalty for 4 violation of the provisions of the first
section of this title; it is equally evident that traveling from place
to place, for the purpose of selling or exposing to sale any goods of
the character named in the first section, would be a violation of its
provisions ; and there can be no doubt that the Legislature intended,
by the language, “traveling and trading contrary to the provisions
of the first section of this title,” to have the penalty attach for the
doing of any act prohibited by the first section. The question there
arises, whether they have, in section 6, which gives the penalty,
112 OPINIONS oF THE ATTORNEYS-GENERAL

used proper and apt language to effectuate this intent; or, does
the copulative expression, “ traveling and trading,” have the
effect to limit the penalty to cases where there has been an actual
sale of the prohibited articles. The Legislature, in the first section
of this title, have in a specific manner defined the kind or charac-
ter of the transactions they intended to prohibit, and the object of
the penalty was to secure a due and strict observance of the law,
and to punish all violations of it. They undoubtedly used the
word “ trading” in reference to this statutory definition of the offense,
and it will be perceived there is a peculiar appropriateness in the copu-
lative expression, “traveling and trading,” as used in the sixth section,
for the mere act of traveling, without the purpose of selling, or expos-
ing to sale, is not within the prohibition. Zhe offering-to sell or
exposing to sale is a necessary prerequisite to the consummation of the
offense. There cannot remain much doubt but that the Legisla-
ture understood the term “trading,” to mean precisely what they
had defined it to be in the first section; that is, “traveling for the
purpose of carrying to sell or exposing to sale” the prohibited arti-
cles. That the word “trading” is susceptible of the sense in
which it is used by the law framers, as gathered from the first and
sixth sections, is established by very high authority. Mr. Richard-
son, a learned lexicographer, defines the word “trading” to mean
intercourse for buying or selling, or bartering. This definition is
in precise accordance with that expressed by the wording of the
first section of this title of the statute.

It has been settled by the highest judicial tribunal in this coun-
try, that mercantile terms in a statute are to be taken in the sense
intended by the law makers, which is to be ascertained by the sta-
tute in part materia, and that the words of the law imposing a for-
feiture or penalty should be construed by the parts of the law,
which prohibit the act done, for the doing of which the forfeiture
or penalty is incurred.

From the hasty examination I have been enabled to give to this
question, I cannot bring my mind to the conclusion that the
effect of the words “traveling” and “trading,” as used in the fifth
section, is to confine the penalty, to cases where there has been
an actual sale of the prohibited articles, and am therefore of the
opinion, that the act of traveling from place to place within this
or THE Srare or New Yorr. 113

State for the purpose of carrying to sell or exposing to sale, is a
consummation of the offense, for which the penalty is given;
and that for the purpose of a recovery of the penalty, an actual
sale need not be proven. The mere traveling, accompanied with
.an offer to sell, is prima facie sufficient evidence of the purpose of
the party to sustain recovery.

Iam aware that this statute is in derogation of a common-law
right, and penal in its character, and that as a general rule such
statutes should be construed strictly. Yet notwithstanding this
general rule of construction, courts are not to disregard the plain
intent of the Legislature, where that intention can be collected trom
the statute, which in this case I think sufficiently evident when
both the first and sixth sections are considered together.

The rule also is equally well settled, that a statute which
is made for the good of the public ought, although it be
penal, to receive an equitable construction. When it is con-
sidered that this statute was intended to put down an existing evil,
which was deemed highly prejudicial to regular mercantile business,
and of serious injury to a commercial community, it should be
regarded as one enacted for the public good ; and, as it seems to me
that the intention of the law makers is too plain to be misunder-
* stood, such a construction should be put upon it as will effectuate
that intent, and which wili tend to enforce a due observance of this

law.
I have the honor to be very respectfully yours,

GEO. P. BARKER.

ATrTroRNEY GENERAL’s OFFice,
Auzany, Vovember 17th, 1848.

E. W. Leavenworrts, Esq.

Srr.—I have the honor to be in the receipt of your letter of the
15th inst., in relation to the premises purchased by Mr. Volney
Cook at the Attorney-General sale on the 31st August, 1842. The
premises purchased by Mr. Cook at such sale, were sold under a
foreclosure of two mortgages executed by Thaddeus M. Wood to
the people of this State, The sale was advertised by me on the
terms prescribed by section 9, of title 6, chapter 9, 1 Revised

8
114 OPINIONS oF THE ATTORNEYS-GENERAL

Statutes, 2d edition, 197, and a certificate of sale was issued to Mr.
Volney Cook. There remains a balance due on such purchase of
$394.96, and interest from date of sale. I understand from you
that Mr. Cook is dead; that his executors have assigned this certi-
ficate to Mr. David 8. Colvin, who now desires to pay the balance
and have a deed executed to him.

The proceedings for the foreclosure of the mortgages in this case
were had under the provisions of title 6, of chapter 9, 1st part,
1 Revised Statutes, 2d edition, 197, entitled “of mortgages to the
people of this State, and the foreclosure thereof.” Section 1
authorizes a foreclosure by giving notice in the manner in which
mortgages are authorized to sell under a power of sale, etc. By
section 9, in all cases, whether under a notice or decree, if the
mortgaged premises are not purchased for the benefit of the State,
the attorney shall, if the mortgage bears an interest not exceeding
six per cent, require of the purchaser at the time of sale, such sum
as shall be equal to the cost and expenses of sale, and one-fourth
part of the money due the State. He may, on the execution of
the deed to the purchaser, accept a bond and mortgage on the
premises sold, from the purchaser to the people of the State, pay-
able in an equal yearly installment, with interest at the rate of six
percent per annum. (§ 12.) Upon such sale the Attorney-Gene-
ral shall execute a certificate thereof “ to the purchaser.”

By section 18, whenever any premises mortgaged to the people
of this State shall be sold and purchased by any person other than the
Attorney-General, a conveyance shall be executed To sucH PUR-
CHASER,’ ete.

Section 2 requires the Attorney-General to conduct the proceed-
ings and to execute a proper conveyance without warranty, To THE
PURCHASER.

Section 20 requires him to file affidavits of the publication of the
advertisement, and of the circumstances respecting the sale in the
office of the Secretary of State, to be there recorded, and such affi-
davit, or the record thereof, shall have the like effect, as if the same
had been recorded in the office of the clerk of the county where

1 By chap. 99, Laws 1847 (1 Edmonds stat., 214), this section is amended by
inserting after the word “purchaser,” the words “ his heirs or assigns.”
or THE STATE OF New Yorx. 115

the premises are situate. (Title 15, chap. 8, 3d part, 2 R. 8., page
451, entitled “ Of the foreclosure of mortgages by advertisement.”)

Section 9 provides an affidavit of the fact of any sale, pursuant
to such notice, may be made by the person who officiated as auc-
tioneer at silk sale, stating the time and place at which the same
took place, the sum bid and the name of the purchaser.

Section 11. Such affidavit may be filed in the office of the clerk
of the county where the sale took place.

Section 12. They shall be recorded at length by saat clerk in a
‘book kept for the record of mortgages, and such original affidavit, of
certified copies of such record shall be presumptive evidence of the
fact therein contained.

‘Section 15 provides that nothing contained in this title shall
affect the provisions of title 6, chap. 9, part 1, R. S., in relation to
the foreclosure of mortgages to the people of this State, so far as
the same are contrary to the provisions of this title.

It will be perceived by a reference to the sections of the statute
above cited, that the certificate of sale made by the Attorney-
General, and the conveyance to be executed by him must be to
THE PURCHASER. The bond and mortgage to be taken as a security
must be from the purchaser, and the affidavit of sale must state
the name of the purchaser, and the affidavit or record thereof, are
made presumptive evidence among other things of who is the pur-
chaser, and forms part of the record evidence of the title.

The provisions of title 15 of chap. 8, part 3, R. S., except so far
as they are contrary to same, title 6 of chap. 9, part 1, R.S., are
applicable to all sales made by the Attorney-General, so that under
the provisions of sections 9, 11 and 12 of said title 15, the name of
the purchaser becomes a matter of record. The statute contem-
plates no other person, makes no provision for a conveyance either
to an assignee, a legal representative, in case of the decease of the
original purchaser; and as the title acquired under the foreclosure
is a mere statutory title, it can only be sustained by showing that
all the requirements of the statute have been strictly complied
with.

The power given to the Attorney-General to siesat a deed to
the purchaser being a mere statutory power, it can only be executed
in the manner pointed out by the statute ; hence I am of the opinion
116 OPINIONS OF THE ATTORNEYS-GENERAL

that under the statute, the Attorney-General has no power to exe-
cute a deed to any person, except the one who is named as the pur-
chaser in the affidavit of sale. That a conveyance to any other
person would not pass any title to such grantee. Entertaining, as
I do, these views, I cannot consent to execute a deed to any other
person than Mr. Volney Cook, and, as he is dead, no deed can be
executed to him. Under the circumstances of the case, I see no way
of consummating this title without an application to the Legislature,
for an act authorizing and confirming the execution of a deed to the
executors of Mr. Cook as their assigns.
Your obedient,
GEO. P. BARKER.

 

Hon. N. S. Benton, Secretary of State:

Dear S1r.—I have had repeated applications for my opinion
upon the following state of facts: By the law of 1839 (Session
Laws of 1839, page 365, section 15) the board of supervisors of
each county having power to fix the time of holding town meetings in
the several instances, changed the time of holding the town meet-
ings from April to February. The town officers of the preceding
year claim to hold for a full year, under the provision contained in
1 Revised Statutes, 347, section 30, which declares they shall hold
“for one year and until others are chosen or appointed in their
places and have qualified.”

In my opinion, the term of the newly elected officers commenced
as soon as they are elected and have qualified. This they are
required to do shortly after they are elected; the town clerk, for
instance, within ten days after notice of his election. (See 1 Rev.
Stat. 345, sec. 13.) When the new officers are elected and qualified,
they have a right to act, are bound to do so, and, necessarily, oust
their predecessors ; as there cannot be, at the same time, two sets of
officers of the same name and degree, qualified and authorized to act.

I am aware that this construction of the several statutes on the
subject has the effect to shorten the nominal term of the incum-
bents ; but the Legislature had full power to do this, as the term
was not fixed by the Constitution, but by law; and I think they
must necessarily be deemed to have done so. The conflicting pro-
or THE STATE OF New York, 117

vision that the town officers shall hold for one year, must, there-
fore, give way to the subsequent legislation, or be construed to
mean that, the town officers shall hold for an official year, or from
one town meeting to the next; which I think likely, to be all the
Legislature had in view when they enacted the provision.

J. V. B.
February 26, 1845.

M. D. Sprincer, Esq. :

Dzar Sir.—I am in the receipt of your favor of March 8, asking
my opinion as to the course you state to have’ been pursued by the
presiding officers of your late town meeting, in the appointment of
an inspector of elections, under the twenty-first section of the act
of April, 1842. By the section referred to, the two persons
receiving the greatest number of votes for inspectors of election in
each district are to be declared elected. After the votes are can-
vassed, the presiding officers are required to select a third inspector
“from the two persons in such district who shall have the highest
number of votes next to the two inspectors so elected.” The law seems
only to require that the selection be made from the two next highest,
and gives nospreference to the one of that number who happens to
have received more votes than the other. Which of the two,
without regard to the comparative number of votes each may have
received, shall be appointed, is left to the discretion of the appoint-
ing officers.

J. V. B.

March 12, 1845.

H. C. Kimpat, Esq. :

Dear S1r.—Your favor of 8th inst. is received, and in reply I
have to state, that I am not.aware of any alteration by law, of the
mode in which vacancies in the office of assessor are required to be
filled by the Revised Statutes, and I am of the opinion that the
true course is for the town clerk to call a special town meeting, as
directed by section 34, article 3, title 3, chapter 11, 1 Revised
Statutes.

March 12, 1845.

J. V. B
118 OPINIONS oF THE ATTORNEYS-GENERAL

A. B. Hanatron, Esq. :

Dear S1r.—I have the honor to be in the receipt of your favor
of March 7, 1845, asking my opinion upon the following facts :

“A was nominated and seconded, and put by one of the board,
and was elected without a dissenting voice” to the office of over-
seer of highways, “and declared elected putting the vote. In
about half an hour thereafter, a motion was made to excuse A, was
put and carried, and, thereupon, B was nominated and seconded so,
and was declared duly elected, and thus stands the report of the
board of inspectors,” 1

The statutes authorizes the electors to choose certain officers of the
town by ayes and noes, among which are overseers of highways.
This election, when completed and properly determined, is entitled
to the same effect as is given to those cases which are directed to be
by ballot; and, in this view of the case, if the proceedings were

‘otherwise regular, A having been duly declared elected, is entitled
to hold the office. The subsequent choosing of B, and the vote
excusing A, as there appears to have been no refusal of A to serve,

must be regarded as of no effect.

J. V. B.
March 12, 1845.

“Starz or New Yorr,
“Tn Senate, March 11, 1845. f

“ Resolved, That the Attorney-General be requested to report to
the Senate his opinion as to the legality of erecting new counties
from contiguous territory lying in different senate districts; and
whether the bill, reported by Mr. Johnson from the committee on
the division of towns and counties, entitled “An act to erect the
county of Schuyler,’ contains, in his opinion, any provision in con-
travention of the constitution.

“ By order of the Senate.
“ISAAC R. ELWOOD, Clerk.”

1 Overseers of highways are now appointed by the commissioners of highways,
not elected at town meetings as formerly (see § 7, chap. 522, Laws of 1865) ; but
the principle here asserted, that power given by statute once exercised is

exhausted, still holds good. (Upon this point see 32 N. Y., 355; 19 How., 551; 38
N. Y., 603.)

,
or THE SrarTe or New Yorx. 119

In obedience to, the foregoing resolution, the Attorney-General
respectfully reports: 1 That he has examined the bill submitted to
him by the Senate, and particularly such parts thereof as relate to
the representation of the proposed county of Schuyler, in the Senate
and Assembly, and the alteration of the sixth and eighth senate
districts of this State.

In February, 1837, petitions for the formation of a new county,
out of parts of Madison, Chenango and Otsego, were referred to
the then Attorney-General, by the honorable the Assembly, and his
report thereon will be found in Assembly Documents of 1837, vol.
2, Doe. 131. ;

In 1839, the question of the legality of erecting new counties
from contiguous territory lying in different senate districts, was
referred to the then Attornéy-General, and his report thereon will
be found in Assembly Documents of 1839, vol. 4, Doc. 227.

It is with great regret, and distrust of his own correctness, that
the undersigned expresses an opinion differing, in several material
points, trom that of either of his very able predecessors. But as
the examination which he has had time to give to the subject, has
forced his mind to conclusions varying from theirs, the resolution in
obedience to which he acts, leaves him no discretion but to submit
those conclusions to the Senate.

The Legislature of this State, unlike the national Legislature,
have all ordinary legislative power which the Constitution does not,
prohibit them from exercising. Amongst the most usual of these
is the power of erecting new counties; and the exercise of this
power by the Legislature seems to have been contemplated
by the framers of the Constitution, in the seventh section of

1The act erecting the county of Schuyler, passed April 17, 1854, was, for a time,
a fruitful source of litigation. Much interest was excited by the novel questions
presented, and our ablest judges:came to very different conclusions thereon. There
are two decisions in the Court of Appeals apparently diametrically opposite one to
the other; i.e, the case of Rumsey v. The People, 19 N. Y., 41; and the case of
Lanning v. Carpenter, 20 N. Y., 447; an examination of the former, however,
shows that only three of the judges held the original act constitutional, two others
holding the validity of the county organization sustained by the Legislature of
1857. The decisions are, therefore, against the opinion, but by a divided court,
and with such judges as Comstock, S. B. Strong and Grover, dissenting, the
questions treated of are not yet clear of doubts. This opinion and a similar one
on page 67 are therefore given; also opinions contra, pp. 11, 82.
120 OPINIONS OF THE ATTORNEYS-~GENERAL

the ninth article, which pases; amongst other things, as
follows:

“Every county heretofore established, and separately organized,
shall always be entitled to one member of the Assembly; and no
new county shall hereafter be erected unless its population shall
entitle it to a member.”

At the time of the adoption of the Constitution all the territory of
the State was included within the limits of some existing county.
It must, of course, therefore, have been contemplated that new
counties would be erected from parts of counties then existing.

The embarrassing question to the undersigned, is, in what manner
shall this power be exercised so as not to conflict with sections six and
seven, article one, of the Constitution? Section six is in these
words:

“ An enumeration of the inhabitants of the State shall be taken,
under the direction of the Legislature, in the year one thousand
eight hundred and twenty-five, and at the end of every ten years
thereafter; and the gaid districts shall be so altered by the Legis-
lature, at the first session after the return of every enumeration,
that each senate district shall contain, as nearly as may be, an
equal number of inhabitants, excluding aliens, paupers, and per-
sons of color not taxed; and shall remain unaltered until the return
of another enumeration ; and shall at all times consist of contiguous
territory, and no county shall be divided in the formation of a
senate district.”

Section seven is in these words:

“The members of Assembly shall be chosen by counties, and
shall be apportioned among the several counties of the State, as
nearly as may be, according to the number of their respective
inhabitants, excluding aliens, paupers, and persons of color not
taxed. An apportionment of members of Assembly shall be made

by the Legislature at its first session after the return of every

enumeration ; and when made, shall remain unaltered until another
enumeration shall have been taken. But an apportionment of
members of the Assembly shall be made by the present Legislature,
according to the last enumeration taken under the authority of the
United States, as nearly as may be. Every county heretofore
established and separately organized shall always be entitled to

“~
or THE STATE or New Yorn. 121

one member of the Assembly; and no new county shall be here- ,
after erected, unless its population shall entitle it to a member.”

What, then, was the primary object of these two sections? In
the opinion of the Attorney-General, the object was to provide for

- the apportionment of representation in the Senate and Assembly
among the different counties of the State, according to their popula-
tion,.every ten years, and to fix unalterably that apportionment for
ten years. With this view, it directs an enumeration of the inhabit-
ants to be taken every ten years, and commands the Legislature,
at the first session after the return of every enumeration, to arrange
the senatorial districts (which it has previously provided should
be eight in number, and should each have four senators), so to
contain, as nearly as may be, an equal number of inhabitants,
excluding aliens, paupers, and persons of color not taxed, with the
single restriction, that no county shall be divided in the formation
of asenate district. It further directs the Legislature, at the same
time, to apportion the members of Assembly among the several
counties of the State upon the same principle, and commands that
that apportionment, when made, shall remain unaltered until
another enumeration shall have been taken.

Although the provision in terms is, that members of Assembly
shall be apportioned, by the word couwntzes, it is intended to express
the inhabitants of a certain portion of the territory of the State. He
cannot say that a reference was intended to counties as corporations 5
as for instance, if an apportionment made by the Legislature in
compliance with this provision of the Constitution, three members of
Assembly were assigned to the county of Chautauqua, it is believed
that the inhabitants within the limits of the county of Chautauqua,
or those who should be inhabitants within ten years thereafter,
would be entitled to three representatives in the House of Assem-
bly, although a new county, by another name, should, in the mean-
time, be formed out of the same territory. If this be so, there is
nothing in the Constitution to prohibit the division of a county,
and the assignment to the several divisions of the same number of
representatives which the county in the aggregate previously had.
This may not alter the apportionment established for the ten years.
The law erecting the county of Orleans, passed in November, 1824,
122 OPINIONS oF THE ATTORNEYS-GENERAL

can be upheld upon no other principle, and the same may be said
of the law passed in 1888, to erect the county of Fulton.

Nor is it believed by the Attorney-General, that the Constitu-
tion intended, by its provision in regard to senatorial districts, to
limit the power of the Legislature, over the territory of which
those districts are, or might be composed. It is true, that section
six commands, that no county shall be divided in the formation of
a senatorial district, and one of the predecessors of the undersigned
supposed, as will be seen by his report, above last referred to, that
this prevented the formation of a county from parts of two different
senatorial districts, by the Legislature, except at the session next
succeeding the decennial enumeration. With great respect, the
undersigned submits that this is an error. The direction is, that
no county shall be divided in the formation of asenate district.
That is to say, a county which is entire in all other respects, shall
not, in the formation of a senatorial district, be placed partly in
one senatorial district and partly in another, for the mere purpose
of equalizing the number of inhabitants in each district.

This seems the rational interpretation of the provision, and makes
it consistent with the residue of the section of which it is a part.
The same principle was carried out in the last formation of con-
gressional districts in this State, except in the city of New York,
where it was impracticable. On the contrary, if the interpretation
of the former Attorney-General be correct, a county could never,
while the Constitution exists, be formed of parts of two senatorial
districts. He supposed that this could be done at the session imme-
diately succeeding the enumeration; but if the Conotitution any-
where provides that it shall not be done, it is at that very time that
it prohibits the Legislature from doing it, to wit: That no county
shall be divided in the formation of a senate district. It seems,
therefore, obvious that the construction given to the subject, neces-
sarily forbids the Legislature to erect a county out of parts of two
senatorial districts. This is not deemed by the undersigned to be
the true intention ‘of the Constitution, and it clearly is not its
language.

In the opinion of the Attorney-General, the Legislature may,
without violating the Constitution, erect a county out of portions
of two senatorial districts ; provided, that in so doing, they do not
or THE STATE oF New York. 123

alter the representation of either district in the Legislature; or, to
speak more generally, the Legislature, in erecting counties, have
entire control over the territory of the State; but cannot alter the
representation, either in the Senate or Assembly, of the inhabitants
of any portion of that territory during the period of ten years for
which it may have been fixed. No good reason is perceived why
they ought not to have this power. The inhabitants of a senate
district have no peculiar political or govermental union or associa-
tion. They unite in the election of a senator and they form a judi-
cial district. Beyond this they have little or no community of feel-
ing of interest. .Counties, on the other hand, are guasi corpora-
tions; they have joint property ; they unite in the selection of many
county officers; and so intimate were their relations regarded by
the framers of the Constitution, if the undersigned is correct, that
they were not suffered to be divided in their senatorial elections
and representations. Yet counties are, and have been, divided by
the Legislature; and it has already been shown that new counties
could not have been created after the adoption of the Constitution
without such division. This, too, must have been foreseen in fram-
ing the Constitution.

Why then shall it be assumed, without any prohibition in terms
in the Constitution, that it was intended to control the discretion
of the Legislature in dividing senatorial districts for the purpose
of erecting new counties? ‘True, the Constitution declares “the
senatorial districts shall remain unaltered, ete.” But how unal-
tered? It is submitted that the necessary meaning is “unaltered”
as senatorial districts; that the apportionment should be unaltered,
as it is provided in section seven, as to members of Assembly.
Would not a contrary construction forbid alteration of the counties
themselves composing each district ?

This brings the undersigned to the consideration of the diffi-
culties in the bill which has been submitted to him, and which he
has found insurmountable.

The bill erects the new county of Schuyler out of seven towns in
Chautauqua, four towns in Cattaraugus, and three towns in Erie.
It gives one member of Assembly to the new county, and takes one
from the county of Chautauqua. For the reasons already stated,
if all the territory and inhabitants within the limits of the proposed
124 OPINIONS oF THE ATTORNEYS-GENERAL

county now constituted a part of Chautauqua‘county, there might be
no constitutional objection to the bill. But this is not so. Four
towns are taken from Cattaraugus, and yet she retains her three
members. Three towns are taken from Erie, and yet she retains
her three members. The other counties in the State have the
guaranty of the Constitution that the representation in the Assem-
bly shall be apportioned to the population every ten years, and
that the apportionment “shall remain unaltered” during the
period, and willnaturally insist on its fulfillment. The proportion of
power which each county should have, or rather the inhabitants of
a certain territory should have, in one branch of the Legislature,
was intended to be undisturbed for ten years, except by the increase
or decrease of population. Ifthe Legislature can thus, indirectly,
increase the relative power of certain towns, by taking from a
county a portion of its territory and inhabitants, and yet leaving its
representation in the popular branch unimpaired, no substantial
reason is perceived, why they may not take a member from one
county and give it to another, within the period of ten years,
between the two enumerations, which is directly in the teeth of the
mandate of the Constitution.

The view taken of this bill makes it unnecessary to comment
particularly on its twentieth section, which is intended to meet an
objection not deemed valid. .

All which is respectfully submitted.
J. VAN BUREN.
or THE SraTx or New Yorx. 125

(‘Senate Document, No. 59.)

March 12th, 1845.
Report of the Attorney-General, in answer to 2 resolution of the
Senate, of March 10, 1845, referring to him “An act to amend an act
entitled ‘An act relative to incorporations for manufacturing pur-
poses,’ passed March 29, 1811.”

In Sznate, March 10, 1845.

Lesolved, That the bill from the Assembly, entitled “An act
to amend an act entitled ‘An act relative to incorporations for
manufacturing purposes,’ passed March 22, 1811,” be referred to
the Attorney-General, and that he be requested to report whether,
in his opinion, the Legislature have the power to pass a general
law, authorizing the creation of an indefinite number of voluntary
corporations as contemplated by this bill.

By order of the Senate.
ISAAC R. ELWOOD, Clerk.

The Attorney-General, in obedience to the ahove resolution,
respectfully reports: That it appears from an examination of the
said bill, that it creates, or authorizes to be created, an indefinite
number of corporations, and that it passed the House of Assembly
by a majority vote.

The Constitution provides, in the 7th section of the 9th article,
that “the assent of two-thirds of the members elected to each
branch of the Legislature shall be requisite to every bill appropriat-
ing the public moneys or property for local or private purposes, or
creating, continuing, altering or renewing any body, politic or cor-
porate.” A similar bill was referred to a predecessor of the under-
signed (Chief Justice Bronson), by the honorable the Senate, on
the 3d May, 1835, and his report as to its constitutionality will be
found in Senate Documents of 1835, vol. 1, Doc. 4.

Attorney-General Bronson, in that report, with great force and
ability, labors to establish two propositions, amongst others: Ist.
That the Legislature cannot now provide, by general laws, for the
incorporation of voluntary associations, but must act directly in

See ante, page 57, note.
126 OPINIONS oF THE ATTORNEYS-GENERAL

every grant of corporate privileges, creating some one or more cor-
porations in particular; and 2d. That the existing laws for the
incorporation of voluntary associations may be amended, but not in
such a manner as to authorize associations which are not now pro-
vided for by law.

In the opinion of the undersigned, the spirit and intent of the
Constitution accord with the foregoing positions; and he has not
been able to find that the bill which was the subject of that report.
ever became a law. It is believed to have failed.

In 1837, “An act to authorize associations for the purpose of
banking,” and also “An act in relation to limited partnerships, and
to authorize assignable interests therein,’ were referred, by the
honorable the Assembly, to the then Attorney-General (Mr. Justice
Beardsley), and his several reports thereon will be found in Assem-
bly Documents, 1837, vol. 6, Doc. 303, 304. He reattirms the posi-
tion taken by his predecessor, and shows, in addition, that the asso-
ciations authorized by either bill are corporations, and that the
assent of two-thirds of the members elected to each House would be
requisite to the passage of any bill for their creation. The latter
of the two last mentioned bills is believed to have failed: the former
became a law by a majority vote, in the session of 1838, under the
title of “An act to authorize the business of banking.”

The full and conclusive argument contained in these several
reports, make it unnecessary to urge further considerations to show
the force of the positions they assume. Large portions of them,
however, are occupied in establishing what is admitted and declared
in the bill now in question, to wit, that the associations authorized
are bodies corporate.

They further show that it was the intention of the framers of the
Constitution to secure the legislative judgment upon, and assent to
each individual corporation, which is of course entirely frustrated by
by an act which authorizes, at a future time, the erection of an indefi-
nite number of corporations, without legislative action either on the
time of their creation, their number, the persons who are to com-
pose them, or the places where they are to transact business. This
view is strengthened, too, by the fact, that from the annual change
of one entire branch of the Legislature, and the partial changes in
the other, a host of corporations might, in one particular year, be
or THE STATE oF New Yorx. 127

insured a future existence, which, coming alone, and in successive
years, could not struggle into life.

The undersigned is aware that it has been confidently maintained,
that the constitutional restriction as to corporations should be con-
fined to institutions for banking purposes; and, indeed, only to
such of them as are monopolies. But, in his opinion, the object
the Constitution aimed at, was the one it named-—that it intended
to restrict the creation of ‘bodies politic and corporate ;” and he
refers to the opinion of Mr. Justice Bronson, in the case of the
People v. Purdy (2 Hill’s Rep. 31), for an admirable exposition
of what he considers the true view of this provision of the Con-
stitution.

The Attorney-General has thus far treated the question proposed
to him as an open one, and without reference to the judicial
decisions upon a very similar question. It is with unaffected dif-
fidence that he would express an opinion that might even seem to
conflict with the judgment of the highest court of the State; and,
if it were anything more that he had to pass upon than the simple
signification of a few plain English words, he should hesitate to do
so. But it seems to him entirely clear that to pass the law sub-
mitted to him, by a majority vote, as has already been done in one
House, is a direct violation of the Constitution; and that it is, to
say the least, extremely doubtful whether such a bill could be con-
stitutionally passed at all.

But it.is due to those who regard the decisions of the judicial
tribunals as determining questions of constitutional construction,
as well as to those who regard them, as all good citizens should,
with unfeigned respect, and an anxiety to be convinced of their
correctness; to state that the question of the constitutionality of
the act, “to authorize the business of banking,” came before the
Supreme Court of this State in the case of Thomas v. Dakin (22
Wendell’s Rep., 9); and the judges all held, that the act created
corporations, and required the assent of two-thirds of the members
elected to either branch of the Legislature. Mr. Justice Bronson,
however, adhering to his opinion heretofore alluded to, that the bill
could not be constitutionally passed by even a two-thirds vote. But
such was the state of the pleadings, in that case, that the Supreme
Court held, that they must assume that the law had received a two-
128 OPINIONS OF THE ATTORNEYS-GENERAL

thirds vote, and so gave judgment against the defendant, who had
objected to the unconstitutionality of the act. Similar decisions were
made in the cases of Warner v. Beers, and Bolander v. Stevens,}
which were carried to the Court for the Correction of Errors for
review, which court affirmed the judgment of the Supreme Court
by a vote of twenty-two to one, and passed two resolutions sub-
stantially as follows:

1st. That the act was constitutionally enacted, though it may not
have received the assent of two-thirds of the members elected to
each branch of the Legislature.

2d. That the associations, organized in conformity with its pro-
visions, are not bodies, politic or corporate, within the spirit and
meaning of the Constitution.

The first resolution was adopted by a vote of twenty-three to one;
the second by twenty-two to three. Although it was pretty geno-
rally conceded in the opinion expressed, both by the members of
the Court of Errors and the Supreme Court, that they were bound
to assume that the act in question had received the assent of two-
thirds of the members of the Legislature, and that, therefore, the
question of the necessity of such a vote could not legally be deter- °
mined in that case. Yet the resolutions of the court ought proba-
bly to carry as much weight, in the minds of future Legislatures, as
the judgment itself would have done. In the mean time, the
Supreme Court have uniformly held that these associations were
corporations, and required the assent of two-thirds of all the mem-
bers elected to each branch of the Legislature to create them, either
by general or special act (see The People v. Assessors of Watertown,
1 Hill, 616); and as such they have been taxed and held subject to
taxation on their capital, according to the provisions of 1 R. §.,
414, title 4.

One of the most recent decisions of the Supreme Court, to this
effect, may be found in the case of Zhe People ex rel., McMaster
et al. v. The Board of Supervisors of the County of Niagara, 4
Hill, 20. The descisior. was reviewed by the Court for the Cor-
rection of Errors and affirmed.?

The result of the decisions of the Court of Errors, and of their —

123 Wend., 103. *% Hill, 504.
oF THe State or New York. [29

resolutions, therefore, is, that associations formed under the general
banking law, are not corporations within the spirit and meaning of
the Constitution, but are corporations so far as to subject them to
the provisions of the tax law above referred to. This last decision
was only made in December last, and the undersigned has had no
opportunity to obtain a perusal of the written opinions of the members
of the court, or to ascertain on what foundation this distinction rests.

But this is not the only judicial interpretation given by that
honorable court to article 7, section 9, of the Constitution. In the
cease of The People v. Purdy (2 Hill, 31), a majority of the Supreme
Court had adjudged, that an act depriving the aldermen of the city
of New York of the right which the charter of that city gives them,
to sit as judges of the Court of General Sessions in that city, was
constitutionally enacted by a majority vote. That judgment was
reviewed and reversed in the Court of Errors (see 4 Hill, 384), on
the ground that the requisition of section 7, article 9, extended to
all public and private corporations. The undersigned refers to the
very able opinion of Mr. Senator Paige, for the grounds on which
the judgment of the court was placed.

Such is a cursory review of the decisions of the court of last
resort in our State, on the true construction of article 7, section 9, of
the Constitution. So faras those decisions affect the general banking
law, they undoubtedly go to affirm its constitutionality. To the same
extent they serve to show that any other corporations cannot, in the
judgment of that court, be created under a law passed since the
adoption of the Constitution, without a compliance with the provi-
sions of the section referred to. The force and effect which shall be
given to the decisions of that court upon one law, when framing
another, is of course, exclusively a matter for legislative decision.

In the opinion of the Attorney-General, the bill submitted to
him by the honorable the Senate, like the law which it proposes to
amend, creates, in fact and in terms, one or more corporations not
authorized by existing laws. If constitutional at all, it is included
in the restrictions of article 7, section 9, of the Constitution of this
State; but in his judgment, the true spirit and intent of the same
section altogether forbids its passage by the Legislature.

All which is respectfully submitted. .
J. VAN BUREN
9
130 OFINTONS oF THE ATTORNEYS-GENERAL

April 4, 1845.
T. J. De Lone, Esq. :

Dear Sm.—I have the honor to be in the receipt of your favor
of 27th ult., asking my opinion, as to the effect of the omission of
the person elected as your town superintendent of common schools,
to file his official bond within the time prescribed by the act of 1843,

The second section of the act referred to, makes it the duty of the
person elected to execute to the supervisor, and file with the town
clerk, within ten days after his election, a bond, etc., and the same
section declares the office vacant, in case of a failure to file such
bond within the prescribed time, and I am unable to discover, that
the case is aided by the fact that the bond was executed and left
with, the supervisor to file within the ten days. The law requires
that it be actually filed.

A vacancy in the office of town superintendent is to be filled by
an appointment by any three justices of the town, in the manner
prescribed by section 81, art. 3, chap. 11, of the 1st part of R. S.1

J. V.B.

P. 8? In answer to your inquiry respecting the innkeeping jus-
tice of the peace, I would refer you to 2 R. S., 159, sec. 6, by
which he is declared incapable of exercising the judicial powers
conferred upon him by law, in case he becomes an innkeeper in
fact after his election ;* whether he have a license or not. His acts
asa judicial officer, if he be within this section, are without juris-
diction and void; but I am not prepared to say, that the disqualifi-
cation works a forfeiture of his office, so far as to render him liable
to removal, by an information in the nature of a guo warranto.

J. V.B.

1 The office of town superintendent of common schools is abolished (see § 17,
chap. 179, Laws 1856), but the principle is applicable to other officers who are
required to file bond, oath of office, etc., within specified time.

* A justice of the peace becoming an innkeeper, does not forfeit his office; it
only affects his civil jurisdiction. (7 Barb., 837.)

* No justice of the peace being an innkeeper has civil jurisdiction. (Chap. 140,
Laws 1846; 4 Edmonds Stat. 548.)
or THe Stare or New Yorn. 131

April 7, 1845.
Tra R. Perri, Esq. :

*Dzar Sir.—There are two provisions of law applicable to the
question you present; the first is 1 R. 8. 102, § 12; the second is
1R.S. p. 345, § 11.

Under these provisions, a justice of the peace must be an elector
of the town for which he is elected. The individual of whom you
speak was clearly this at the time he was chosen. He must also
reside in the town for which he was chosen; but it does not neces-
sarily follow, that he must continue an elector. I doubt whether
the individual you speak of did not lose his right to vote, by the
acts and declarations of which you speak; unless, at the time of
leaving, he had the intention of returning, in case he failed to suc-
ceed at Milwaukie.

He clearly lost that right. It is at least doubtful, from your
statement, what his intentions were in case he did not remain at
Milwaukee, or even whether he had any intentions about it. But
it is not necessary to decide on his right to vote.

He was an elector when he was chosen and a resident when he
was sworn in, and while he is exercising the powers and duties of
the office. In my opinion, this fulfills the requisitions of the sta-

tutes and entitles him to hold the office.
J. V. B.

1 In this case the justice after election went to Milwaukie, intending to remain,
but not succeeding, returned before first of January.
132 Orrnions or THE ATTORNEYS-GENERAL

(Assembly Document, No. 204, 1845.)

“Srate or New York, }
In Assemsty, March 18, 1845.

Resolved, That it be referred to the Attorney-General to report
to this House, whether or not, in his opinion, an act authorizing
the New York and Erie Railroad Company, to construct any por-
tion of their road in Pennsylvania, requires a vote of two-thirds of
the members elected to this House.

Also in relation to the State lien upon the said road for his

report thereon.
By order of the Assembly.

JAMES R. ROSE, Clerk.”

Tn obedience to the above resolution, the Attorney-General res-
pectfully reports :

That he has been furnished with the proposed joint resolutions,
introduced into the Assembly by Mr. Morrison, on the 24th Feb-
ruary, 1845; and the act introduced by Mr. Van Valkenburgh, on
the 11th March, 1845; and he understands the foregoing resolu-
tion to require his opinion as to the constitutionality of the former,
and as to the applicability of the 9th section of the 7th article of
the Constitution of this State to the latter. The project of con-
necting the Hudson river with Lake Erie by means of a railroad,
in whatever aspect it may be regarded, is of vast public impor-
tance, and it is most natural that it should have attracted to its sup-
port, a large share of popular favor. The undersigned has exam-
ined the several measures submitted to him, designed as they no
doubt are, to facilitate the execution of this great enterprise, with
a sincere desire to interpose no obstacle to its successful accomplish-
ment. And he respectfully submits to the honorable, the Assembly,
the results of this examination. The original charter granted to
the New York and Erie Railroad Company, was granted to them
for the purpose of constructing a single, double or treble railway
from the city of New York to Lake Erie, commencing at the city
of New York, or at such point in its vicinity as should be most
eligible and convenient therefor, and continuing said railroad
through the southern tier of counties by way of Owego, in the
county of Tioga, to the shore of Lake Erie, etc. (See Session Laws,
OF THE STATE or Nuw Yoru. 183

1832, chap. 224,81.) Bythe 6th section of the charter, it was
provided, that the company should first construct, lay down and
complete one line or track from the city of New York, or from some
point on the western shore of the Hudson river, in the sacd southern
tier of counties unto Lake Erie; and carry passengers or materials
upon it before building a second track. By the 12th section it was
provided, that the corporation should not at any point, connect the
said railway or ways with any railroad, either of the State of Penn-
syloania or New Jersey, or leading into either of said States, without
the consent of the Legrslature of this State, on pain of forfeiting
their charter. And by the 17th section it was provided as
follows: “It shall be lawful for the said corporation to unite
with any other railroad company, already incorporated, upon
the route of said road, through said southern tier of coun-
ties, upon such terms as may be ‘agreed upon by the
directors of said companies, in making a continuous railroad from
New York to Lake Erie at all times ; however, confining the route
of said road to said southern tier of counties.”

A simple enumeration of these various provisions suffices to show,
that a primary object in granting this charter was to secure the
erection of a continuous line of railroad, through the southern tier
of counties from the Hudson river to Lake Erie, and a glance at
the map will disclose the large number of meritorious and seques-
tered counties interested in the prosecution of this work. The
counties of Sullivan, Delaware, Otsego and Chenango were as
deeply solicitous for the granting of this churter, and were entitled
as confidently to expect great benefits from it, as any other counties
in the southern tier. The several sections, therefore, which were
intended to secure a continuous line of road through that tier of
counties, and which only allowed a connection with other roads
confined to the same tier, were not only a part, but a most essential
and important part of the charter, and must have contributed much
to its being granted. The joint resolutions of Mr. Morrison are
entitled “Joint resolutions authorizing the New York and Erie
Railroad to change their route.” They propose to authorize the
road to be run into the State of Pennsylvania for sixteen miles,
nearly parallel to the southern line of the county of Sullivan, and
then to be continued along the border of said county till it passes
134 OPINIONS OF THE ATTORNEYS-GENERAL

the county limit. They further propose that the line of road shall
leave this State opposite the counties of Delaware, Otsego and
Chenango, and be continued for twenty-eight miles in the State of
Pennsylvania; and this is proposed to be done by a joint resolution
of the two Houses, which is claimed to be a grant of the consent of
the Legislature of the State, that this road may connect with the
railroads of Penusylvania and New Jersey, or roads leading into
either of said States, as required in the 12th section of the char-
ter. In the opinion of the Attorney-General, the 12th section
only applies to cases, where the company desire to connect their
road at any point in the established route with roads of Pennsyl-
vania and New Jersey, or roads leading into those States, without
interrupting the continuous lines of railroads through the southern
tier of counties of this State; or, in other words, as it is most
obvious that the intention of the Legislature was to secure to the
city of New York, and other cities and villages in our own State,
exclusively, the commercial advantages of this line of communica-
tion, they forbid the company to connect their road at any point,
even with roads leading into other States, without the consent of
the Legislature. But it seems to the undersigned it never could
have been intended that when such connection was formed, it should
supersede and destroy the great leading object of the charter, to
wit, the erection of a continuous line of railroad from the Hudson
river to Lake Erie, the route of which should be confined to the
southern tier of counties in this State. The consent given by the
joint resolutions of Mr. Morrison, therefore, is not the consent
mentioned in the twelfth section of the act.

The Attorney-General appreciates the great learning of the
written opinions furnished to him, and the able arguments delivered
on the floor of the House, which seek to establish the position that
the consent required by the 12th section may be given by concur-
rent resolutions. But he is clearly of opinion that the joint resolu-
tions submitted to him directly conflict with the main object of the
charter, repeal the 17th section, and are such an alteration of a body
corporate, as can only be constitutionally affected through a law,
having the assent of two-thirds of the members elected to each
branch of the Legislature.

The remaining inquiry, if the undersigned correctly understands
or Tar Srate or New Yorr. 185

the resolution of the House, is whether the bill introduced by Mr.
Van Valkenburgh is subject to the restrictions of section 9, article
7 of the Constitution of this State. This section is in the following
words: “ The assent of two-thirds of the members elected to each
branch of the Legislature shall be requisite to every bill appropriat-
ing the public moneys or property for local or private purposes, or
creating, continuing, altering, or renewing any body, politic or cor-
porate.” The language of the section, in regard to bodies politic
or corporate, would seem intended to reach every possible modifica-
tion of a charter that a corporation could seek at the hands of the
Legislature. It should be construed in its plain and ordinary signi-
fication, such as would be most likely to be given to it by the great
mass of those for whom it was framed, and by whom it was adopted.
The corporation called the “New York and Erie Railroad Com-
pany,” was created by the act of 1832, already referred to, and if it
be true, as is contended, that none of the subsequent acts have
altered the corporation, then the proper mode of testing this bill is
to compare its provisions with those of that act. By areference to
sections 2, 8, 4, 5, 9 and 16 of the original charter, it will be seen
when, and within what time, certain sections of the road were to
be completed ; what amounts of money were to be expended thereon ;
what was to be the amount of capital stock; how and when sub-
scribed, and when paid; and what were the general powers and
duties of the corporation. The bill now before the Assembly, and
submitted to the undersigned, in its first four sections, essentially
alters most of these provisions of the original charter. It autho-
rizes an additional subscription of $3,000,000, and, on payment of
twenty-five per cent of such subscription, empowers the company,
by the issue of bonds, to mortgage the road to the extent of
$3,000,000, for the purpose of raising money to construct the road.
It authorizes these bonds to be issued by the company, and makes.
them liens on the road, prior to that of the State, and it gives the
bond holders the same remedies against the road as is hy law given
to the mortgagees of real estate. It necessarily waives all. the for-
feitures that have occurred by the neglect to comply with the origi-
nal requirements of the charter. The undersigned does not pro-
pose to examine minutely and to contrast the provisions of
the two bills. If it is not obvious from a perusal of them
136 OPINIONS OF THE ATTORNEYS-GENERAL

that the last isa bill which alters the corporation created by the
first; no reasoning of his could make it apparent. In the opinion
of the Attorney-General, the bill in question continues, alters and
renews the New York and Erie Railroad Corporation, and, there-
fore, requires the assent of two-thirds of the members elected to
each branch of the Legislature to its passage. It is probably true
that precedents may be found for the passage of a bill similar to
this by a majority of a quorum of both Houses. The members of
the Legislature will, of course, give all the weight to these pre-
cedents, which, in their opinion, they deserve.

The undersigned does not feel at liberty, when called upon to
construe the Constitution as it is, to be governed by precedent.
The question of the constitutional power of Congress to charter a
bank of the United States was, previous tu 1836, decided in favor
of the power by several congressional acts, by the decision of the
Supreme Court of the United States, and by the approval of chief
magistrates, eminent for their learning, purity and patriotism. Yet
a subsequent president, equally distinguished, with the vigor and
courage and devotion to popular rights that have illustrated his
civil and military career, did not hesitate to avow his belief of the
unconstitutionality of the measure, to refuse his sanction to an act
of incorporation, and to appeal to the people for their judgment
upon him and it.

The result is believed to be that, at this day, the executive of the
United States, a majority of both branches of the national Legis-
lature, the Supreme Court of the United States, and a majority of
the American people, agree in the opinion that the Constitution
does not warrant the creation, by Congress, of a national bank. If
precedent, therefore, in its most commanding shape, could alter a
written Constitution, this would seem to have been a case where it
must prevail. And yet it will be observed that it could not offer
even a serious obstacle to the determination of those living under
the Constitution and by it, to prefer its simple terms to the glosses
of interpretation or the invasions of precedent.

Those arraigned for a violation of the law never plead precedents
in extenuation or excuse, although they occur every day, and it is
certainly as important that one violation of the Constitution should
not be urged as a warrant for another. Nor can we shelter our-
or THE STATE oF New York. 137

selves from responsibility for our own conduct by interposing the
shield of past legislation, or invoking the weight of other authority,
however pure, high-minded or patriotic these legislators or authors
may have been. We are sworn to support the Constitution.
With all the respect that the undersigned feels for the opinion of
other and far abler men than himself, with all the delicacy that is
inseparable from differing with them, his understanding of his oath
and of his duty leaves him no discretion. Those whose servants
we are, will hold the present living, acting generation responsible
for what is done, and will insist that the great charter of their
rights shall be acted under as it is and not as it has been held to be.

The bill before the House also proposes, in its fifth section,
to release the claim of the State for. the repayment of the
$3,000,000 loaned to the company in 1836, unless the State
shall choose to purchase the road within a stated period, of
the company, and pay them all the moneys expended by them for
construction, repairs, permanent fixtures, and “otherwise for the
purpose of said road,” with seven per cent interest. At the close
of the fifth section it is provided that no such purchase by the
State shall affect the lien of the bonds issued in pursuance of this
act; and by previous sections the lien of the State on the road is
postponed to the lien of said bonds. The practical result of this
bill, therefore, if the undersigned correctly understands it, is to
authorize the company to raise $3,000,000 on a pledge of the road;
to postpone the State lien to such pledge; to authorise the expen-
diture of the money raised upon the construction of the road, and
then to release the State lien altogether, unless the State, after a
single track is constructed from the Hudson river to Lake Erie,
should choose to reimburse the company all the money expended
on the road, and take the road, subject to the $3,000,000 mortgage
authorized by this act. For instance, if the company have already
expended $4,500,000, and should raise. $3,000,000 more under this
act, and expend it upon the road, the State would, at the time
limited, pay the company $7,500,000 and interest, and take the
road subject to a mortgage of $3,000,000 in the hands of the bond-
holders, authorized by this act. This statement is made, to render
clear and intelligible the position, which the Attorney-General sup-
poses may be safely assumed, to wit, that this bill contains a gift
138 OPINIONS oF THE ATTORNEYS-GENERAL

of $3,000,000 to the New York and Erie Railroad Company.
Does this bill then, in this view, require the assent of two-thirds
of the members elect of each branch? Is it an appropriation “of
the public money or property for local or private purposes ?”
Those who contend that this is not an appropriation for local or
private purposes, rely on the numerous acts of the Legislature
authorizing railroad companies to take the property of our citizens
for the uses of their road, without the consent of the owner, and
on making compensation. The courts of our State have declared
these laws to be constitutional, and in doing so, have discussed the
true meaning of the last clause of section 7, article 7, of our State
Constitution, which is in these words, “nor shall private property
be taken for public use without just compensation.”

The question of the power of the Legislature to take the property
of our citizens, and give it to others for the purpose of constructing
a railroad, is believed to have first come before the courts of this
State in 1831, in the case of Beekman v. The Saratoga and Schenec-
tady Railroad Company, reported in 8 Paige, 46. The chancellor
there decided as follows: ‘‘ The emnent domain, the highest and
most exact idea of property, remains in the government, or in
the aggregate body of the people in their sovereign capacity ;
and they have aright to resume the possession of the property,
in the manner directed by the Constitution and laws of the
State, whenever the public interest requires it. This right
of resumption may be exercised, not only where the safety, but
also where the interests, or even the expediency of the State is
concerned; or where the land is wanted for a road, canal or other
public improvement. The only restriction upon this power, in
eases where the public or the inhabitants of any particular section
of the State have an interest in the contemplated improvements,
as citizens merely, is that the property shall not be taken for the
public use without just compensation to the owner, and in the mode
prescribed by law.”

He further held that this right of eminent domain did not autho-
rize the taking of the property of one man and giving it to another
man, where compensation was made, unless the public interest
would be in some way promoted by the transfer. “ But,” he says,
“if the public interest can be in any way promoted by the taking
or THE Srare or New Yorx. 139

of private property, it must rest in the wisdom of the Legislature
to determine whether the benefit to the public will be of sufficient
wnportance to render it expedient for them to exercise the right of
eminent domain, and to authorize an interference with the private
rights of individuals for that purpose ;” and he cites 2 Kent’s Com.,
840. The chancellor then proceeds to show, that it is no objection
to the exercise of this right that the powers it confers and the bene-
fits resulting from it are delegated to an incorporated company, if
the public have an interest in, and enjoyment of, the use of the
property taken. He instances the taking of private property for
highways, turnpike roads, canals, basins, ferries, etc., etc., and con-
siders them all as resting on the same fvoting.

The only other case which it is necessary to refer to, is that of
Bloodgood v. The Mohawk and Hudson Railroad Company, decided
in the Supreme Court, and reported in 14 Wend., 54. Bloodgood
brought an action of trespass against the railroad company for
entering upon his land, digging up the soil, etc. The company
justified under their charter, which authorized them to enter upon
land, make surveys and use such lands as should be necessary for
the purposes of their railroad; provided, that all lands entered
upon, taken possession of and used by the company should be pur-
chased and paid for in the manner pointed out in the act of incorpo-
ration.

The land of Bloodgood had been entered upon and used, but
was not, at the time suit was commenced, purchased or paid for.
The main question in the case was, whether the proviso was a con-
dition subsequent or precedent to the entry upon the land in the
manner complained of. The Supreme Court held that the purchase
and payment was a condition subsequent to the entry, and gave
judgment for defendant. The Court of Errors (18 Wendell, 9)
held that the purchase and payment was a condition precedent to
the right of entry and occupation, and reversed the judgment of
the Supreme Court. This was the point decided. But a resolu-
tion was introduced and passed by a vote of seventeen to three, to
the effect, (see 18 Wendell, 77) that the Legislature have the con-
stitutional power to authorize the taking of private property for the
purpose of making railroads, or other public improvements of the
like nature, whether such improvements be made by the State itself
140 OPINIONS oF THE ATTORNEYS-GENERAL

or through the medium of a corporation or joint stock company,
on making ample provision for a just compensation for the pro-
perty taken to the owners thereof. Several of the members of the
court reaffirmed the doctrine that the Legislature, in taking private
property and giving it to a railroad company, exercised the right
of eminent domain; and one of them, Mr. Senator Tracy, in a very
able and ingenious opinion, suggests great doubt as to the legisla-
tive power to exercise this right in behalf of a private company.
The court concurred in the view taken by the chancellor, that the
constitutional provision restricted this inherent right, so far as to
compel just compensation to be made where private property was
taken. A reference to the authorities cited by Mr. Tracy (page 58)
will show what is meant by the right of eminent domain, or, as it
is sometimes called, the force of supereminent dominion. Insimple
language, it is a soverezgn power to appropriate individual property
to the necessities of the State. The degree and kind of necessity
that calls for the exertion of the power must, of course, be judged
of by those who exert it. If such a, power exists in this State,
where is it lodged? In England it is vested in Parliament, whose
power and jurisdiction is described in 1st Black, Com.,160. “ This
being the place,” he says, “where that absolute despotic power,
which must in all governments reside somewhere, is intrusted by
the Constitution of these kingdoms. All mischiefs and grievances,
operations and remedies that transcend the ordinary course of the
laws, are within the reach of this extraordinary tribunal.” And
after a graphic sketch of the power of Parliament to regulate the
succession to the crown, to alter and establish the religion of the
land, to change the Constitution and even itself, he concludes that
“Tt can, in short, do anything that is not naturally impossible, and
therefore some have not scrupled to call its power by a figure rather
too bold—the omnipotence of Parliament. True it is, that what
the Parliament doth, no authority on earth can undo.” To concede
to such a body the right of eminent domain would be no enlarge-
ment of their privileges. The Constitution of the United States
(article 5 of the amendments) has the same provision as to taking
private property for public use, and in the same words. If this is
a restriction upon a pre-existing right of eminent domain, in what
branch of the general government does the right rest? If the right
or ra Sravé or Naw Vorr. 141

exists, what is to prevent the Legislature from taking the property
of A and giving it to B? This is exactly what is done when land
is taken from one citizen and given to several others to construct a
railroad upon.

It is true that the Legislature avow and act upon a belief that
the public interest will be promoted by the change. The theory is
to take the property of one individual and give it to several others,
because they, in the judgment of the Legislature, would apply it to
more public uses. This would authorize the taking of the house
of one to make a hotel for another; the horses and wagon of
one to enable another to establish a line of public conveyances;
the books of one that another might keep a public library;
the time-piece of one that another might set it up for a town clock.
In the case of Varick v. Smith (5 Paige, 159), the chancellor sug-
gests this safeguard to private rights; after saying that in England,
perhaps, the omnipotence of Parliament places their abuses of dis-
cretion beyond the reach of remedy. He adds: “ But in a State
which is governed by a written Constitution like ours, if the
Legislature should so far forget its duty and the natural rights of
an individual as to take his private property and transfer it to
another, where there was no foundation for a pretense that the
public was to be benefited thereby, I should not hesitate to declare
that such an abuse of the right of eminent domain was an infringe-
ment of the spirit of the Constitution, and, therefore, not within
the general powers delegated by the people to the Legislature. But
while I deny to the legislative power the right thus to take private
property for the mere purpose of transfering it to another, I admit
that the two branches of the Legislature, subject only to the
qualified veto of the executive, are the sole judges as to the
expediency of making police regulations interfering with the
natural rights of our citizens, which regulations are not prohibited
by the Constitution ; and, also, as to the expediency of exercising
the right of eminent domain for the purpose of making public
improvements, either for the benefit of the inhabitants of the State
generally, or of any particular section thereof.” The difficulty
that occurs to the undersigned is, that if this tremendous power is
confided to legislative discretion, their will stands for a reason when
they act. Even if they were called on by the courts to show a
142 OPINIONS oF THE ATTORNEYS-GENERAL

« foundation for a pretense,” that they transferred the property of
A to B with a view to benefit the public, the simple fact that tho
Legislature did the deed would furnish such pretense. The rights
of private property would thus be undefined and uncertain; the
power of the Legislature arbitrary and despotic; their discretion
and not the written Constitution would determine the rights of the
citizens, and the spirit and genius of our institutions would be
sacrificed. The undersigned believes that the provision as to tak-
ing private property for public use, was intended to confine the
taking to cases where the government, or its subordinate agents or
others, under their direction and charge, enjoyed the possession and
use; but there have been frequent legislative and judicial acts
extending the power further than this, and in his judgment, it
would have been less dangerous to have stretched the term “ public
use”? so as to cover a private railroad, than to have asserted an
inherent power in the Legislature, so slightly limited and restrained
by the Constitution, and which may reach so far beyond the case
it is intended to meet.

But even if it were conceded that the term “public use” in
the 7th section of the 7th article, properly includes the uses
of a railroad company, it by no means follows that an appro-
priation or gift of public moneys to such a company, is not 4
gift “for local or private purposes” within the meaning of the 9th
section of the same article. It is believed that no judicial decision
can be found, declaring that such an appropriation would not require
a vote of two-thirds of the members elect to each branch of the
Legislature. It will be borne in mind that if the constitutional
power of the Legislature to take private property for the use of a
railroad company is denied, a unanimous vote of the Legislature
would not aid those who seek to establish the right; and there may
have been something in the supposed necessities of the case to
induce a conviction that the power existed. And again, that where
private property is thus taken, the corporation is created by a two-
thirds vote. There is no analogy, therefore, in the necessity or
extent of the two questions. If the restrictions of the 9th section
do not apply to a grant of money to railroad corporations, then a
bare majority of a quorum of the two Houses, with the assent of
the exccutive, may give away any amount of the public moneys to
or THe STATE or New Yorn. 143

these corporations; if the executive refuse his sanction, two-thirds
of the members present may still effect the donation.

The question, therefore, now presented, is of immense public
concern, and calls for serious and anxious consideration. If the
fact, that the transactions of a company are shared in by the public,
and are deemed advantageous to many, takes from it the character
of “a local or private purpose,” then banks, insurance companies,
manufacturing, forwarding and transportation companies, are
entitled to the advantages of this construction. The whole trea-
sure of the State is at the mercy of a majority of the members of
the Legislature, to be bestowed on these different companies, accord-
ing to their discretion, or caprice, or judgment.

It will not be denied that the New York and Erie railroad corpo-
ration is a private corporation. The opinion of Mr. Justice Story,
in the case of the Dartmouth College v. Woodward (4 Wheaton,
468, 494), is conclusive on this point. “Strictly speaking,” he says,
“public corporations are such only as are founded by the govern- -
ment for public purposes ; where the whole interests belong also to
the government, such as towns, cities, counties; but a bank, whose
stock is owned by private persons, is a private corporation, although
it is erected by the government, and its objects and operations par-
take of a public nature. The same doctrine may be affirmed of
insurance, bridge and turnpike companies.”

The Civil Code of Louisiana (book 1, title 10, chapter 1, article
420) divides corporations into political and private, under which
classification are ranged all corporations; and they are severally
defined substantially as Judge Story defines them above.

This corporation, then, is clearly a private corporation. Are its
purposes “local ?”

A mere description of the route of the railroad would seem to
show that it is in the common acceptation of the term “local”
work. But it is true that the Legislature have not acted on this
strict signification of the term “local.” The Erie and other canals,
colleges and academies, if their mere location is to be regarded,
might be deemed “local” in this view. The Legislature have
chosen to connect with the fact of location, the idea of universal
State benefit or direct government property ; and where these were
combined in behalf of a measure that was by position “local,”
144 OPINIONS OF THE ATTORNEYS-GENERAL

they have not regarded the measure as coming within the prohibi-
tion of the Constitution. In these cases they have construed the
term “local” to mean the reverse of “ public.”

The Attorney-General would not be understood as insisting that
laws thus passed by a majority vote are unconstitutional, but he is
of opinion that it would be infinitely safer to apply the two-third
restriction to those acts, which from the universal favor with which
they are regarded could easily secure such an assent, than to make
those cases precedents for holding a work like the Erie railroad to
be other than “local.”

Are the purposes of this company “private”? It has already
been attempted to be shown that it is a private corporation. It is
also composed of private persons. They have procured a charter
for purposes of individual gain. It is true a laudable object, and one
which may accommodate a large portion of the public or the whole
people of the State, and even of the United States, is to be effected
by the company.

The same may be said of other incorporated companies hereto-
fore alluded to; but does this differ from individual enterprises
having the same or a similar design? There is nothing in the fact
of their being associated or incorporated that distinguishes them
in this respect from other private citizens. All professional men,
then, clergymen, physicians and lawyers, serve, or claim to serve,
the public. Innkeepers, transporters of men and merchandise, mer-
chants and traders, all proféss the same object, and no doubt many
of them accomplish it. Iftheir advertisements are to be relied on,
their almost exclusive object is to benefit all others but themselves,
and yet it is notorious that at the bottom of all these efforts in
behalf of the public lies the great principle of self-interest and
private gain, and so long as their dealings are fair and honorable, no
objection can be taken to the principle.

But the question presents itself, can the Legislature, by a majority
vote, appropriate the public moneys in aid of these public accom-
modations, when the profit of them is received by private citizens ?

The undersigned is unable to perceive any distinction in princi-
ple between the several cases before enumerated and the one now
under consideration ; allare private purposes, and yet all may serve
the public use; and he does not hesitate to say, that, in his opinion,
OF THE STATE oF New York. 145

the donation of $3,000,000 proposed to be made by the bill sub-
mitted to him, is, within the meaning of the Constitution, an appro-
priation of public moneys for private purposes, and cannot be made
without the assent of two-thirds of the members elected to each
branch of the Legislature.

The resulis, then, to which the Attorney-General has arrived in
regard to the several questions which he understands to have been
submitted to him, are that, in his opinion.

ist. The joint resolutions of Mr. Morrison do not give “ the con-
sent of the Legislature,” mentioned in the 12th section of the New
York and Erie railroad charter.

2d. That the alterations of the route of the railroad in the man-
ner proposed in the joint resolutions, can only be effected by a bill
having the assent, which the 9th section of the 7th article of the
Constitution prescribes.

3d. That the bill submitted to him entitled “An act in relation
to the construction of the New York and Erie railroad,” contains,
in its first four sections, provisions which “continue, alter and
renew” the body corporate called “The New York and Erie Rail-
road Company,” and, therefore, requires the constitutional assent
above mentioned.

4th. That the bill makes a donation to the New York and Erie
Railroad Company of $3,000,000, and therefore, appropriates that
amount of public moneys “for local and private purposes” within
the meaning of article 7, section 9, and requires for its passage the
assent prescribed in that section.

The Attorney-General has had less reluctance in declaring these
convictions, which have been forced upon his mind from a careful
examination of the several questions submitted to him, from the
fact that the work which this company have undertaken, has, as he
has already stated, excited a large share of public interest and
favor. The region of country through which it passes, and which
is chiefly interested in its completion, is inhabited by industrious,
enterprising and patriotic citizens,-who have shared equally in the
public burdens, but sparingly in its benefits. And it would seem
to be impossible, if the friends of the road are willing to intrust
its construction to a private company, and if this company have
done nothing to forfeit the confidence of the people or of the

10
146 OPINIONS OF THE ATTORNEYS-GENERAL

Legislature, that the assent which the Constitution requires could
not be obtained to any rational and just measure that will insure
its completion. So noble an undertaking should not be stained by
violations of the Constitution; so important a work should not
be prosecuted under laws of even doubtful constitutionality, and
least of all, should it be made a pioneer in encroachments on and
invasions of the sacred charter of popular rights, when, in its rear,
may and will follow many less meritorious projects.

All of which is respectfully submitted.
J. VAN BUREN.

April 1845.
CurEsTER JARVIS; a ,

Dear Srr.—Youts of the 22d ult. was received.1 My apprehen-
sions are: 1st. That Gates’ resignation, if made to the supervisors
as the statute prescribes (see 1 R.8., page 122, section 33, sub. 6),
took effect at its date, and that the limitation until the 1st May
was void. 2d. That the election of Hodge is valid, and he has a
right at any time to qualify and enter upon the duties of his office.

J. V. B.

,

Cuas. B. Jonzs, Esq., Clerk of Clinton County :

Dear Srr.—Y ours of the 19th inst. is received.? Iam of opinion
that you would properly discharge your duties as clerk by swearing
in the justices referred to, if the certificates they present are in form
regular, Your duty in swearing them in is merely ministerial, and
I do not think you are expected or required to go behind the certi-
ficate and decide the legality of the election. This view seems to
be sustained by the following cases. (Zhe People v. Dean, 8
Wend., 438; ex parte Heath & Rooner,3 Hill, 42; People v. Ste-
vens, 5 Hill, 629, opinion of Bronson.)

June 27, 1845.

J. V. B.

1 The question was as to effect of a resignation of a justice of the peace which,
by its terms, was to take effect ‘‘in futuro.”

(See, also, 1 R. 8.,118,§ 17.) The decision of canvassers is conclusive in every
form the question can arise, save in a direct proceeding by quo warranto to try the
right. (17 Wend., 81; 20 Wend., 12, 14.)
or THE STATE oF New Yoru. 147

C. Hesineway, Esq. :

Dear Sm.—Yours of: the 24th inst. is received. An inspector
of elections need not signify his acceptance to the town clerk
within ten days. The ofticers who are required to do this are
enumerated in the statute which directs it to be done (see 1 R.8.,
343, section 17.) As to inspectors of elections see Laws of 1842,
page 117. The person, therefore, elected at your town meeting
is entitled to act as inspector. “If the person appointed claims to
act, their respective rights will be passed upon, in the first instance,
by the board of inspectors when they come to preside over the first
election appointed to be held.

June 27, 1845.

J. V. B.

C. V. Cuanprzr, Esq. :

Sm.—Yours of the 14th inst. was received.1 I am of the opinion
that the property of the persons mentioned by you, if they are
regularly ordained ministers of the gospel of any denomination, is
exempt from taxation to the extent specified in the 8th subdivision
of section 4, and in section 5 of title 1, chapter 13, part 1 of the
Revised Statutes.

It was held by the late Attorney-General Barker, and the con-
clusion seems clear to my mind, that the exemption depends not
upon the actual exercise of the functions of a minister or priest,
but upon the rights of the person claiming the exemption to offi-
ciate as such.

July 7, 1845.

J. V. B.

James Marks, Assessor:

Dear Sr.—I am in receipt of your favor of June 19th. The
manner in which the real estate of incorporated companies is to be
taxed, and the town wherein the assessment is to be made, are
pointed out in section 6, title 2, chapter 13, part 1 of the Revised
Statutes, and in title 4 of the same chapter.

1 See opinion referred to, page 110.
148 OPINIONS OF THE ATTORNEYS-GENERAL

By referring to a decision of the chancellor, in the case of the
Mohawk and Hudson Railroad Company (4 Paige, 384), you will
find a course suggested for arriving at the amount for which a par-
ticular portion of a turnpike road should be assessed, and I am not
aware that any subsequent enactment has rendered the application
of the rules, there laid down, to your case impracticable. The
amount which the turnpike company has invested in their road, the
places wherein such real estate is liable to taxation, and the pro-
portionate value of that part lying in your town, can be easily ascer-
tained from the company’s report to the Comptroller, or to the asses-
sors of the town where its personal property is taxable; and should
the amount thus ascertained be greater than the actual value of the
portion upon which the assessment is made, the company has the
same remedy as an individual to obtain its reduction.

JV. Be
July 17, 1845.

A. GAytorp, Esq. :

Dear Sir.—Your favor, presenting the case of John Wixson for
my opinion, was duly received. There are, I believe, several
denominations of Christians who are in the practice of granting
licenses of the nature of that held by Mr. W., which, upon its face,
would seem to be nothing more than a certificate of his good stand-
ing in the religious body, and the belief of the church that he is
called and qualified to preach the gospel. Persons holding such
licenses are, by virtue of them, permitted to preach and expound
the scriptures, and to take a leading part in divine worship. Yet,
if I understand aright, there is a distinction recognized between
such persons, and that class who have been by the process of ordi-
nation or otherwise admitted to the functions of a “minister or
priest.” In other words, licentiates are not generally recognized as
ministers, but as candidates for the ministry, or persons allowed to

1 The rules laid down in case referred to (4 Paige, 384) are, in substance, to tax,
as real estate, the lands, rail or road-ways and fixtures, in the several towns or
wards where such real estate is situated. Such real estate to be assessed at its value
at time of assessment, whether more or less than original cost. Such corporations

not taxable upon their capital, save such portion as remains after deducting cost
of real estate, including railways, fixtures, etc.
OF THE STATE OF New York. 149

exercise some but not all of the duties of the ministry of the church.

‘IfI am right in this view of the case presented, I think Mr. W.
should not be regarded as within the exemption specified in section
5, chapter 13, title 1, 1st part of the Revised Statutes, the object
of which, in my opinion, was to exempt from taxation, to a certain
extent, that class only who have been set apart for the service of
the church, and might be presumed to be separated from many of
the secular duties of citizenship.

; J. V.B.
January 6th, 1846.

StepaEen Broker, Esq. :

Dear Sir.—Yours of the 24th December ult., requesting my
opinion upon the subject of the compensation allowed by law to
inspectors of election, was duly received. Inspectors of election
are entitled to one dollar and twenty-five cents per day! for each
day actually and necessarily devoted by them to the service of the
town in the discharge of the duties of their office. As soon as the
polls of an election shall have been finally closed, the inspectors are
directed to proceed and canvass the votes, and such canvass cannot
be adjourned or postponed until it shall have been fully completed.
If in the necessary discharge of their duties the inspectors are
required to remain in session into the succeeding day, for however
small a portion of it, they would be entitled to compensation for an
additional day’s service, because the law does not, in respect to such
charges, recognize parts of a day. And fora like reason, should
their duties extend’ beyond the hour of sunset, they would not,
unless so engaged beyond midnight, be entitled to any additional
compensation.

J. V. Bz
January 26th, 1846.

Hon. A. 8. Hoyreron:

Dear Srr.—I am inclined to think that the provisions declaring
no person eligible for a town office who is not an elector of the

1The compensation of inspectors of election was, by chap. 305, Laws of 1860,
increased to one dollar and fifty cents per day.

\
150 OPINIONS OF THE ATTORNEYS-GENERAL

town is jnapplicable to a justice of the peace. It was passed prior
to the law regulating the election of justices of the peace, and,
therefore, was not intended at its passage to embrace it. Justices
of the peace are not strictly town officers, except so far as they are
made so by statute. The extent to which that has been done may
be seen from a reference to the case of Gurnsey et al. v. Lowell
(9 Wend., 319 1), the restrictions as to their residence and juris-
diction (1 R. S., 102, § 122), is probably all the restriction of that
character that the Legislature saw fit to impose. If I am correct
in this, I do not think the validity of his election, after he qualifies,
can be inquired into otherwise than by “quo warranto.” ;

J. V. B.
Aupany, March 13th, 1846.

Atpany, April 16th, 1846.
Wut Scorr, Esq. :

The question as to the number of justices to be elected in a new
town, their classification and length of terms is not free from
embarrassment. My impression is that the several sections of the
Revised Statutes regulating this subject, do not prohibit a new town
erected the past winter, in which there shall be a justice residing
whose term expires in December, 1846, from choosing, at their first
town meeting, four persons, one of whom shall be elected for four
years, and shall commence his official term on the 1st of January
succeeding the election. The direction in section 44 (1 R. S., 2d
ed., 102 3), that where one or more justices reside in the new town,
“only so many justices as shall be necessary to complete the num-
ber of four for such town shall be chosen,” was probably intended
to prevent the town from having more than four acting justices at
one time. The section 52, page 1034, directing that justices elected
in the new town shall be authorized to swear in forthwith, was
intended, I think, to apply to those persons elected to fill vacancies

1See also 10 Wend., 196.

* This provision is, that “ justices of the peace must reside in the town for which
they were chosen.”

*This is section 38 (1 Revised Statutes, p. 112 of 1st ed.; 1 Edmonds’ S*~*tes,
102, § 38.) :

“Section 1 of chapter 290, Laws 1830 (3 Edmonds’ Statutes, 40.)
oF THE STATE OF Nuw Yor. 151

created by the erection of the new town. The object of both pro-
visions was to put the new town immediately upon the footing of
other towns. For the completion of this object they should have the
right to elect a person to qualify as justice on the 1st of January
after the election, to serve four years; otherwise there will be but
three justices in the town, certainly from the 1st of January next
until the succeeding town meeting, and for the whole year, unless
the justice then elected is to be regarded as within section 52 before
referred to, and entitled to qualify immediately by being elected
to “fill a vacancy in any new town,” which I doubt.

In case four justices are chosen, they should all draw for classes,
unless some one is elected for the long term, in the mode pointed
out. (1 R. S., 337, §§ 14 to 17, inclusive.)! In case any one is
elected for the long term, the other three should draw; the justice
already residing in the town would continue to hold, and would
fall in the same class with one of those elected. The Legislature
seem to have anticipated that this incongruity might occur from
the erection of new towns, and have provided for it (1 R. 8., 2d ed.,
102, § 502;) although I do not think this section, or any alter
provision of law was intended to authorize the election of more
than four acting justices of the peace ina town. But while the
electors of a town have a right to choose four justices in the case
stated, it does not follow that they must do so; on the contrary,
they may elect any less number. * * * The board of canvass-
ers have declared three elected. The drawing is confined to the
justices elected. The result of the election for justices of the peace
is certified to the county clerk by the clerk of the town meeting.
The drawing is conducted by the supervisor.and town clerk (the
latter the clerk of the meeting); and although the correctness of the
decision of these officers as to who shall take part in these drawings
may be inquired into, as may also the election itself, yet it is proba-
ble they would confine the drawing to the persons declared duly
elected; and the rights of any other claimant to the office of justice
of the peace must be settled in a different mode.

Yours, respectfully,
J. V. B.

1Chap. 270, Laws of 1883; 8 Edmonds’ Stats., p. 40; 1R.8., , Ist ed. 2, sec. 44;
1 Edmonds’ Stats., 102.
152 OPINIONS OF THE ATTORNEYS-GENERAL

V. W. Huvesarp, Esq. :

Dear Sir.—Yours of the 11th inst. is received, asking my opin-
ion as to the power of three justices to fill a vacancy in the office of
justice of the peace occasioned by the death of the incumbent.
The 31st section of 1 R. S., p. 347,1 provides for the exercise of
the power of appointment by the justices in cases where the town
neglects to choose its proper officers. ‘The 36th section gives them
power to fill all vacancies in town officers, with certain exceptions,
of which the office of justice is not one. The simple inquiry is,
whether a justice is a town officer within the meaning of this sec-
tion? I confess J should doubt it, and confess I am more inclined
to think the case is unprovided for. The 34th section pro-
vides for a special election in certain specified cases, of
which this is not one; and the Supreme Court has decided
that if it were an act authorizing a special election to fill a
vacancy in the office of justice of the peace would conflict
with the Ist amendment to the Constitution, which directs
that the justices shall be elected at the annual election?, and would
be therefore void. If this is so, and there is no difference between
a regular election and filling a vacancy, the Supreme Court would
probably hold that if the law applies to justices, it is unconstitu-
tional. (See ex parte Quackenbush, 2 Hill., 369.) The extent to
which justices are to be considered town officers, is well defined in
the case of Gurnsey v. Lowell (9 Wend., 319). Many provisions
of law which were enacted prior to the Revised Statutes, and
particularly prior to 1818, and which are nominally applicable to
all town officers, are obviously inapplicable to justices of the peace,
such, for instance, as 1 R. 8., 347, § 30. Still the 36th section,
as to vacancies in all town officers, is new and was introduced at
the revision in 1834. The revisers reported it in a shape only
applicable to collectors. The Legislature, however, made it general.
It is possible it was intended to embrace justices of the peace ; but
if so, I think, under the decision of the Supreme Court in 2d Hill.,
above referred to, they would hold it unconstitutional to that extent.

May 30th, 1846. I.V.B.
11 Edmonds’ Stat., 320.

2%In the new judiciary article (Article 6, § 18), the provision as to election of
justices of the peace at the annual town meeting is retained.
or tHe Srare or New Yorks. 153

Dear Sre.—The case stated by Mr. Tucker is this: “ A vessel
from Nova Scotia, laden with a cargo of coal arrived at Jersey City
opposite New York, and there discharged her cargo; immediately
after which she goes over to the city of New York; the master
objects to paying the tax imposed upon masters of vessels arriving
from a foreign port, on the ground that he arrives from Jersey City
and should be taxed asa coaster.” The act “to provide for sick and
disabled seamen,” section 11, provides that the president and
trustees therein named, shall demand, etc., the following sums from
the master of every vessel that shall arrive at the port of New
York, viz.: 1st. From the master of every vessel from a foreign
port for himself, $1.50; for each master, sailor and mariner one
dollar. 2d. From the master of each coasting vessel for each per-
son on board, composing the men of such vessel, twenty-five
cents, ete.?

This is a part of the quarantine system of the State, and “the
port of New York” is the district in which the quarantine is to be
effected. The extent of this district may be seen by reference to
the 3d Revised Statutes, 2d ed., 175. It covers the whole course
over which this vessel must have traveled in American waters. The
test of liability is not the arrival in the city of New York, but in
the port of New York, and in the port subject to our quarantine
laws. It seems to me to be not necessary, therefore, to consider the
effect of the discharge of the cargo in Jersey City. The vessel,
before discharging her cargo, has arrived in the port of New York
from a foreign port. She has doubtless performed quarantine or
been visited at Staten Island, and by the 12th section, the health
officer is forbidden to suffer her to go beyond the quarantine ground
without evidence that she has paid or secured all hospital money
demanded from the master. If she did not come to the city at all
she might be liable to the tax, for without doing so she can bring
pestilence into the State; and to relieve and prevent such evils this
large and extensive establishment is kept up. I agree with Mr.
Tucker that the intention of the act was to reach all vessels, and to

11 Mason, 449; 5 Cranch., 358. The law as it now stands (Sess. Laws 1866,
chap. 369), authorizes collection of same amounts stated in opinion, of either the
owner ur owners or master, by the president of the trustees of the Seaman’s Fund

. and Retreat.
154 OPINIONS OF THE ATTORNEYS-GENERAL

divide them into foreign vessels and coasters. The vessel he
describes is evidently not a coaster, and within the intent of the
act she is a foreign vessel, or vessel from a foreign port; and if I
am correct as to what constitutes the port of New York and an
arrival in it, the terms of the act require so much. She is a vessel
arriving at the port of New York from a foreign port. If she is to
be regarded (as I think she is not) as arriving from Jersey City, I
do not think that would authorize taxing her as. arriving from a
foreign port, nor as a coaster.

Your obedient servant,

J. VAN BUREN.
November 17th, 1846.

Hon. 8. Lawrence, Chairman Investigating Committee :

Srmr.—Sometime since the committee, of which you are chairman,
under an arrangement with Benjamin F. Angle, Esq., of Geneseo,
referred to the chancellor and myself, the rights and propriety of an
investigation by the committee into certain acts and declarations
attributed to Mr. Angle, and offered to be proved, and at the same
time notifying us that they were unanimously of opinion that these
were proper subjects of inquiry, and directly connected with certain
frauds they were investigating. At your suggestion I apprised Mr.
Angle that we were willing to receive his views on the subject in
writing, and I received a written communication from him stating
his objections to the inquiry. On consultation with the chancellor
he declines expressing an opinion on the question, of which I imme-
diately apprised you. Learning from the committee, through you,
that they and Mr. Angle, nevertheless, desired my opinion on the
subject, not feeling at liberty to withhold it, so far as I can form
an opinion from what I know of the facts, I proceed to give you
briefly a few principles of law which I suppose to be settled, and
leave the committee to apply them to the case before them. I
don’t repeat the testimony offered, because doing so would extend),
this communication to great length, and in the view I take of the
subject it is unnecessary.

The peculiar province of the House of Assembly is to guard, and,
under constitutional restrictions, to dispose of the public treasure.
or THE STATE or New York. 155

It has also power to impeach public officers, and concurrently with
the Senate, to remove some of them (Canal Commissioners, etc.,) by
joint resolution. It is also a branch of the State Legislature. More
effectually to attain any of its legitimate objects, it has, I assume,
power to raise a committee, empowered to send for persons and
papers. The resolution under which you are acting is in these
words: ,
“ fesolved, That a committee of three be appointed to investi-
gate the alleged frauds upon the canals of this State. That they
have power to send for persons and papers, and sit, if necessary,
during the recess of the Legislature, at such times and places as
they may deem necessary, and report to the next Legislature.”
Without adverting particularly to the circumstances which
induced the constitution of this committee, and with which, indeed,
I am less acquainted than the committee probably is, it is sufficient
for me to say, that 1 think the general terms of the resolution should
‘be limited by the committee, to the recognized powers of the House
which passed, it. Wherever, therefore, the committee find legal
evidence offered from which they can discover either: 1st. How the
public money has been squandered, or where any of it now is; 2d.
What civil officer has committed an impeachable offense ; or, 3d.
What further legislative safeguards or preventives may be contrived
and recommended for the public safety, they sould give the fullest
latitude to inquiry. On the other hand, to punish the great mass
of private misconduct and crime, which such an inquiry would leave
untouched, belongs to the ordinary and regular civil and criminal
tribunals of the country. These are the safest depositories of this
authority. They are open, public, with powers defined by written
laws and constitutions, and best protect the rights of the citizen.
A word or two in reference to the particular case submitted. I infer,
from the statements of the committee, that the fact of Mr. Angle
being the bail of Daniel P. Bissell, one of the Canal Commissioners,
lead the committee to believe that the evidence offered may impli-
cate the latter, and his conduct as a public officer. The committee.
have full power to investigate in reference to this. I suppose the
rule of law to be, that, to make one party chargeable with the
improper or criminal conduct of another, he must in some way be
shown to have suggested or approved of such conduct. Strictly,
156 OPINIONS OF THE A1TORNEYS-GENERAL

this should be first shown, though, practically, it frequently happens
that where a promise is made, by a responsible person, to connect
the transaction offered to be proved with the accused, the evidence
is received, and if the connection is not shown, it is afterward
rejected. I do not suppose the committee have power to investi-
gate anything, the sole result of which would be to prove that Mr.
Angle, or any private citizen, had been guilty of disgraceful o1
criminal conduct out of the range of the inquiry. But I suppose
they have full power to investigate anything and everything, which
fairly tends to promote either of the three great objects to which ]
have adverted as legitimately within their province. In doing so,
however, they should remember they are exercising great, extra-
ordinary and almost unrestricted powers, and they ought to mani-
fest a jealous and cautious respect for the rights and feelings of pri-
vate citizens. Such, I doubt not, is the disposition of the committee,
and with a full knowledge of the whole case as it stands, and the
facts already developed, their own discretion must be in a great
degree the only boundary of their investigation. Without such
knowledge on my part, I do not feel authorized to assume the
responsibility of saying, as a matter of law, that the testimony
offered is necessarily irrelevant to the inquiry with which the com-
mittee is charged.
Yours respectfully,

JOHN VAN BUREN.

Hon. J. A. Fenn and J. Larawar:

GrntLEMEN.—I have received your favor of the 9th inst.,
inquiring whether, in my opinion, the new Constitution of this
State interposes any barrier to the erection of a new county from
counties situate in different senatorial districts. In 1845, I reported
my views upon this question to a Senate, in answer to a resolution
referring to me the bill for the erection of the county of Schuyler.
(See Senate Documents 1845, vol. 2, Doc. 66.)! The conclusion
to which I came was, that the old Constitution did not forbid the
erection of a new county from territory in different senatorial

*See ante, page 119, note
or THE STATE OF New Yor. 157

districts. I see nothing in the new Constitution that varies the
question. The new county, however, after its erection as well as
before, would be partly in one Senatorial district, and partly in
another, which would present a question of expediency and con-
venience to the legislative discretion.

Respectfully yours,

J. VAN BUREN.
Apany, January 19th, 1847.

Messrs. M. G. McKoon, A. R. Treapwett, 8. G. Ricu, Com.:

1GENTLEMEN.—I have received yours of the 18th inst. inquiring
whether, in my opinion, after a county has been divided into
assembly districts by the board of supervisors in conformity with
the new Constitution, a new town can be formed composed of parts
of two towns, which are in different assembly districts. In my
opinion, the Constitution. does not forbid this. The parts of the
new town would remain as before in different assembly districts,
and whether a town shall thus be formed or not, is a question of

legislative discretion.
Respectfully yours,

J. VAN BUREN.
Axsany, January 19th, 1847.

J. H. Torus, Esq. :

2Drazr Str.—lI have received yours of the 21st inst., asking my
opinion as to the term of office of a commissioner of highways,
under the act of 1845, when only one is elected.

The act (chap., 180, § 2, Laws of 1845), authorizes the electors to
determine whether they will have one or three commissioners. If
only one is determined upon and chosen, he has all the powers and

‘The question here is identical with that in the next preceding opinion. See
note, page 119.

"Section 2 was amended by section 1, chap. 445, Laws of 1847, by addition of
the words “and shall hold his office only one year ;” see also chap. 30, Laws 1866,
amending section 3, art. 1, title 2, chap. 11, 1 Revised Statutes, and authorizing
the election of one, two or three commissioners of highways.”
158 OPINIONS OF THE ATTORNEYS-GENERAL

discharges all the duties of the three. If three are chosen, they
are classified, and serve one, two and three years; afterward one is
chosen annually and holds his office for three years, and until a sue-
cessor shall be elected. My opinion is that the effect of these pro-
visions is to extend the term of office of commissioner of highways
for three years. When three are chosen they are classified; the
terms of two, shortened as are justices of the peace and senators
under certain circumstances. But a single commissioner, under
the new law, holds, I think, for three years. I assume that such
was the intention of the act, which was obviously designed to give
greater responsibility and permanency to the office, and to secure
more experienced officers.
Yours respectfully,

J. VAN BUREN.

Mr. Naruan W. Canvy:

Dear Sir.—Yours of the 8th inst. is received, asking my opinion,
whether you are legally bound to call a town meeting for the pur-
poses stated in the notice of which you sent me a copy.

I understand the statute, as to special town meetings (1 R. &.,
3841, section 7), to apply to the institution and defense of suits in
which the town is interested. Under the act of 1845, chapter 300,
“relating to excise,” etc., certain officers are required to sue for
penalties incurred by violating its provisions; and in case they
neglect, individuals may sue on certain conditions. This alterna-
tive, however, does not relieve the overseers from their duty. I do
not think that a town meeting can determine whether the overseers
shall or shall not discharge their duty; and I should not, therefore,
consider it a case where the meeting would have any right or autho-
rity to give a direction, or to require obedience to it when given.

If this be so, it seems to follow that you are under obligations to
call the meeting.

Yours respectfully,

J. VAN BUREN.
Ausany, January 28, 1847.
OF THE STATE oF NEW York. 159

ATTIORNEY-GENERAL’s OFFICE,
Arzany, N. Y., February 25, 1847. }

In 1839 a law was passed making it the duty of the Attorney.
General, in foreclosing mortgages, to sell the premises, where they
had been conveyed at different times, and a portion remained in
the possession of the original mortgagor, in the inverse order of
alienation, on being furnished with proof, by affidavit, of such fact.
(See Laws 1839, chapter 381.) The Revised Statutes provide, that
“it shall be the duty of the Comptroller, on application to him for
that purpose, to open accounts, in his office, against any person for
any part or subdivision of any lot purchased from, or mortgaged to,
the State for the proportionate part of the money due to the State
on any such part or subdivision, and thereafter to give credits for
the payments, on the several parts or subdivisions, as the persons .
making such payments may require. (‘No accounts for lands shall
be open in the Comptroller’s office for a less sum than fifty
dollars.’’)

Section 39 also provides, that “the Comptroller may also execute
the like discharge or certificate, whenever the owner of any such
part or subdivision shall have been opened therefor.” Section 40
points out what shall be required of a party claiming the benefit
of sections 83 and 39. “He shall produce a map and return of
survey of the whole lot, showing, particularly, the part or subdivi-
sion owned by him; he shall, also, produce satisfactory proof that
the residue of the lot is sufficient security for the sum remaining
due thereon.”

The Comptroller, however, in his direction to applicants for the
benefit of the provisions, has gone further than the statutes require ;
and in particular when a new account is opened, he requires an
appraisement under oath, not only of the residue of the lot, but of
the part to be set off. In a recent case, the Attorney-General was
foreclosing a mortgage of General De Witt, that a small por-
tion of the premises had never been conveyed by the original mort-
gagor, that the residue had been conveyed at different times to three
different persons, Geer, Downing and Merriam, in the order I have
named them. When the premises were about being sold, Merriam,
the last purchaser, applied to the Comptroller and had a separate.
account opened for the parcel purchased by him ; he also claimed to
160 OPINIONS OF THE ATTORNEYS-GENERAL

pay his proportionate part of the mortgage due tne State, which
had been ascertained by the Comptroller, in the usual manner, in
opening his separate account, and to have his portion of the mort-
gaged premises discharged from the lien of the mortgage.

Geer and Downing served the Attorney-General with affidavits,
under the act of 1839, showing that they had both purchased of the
mortgagor before Merriam, and demanded that the premises should
be sold in the order directed by that act, to wit, first, the premises
not conveyed by the mortgagor; second, the premises of Merriam ;
third, of Downing ; and fourth, of Geer.

Under these circumstances the Comptroller refused to allow Mer-
riam to pay the sum fixed as his proportionate amount of the
mortgage moneys, and application was made to the Supreme Court
by Merriam for a mandamus to compel the Comptroller to receive
the money and discharge his premises.' | The application was
denied, and Mr. Justice Jewett, in delivering the opinion of the
court, says: “Setting aside the additional right which Merriam
claims to have acquired, by procuring an account to have been
opened in the books in the Comptroller’s office with him, charging
him with the proportionate part due by the mortgage on the whole
premises, the rights of the heirs and devisees of the mortgagor,
as it respects that part of the premises not conveyed, and his several
grantees of the several parts of the mortgaged premises conveyed
to them, and the duty of the Attorney-General in selling the premi-
ses under the mortgage, are plain. According to the provisions of
the act of 1839, above referred to, that portion of the mortgaged
premises remaining, not conveyed, containing about fifteen and a
half acres, must be first sold; or, in the event it shall not produce
enough to satisfy the amount unpaid on the mortgage and costs,
then it will be the duty of the Attorney-General to sell that part
of the premises purchased by Merriam, being fifty-three and a half
acres, the same having been last conveyed according to the dates of
the conveyances; and in case that shall not produce enough to
satisfy the amount remaining due, with costs, after applying the
proceeds of the sale of the first piece sold, it will be the duty of the
Attorney-General to sell the 131 acres purchased by Thomas Down-

'4 Denio, 254,
or THE STATE or New York. 161

ing; and if that part should not. produce enough after applying the
proceeds of the previous sales, to satisfy the remaining sum unpaid
with cost, the piece purchased by Luther Geer, being 122 acres,
must be sold.

“The principle upon which the Comptroller ascertains the pro-
portionate part of the sum due upon a particular part of an entire
lot of land, purchased from or mortgaged to the State by an indi-
vidual owing such part, and desiring to open an account for such
part, has been to calculate it upon the quantity and value
which it bears to the quantity and value of the entire lot,
exclusive of buildings thereon; and that is doubtless correct
in a.case where the lot has been purchased of and held under
contract with this. State, or has been mortgaged to the State
and simultaneously conveyed to different individuals in distinct
parcels, and would be well enough in a case where but one
portion of a lot had been conveyed: by the mortgagor, subsequent
to the mortgage; should the grantee apply for an account to be
opened for such part, although he might well rely upon his right
(there being no agreement between him and his grantor to the con-
trary), upon having the residue of the lot first subjected to sale
under the mortgage to satisfy the debt.

“ But where the mortgagor has conveyed the whole or any part
of the mortgaged premises, in different parcels, to different indi-
viduals at different times, it is manifest that such apportionment,
when applied for by a junior grantee, since the passage of the act of
1839, cannot be made, as that such part of the lot conveyed subse-
quent to the other. conveyances of other parts of the lot to other
persons by the mortgagor, is primarily liable under the act of 1839
to the extent of its value for the payment of the whole debt, or
such portion of it as it will produce on a sale under the mortgage,
and before any other part of the last conveyed, previously, is sub-
ject to be sold to satisfy the mortgage debt when such persons have
made and delivered to the Attorney-General the affidavit prescribed
by the statute. In the case under consideration, Merriam is the
junior grantee of a part of the mortgaged premises purchased by
him since the passage of the act of 1839; two distinct parcels of
the lot having been previously conveyed at different times, one to
Geer and the other to Downing; each of whom had paid the

11
162 OPINIONS oF THE ATTORNEYS-GENERAL

amount of the purchase-money; there being still a remainder left
not conveyed.

“Under these circumstances, Merriam has no ground to claim to
have his part of the lot discharged from the effect of the mortgage,
until he shall have paid all such sums unpaid after the sale and
application of the proceeds of the portion remaining unconveyed as
are equivalent in value to the value of his portion, exclusive of
buildings thereon, for not until the said remainder and Merriam’s
fifty-three and a half acres are sold and the proceeds applied, leav-
ing a balance unpaid, would Downing’s 131 acres be liable.

“There may be an apparent conflict between the general provi-
sions of the Revised Statutes and of the act of 1839 on this subject ;
but taking them together, I do not see as they will admit of any
other construction than I have given them, and as I am pursuaded
was the intention of the Legislature.

“The construction contended for by the mover of this, would
effectually cut out the security the State has by the mortgage for
the repayment of the loan to the mortgagor, beyond the amount of
the proceeds of the sale of the fifteen and a half acres, and the sums
of $207,543, of principal and the $1037%, of interest charged to Mer-
riam’s fifty-three.and a half acres, as neither of the remaining por-
tions conveyed to Downing and Geer are liable, except in the order
of sale of all parcels, as prescribed by the act of 1839.

“A different question might have arisen if Geer and Downing,
or the latter, had opened an account, pursuant to the Revised
Statutes, for their Iand, as they purchased prior to the act of 1839,
and thereby acquired rights which perhaps that act would not effect.
But neither of them have opened an account, and it is not claimed
here that either agreed with his grantor, to assume or pay any por-
tion of the mortgage debt, but that they respectively purchased
independent of the mortgaged lien, and looked to the grantor to
relieve the premises by payment of the mortgage. The motion
must be denied.”

The opinion thus expressed leaves it a matter of extreme embar-
rassment, to open a separate account in almost any case without the
consent of all the parties in interest. The principle of selling
mortgaged premises in parcels in the inverse order of alienation is
well settled in a court of equity.
or roy Srare or New Yorx. 163

The statute of 1839 applies this principle to the Attorney-Gene-
ral’s sales, and the opinion of the court above given declares that
this order of sale is a right, which controls the statute in reference
to opening separate accounts, and gives a construction to the term
“proportionate part” of the mortgage money in that statute. In
other words, the court holds that where mortgaged premises are
conveyed at different times, the part last conveyed is legally charge-
able to the extent of its entire value, with the full amount of the
mortgage debt, beyond what can be satisfied by the sale of any resi-
due remaining in the possession of the original mortgagor, and that
discharging it for a less sum, releases the parcels previously con-
veyed from the liability to satisfy the mortgage, beyond what is
realized from the sale of the part unconveyed, and the sum received
on the separate account.

That in Merriam’s case, for instance, “the proportionate part of
the moneys due the State” on his part of the premises would be the
full value of his part.

Without intending to concede that the court are correct in their
view of these statutes, yet, as these separate accounts are opened
for the accommodation of the public creditors, I would recommend
that in future, for greater safety, there should be no ‘separate
accounts opened in the Comptroller’s office, in mortgage cases, with-
out the assent of all the parties in interest. In cases of lands sold
and held on certificate, there seems to be no embarrassment in
opening such accounts.

J. VAN BUREN.
Azany, March 27th, 1847.

Mr. Grorcr W. Grer:

Srr.—Yours of the 24th inst. is received. By reference to the
Revised Statutes (vol. 1st, page 498, sec. 3, sub. A) you see that
the trustees of gospel and school lots were authorized to purchase,
on a foreclosure, the lots mortgaged, and to hold and convey them.
The act of 1846 gives the same power to superintendents of schools,

\
°
164 OPINIONS OF THE ATTORNEYS-GENERAL

and the superintendents are the proper persons to purchase and hold
the lots.1
Respectfully yours,

J. VAN BUREN.
Asany, April 5, 1847.

Messrs. Drxson and BEepLaxkE:

GentLemMEN.—I have reflected somewhat on the question pre-
sented to me by you in reference to Jesse Rose’s mortgage, and
briefly give you the result. You can communicate them to Mr.
Chatfield or such other counsel as you may employ.

The United States deposit act (1837, chap. 150, sec., 30) provides,
that in case of neglect on the part of the mortgagor to pay princi-
pal or interest when due, the commissioners shall be seized of an
absolute estate in fee in the mortgaged premises; but the mort-
gagor retains possession till the first of February, when the mort-
gaged premises are to be offered for sale as provided in sections 31
and 32; as I understand you, the premises conveyed by Jesse
Rose’s mortgage, were sold in conformity to these sections in Feb-
ruary, 1840, and Rose became the purchaser for the amount duc
the State and costs. Section 39 authorizes the commissioners to
receive the purchase-money and retain it, and directs them in mak-
ing such reloan, to prefer the purchaser at the sale if he‘ desires to
make the loan and conforms to the requirements of the act.

The memorandum which you say Rose produced from the Comp-
troller, was undoubtedly intended to call your attention to this sec-
tion; and if your proceedings were in other respects correct, as I
doubt not they were, the law did not require you to go through
the form of receiving the money from Rose and immediately hand-
ing it back to him.

The forfeiture in October, under section 30, invested you with
the fee of the premises, free from all cee encumbrances or
right of redemption.

Your deed to Rose in February, gave a like title to him, and the

1 By sec. 27, chap 179, Laws of 1856, these powers are conferred upon the super-
visors of towns.
OF THe State or New Yorn. 165

mortgage he executed to you is @ valid lien; and a judgment
recovered against Rose subsequent to the execution of the original
mortgage, not only is no lien against the second mortgage, but I
think it is cut off by the forfeiture and sale. The judgment of
Amos H. Brown certainly cannot become a lien on the premises
till after the execution of the commissioners’ deed to Rose ; and if,
as you state, Rose was previously discharged under the bankrupt
act, it may not attach at all.

You also state that default has been made in the second mort-
gage, and that the premises were offered for sale last February and
no bidders appeared. In such case, the 33d section directs you to
take possession of the lands and let them till the third Tuesday in
September, and then sell them in the mode there provided. If you
cannot obtain possession of the premises otherwise, you should
therefore bring an action of ejectment against the party in posses-

sion.
Respectfully yours,

J. VAN BUREN.
Aupany, April 5, 1847.

Hon. W. M. Hawtzy:

Dear Srr.—I have received your favor of the 24th instant,
inquiring my opinion as to the power of a county judge, or the
sheriff, or clerk of a county, to adjourn over a Court of Common
Pleas and General Sessions appointed to be held on the day of the
approaching judicial election.

By the 6th section of the act (chapter 276, “Laws 1847) provi-
ding for the election of judicial officers, etc., all laws relating to
general elections are made applicable to such elections. The elec-
tion act of 1842, chapter 130, section 5, provides “that no court
shall be opened or transact any business in any town or city on the
day such election shall be held therein, unless it shall be for the
purpose of receiving a verdict or discharging a jury or the naturali-
zation of foreigners.” The same section provides for an adjourn-
ment of a court, when in session immediately before an election,
to a day subsequent to such election, except where a cause is already
committed to a jury. The Revised Statutes (part 3, chapter 1,
166 OPINIONS oF THE ATTORNEYS-GENERAL

title 5, section 8) authorize any judge of the County Court, or if
there be none present, the sheriff or clerk of the county, to adjourn
the Court of Common Pleas and General Sessions, to the next day,
provided a sufficient number of persons, authorized to hold the said
courts, shall not attend for that purpose before five o’clock of the
afternoon of the day on which such court is to be held.

In my opinion the fair construction of the two acts last referred
to, would authorize an adjournment of these courts under the section
last mentioned. When the term commences on election day, the
judges should not of course attend for the purpose of holding the
court; and in that event a judge, or, in his absence, a sheriff or
clerk, is authorized to adjourn the court over.

I think the election act intended to prohibit the holding courts
on election day, except for the purposes mentioned in the act. The
persons who are authorized by section 8 to adjourn the court over
are not authorized to hold the court, except in cases where the
authority is specially conferred on a single judge by statute. It is
because the court cannot be held that authority is given to adjourn
over, and I do not think that performance of this ministerial act, in
compliance with an express authority given by statute, is an open-
ing of the court or transaction of business by the court within the
meaning of section 5 of the election act of 1842. Different lan-
guage is used in reference to an adjournment of the Supreme Court,
where neither of the justices attend on the first day of the term.
In such case it is the duty of the clerk of the court to open the same
by proclamation, and immediately adjourn it. Here the language
is in direct conflict with the election act, and might give rise to some
doubt, but the provision in regard to the adjournment of courts of
Common Pleas and General Sessions seems to me free from difii-

culty.
JOHN VAN BUREN.
Aupany, May 27, 1847.
OF THE STATE oF New York. 167

Arrornry-GunzrAt’s OFFicr,
Apsany, N. Y., fay, 29, sear. |

My opinion is asked as to the authority of the Comptroller to
pay the trustees of the State Library the sum of $3,600, during the
current year, under the act passed May 12, 1847, “ making appropri-
ations for the State Library for the years 1847 and 1848.” The first
section of that act appropriates for each of the years 1847 and 1848
the sum of $2,800 for the State Library, to purchase books and
gradually enlarge the library, and also $800 for binding, lettering,
and marking books. It further directs that “the said several sums
shall be paid to the trustees of the library, in semi-annual pay-
ments, on the first day of April and October in each year.” The
act, however, did not pass into a law until the 12th day of May,
instead, and of course subsequent to the date fixed for the first pay-
ment, which, probably through inadvertence, was not altered. Still
the appropriation for the current year is absolute, and payment at
the date named having become impossible, in my judgment the
Comptroller is authorized to make the first semi-annual payment
for the current year, at the earliest convenient day after the passage
of the act, and the second on the first of October next.

Yours, etc.,
JOHN VAN BUREN.

Governor Youne:

Dear S1r.—I have received your favor of yesterday, asking my
opinion as to the ‘power of the Governor during the recess of the
Senate, to appoint a canal appraiser in place of one whose term of
office is alleged to have expired on the 14th day of May last, two
days after the adjournment of the Legislature.

By the 42d section of article 4, title 6, chapter 5, part 1 of the
Revised Statutes,’ the Governor is authorized “to supply all vacan-
cies that may happen during the recess of the Senate, in any office
to which an appointment shall have been made by the Governor
with the consent of the Senate (except, etc.), by granting commis-

11 Edmonds’ Statutes, 113.
168 OPINIONS OF THE ATTORNEYS-GENERAL

sions which shall expire at the end of twenty days from the com-
mencement of the next meeting of the Senate.” The office of
appraiser is not one of the excepted offices, and the only question
is, whether there is now a vacancy in the office which has happened
during the recess of the Senate, and this question has probably
become of less importance in this case, as I observed that the
Senate has been called by you for the 29th instant, and of course an
appointment, if now made, would be for a very limited period, to
wit, for twenty days aftoer the commencement of its meeting.
Section 45 (1 Revised Statutes, 225) provides, that there shall be
nominated by the Governor and appointed with the consent of the
Senate, three officers by the name of canal appraisers, who shall
hold their offices for two “years and until their successors shall be
duly qualified.| It seems to me, therefore, that there cannot be
said to be a vacancy in the office after the expiration of two years
from the commencement of a term. The appointee continues to
hold the office and discharge its duties “until a successor shall be
duly qualified.” This question was presented to the Supreme
Court in the case of The People v. Van Lorn et al. (18 Wendell,
315), see that case. Van Horn was supervisor of the town of Ovid
in 1834; at the town meeting in April, 1835, there was a tie in the
vote for supervisor and the meeting was adjourned without making
an election. The town clerk, immediately after, gave notice of a
special town meeting which was held, and Simpson the relator,
was elected,previous to the special town meeting however, Him-
rod, one of the defendants, was appointed supervisor by three
justices under 1 R. S., 347, section 31. Town officers hold their
offices for one year, and until others are chosen or appointed in
their places and have qualified. (1 R. S., 347, § 30.) Vacancies
in all town offices, except supervisor, etc., are supplied by three
justices. (1 R. S., 347, § 36.) Vacancies in the office of supervisor
are to be supplied by a special town meeting in the first instance,
or if this is neglected for fifteen days, then by three justices. (1 R.
8., 347, §§ 84 and 35.) Simpson had been elected upon the assump-
tion that, after the expiration of the year for which Van Horn was

1 This is not the provision of section 45, but of section i. chap. 287, Laws of

1886; by chap. 385, Laws 1857 (3 Edmonds’ Statutes, 385), the number is increased
to three, who hold their office for three years, ‘
or THe State or New Yorn. 169

elected, there was a vacancy in the office, which, by section 36, the
justices were prohibited from supplying. Himrod had been
appointed under the section before referred to, which authorizes an
appointment by three justices, when the town “neglects, at its
annual town meeting, to choose its proper town officers, or either
of them.” :

If a vacancy existed, Simpson’s election was valid if not Himrod’s.
The court held there was not a vacancy, and said, “In such cases
there is, in fact, no vacancy, because the officers of the preceding
year, hold their offices until others are chosen or appointed in their
places, and have qualified. An office cannot be said to be vacant
while any person is authorized to act in it, and does so act. The
office of supervisor of Ovid was not vacant on the first Tuesday of
April last, when a person should have been elected, at the annual
town meeting, to succeed the incumbent of the preceding year. W.
C. Van Horn continued to be supervisor of the town until Peter
Himrod was appointed and qualified; there was, therefore, no
vacancy,” ete.

I have referred to this decision somewhat minutely because the
cases appear to me to be similar. Town officers hold for a year,
and until others are chosen or appointed in their places, and have
qualified. Canal appraisers hold their offices for two years, and
until their successors shall be duly qualified. If, in the former case,
there is no vacancy at the end of the year, there would not be in
the latter, I think, at the end of two years.

The same rule of construction was applied by the chancellor in
the case of Tappan v. Gray (9 Paige, 507). Tappan’s term as
flour inspector expired on the 19th May, 1839, the Legislature
adjourned on the 9th May, and. on the 23d, the Governor, supposing
there was a vacancy which he could supply, appointed and commis-
sioned Gray, who entered upon the duties of the office. A flour
inspector holds for two years; but section 9 (1 R. S. , 117) continues
him in office, or was claimed to do so, until a successor shall be duly
qualified. Tappan filed a bill alleging these facts, and the insol-
. veney of Gray, and asked for an injunction, and a receiver to pre-
serve the fees until the right to the office could be settled by quo
warranto. =

The vice-chancellor of the first circuit, before whom the bill was
170 OPINIONS OF THE ATTORNEYS-GENERAL

filed, overruled the demurrer interposed to it and sustained the bill.
The chancellor, on appeal, reversed the decree, on the ground that
the court had not jurisdiction of the case, but held that the Gover-
nor had no power, under the 42d section before referred to, to make
the appointment; that that section gives the power in cases of
vacancies, and that there could not bé said to be a vacancy ; whereas,
in that case, there was a person in the office qualified to act and
acting. He refers to and sustains the case of the People v. Van Horn,

The chancellor’s decree was affirmed in the Court of Errors; not
reversed, as you suggest. (See 7 Hill, 259.) But the report of the
case, as you state, does not indicate the opinion of the Court of
Errors, on the question of the power of the Governor to make the
appointments; nor, as far as I learn, did the question between these
parties come before the Supreme Court.

In my opinion the case submitted by yon should be governed by
the case of the People v. Van Horn et al., and I do not think a
vacancy exists now in the office of Canal Appraiser, which you
-have under the 42d section before cited the power to supply.

Respectfully and truly yours,

J. VAN BUREN,
Attorney-General.

Arrorney-GEnerat’s Orricr,
Axsany, January 18th, 1848. }
Hon. Mitiarp Fitimore:

Drax Sir.—I have examined the question propounded by you,
through Mr. Phelps, and the result is stated below. By the Revised
Statutes (part 1, chap. 13, art. 1, title 3, sec. 10) a collector of any
town or ward, whenever any tax in his tax list remains unpaid,
and which he is unable to collect, is required to deliver to the
county treasurer an account of the taxes so remaining due; and
upon making oath before such treasurer that the taxes mentioned
in said account remain unpaid, and that he is unable to levy them
of any goods and chattels belonging to or in possession of the per-
sons charged with or liable to pay such sums, he shall be credited
by the county treasurer with the amount thereof.
or THE STATE or New Yorr. . 171

By section 261 of the same title, whenever the county treasurer
shall receive from a collector an account of unpaid taxes assessed
_ upon the lands of non-residents, such county treasurer shall com-
pare the same with the original assessment roll; and if he finds it to
be a true transcript thereof, he shall add to it a certificate of its
correctness, and, after crediting the collector, shall transmit the
account, together with the collector’s affidavit, to the- Comptroller,
accompanied by a certificate, that he has compared the account with
the entries of the same taxes in the original assessment roll, and

has found the same to be a true transcript of such roll.

' By section 30? of the same article, whenever any account of
arrears of taxes on the land of non-residents shall be transmitted by
a county treasurer to the Comptroller, he shall examine it, and if
the lands are perfectly described, shall credit the county with the
amount.

These being the general provisions of law, the question arises
whether the receiver of taxes to be appointed for the city of Albany
by the common council, under the act of 1845° (chap. 327), and the
treasurer of the county of Albany, are placed in such connection
with the Comptroller as to authorize the latter to credit to the
county of Albany the amount of unpaid taxes upon the lands of
non-residents, when returned to him by the county treasurer in the
manner prescribed with regard to collectors and county treasurers.
Under the general laws above referred to by the act of 1845 (chap.
327, § 1), the “ office of collector of taxes in the city of Albany, as
created and established by law, together with all laws enforcing or
defining his duties,” are abrogated.

The second section of this act makes it the duty of the common
council of the city of Albany, to appoint the deputy chamberlain
the receiver of taxes for the city, and the act then goes on to pre-
scribe his powers and duties; but nowhere, in terms, substitutes
him for the collectors of the wards, nor does it recreate in him any

1'This section was repealed by chapter 298, Laws of 1850; the latter was repealed
by chapter 427, Laws of 1855; and the section is, in substance, the same as section
4 of the latter act. (3 Edmonds’ Statutes, 358.)

2 See section 9, chapter 427, Laws 1855. (3 Edmonds’ Statutes, 359.)

*The present charter of the city of Albany (chap. 77, Laws of 1870) makes
many changes in the law under discussion, and perhaps renders this decision use-
less, save on the question of construction of statutes relating to tax sales.
172 OPINIONS oF THE ATTORNEYS-GENERAL

of the powers or duties which formerly resided in the collectors in
regard to unpaid taxes upon non-resident lands, nor does it create
any power or duty in the county treasurer in regard to such taxes.
The collector and his powers having been annihilated, and they
constituting the foundation of the treasurer’s powers, those of the
treasurer fall with them, and can only be reproduced by some new
enactment ; none being contained in this act, none existed.

The act of 1847 (chapter 367, section 3) creates new powers, and
all depends on the extent and character of those new powers.

The language of the statute is substantially this: ‘In case any of
the taxes, mentioned in the assessment rolls, which have been or
may hereafter be delivered to the receiver, remain unpaid, and he
shall not be able to collect the same, he shall deliver to the county
treasurer an account thereof, and, upon making oath before the
county treasurer, ete, that the sums mentioned in said account
remain unpaid, and are uncollected by him, he shall be credited by
the county treasurer therefor; and, in case of any taxes so remain-
ing unpaid, as in this section rhoutioned, assessed on the lands of
non-residents, the said county treasurer shall, before the first day
of July next ensuing after the delivery of such account, transmit
such account, with the receiver’s affidavit, to the Compete in
the manner now required by law.

I assume it as a well settled principle of law, that the statutory
powers must be strictly executed, and that nothing can be taken by
implication. The officer exercising them must see that every step
he takes is authorized by the act, upon a fair construction of its
language.

As already observed, the collectors and their powers are abro-
gated; the receiver and his powers are created by the act of 1847.
But there is nothing in the general laws, giving the Comptroller
authority to credit the county upon the return of the county trea-
surer based upon the return of the receiver to him. And we must
therefore consequently look to the act of 1847, to see if there is
anything there authorizing the Comptroller to credit the county
upon the return of the county treasurer, who shall have credited
the receiver as therein provided. I see nothing which plainly
warrants it. I should, on that ground alone, entertain doubts, not
doubts as to whether the receiver should be credited by the county
or THE STATE oF New York. . 173

treasurer, for that is fairly provided for, but whether the county
treasurer has power to transmit such account with the receiver’s
affidavit to the Comptroller. It must be done, if done at all, “in.
the manner now required by law.”

There is no law providing for the transmission of such account
accompanied by a receiver’s affidavit, and. we cannot add to the
language the act so as to make the law for the transmission of such
accounts, accompanied by the affidavit of a collector, applicable to
those accompanied by the affidavit of the receiver.

This is, indeed, a very strict and rigid construction; it may
possibly be too much so; but when the question is in regard to
the execution of a statutory power, I am not satisfied that it goes too
far. But the controlling ditticulty is that the statnte of 1847 stops
short. It prescribes no power or duty for the Comptroller after
the account and receiver’s affidavit are returned to him. The trea-
surer is to make his return to the Comptroller in the manner now
required by law. But the Comptroller is not required to credit
the county in the manner now required by law, or in any manner
whatever. The omission in the act to create any power or duty to
be exercised by the Comptroller upon receiving the treasurer’s
" return, was doubtless an oversight in drawing the statute. It is
evidently so inasmuch as the return is nugatory.

But still it does not appear to me to be a safe or proper con-
struction of the act, to deem it as conferring on him the power of
crediting the county, as is provided in the general tax laws relating
to collectors and county treasurers, ete. My opinion, therefore, is
that the Comptroller has not authority to credit the county of
_Albany both the amount of unpaid taxes on the lands of non-
residents, an account of which is transmitted to him by the trea-
surer of the county of Albany, unaccompanied by the affidavit of
the receiver of taxes. :

Respectfully yours, etc.

AMBROSE L. JORDAN,
Attorney-General.
174 OPINIONS oF THE ATTORNEYS-GENERAL

Arrorney-Gnnrrat’s Orricz, Jan. 7, 1848.

The Attorney-General, in obedience to the resolution of the
Canal Board, by which it is referred to him to: consider and report
whether the superintendents, and other subordinate officers, on the
canal are yet in office, or whether their offices are vacated, sub-
mits the following report:

By the Constitution (article 1, section 17), such acts of the Legis-
lature as were in force at the time of its adoption, and not repug-
nant to it, are declared to- be and continue the law of this State,
subject to alteration by the Legislature.

The several acts of the Legislature, relating to the subject under
consideration, provide: First, That there shall continue to be a
Canal Board, who shall possess the powers and discharge the duties
already enumerated, or which shall be declared by law. (Canal
Laws, 34, section 94.) Second, This board, by sundry enactments,
unnecessary to refer to particularly, has the power to appoint the
superintendents, and other subordinate officers, some for fixed
periods, others at pleasure, with power, also, to remove and fill
vacancies. (Canal Laws, page 92, sections 6, 7; 1 Revised Statutes,
2d ed., page 108, section 4.) These several enactments are in no
wise repugnant to the Constitution, but in strict harmony with it.
There is no indication, in that instrument, of an intention to change
the canal system in any respect. Except as to the mode of appoint-
ment of the several -officers constituting the board having charge
of that department, it remains as it was. (Constitution, article 5,
sections 1, 2,3.) There is nothing in the present Constitution, in
terins repealing the former ; and, in order to avoid an interregnum,
there is an apparent necessary implication that the government, in
all its departments, should be carried on under the old Constitution,
until the new one, by its express or implied provisions, and by an
organization under it, shall be in a condition to carry it forward.

The functions of the former Canal Board ceased on the 31st of
December, and those of the new commenced on the 1st of J annary.
The latter are the immediate successors of the former, clothed with
the same powers and none other. They constitute no new board
unknown to the laws; they act under the same statutes, and simply
receive the department under the new Constitution from the hands
of their predecessors under the old. Those statutes being upheld
oF rH State or New Yorx. 175

by and in a modified and restricted sense, made a part of the Con-
stitution for the time being. My opinion, therefore, is that the
superintendents and other subordinate officers on the canals are yet
in office; that those appointed for determinate periods continue to:
hold until the termination ‘thereof, and the residue to hold at
pleasure, both subject to removal by the Canal Board.

All which is respectfully submitted.
: A. L. JORDAN.

ArtornEey-GENERAL’s Orricr, January 14, 1848,

By the act entitled “An act to amend the act entitled ‘An act to
authorize the business of banking,” passed May 26th, 1841.
(Sections 8, 9.)1_ whenever a bank or individual banker, desirous
of relinquishing the banking business, shall have redeemed at least
ninety per cent of their circulating notes, and shall produce to the
Comptroller a certificate of deposit to an equal amount with the
unredeemed circulating notes, the Comptroller may receive the
same and surrender all the securities deposited for the redemp-
tion of all the notes issued. After doing this, the bank or indi-
vidual banker may give notice for two years “ that all circulating
notes issued -by such bank must. be presented at the Comptroller’s
office within two years from the date of such notice, or that the
funds deposited for the redemption of the notes will be given up,”
ete. The notice given is that the notes will be redeemed at par for
two years at the banking department, at which time application
will be made to the Comptroller for the funds deposited.

The notice does not comply with the requirements of the statute
in two particulars. First, it points out the banking department
as the place where the notes will be redeemed, instead of the Comp-
troller’s office, as required by the act.’ Second, it omits entirely to

1The sections under consideration have been repeatedly amended, aside from
the separation of the banking department from the Comptroller's office. For
law, as it now stands, see chap. 236, Laws of 1859 (4 Edmonds’ Stats., 188), as
amended by chap. 348, Laws of 1866 (6 Edmonds’ Stats., 723); by chap. 691, Laws
of 1867 (7 Edmonds’ Stats., 62); and by chap. 476, Laws of 1867 (7 Edmonds’ Stats.,

108).
176 OPINIONS OF THE ATTORNEYS-GENERAL

state that the notes must be presented, etc.,. within two years, or
that the funds will be given up. It simply announces that the bills
will be redeemed, ete., but does not apprise the bill holder, that the

consequence of omitting for two years to present them will deprive
him of the benefit of the fund. I consider it necessary that these
powers conferred on the Comptroller should be strictly executed,
and that he is not authorized to substitute any mode or execution
different from that pointed ont in the statute, although in his judg-
ment it might answer or serve a better purpose.

The first objection, inasmuch as the banking department is a
part of the Comptroller’s office, might with less difficulty be waived,
although I have serious doubts whether that could with propriety
be done.

The second objection is, in my opinion, substantial and insur-
mountable. My opinion, accordingly, is that the notice is defective,
and that the Comptroller cannot. surrender the fund deposited for
the redemption of the unredeemed notes of the bank in question.

A. L. JORDAN.

ATTORNEY-GENERAL’s OFFICE,
Aupany, N. Y., January 17, 1848.

Hon. Tuomas E. Crarx, of the Senate:

Dear Sm.—tThe question which you did me‘the honor to sub-
mit informally for my opinion, I understand to be this: Can the
Legislature by a special act incorporate a gas company for lighting
the city of Buffalo ?

By the first section of article 8 of the Constitution, incorporations
may be formed under general laws, but shall not be created by
special act except for municipal purposes, and in cases where in the
judgment of the Legislature, the objects of the corporation cannot
be obtained under general laws.

The word municipal, in its strict as well as popular sense, means
that which pertains to a city or town, or any other distinct, indepen-

1The case of The People v. Bowen (30 Barb., 24, 39; affirmed 21 N. Y., 517),
holds that whether a special act of incorporation is necessary or not, is a matter
entirely for the judgment and discretion of the Legislature.
or THE STaTE or New Yorx. 177

dent body. In our Constitution it is applicable to cities, towns,
counties, etc., embraced within the territorial limits, and subject to
the government of the State. It is clear, under this section, that
the Legislature have the power to create by special act a corpora-
tion for municipal, or in other words, city purposes. I cannot
doubt that a corporation whose primary object is to bencfit or
improve the condition of a city, as by introducing water, gas-lights,
or any other thing for the general and common use of its citizens,
is a corporation for municipal purposes. To restrict the powers of
the Legislature to the creation or government merely of cities or
towns, or other municipal corporations, would, in my judgment,
transcend the language of the Constitution and the intention of its
framers. Municipal purposes, I think, may, with equal propriety
of language, be deemed to be those which are for the purpose of
creating, or those which are for the purpose of improving and bene-
fiting local and distinct communities already incorporated. I am,
accordingly, of the opinion that the Legislature have the power of
incorporating by special act, a gas company for lighting the city
of Buffalo.
: Respectfully submitted.

A. L. JORDAN.

ATTORNEY-GENERAL’S OFFICE,
Axpany, N. Y., January 21st, 1848. t

To the Honorable Mutarp Finumore:

Dear Si1r.—The following question is proposed for my opinion :
Can the Watertown Bank and Loan Company, who associate
themselves together by articles, a copy whereof was filed in’ the
office of the Secretary of State on the 21st of January, 1839, now
entitle themselves to commence the issuing of bills for circulation,
by transferring to the Comptroller public stocks issued by the
State, etc., to any amount short of $100,000, they never having
transferred any such stock? I have the honor to submit my answer
as follows: By the fifteenth section of the act entitled an act to
authorize the business of banking, passed April 18th, 1838, any num-
.ber of persons may associate to establish offices of discount, deposit
12
178 OPINIONS oF THE ATTORNEYS-GENERAL

and circulation upon the terms and conditions, and subject to the
liabilities prescribed in said act, but the aggregate amount of the
capital stock of any such association shall not be less than one hun-
dred thousand dollars.

The sixteenth section of the same act prescribes the manner in
which such association shall be formed, “to wit,” by making a cer-
tificate under the hands and seals of the associates specifying the
name of the association, the place of its operations of discount and
deposit, the amount of stock and number of shares, the name and
residences of the stockholders, the number of shares held by each
of them, and the period at which the application shall commence
and terminate. By the eighteenth section the association so
formed shall have power to carry on banking to the extent of dis-
counting notes, receiving deposits, buying gold and silver, bullion,
foreign coin and bills of exchange, and loaning money on real and
personal security. By the second section of the act’ the associates
are further authorized, upon transferring to the Comptroller any
portion of the public stock issued by this State, to receive from
him an equal amount of circulating notes to be by him registered
and countersigned, which they may put in circulation as money.

The first question which presents itself to my mind is, what new
powers and privileges are created by this eighteenth section? A
solution of this question will aid, I think, materially in determin-
ing whether the company have commenced the business of banking,
within the full sense of the terms of the third section of the act
of 1840 hereinafter referred to.

The first section of the act commonly called the restraining act
(Ist Revised Stat., 2d ed., page 708, part 1., ch. 2), prohibits any
person from subscribing to, or becoming ftaveated 4 in any bank or
fund for the purpose of receiving deposits, making discounts, or
issuing notes, or other evidences of debt to be loaned or put in
circulation as money. The act of 1837, chapter 20, section 1,
repeals so much of the act last above mentioned, as prohibits a
person or association of persons not incorporated, from keeping
offices for the purpose of securing deposits or discounting notes or
bills. Discount and deposit was thenceforth lawful for every man
or association of men.

The act of the 1st of April, 1838, confers no new power or’
* or tHe Srate or New Yorx. 179

privilege in that respect except, that upon the organization of the
association, according to the fifteenth and sixteenth sections, the
shareholders shall not be liable in their individual capacity, for any
debt of the association, unless the articles of association shall
declare such liability. (§ 23.) The result being that any person
or association of persons might, after the act of 1837, carry on the
business of discount and deposit, being individually, or as copart-

_ ners liable, and after the act of 1838, such person or association
might do the same thing, with an exemption from personal liability,
by complying with the terms of the act in regard to the mode of
forming the association. There seems to be no enlarging powers as
to the mere matter of discount and deposit they were possessed
before with, and after, without personal liability. Not so with the
very essential banking attribute of issuing bills for circulation, that
was created by the act of 1838; it was the main object effected by
that act ; it was at least the leading object.

That power was conferred upon the condition precedent, that of
transferring stock, etc., to the Comptroller, as security to the bill-
holders. As the Watertown Bank and Loan Company has never
transferred any such stocks, they cannot, in my judgment, be said to
have commenag the business of banking under the broad sense of
the act of 1888. Allowing that the limited extent to which theys
had commenced banking gave them a vested right to carry it on to
that extent, it does not follow that any such right existed to any
greater extent. To sum up the act of 1838, it strikes me it is as if
it had said to the individuals, incorporate yourselves ‘according to
the fifteenth section, and you may discount and receive deposits
without personal liability. Transfer stock to the Comptroller and
you ‘may issue bills for circulation. You may avail yourselves of
one or both privileges, but a commencement of business under the
one and under.the other is a distinct and separate matter. Any
rights you may acquire by commencing the one are not acquired as
to the other, which you have not commenced, although both things
may be denominated under the general name of banking.’

By the third section of.the act’ of 1840, no association shall
“commence” the business of banking under the said act (of 1838)

1 As bearing upon this question, see Curtis v. Leavitt, 15 N. Y., 979; 17 N. t.
621, ;
180 OPINIONS OF THE ATTORNEYS-GENERAL

until they shall have deposited with the Comptroller the securities
required by law, to the amount of $100,000. This section appears
to me, aimed directly at that attribute of banking which consists in
issuing bills for circulation, and it evidently means that the busi-
ness of banking, which it was the main object of the act of 1838 to
authorize (the other already existing and but little varied), should
not be commenced except on complying witi the terms of the act
of 1840. lt is to my mind according to an obvious and familiar
rule of construction, that the expression in the statute, “ commence
the business of banking,” must be applied in the singular to each dis-
tinct class of powers. A contrary construction, while it may with
some plausibility be said to be within the letter, is manifestly repug-
nant to the spirit and meaning; and that the latter must govern is, I
conceive, according to the settled rules of expounding statutes.
Let‘us suppose that an act of the Legislature authorizing a person
or association to do two things, in their nature distinct and bear-
ing different names, though both included under some general
term, each depending upon a distinct condition precedent, would
the performance of the condition of the one authorize the doing of
both, on the allegation of a compliance with the act? That is this
case, could such be a sound construction of the get ? I am con-
strained to say I think it would not. My opinion, therefore, is,
that the Watertown Bank and Loan Company, cannot entitle them-
selves to an issue of bills for circulation, without transferring to the
Comptroller stock to the amount of $100,000, according to the

third section of the act of 1844. ;
Very respectfully,

A. L. JORDAN.

*

ATTORNEY-GENERAL’s OFFioe,
Atzany, N. Y., February 26, 1849. }

The Attorney-General acknowledges the receipt of the following
resolution of the House of Assembly :

“ Tesolved, That the constitutional questions arising from the
petitions for the erection of the new. counties of Patterson and
Unadilla from parts of different Senate districts, and parts of dif-
ferent Assembly districts, be referred, with such sections, to the
Attorney-General, to report to this House as early as practicable,
or THE STATE oF Nuw Yorr 181

whether such territory can be formed into a new county without
infringing upon some provisions of the Constitution; and also,
whether a new county can be erected from such territory for judi-
cial purposes only, and carried into practical effect, without such
infringement upon the Constitution.”

‘There are three questions presented by the above resolution,
which will be considered separately in their order.

1st. Whether new counties may be erected, consistently with the
provisions of the Constitution, from pee of different Senate
districts.

Section 4 of article 3 of the Constitution provides, that “no
county shall be divided in the formation of a Senate district, except
such county shall be equitably entitled to two or more senators.”

In a report which the Attorney-General has heretofore made
under a resolution of the House of Assembly, in reference to the
same phraseology in the 5th section of the same article, by which
it is provided that “no town shall be divided in the formation of
Assembly districts,’ he expressed the opinion that this inhibition
was not to be applied exclusively to the original organization of
Assembly districts, but that it extended to the continuance of such
district, upon the ground that a contrary construction would defeat
the intent of the convention, which plainly was that Assembly
Districts should consist of entire towns and not of parts of towns.

The same reasoning is applicable to the similar clause in the 4th
section relating to Senate districts.

It would be but little less than absurd to say that a Senate
district shall consist of entire counties at its formation, but at any
subsequent period may be made up of parts of counties.

The familiar maxim that whatever is within the reason of a law
is within its letter, governs this question.

The reason probably was, that great inconvenience was appre-
hended, from having the returns of the same elections made to
different offices. But whatever was the reason, it must equally
apply to the continuance of the Senate districts as in their formation.

But it is to be observed that the clause quoted from the 4th
section is at the end of the paragraph, which directs an enumera-
tion of the inhabitants of the State in the year 1855, and every ten

1 See ante, 119, note, and authorities cited.
182 Oprntons or THE ATTORNEYS-GENERAL

years thereafter, and then provides that the Senate districts shall
be so altered at the return of every enumeration, as to produce an
equality as near as may be. The districts thus formed are to
remain unaltered until another enumeration, and are at all times to
concist of contiguous territory. Then follows the clause in ques-
tion, that no county shall be divided in the formation of a Senate
district. It may well be contended that this inhibition in terms
applies only to the Senate districts formed after the first enumera-
tion in 1855. But when .the reason of the provision is considered,
its spirit obviously requires that the Senate districts organized by
the 8d section of the Constitution, should, in like manner, con-
tinue to consist of entire counties. As the Senate districts cannot
be altered until after 1855, the consequence of having a part of a
county in one district and .another part in another district, would
tend exceedingly to embarrass the return and canvass of votes given
in the county for senators.

The second question presented by the resolution is, whether a
new county can be created from parts of different Assembly dis-
tricts, that is whether one or more entire towns can be taken from
one Assembly district, and one or more entire towns taken from
another Assembly district, and erected into a county ?

The question supposes the Assembly districts to remain as now
constituted, and such must be the case, as there can be no altera-
tion of them until after the year 1855,

Section 5 of article 3 of the Constitution seems to imply, that
Assembly districts are portions of the county in which they lie,
because the supervisors of the county are to arrange them, and on
each subsequent enumeration again to divide the county into such
districts, which county board of supervisors where the district is in
two counties can make this division. There may be cases in which
from the population of the towns erected into a new county,
there would be great difficulties in making new districts, and
there may be cases where such difficulties would not occur. In
addition to what has been said, it may be added that the clause
in the fifth section of the same article which- forbids the erec-
tion of a new county, unless its population entitles it to a
member of the House, shows the sense of the convention
that the members represent counties, although sometimes
or THn SrATE or New York. 183

elected by portions of them. The beginning of the fifth section
says: “The members of the Assembly shall be apportioned
among the several counties of the State,” which corroborates the
idea. The Attorney-General cannot say that there is any direct
" and explicit provision of the Constitution, which would be violated
by such an act as the question supposes, although it seems to him
not to have been contemplated by the convention that framed that
instrument. The same inconvenience from requiring returns of
the same election to different offices would exist in the case just
considered, and an additional one would arise, in fixing upon the
board of can¥assers, to determine the result of the election in the
Assembly district, which should be situated in two counties.

Possibly this might be regulated by an amendment of the election
laws, but it is difficult to perceive how it can be done.

The third question in the resolution is, whether a county can be
erected from such territory from parts of different Senate districts,
and from parts of Assembly districts, for judicial purposes only,
and carried into practical effect, without infringment upon the Con-
stitution.

A clause in the fifth section of article 5 of the Constitution, says: °
“ Arid no new county shall be hereafter erected unless its popula-
tion shall entitle it to a member.” This seems to imply that a

~ county, as such, cannot exist unless it be represented in the House
of Assembly by at least one member, and that the power or faculty
of being represented is indispensable ; and the Attorney-General
cannot conceive how a county can be organized for judicial purpo-
ses only. Section 14 of the Constitution provides for the election
of one county judge, and it authorizes inferior local courts to be
established only in cities; so that no organization of portions of
counties out of cities can be made for judicial purposes, upon the
familiar principle that the enumeration of a power to be exercised
in a particular manner or place is necessarily an exclusion of its
exercise in any other manner or place. The Attorney-General is,
therefore, constrained to give his opinion in answer to this question
in the negative.

All which is respectfully submitted.
AMBROSE L. JORDAN,
Attorney-General.
184 OPINIONS or THE ATTORNEYS-GENERAL

March 20, 1849.

The Attorney-General has the honor to acknowledge the receipt
of a resolution of the Assembly in the following words :

Resolved, “ That the Attorney-General be requested to report to
this House, whether in his opinion the corporation of the city of
New York was legally competent to make the agreement entered
into between said corporation and the Commissioners of the Land
Office in May, 1848, respecting the re-transfer to the city of New
York of the site of the State arsenal in that city, and also whether
in his opinion, the fifth section uf the act in relation to the sinking
fund of the city of New York will not be violation if the late cor-
poration of said city carry the provisions of the aforementioned
agreement into effect.”

Said resolution was transmitted to the Attorney-General unac-
companied by any papers or statement of facts, but upon inquiry,
he has ascertained satisfactorily, and for the purposes of this report,
assumes the facts to be: That the corporation of the ‘city of New
York, on the 16th day of May, 1808, being seized in fee of the
premises mentioned in said resolution, conveyed the same to the
people of the State of New York, to have and to hold so long as
they should be used for military purposes, and no longer. An
arsenal, with suitable buildings and accommodations was immedi-
ately erected thereon by the State, and has ever since been, and yet
is used for the keeping and preservation of the ordnance and other
military property of the State.

In the year 1844, the military property had so accumulated as to
require more extended accommodation, and the Legislature author-
ized the Commissary-General to expend, under the direction of the
Commissioners of the Land Office, such money only as should be
paid into the treasury of this State on account of the sale to the
United States, of certain lands for military purposes on Staten
Island, in building an arsenal in the county of New York. The
location to be designated by the Commissioners of the Land Office
and the Commissary-General.

The location was accordingly designated at the junction of Sixty-
fourth street and Fifth avenue, in the city of New York. The
erection commenced and the money appropriated expended, to

ATToRNEY-GENERAL’s OFFICE, \
oF THE SraTE or New York. 185

what extent and with what advantage to the State will appear by
reference to the communication of the Commissioners of the Land
Office on the 15th of January, 1848, transmitting the report of the
committee appointed to superintend the erection of the new State
arsenal. The last mentioned communication shows also the pur-
pose and state of the work. In the meantime the State continued
in the possession of the premises referred to in the resolution,
using the same as an arsenal, as had formerly been done; and I am
not informed, nor do I suppose it: to be true, that any act or decla- |
ration on the part of the State or its agents was ever done or made
indicating an abandonment or an intention to abandon the use of
the premises for military purposes until the contract or agree-
ment with the corporation of the city of New York in May last,
referred to in-said resolution. :

That contract was to release the premises to the corporation upon
the payment of $30,000, to be expended in the completion of the
new arsenal.

It is quite clear that by the conveyance from the corporation in
1808, the State became seized of a determinable estate in fee in the
premises with a contingent ultimate fee in the corporation. The
estate of the people would never determine so long as the premises
were used for military purposes, and in order to show a determina-
tion of their estate it would be in my judgment indispensable to
establish a non-user by clear and incontrovertible evidence, an
ingredient entirely absent in the case as it stands. The State then
having a determinable fee and the corporation a contingent ulti-
mate fee, the question simply is, had the State a title which they
could sell and which the corporation could purchase by release. Of
the affirmative of this proposition I entertain not the slightest
doubt.

The power of the corporation to purchase and hold lands, or, as
in the present instance, to remove encumbrances on their own lands,
or on lands in which they have the ultimate fee, has nowhere, that
I am aware of, been questioned. I am, accordingly, of opinion that
the corporation of the city of New York was legally competent to
maké the agreement, entered into between said corporation and the
Commissioners of the Land Office, referred to in said resolution.
186 OPINIONS oF THE ATTORNEYS-GENERAL

The Attorney-General is, also, required to express an opinion,
whether the fifth section of the act in relation to the sinking fund
of the city of New York will not be violated if the corporation of
said city carry the provisions of the forementioned agreement .into
effect. The effect of said fifth section, ingrafted as it is with the
city ordinance, is to pledge irrevocably the public lands of the city
to the sinking fund established for the payment of the city debt,
and the city authorities are bound to pay into said sinking fund the
avails of ‘all sales of land or real estate. Were the premises under
consideration, to be considered at the time of the contract between
the corporation and the Commissioners of the Land Office, as the
absolute property of the corporation unencumbered by thie deter-
minable or base fee therein, residing in the State as previously
shown, an appropriation of the moneys arising from the sale thereof,
according to said contract with the Commissioners of the Land
Office, would clearly violate the said fifth section of the act in rela-
tion to the sinking fund. But assuming it to be true, according to
the foregoing view, that the State continued to be the owner of the
premises, and that the sum of $30,000 stipulated to be paid to the
Commissioners of the Land Oftice by the corporation was, in
fact, the consideration or purchase-money of that estate, or, in other
words, the price paid to remove the encumbrance of the State from
the contingent ultimate fee of the corporation:

It steers clear of all objection; it is the purchase-money of lands,
or an estate in lands not belonging to the corporation, and not in
any way pledged to the sinking fund.

"The agreement was virtually that the corporation might sell the
property of the State, pay to the State $30,000 of the avails, and
retain the balance if any to their own use, suitable and proper con-
veyances for releases to be executed simultaneously from the State
to the corporation, in order to make out a regular chain of proper
title to the purchasers. It would be, in the opinion of the Attor-
ney-General, entirely a mistaken view of the subject, to regard the
premises as the property of the corporation, and the agreement as
one for paying $30,000 of the avails of the public lands of the city
to the Commissioners of the Land Office. My opinion, theréfore,
is that the fifth section of the act, in relation to the sinking fund of
the city of New York will not be violated, if the corporation of
oF rae SraTz or New Yorx 187

said city carry the provisions of the above mentioned ‘agreement
into effect. All which is respectfully submitted.

AMBROSE L. JORDAN,
Attorney-General.

_ATTORNEY-GENERAL’s OFFICE,
Axpany, N. Y., March 19th, 1849. }

The Attorney-General, in. compliance with the resolution of the
Assembly of the 17th instant, in relation to the repeal of the act
to enable the town of Day to raise money to build a bridge, passed
April 12th, 1848, respectfully submits the following report :

The act in question authorizesthe town to borrow the sum of
$1,200, and to receive the further sum of $800 by voluntary con-
tributions for the purpose of building a bridge across the Sacan-
daga river at “ Flansburgh rift.”

It creates no obligation on the part of the town to ask for or
receive such a loan. The commissioners are appointed to carry the
act into effect; not that part of it, which regards the raising of the
fonds, for that, by the express terms of the act, is made to rest with
the inhabitants. The commissioners’ duties must necessarily be
confined, therefore, to the construction of the bridge, when the
means of defraying the expenses shall have been provided for. If
the commissioners have entered into contracts without first. ascer-
taining that the town had raised the money, or taken the incipient
steps by vote or resolution so to do, they have acted prematurely
and in their own wrong; they cannot be permitted to coerce the
action of the town by-their own precipitate movements. There is
no power short of the Legislature that can compel an involuntary
borrower of money for any purpose ; no such power has as yet been
exerted by the Legislature, and I can discover nothing in the reso-
lution of the town of Day, petitioning for the passage of the law
under consideration, asking that such power on the part of the
Legislature might be exercised.

The resolution of the town contains a specific request, that a law
may be passed appointing commissioners to build a bridge with
power to receive donations, and to use the non-resident highway
188 OPINIONS oF THE ATTORNEYS-GENERAL

tax for the next six years to pay for said bridge. There is no
request for a law authorizing the inhabitants to borrow money,
much less to compel them to borrow money for such purposes.

The law, as passed, does not, in its most important particulars,
conform to the petition. The power to raise by loan, thongh given,
was not asked for, and the power to raise contributions is vested in
the inhabitants and in the commissioners, as prayed for. There is
nothing, in my judgment, in the petition, which, when taken in
connection with the provisions of the act passed, can be construed
into a legislative contract with the town of Day binding upon the
latter. My opinion accordingly is, that there is nothing in the act
authorizing the commissioners to make contracts without a further
vote of the town, and that there is no constitutional objection to
repealing said law. If the commissioners have thus prematurely
entered into a contract, they have transcended their powers, and
for the consequences they alone are responsible.

Respectfully submitted.
AMBROSE L. JORDAN.

Arrorney-GENERAL’s OFFICE,
Axusany, February 13, 1849.

To the Auditor of the Canal Department :

Sm.—lIn our late conversation on the subject of the Albany pier
and basin, you did me the honor to submit for my opinion the
following questions :

Ist. Whether the act of the Legislature of the 5th of April ,1823,
entitled “ An act authorizing the construction of a basin in the
city of Albany, at the termination of Erie and Champlain canal,”
is constitutional ?

2d.. Whether, under that act, the pier company are entitled to
tolls upon the produce and merchandise on board the canal boats
entering said basin, or upon the boats only #4

3d. Whether said pier company are entitled to any portion of

1 The section giving tolls to the pier company is repealed by section 6, chapter
200, Laws of 1849. :

+
of THE StaTE or Nuw York. 189

the moneys paid to the State for the privilege of transporting pro-
duce and merchandise on the railroads ?*

I answer as follows:

By the act of the Legislature (Laws of 1817, chap. 262, § 2), the
Canal Commissioners, on completing any portion of the canals,
shall establish reasonable tolls, and adopt all measures necessary for
the collection and payment thereof to the Commissioners of the
Canal Fund. On the 12th’ of March, 1821, the Canal Commission-
ers reported to the Legislature that they had completed the middle
section of the Erie canal, and had agreed upon certain rates of toll
to the boats used in transportation, and to each kind of produce and
merchandise transported ; they had affixed specific rates, and had
adopted a system for the collection of such tolls. By that system,
whenever a boat arrived ladened with property chargeable with

"tolls, at any one of the places of collection, the master was required
to exhibit a bill of particulars containing an account of all the pro-
perty, arranged under different heads, according to the different
rates cf toll chargeable thereon, together with the name, tonnage
and place of destination, and departure of the boat. ,

And it was-made the duty of the collector to examine the pro-
perty, and ascertain whether it corresponded with the bill of par-
ticulars, and if found to correspond, then to receive the full amount
of toll, on boat and cargo, arising from the whole passage, and
receipt it on the bill. Thus it would appear that the boat, and
each kind of property constituting its lading was kept distinct, in
order to charge each at its specific rate, preparatory to ascertaining
the amount payable. By the tenth section of the seventh article
of the Constitution of 1821, certain rates of toll not less than such
as had been agreed on by the Canal’ Commissioners, and specified
in their said report, were imposed on and to be collected from all
parts of the navigable communication between the great western
and northern lakes, and the Atlantic ocean, which then were, or
should be thereafter completed. No part of which tolls should be
diverted from the payment of the canal debt. The Legislature, by
the act of April 5th, 1823, authorized an association of individuals
to construct the mole or pier in front of and forming said basin,

1 Tolls on railroads abolished by chapter 497, Laws 1851. (8 Edmonds’ Stais.,
689.) ve!
190 OPINIONS OF THE ATTORNEYS-GENERAL

upon completing which, with bridge, etc., the Commissioners of
the Land Office, were ‘to convey to that association the land on
which it stood, and the Canal Commissioners were to collect, and
pay over to them a toll, at the same rate per mile of the length as
those collected on the canals. If the pier and basin were part of
the navigable communication between the lakes and the ocean, the
Legislature could not divert the tolls from the canal fund, but they
were not necessary to the completion of a navigable communica-
tion between the lakes and the ocean. That communication could
be, and was consummated without them ; they are not, therefore,
necessarily to be considered as part of it within the meaning of the
Constitution, although they are eminently convenient in carrying
on the commerce on the canals. The facilities of transportation,
etc., created thereby. were certain to increase the navigation, and
subsequently the revenues to be derived therefrom.

The pier was also expected to be valuable for private use, as the
site for stores, warehouses, wharfage, and other accommodations
connected with the commerce and navigation both- of the canals
and river. In determining the question under consideration, we
must alternately consider whether all or any, and what portion, and
to what extent this work known as the pier and basin is part of the
navigable communication made by the State. [say made by the State,
because I assume that the consideration does not embrace any work
(however convenient) to the business of the canals, produced by indi-
vidual enterprise or at individual expense. The pier was built at
the sole expense of the association, and that it was (considered simply
as a pier) a part of the navigable communication made by the State,
will hardly be pretended. It might incidentally from the outwork
of a harbor, and if constructed so as to be susceptible of use for that
purpose, I cannot perceive any objection to the payment of a rea-
sonable compensation or rent by the State for such use. Yet,
nevertheless, the land and water (or more properly the land covered
with water) inside, might and did remain the property of the State,
and where defended on the river side by the pier, constituted a
safe and commodious harbor for the craft navigating the canals
and river, and for the transhipment of produce from one to the
other, as such harbor used and controlled by the State. It may
justly be considered an extended portion of the canals, not made
oF THE STATE oF New Yore. 191

a

but used by the State as such, being used and controlled by the
State as for the benefit of the State canal navigation. It was
doubtless for the interest of the State, to keep it clear of obstruc-
tions and prevent it from becoming a nuisance, and the duty of the
Canal Commissioners therefore required them to keep it in repair as
an appendage to the canals. To conclude: The basin is the pro-
perty of the State, the pier is the property of individuals.

The tolls are imposed as a duty of harborage, and I can see no
reason why they may not be paid over as a rent for the use of the |
structure made by individuals, and which solely creates the value of
the harbor. It may reasonably be deemed to be a toll paid for the
use of the pier.

The association receive their tolls for the use of their property.
The people receive large accessions by means of the harbor to the
revenues of the canals, but no direct tolls for the use of the harbor.
There could have been no objection to an authority granted by the
Legislature to the pier owners to receive a compensation direct for
the harborage of boats, afforded by means of a mole built at their
private expense, no more so in my view of the subject than to any
wharf or storehouse owner on the Hudson river, or the proprietors
of the Atlantic dock at Brooklyn receiving compensation for the
use of those accommodations. But it was regarded as less onerous
and perplexing to those engaged in navigating the canals, to include
for the purposes of collection this compensation to the pier owners
with the tolls, and particularly so as it was by stipulation to be
regulated by a proportion to those tolls. My opinion, therefore, is
that the act of 5th April, 1823, is not unconstitutional.

The ninth section of the act last mentioned provides amongst
other things that when the sloop-lock at the southerly end of the
basin shall be completed, the Canal Commissioners shall, thereupon,
charge tolls “on all canal boats,” craft and lumber which shall
enter into the said basin for transportation on the canal computing
the entire length of the said basin, in the same manner as if it
were part of the canal, and pay them over to the pier company.
No tolls are authorized to be collected for the benefit of the State,
and unless under the denomination of “canal boats.” Tolls are
chargeable, also, on the lading. No tolls whatever are payable
thereon. °
192 OPINIONS oF THE ATTORNEYS-GENERAL

The most natural and genuine way of construing a statute is to
construe one part by another. If any part be obscure, it is proper
to consider other parts, for they frequently explain the same. A
preamble is in general terms to be a key to the mind of the Legisla-
ture, and may be taken in connection with the body of the statute
to arrive at its true meaning.

Lord Tenterden, in a late case (7 Buend, C., 66), very justly
remarks, that in construing acts of Parliament, we are to look not
only at the language of the preamble, or of any particular
clause, but atthe language of the whole act; and if we find in the
preamble or in any particular clause, an expression not so large and
extensive in its import as those used in the other parts of the act,
and upon a view of the whole act we can collect the real intention
of the Legislature, it is our duty to give effect to the larger
expression, notwithstanding the phrases of less extensive import in
the preainble or in any particular clause.

The preamble to this act speaks of the contemplated basin as a
great accommodation to persons carrying produce or merchandise
to or from the city of Albany, enabling them to make tranship-
ments between canal and river craft without the cost and delay of
cartage and storage, and also of the aid and countenance of the
Legislature in or over to the attainment of the object.

The first section of the act provides for creating a basin for the
accommodation of canal bovats, vessels, and other craft, and rafts
of lumber.

The preamble does not mention boats or lading of any kind,
nor does the first section mention the produce or merchandise on
board them. Yet words could not make it plainer, that the Legis-
lature had in mind canal boats freighted with produce and merchan-
dise. Else why speak asin the preamble, of transhipments from
canal to river craft, and vice versa. Else why speak, as in the first
section, of the accommodation of canal boats? Is it not plain,
that these canal boats, to be accommodated with harbor and tran-
shipments accommodations were laden, and yet not a word is said
in terms in the preamble or section about produce, merchandise,
freight or lading, on board these boats. If then, by the accom-
modation of canal boats with transhipment, etc, is meant the
accommodation for the boats and lading, the former to float, and
XN

or run Stare or Nuw York. 1938

the latter to be transhipped, it follows that under the general
denomination of canal boats is meant the boats and their contents,
it decides the question ; for the same enlarged meaning would be
given to the terms canal boat in every part of the statute. Again,
by the fifth section, no wharfage or other charge shall be exacted
from canal boats; nothing said about the produce or merchandise
on board; but would it not be absurd to suppose that the exception
from wharfage or other charge, applied not as well to the lading
as to the boat? These considerations bring the mind irresistibly to
the conclusion, that when the phrase “canal boat” is used in the first
and fifth sections, it means the boat with all its furniture, freight,
and all it contains. If so, it must receive the same construction in .

‘the ninth section, or one of the plainest rules of construction is

violated. It is, at the same time, absurd to suppose that the Legis-
lature intended to impose a toll on the boat, while the articles of
commerce it contained, and which are the main objects of the
navigation duties, should be exempt.

Again, it is said (2 Inst., 11, 136, 181), that great regard m con-
struing a statute is to be paid to the construction which the sages
of the law, who lived about the time or soon after it was made, put
upon it, because they are best able to judge of the intention of the,
makers. This rule of contemporaneous construction is not without
its application to the present case. These tolls have been imposed,
collected and paid over to the pier company ever since the pier
was built; and although the words in question have frequently, in
one shape and another, been made the subject of legislation, never,
so far as our information extends, has the propriety of such imposi-
tions and payments before been doubted.

I am of opinion that the pier company are entitled to all the
tolls collected, as heretofore informally paid to them. By the act
of the 12th of May, 1847 (Laws of 1847, chap. 298, § 1), the Utica
and Schenectady Railroad Company are authorized to transport
goods and chattels. By section 2 they are authorized to raise rea-
sonable tolls therefor. By section 3 they shall make returns to the
Commissioners of the Canal Fund, and pay over into the treasury
of the State the same rate of tolls as charged on the Erie canal.
By section 6 these tolls shall be deemed to belong to the canal
fand, and shall be paid over and applied in the same manner as

13
194 OPINIONS OF THE ATTORNEYS-GENERAL

the tolls collected on freights transported on the canals. There is
nothing in the act of the 5th of April, 1823, or elsewhere, which
prohibits the State from transporting freight upon the route of any
canal by other means than upon the canals, nor is there anything
in that act, or elsewhere, which entitles the pier company to any
tolls except such as are collected on the boats entering the basin.
I know of no ground, and I am of opinion there is none, upon
which the pier company have a right to demand or receive any
portion of the. tolls raised by the State, upon produce or merchan-
dise transported upon any railroad.

Respectfully, your obed’t serv’t,
AMBROSE L. JORDAN.

His Excellency Hamitton Fisu, Governor, ete. :

Dzar Sir.—I have attentively considered your communication
of the 25th ult., calling my attention toa printed copy of an opinion
recently delivered by Mr. Justice Willard, of the fourth judicial
district, which denies the power of the Governor and Senate, under
the Constitution of 1846, to appoint commissioners of loans.1

In compliance with your excellency’s request, I proceed to ‘state
my views of the question. The second section of the tenth article
of the Constitution establishes, that “all county officers,” whose elec-
tion or appointment is not provided for by this Constitution, shall
be elected by the electors of the respective counties, or appointed
by the board of supervisors of those counties, or- other county
authorities, as the Legislature shall direct. I concur with the
learned judge in the opinion that all officers, who are county offi-
cer at the adoption of the Constitution of 1846, must forever after-
ward be so regarded in all questions upon the construction of that
instrument, and that the Legislature have not the power of chang-
ing the mode of their appointment by changing the designation of
the office; and I am, also, of the opinion that the present question
turns on whether the commissioners of loans are county officers.
To that point, therefore, I shall address my argument, and upon its

17 Barb., 30.
or THE State or New Yorn. 195

solution base my opinion. Neither the present commissioners of
loans, nor the old or new loan officers, created under the acts of 1786
or 1792, have been anywhere declared by law to be county officers,
nor is there any statute or common-law definition of what consti-
tutes a county officer as distinguished from the civil officers. The
distinction between State, county, town, city and village officers
seems to arise, naturally, out of their relation to those distinct politi-
cal organizations, and must, it appears to me (since the Constitu-
tion of 1846, for the first time, makes such a distinction necessary),.
be determined by those relations and the nature of the public func-
tion to be exercised. An officer is one who has any duty concern-
ing the public (Bac. Ab. Tit., officer A, 9 Coke, 97 and C); and
officers are distinguished into ancient officers and those of new crea-
tion. The offices in question are of new creation; and so far as
-' the statutes creating those of the loan officers, and those of the
commissioners of loans are different in their provisions, to the same
extent are the offices different in their character.

Let us first examine how far, with propriety, the old and new
loan officers would have been regarded as county officers, had a line
of discrimination been attempted to be drawn at that day. There
is in principle, and so far as I can see, quite a perfect analogy
between public officers and private agents, the difference only being
that the one exercises a public, the other a private trust. Both are
constituted by the principal having the original power over the act,
whether that principal be a body corporate or politic, or a private
individual or company. The appointment may be direct or it may
be delegated, but when the office or the agent is constituted by
either means he is the officer or agent of the principal who appoints
him, and for whom his functions, are to be exercised. This is the
criterion by which to determine. his designation or there is none.
An agent to lend is the agent of the lender and not of the bor-
rower to whom he lends. An officer to perform a public duty is
the officer of the public, and not of the individual with whom
he transacts the public business. An officer who is appointed
by the authority of the State, and transacts public business, or
exercises a public trust for the State, must be the officer of
the State, while one who is appointed by and transacts pub-.
lic business, or exercises a public trust for a county, town
196 OPINIONS oF THE ATTORNEYS-GENERAL

or city, or any other body politic or corporate, or community hav-
ing a disinct political organization, must be the officer of such
county, town, etc. It is true that in organizing these distinct poli-
tical communities, the sovereign power may reserve to itself the
right of appointing their officers; but then the sovereign power
exercises the right for and on their behalf according to their con-
stitution or organization, and it is the same as the exercise of it
themselves. It is impossible, with any propriety or aptitude of
language, to denominate an officer appointed by the State to exer-
cise a.trust for the State, a county officer as much so as to denomin-
ate an officer appointed by a county and acting in the exercise of a
trust peculiar to the county in its distinct organization, a State
officer.

The old and new loan officers were appointed under the acts of
1786 and 1792, for the purpose of loaning the moneys of the State ;
that duty was as distinctly for the State, and clearly ot for the
county, as are the duties of the Comptroller and Treasurer. It is
true that the counties were made ultimately liable for any losses
that might accrue on account of defect of title or deficiency in
value of premises mortgaged to secure loans, but the moneys to be
loaned belonged to the state ; they were to be loaned to individuals,
and the accruing interest, with principal when reimbursed, were to
be paid by the loan officer into the treasury ; the county had no
demand upon the borrowers or primarily upon the officers for a
dollar.

Thus far it would, I apprehend, be quite absurd to say that there
is anything of the nature of an agency, or constituting the loan
officers the agents or officers of the county. Does the ultimate
responsibility of the county for the sums loaned vary the case ?

Had the county borrowed of the State, so as to be primarily
liable, and then loaned the money by their officers to individuals,
making the borrowers the debtors of the county, or the loan officers
the trustees of the county, the case would have been different. But
not so; the county only stood as sureties, a position it seems they
had been willing to assume for the benefit of their individual citi-
zens, and they have in certain particulars subrogated to the reme-
dies of the State as principal debtor; their relations to the loan
officers were not in the least changed. But it is said the loan
OF THE STATE OF NEW York. 197

officers were appointed, and their bonds approved, etc., by the
county judges and supervisors. This was not by virtue of any
inherent power in the county springing out of its county organiza-
tion ; it-was, by a special delegation from the Legislature, an act of
the State. Such a mode of appointment was as convenient as any
other, and probably quite a safe one, while under the control of the
Legislature. It seemed, moreover, expedient and proper, so long
as the county stood responsible for the loans, that it should have a
voice in the appointment of an agent to be intrusted on behalf of
the State to make those loans.

The loan officers were also sworn by a justice of the peace. But
it will hardly be contended that they were therefore town officers ;
they cannot partake of the nature of any officer or agent with
whom they come in contact in their transition from private citizens
to qualified public officers.

‘Nor can I agree with Mr. Justice Edwards’ opinion approved by
the learned judge, who pronounced the opinion in’ question, that’
locality of position and jurisdiction is the criterion. There are many
officers whose duties as well as residence are local, but.who must
be conceded not to come under the designation of county officers.
For example, the superintendent of the salt springs at Salina and
Montezuma, the inspector of salt in the county of Onondaga, the
late inspectors of lumber in the cities of Albany, Hudson, and
New York, and « great variety of others. The offices of circuit
judge and supreme court commissioners were, to a certain extent,
made local by statute. (Laws of 1823, p. 214, § 16.) And I know
of nothing to prevent the Legislature from making almost every
office in the State local, should prudential motives require it.
Very many officers, both of the State and federal government, are
of necessity local in their residence and duties.

I have thus far noticed only the loan officers. The case of the
Commissioners of Loans is stronger. These officers were created
by the act of 11th April, 1808. For their acts as Commissioners of
Loans, the counties are not, and never were in any measure respon-
sible. By the act of 1808, the commissioners in cases of fore-
closure, and inability at the time to sell, were to take possession
of and let the land for the benefit of the State (§ 19), and not for
the county as under the act of 1786 and 1792; and in case of
198 OPINIONS of THE ATTORNEYS-GENERAL

ultimate inability to sell to others, they were to purchase and hold
for the benefit of the State. They were to render an account to
the Comptroller annually, on the first Tuesday in June, of all
moneys received and of all deficiencies, and all lands purchased for
the State, and pay over the moneys into the treasury. By the
Revised Statutes (vol. 1, p. 366, § 46), and the act of 1832 (Laws
of 1832, chap. 118, § 1), when the Commissioners of Loans bid
in lands for less than the amount due, and the deficiency had not
arisen from their negligence or fault, they were to have credit with
the Comptroller for the full amount; and by the act of 1832, sec-
tion 8, when the collection of the debt is defeated by prior liens
upon the mortgaged premises, and the commissioners are not in
fault, they are to have a like credit for the amount. Were the com-
missioners in fault;. their sureties would be liable; but in no
event is the county responsible.

Thus it is seen, in the acts and doings of the Commissioners of
Loans, the counties have not the remotest interest. It is true, the
commissioners remain, ex officio, loan officers of the loan of 1792
(that of 1786 having been extinguished). In this special capacity
the counties are still liable, for bad and insufficient securities and
the like ; but I have endeavored to show that if they were wholly
so it would not vary the case. The same section (Laws of 1832,
chap. 118, § 8) which contains the liabilities of the counties, fur the
insufficiencies of the securities, etc., exempts them from the conse-
quences of all defaults of the Commissioners of Loans themselves ;
and why is it, unless it is because they are the officers and agents
of the State, in whom the counties have no interest, and for whose
misbehavior the counties should, therefore, not be responsible. It
seems to convey that idea about as clearly as it could be done by
direct language. I have already said that the power to appoint the
Commissioners of Loans, being in the Legislature, might be dele-
gated by it.. I might add that approving the official bonds, admin-
istering the official oath, auditing the official accounts, are all
powers which must be delegated, and may be as well to one
individual as to another. Those who held and exercised those pow-
ers under the acts of 1786 and 1792, were but special commission-

The reference is to 2d edition; it is page 374, 1st edition, 2 Edmonds’ Stat., 347.
oF THE State or New York. 199

*
ers to perform those particular duties. All the several loans hereto-

fore made have been restricted to the inhabitants of the particular
county where the premises mortgaged for security were situated ;
the reason and object of which was to diffuse the benefits of those
loans throughout the State according to a fixed standard estab-
lished by the wisdom of the Legislature. Hence the duties
of the loan officers were local. The loan officers were required
to be selected from the freeholders of the county, because such were
presumed to best know the character and constitution of applicants
for loans, the value if not the titles in real estates offered in mort-
gage, and generally better qualified than strangers to conduct those
loans with safety. The business: the residence of the officers thus
being local, it would have been absurd to have had their office or
place of business elsewhere than in the county where the officers
resided. There their customers dwelt, and there all their business
was to be transacted. That a removal from the county should
vacate the office seems obviously necessary in order to secure the
residence of the officers so near to each other, and to the subject-
matter of their trust, as to be able to transact the business with -
facility.

The office of Commissioner of Loans, as remarked by Mr. Justice
Willard, has “marks of locality,” and if that were the criterion,
the point might be considered as settled; but that the locality
unmistakably designates the Commissioners of Loans as county offi-
cers, is a proposition, in my judgment, wholly unsupported. In
order to prove that the commissioners are not county officers, it is
not necessary to maintain that they are State officers in the general
acceptation of the phrase; but I think the commissioners of the
code have defined them with accuracy as “local State officers.”
No authority is claimed for the act of the commissioners, however,
nor would there be for an act of the Legislature. Had it passed a
statute, it would be equally powerless to override the Constitution.
But it shows that the minds of able jurists were at once struck with
the inaptitude of the designation of county officers. Although the
loan officers may have been spoken.of in the act of 1792 (2 Green-
leaf Ed. of Laws, 480, §§ 1, 2, 3, and C.) as officers of the county
for which they were appointed, and although they may have been
always treated as county officers to.the full extent of locality of
200 OPINIONS OF THE ATTORNEYS-GENERAL

residence and jurisdiction, as affirmed by the learned judge, yet
there never has been an attempt, nor any necessity, for giving
them a designation in that respect, one way or the other, until
since the Constitution of 1846 went into operation. It has been
remarked that in arranging the heads of the Revised Statutes (1
Revised Statutes, 365) the title of certain duties of county officers
and of various matters connected therewith, “embraces the article
of loan officers and Commissioners of Loans.’’ So it may, on the
other hand, be remarked, that the title “of the number, location,
classification of the public officers of the State,” embraces the
article “of judicial officers elected by the people,” which includes
justices of the peace, sheriffs, clerks of counties and coroners. (1
Rey. Stats., §$ 85, 101.) The argument is, therefore, just as strong
to prove that justices, sheriffs, clerks and coroners are State officers,
as it is to prove that Commissioners of Loans are county officers.
But the revisers, in arranging the heads of the Revised Statutes, as
well as their classification of officers, and some other matters, did
not aspire to precision; their aim was rather convenience and
generalization... The Legislature was careful to have it so under-
stood, particularly in regard to the classification of officers. (1
Rev. Stat., 95, § 1.) I cannot think that in settling a grave consti-
tutional definition of the designation of county officers, now when
it has for the first time become necessary it should be settled, it is
safe or sensible to lose sight of the nature of the office, it’s relation
to organized society, or the accurate use of English words, and
seize upon loose ideas carelessly, or, to say the least, but referen-
tially expressed. I regard the omission of the Legislature to pro-
vide for the election or appointment of Commissioners of Loans by
the counties rather as the result of an opinion that it was not a
case within the second section of the tenth article of the Constitu-
tion, than as the neglect of a conceded duty, as it seems to have
been regarded by the learned judge. I think that body were
impressed, as I certainly am, with the belief that the framers of
the Constitution, and the people who adopted it, never intended to
place exclusively with the counties, the power of electing officers to
loan and manage the moneys of the State, and for which the coun-

1 As to the effect to be given to the heading or title in construing statutes, see
People v. Molyneaua (40 N. Y., 118).
or THE STATE or New Yorks. 201

ties were not in the slightest degree responsible. On the whole, I
am of the opinion that the Governor and Senate have the power
of appointment, and would respectfully advise your Excellency to
fill the vacancy in Wyoming.

In regard to the Saratoga commissioners, I shall deem it my
duty to prosecute an action against the present incumbents, in
order that the question under consideration may be judicially
determined.’

Very respectfully yours,

AMBROSE L. JORDAN.

ATTORNEY-GENERAL’s OFFICE,
August 11, 1849.

Hon. Wasuineton Hunt, Comptroller :

Dear Str.—The question upon which you have been pleased to
ask my opinion, in your communication of the 23d ult., I under-
stand to be this: “An individual banker resides in one ward of
a city, but has his business house, and carries on his banking busi-
ness in another ward ; in which of the two is his banking capital to
be assessed?”? The general rule is that every person shall be
assessed for all personal estate owned by him in the town or ward
where he resides (1 Rev. Stat., 389, § 5”); but in regard to the per-
sonal property of incorporated companies liable to taxation a dif-
ferent rule is prescribed. It must be assessed in the town or ward
where the principal office or place of financial business is situate
(id., § 6). The question turns, therefore, principally on whether
an individual banker is a corporation within the just construction
of the act to authorize the business of banking, passed April 18,
1838, and the several acts amendatory thereto. Neither banking
associations nor individual bankers are declared by statute to be
bodies corporate. Yet although it has been decided by the Court
of Errors that a banking association was not a corporation within
the true intent and meaning of the Constitution of 1821, requiring
a two-thirds vote of the Legislature for its creation (Turner v. Leed,

1§ee opinions to the contrary; Attorneys-General Cushing, p. 245, and Tre-
main, p. 257. :
24 mended by chap. 176, Laws of 1851, 1 Edmonds’ Stats., 362.
202 OPINIONS OF THE ATTORNEYS-GENERAL

23 Wend., 103), yet it seems to be settled that it is a body corpo-
rate. (Thomas v. Dakin, 22 Wend., 9; Hunt v. Van Alstyne, 25
Wend., 605; Bank of Watertown v. Assessors, 25 Wend., 686;
Willoughby v. Comstock, 1 Hill, 616; People v. Supervisors of
Niagara, 4 Hill, 20; 7 Hill, 504.) That it is a corporation, see
17 N. Y., 521; 21 N. Y., 406.

If an individual banker be a corporation, there is an end of all
doubt as to the ward‘in which his banking capital is to be assessed.
In my judgment a corporation is fully defined “as an artificial per-
son Greated by law, and existing only in contemplation of law ;”
and it may be added, possessing only those properties which its
charter confers, or which are incidental to its own existence; such
as are supposed best calculated to effect. the object for which it was
created.

Learned judges and able writers all agree in this definition of a
body corporate, and they have variously ascribed to it the attributes
of individuality, immortality, perpetual succession, a unity of indi-
viduals, a common name, a common seal, a capacity to take and
grant property, contract obligations, sue and be sued, exercise fran-
chises, and the like. The attribute of individuality cr perpetual
succession during its existence, and, what seems naturally to fol-
low, a common name, are inherent in all corporations; those of
immortality and a unity of individuals, the former sometimes, the
latter usually, and both occasionally exist ; but they depend entirely
on the will of the law giver. The charter may or may not confer
immortality ; most of our charters are limited in duration. It may
constitute the body of a plurality of individuals. Such arising
from exigency is generally the case; or, it may, in my judgment,
constitute it of asingle individual; I can see nothing in principle
to forbid it. Even the attribute of immortality might perhaps be
conferred on an individual corporation, as the Governor of the
State or other officer, having in contemplation of law perpetual
existence, the capacity of holding and granting property, contract-
ing obligations, suing and being sued, having a common seal, exer-
cising franchises and the like, are usually conferred or withheld by
the terms of the charter, according to the objects of the corporation,
and perhaps not unusually exist as incidental to the existence of
the corporation itself.
oF THE STATE oF New York. 903

Without intending to express a decided opinion whether an indi-
vidual banker, when organized as a bank, is a corporation, or merely a
quast corporation, it is my opinion, nevertheless, according to the
true intent and meaning of the tax laws he is to be regarded as a
corporation. His existence as a bank is an artificial existence,
enacted by law. As our laws stand, he may be said to have no:
natural capacity for banking, but by the act of April 18, 1838, and
the several acts amending the same, he is clothed with full banking
powers upon complying with the requisite conditions. He may
make discounts, receive deposits, circulate notes and appoint officers,
and his bank must have “a local habitation and aname.” The
argument loses no force when we come to apply the well known
fundamental rule in the exposition of statutes, first to discover the
mischief and next apply the remedy, which it was the intention of
the Legislature to create. The first was that of making capital
so employed subject to taxation to its full amount, under all cir-
cumstances. The fourth section of the act of the 10th of April,
1843, is intended to reach the individual banker, as a bank; and
the ward in which his banking house is situated, where his princi-
pal place of business is, according to my judgment, is the ward in

which he should be taxed.? |
I am, ete.,

AMBROSE L. JORDAN,
Attorney-General. .

 

ATTORNEY-GENERAL’S OFFICE,
Axgzany, January 1st, 1850.

To the Senate of the State of New York:

The Attorney-General has the honor to acknowledge the receipt
of the following resolution :

“Tw Sunate, January 16, 1850.

“ Resolved, That it be referred tothe Attorney-General to report
whether, in his opinion, under the fourth section of the eighth arti-
cle of the Constitution, the Legislature have the power to create a
savings bank or institution by a special act of incorporation.

“ By order.
“WILLIAM H. BOGART, Clerk.”

1 That he is not, see 19 N. Y., 37; 20 N. Y., 355.
2This view is sustained by 27 N. Y., 155.
204 OPINIONS oF THE ATTORNEYS-GENERAL

I am inclined to the opinion, from an examination of the charter
of the existing “savings banks,” that these institutions are not
chartered for “ banking purposes,” within the meaning of the fourth
section of the eighth article of the Constitution. They are, in fact,
merely trust associations, acting under corporate powers ; not banks,
in the proper sense of the term. They do not discount, they issue
no bills or other circulating medium, sell no drafts, have nothing
to do with exchanges, possess no capital as a basis of banking, and,
in short, are as powerless over the currency of the country as would
be a naked bailee of the money deposited with them. Safety and
responsibility are the principal requisites necessary to render these
institutions what was intended by their creation, to wit, a safe and
productive place of deposit of the money of persons of small means.
They are called “ banks,” but their true character must depend on
the powers conferred on them, and on the acts which they may do,
and not on the name by which they may be known. They receive
money in small sums, mostly from poor persons, servants, laborers
and mechanics, male and female, on deposit, and invest the same
in stocks or bond and mortgage, and return the money on demand,
at rate of interest less than the legal rate, and usually, I believe,
at five per cent. They make no dividends, and the officers are
paid by the difference in the rate of interest received on invest-
ments and that paid on deposits.

It is difficult to conceive that such an institution is a bank, in
any proper sense of the term, or that an act of the Legislature
creating such a corporation would be “granting a special charter
for banking purposes.”

Whether the objects of this kind of corporations can be attained
under general laws, is a question exclusively for the determination
of the Legislature. If they can be thus attained, then a special
charter cannot be granted without a violation of the first section of
the said eighth article.

Respectfully submitted.

L. S. CHATFIELD,
Attorney-General.
or THE STATE or New Yor. 205

(Assembly document, No. 105.)
Lo the Commissioners of the Land Office :

The Attorney-General, to whom was referred the following reso-
lution of the Assembly :
“In Assemsiy, January 6, 1854.

“Resolved, That the Commissioners of the Land Office be requested
to report, at their earliest convenience, whether, in their opinion,
the second section of the act of April 10th, 1850, entitled ‘An act
to amend the Revised Statutes relating to grants under water,’
repeals the prohibition contained in the act passed May 6, 1835,
entitled ‘An act to amend the Revised Statutes relating to grants
of land under water,’ that ‘no grants shall be made by the Commis-
sioners of the Land Office within the boundaries of the city of New
York,’ or if such prohibition has been repealed or amended, by any
other act of the Legislature of this State.

“ By order.
“R. U. SHERMAN, Clerk.”

doth respectfully report as follows:

The first section of the act of May 6, 1835, after extending the
power of the commissioners of the Land Office to certain lands
adjacent to and surrounding Long Island, declares “that no grant
shall be made within the boundaries of the city of New York.”

The question proposed is, is this prohibition to make grants
within the boundaries of the city of New York, repealed by’ the
second section of the act of April 10, 18504

The act of 1835 confined the powers of the commissioners to
make such grants as they should deem necessary to promote the
commerce of this State.

The first section of the act of 1850 extends the power of the
commissioners to such grants as they shall deem necessary, not
only to promote the commerce of this State, but also for the bene-
ficial enjoyment of the same by the adjacent, owner.

If the Legislature believed that such extension of the powers of
the commissioners to grants for the beneficial enjoyment by the
adjacent owner was expedient and proper, such belief was of itself
a sufficient reason for the passage of the act, without implying an .
206 OPINIONS OF THE ATTORNEYS-GENERAL

intention on their part to repeal any portion of a pre-existing
law.

But the second section of the act of 1850, after extending the
power of the commissioners “to the lands under water,” and
between high and low water mark, in and adjacent to and sur-
rounding Long Island, and to all that part of the county of West-
chester lying on the East or Hndson river, or Long Island Sound,
declares that nothing contained in this act shall authorize the Com-
missioners of the Land Office to grant any lands under water
belonging to the mayor, aldermen or commonality of the city of New
York or interfere with any property, rights or franchises of said
corporation of the city of New York, or interfere with the rights
of the Hudson River Railroad Company. Is the prohibition clause
of the act of 1835 repealed by the act of 1850?

It is not expressly repealed by any repealing words. If repealed
at all, it must be only by zmplication. But the law is hostile to
repeal by implication, and requires that the language implying
repeal should be clearly and palpably inconsistent with that of the
original act. Is there such inconsistency, or want of harmony in
the language used in these two acts? May not they be blended
and read in unison? May not the two sections be read as follows:
“ But no grant shall be made within the boundaries of the city of
New York,” and “ nothing contained in this act shall authorize the
Commissioners of the Land Office to grant any lands under water
belonging to the mayor, aldermen and commonalty of the city of
New York, nor to interfere with any property, rights, or franchises
of said corporation of the city of New York,” ete.

In my judgment they may; and, being not repealed by repeal-
ing words, nor by implication, there being no conflict nor incon-
sistency between them, but the language of both harmoniously
blending. Iam of the opinion that it was not the intention of the
Legislature, by the second section of the act passed April 10th,
1850, to repeal the prohibition contained in the first section of the
act of May 6th, 1835, and that the same is not repealed by that, or
by any other act of the Legislature of this State.

Respectfully submitted.

OGDEN HOFFMAN,
Attorney-General.
~

OF THE StaTH oF New York. 207

(Assembly document, No. 78.)

State or New Yor«,
Aupany, Pebruary 27, 1854.

Lo the Assembly of the State of New York:

The Attorney-General has the honor to acknowledge the receipt
of the following resolution :
, “In Assempty, Pebruary 17, 1854.

“Fesolved, That the Attorney-General be requested to examine
and report to this House, whether, in his opinion, the law author-
izing additional pay to the volunteers and militia, called into ser-
vice by the State authority, passed October 21st, 1814, and also
the law for the relief of certain volunteers and militia, called into
service for the defense of the frontiers of this State in the last war,
and for other purposes, passed April 21, 1818, are still in force.”

The act of 1814 enacts, “that the Governor shall cause to be
paid to each non-commissioned officer, musician and private of the
volunteer, etc., a sum in addition to his pay from the United
States, sufficient to make the monthly pay of a sergeant fifteen dol-
lars, a corporal and musician fourteen dollars, and a private thirteen
dollars.”

The second section directs, “ that the Governor shall cause to be
paid to each officer, non-commissioned officer, musician and private
of the militia, who may have been or may hereafter be called into
the service of the State authority, such sums as they would respect-
ively be entitled to by law if in the service of the United States.”

The third section provides, ‘that the Comptroller shall draw his
warrant on the treasury for such sums as the Governor shall
require, for the payment authorized by this act, for all which sums
an account shall be rendered to the Comptroller within six months
after the payment.”

I am not aware that this act has ever been altered, modified or
repealed by any subsequent Legislature, and so far it may be con-
sidered still in force. But its provisions cannot now, without
further legislation, be executed, and are, therefore, inoperative and
of no practical effect. I cannot find that any appropriation was
made to enable the Governor and the Treasurer to execute the
duties imposed upon them by the act; and, without such appro-
208 OPINIONS OF THE ATTORNEYS-GENERAL

ptiation, those officers could not comply with its requirements.
But assuming that the third section, requiring the Comptroller to
draw his warrant on the treasury, for such sums as the Governor
may need for the payments authorized by the act, shall be deemed
equivalent to an appropriation by the Legislature, of the amount
necessary to carry the law into effect, it is nevertheless, in my
judgment, now too late for the persons for whose benefit the act
was passed to avail themselves of its provisions. By the eighth
section, article 7, of the Constitution of the State, adopted in 1846,
it is declared: “ No moneys shall ever be paid out of the treasury
of this State, or any of its funds, or any of the funds under its
management, except in pursuance of an appropriation by law, nor
unless such payment be made within two years next after the pas-
sage of such appropriation act ; and every such law making a new
appropriation, or continuing or reviving an appropriation, shall
distinctly specify the sum appropriated, and the object to which it
it is to be applied, and it shall be sufficient for such law to refer to
any other law to fix such sum.”

Since the adoption of the Constitution, all claims upon the
treasury must be in subordination to its acquirements, and neither
the Governor nor the Treasurer can now execute the provisions of
the act of 1814. Farther legislation is necessary to give it vitality.
’ My attention is also directed by the resolution of the Assembly,
to the act passed April 21st, 1818. This act authorizes and requires
the Commissary-General to audit and settle the accounts for the
services and contingent expenses of the volunteers and militia of
this State during the late war, and to examine the claims for cer-
tain arms alleged to have been lost by the militia and volunteers
in the service of the State, and that he make a report at the next
session of the Legislature. The act was mandatory on the Com-
missary-General to report at the next session of the Legislature.
And although he may have failed to comply with the requirements,
I am of opinion, that the validity of the law has not been affected
by his neglect, and that the act is still in force. Its provisions,
however, vested no rights, and without further legislation can be
of no practical importance. It requires the Commissary-General
only to settle and audit the accounts and report to the next Legisla-
ture. The Legislature can now, if they consider that these accounts
or Tax SvaTe or New Yorn. 209

should be audited and paid, call upon the Commissary-General to
obey the, requirements of the act, so that his report may be the
ground of such future action as the Legislature may in their wis-
dom deem expedient.

Respectfully submitted.

OGDEN HOFFMAN,
Attorney-General.

(Senate document, No. 87.)

The Attorney-General, to whom was referred the following

resolution :
“Tw Sznatz, March 21, 1854.

“Resolved, That the Attorney-General be requested to examine
and report to the Senate whether the Senate bill No. 41, entitled
‘An act authorizing the construction of a toll bridge across the
Chenango river at Binghamton,’ will, if passed, interfere with any
vested rights of the Chenango Bridge Company, and whether the
provisions of said bill are constitutional,”
doth respectfully submit the following opinion:

In ordinary cases 1 would be content with expressing the opinion
I had formed and stating briefly the reasons upon which it was
founded, but the question now presented is of so grave a character,
involving on the one side the pecuniary interests of those who may
be concerned in the corporate franchise and who inveke for their
protection the pledged faith of the State, and upon tlie other the
claims of an active and enterprising community, who may be daily
advancing in numbers and in wealth, and to whom new channels
of communication for travel and trade are necessary for convenience
and prosperity. A question, the rightful answer to which is to
define the limits to the power of a sovereign State, and disarm
them of powers essential to progress and advancement, that I have

The question between these two bridge companies was decided by the Court
of Appeals, contrary to this opinion and in favor of the Binghamton Bridge Com-
pany. (Sce 27 N. ¥., 87.) But that decision was reversed by the Supreme Court.
of the United States. (See 3 Wallace, 51.) And the opinion is fully sustained.
Compare this opinion with that of Attorney-General Tremain, post page 275.

j 14
210 OPINIONS oF THE ATTORNEYS-GENERAL

considered it as my duty, not only tu devote it to deliberate considera-
tion, but to set forth fully the authorities and the reasons which
have produced the result to which I have arrived. There is also
another reason which has induced this course. In my examination
of this subject and the opinion I have formed, I have found myself
compelled to differ from apparently adverse decisions, made by two
of the most able and distinguished jurists of the State, and in oppo-
sition to whose judicial opinions mine would be entitled to but lit-
tle weight. I have, therefore, considered it due to myself to state
fully the grounds upon which I have ventured thus to differ, that
the force or weakness of my objections may be understood and con-
sidered by the Legislature in their adoption or rejection of my
opinion, as a guide to their future action.

An application for this very purpose was made to the Legislature
in 1826 and referred to the committee on courts of justice. This
committee on the 17th of March, 1826, made to the House a report,
which, after setting forth the nature of the application and the laws
under which the Chenango Bridge Company claimed that their
vested rights would be interfered with, thus concludes: “It appears
by the acts recited that the Chenango Bridge Company was incorpo-
rated under all the provisions and regulations of the Susquehanna
Bridge Company, and that the Susquehanna Bridge Company was
invested with all the rights, privileges and immunities of the Dela-
ware Bridge Company ; and one of the rights and privileges granted
to the Delaware Bridge Company was, that no bridge or ferry
should be established within two miles, either above or below the
bridge they were authorized to erect. The committee are unani-
mously of the opinion that to authorize by law the building of
another bridge across the Chenango, at or near the Chenango Point,
would interfere with the vested rights of the Chenango Bridge

Company.”
- The present Attorney-General was then a member of the com-
mittee who made the report above cited, and then concurred in the
opinion expressed, that the law then proposed, and which he
assumes was similar to the one now submitted to him, wonld inter-
fere with the vested rights of the Chenango Bridge Company.
Nor have I seen any reason to change the opinion then expressed.

The same, or a similar application was again made to the Legis-
-

or THE STATE oF New York. 211

lature in 1845, and the bill was referred to the committee on the
judiciary, “together with the report of the committee on the
judiciary heretofore made on that subject, who reported the said
bill and report back to the House, and recommended that the said

bill be rejected, on the yround of its being unconstitutional, and

it was thereupon ordered that the said bill be committed to a com-
mittee of the whole House,” and no further action appears after-
ward.to have been had by the House in reference to the subject.

I refer to this report, not only to show that in the opinion of a
respectable committee of the House, the law was deemed uncon-
stitutional, but also to show that after such repeated declarations
of the Legislature, that those who had previously, or have since
invested their funds in the corporation, may have had a right to
consider that the faith of the State was pledged for the protection
of their privileges and rights, and may well appeal to the justice
of the Legislature not now to disturb them.

There can be no doubt that by the terms of the law the faith of
the State was pledged, so far as it could be pledged, that no other
bridge should be built within two miles. This privilege to them,
and restrictions to others, must have been one of the inducements
to become stockholders of the company, and expose their invest-
ments to the hazards and contingencies which would necessarily in
its inception, attend such an enterprise.

- That the privileges and immunities contained in the charter, and
the exemption, within the prescribed limits, from all competition
must constitute a large portion of its value, and that to allow the
erection of another bridge within the prescribed limits, as the law
submitted to me proposes, would be an interference with the exclu-
sive privileges, and seriously affect the interests and rights of the
Chenango Bridge Company.

How far the Legislature has the right to do this, depends upon
the answer to the last and the most difficult branch of the inquiry
propounded to me. Are the provisions of the bill referred to me
constitutional? The answer to this question involves two consi-
derations:

1st. Are the provisions in this act repugnant to the Constitution
of the United States, as impairing the obligation of a contract?
And, if not,
212 OPINIONS oF THE ATTORNEYS-GENERAL

2d. Do they violate the sixth section of article 1 of the Consti-
tution of this State, which declares: “That no private property
shall be taken for public use without just compensation ” @

I shall first consider the question solely in reference to the Con-
stitution of the United States.

In examining the question of the constitutionality of the law in
question, it is not enough to render it unconstitutional that it inter-
feres with vested rights. It may do so, and yet not violate the
Constitution of the United States, unless it also impairs the obliga-
tion of a contract. In Satterlee v. Matthewson (2 Peters U.S.
Reports, page 453), the court says: “The objection most pressed
upon the court by the counsel for the plaintiff was, that the effect
of this act was to divest rights which were vested in law by Satter-
lee. There is certainly no part of the Constitution which applies
to a State law of this description, nor are we aware of a decision
which has condemned a State law upon this ground, provided its
effect be not to impair the obligation of a contract.”

And in Watson v. Mercer (8 Peters, page 110), the court says:
“Tt is clear that this court has no right to pronounce an act of the
State Legislature void, or contrary to the Constitution of the United
States, from the mere fact that it divests antecedent vested rights
of property.” If this be so, the answer to the inquiry of the Sen-
ate, in its general form, will involve chiefly, if not solely the single
question. Does the law now under consideration impair the
obligation of a contract, and thus be void as a violation of the Con-
stitution of the United States?

.The case upon which the applicants for the new bridge no doubt
strongly rely, is the case of Zhe Charles River Bridgé v. The
Warren Bridge, decided by the Supreme Court of the United
States in 1837. In that case, the Legislature of Massachu-
setts .-had incorporated a company to build a bridge over
the Charles river, their charter being for forty years, which
was afterward extended to seventy years, granting them tolls, and
subjecting them to the payment of £200 a year to Harvard College,
during the continuance of their charter. The bridge was built
under the charter. The tolls were collected by the company, they
always keeping the bridge in order, and performing all that was
enjoined upon them to do.
or THE STATE or New Yor. 213

The Legislature of Massachusetts subsequently incorporated
another company, for the erection of the Warren bridge, over the
same river, commencing and terminating near the same points
where the Charles River bridge commenced and terminated.

The Warren bridge was to become, and did become, a free
bridge. The Charles River bridge then filed a bill, first for an
injunction to prevent the erection of the Warren bridge, and after-
ward for general relief, on the’ ground that the act of the Legisla-
ture authorizing the building of the Warren bridge was an act
impairing the obligations of a contract, and therefore repugnant to:
the Constitution of the United States.

The Supreme Court of the United States affirmed the decision
of the Supreme Court of Massachusetts, dismissing the bill, and
held that the act of the Legislature of Massachusetts incorporating
the Warren Bridge Company, did not impair the obligations of
contract, and was not repugnant to the Constitution of the United
States.

But an examination of this case, and the grounds of the decision
of the court will show, that it depended upon the question whether
the State, by granting the charter to the Charles River Bridge
Company, had, by ¢mplication, surrendered its sovereign power of
. future legislation for the convenience of the public.

Chief Justice Taney, in delivering the opinion of the court, says:
“ When a corporation alleges that a State has surrendered, for sev-
enty years, its power of improvement and public accommodation,
in a great and important line of travel, along which a vast number.
of its citizens must daily pass, the community have a right to insist,
‘that its abandonment ought not to be presumed, in a case in
which the deliberate purpose of the State to abandon it does not
appear.’” This act of incorporation is in, the usual form, and the
privileges such as are commonly given to corporations of
that kind. It confers on them the ordinary faculties of a cor-
poration, for the purpose of building a bridge, and establishes
certain rates of tolls, which the company is authorized to take.
This is the whole grant. There is no exclusive privilege
given to them over the waters of Charles river, above or below
their bridge. No right to erect another bridge themselves nor to
prevent others from erecting one; no engagement from the State that
914 OPINIONS oF THE ATTORNEYS-GENERAL

another shall not be erected, and no undertaking not to sanction
competition, nor to make improvements that may diminish the
amount of its income. Upon all these subjects the charter is silent,
and nothing is said in it about a line of travel, so much insisted on
in the argument in which they are to have exclusive privileges.
No words are used, from which an intention to grant any of these
rights can be inferred. If the plaintiff is entitled to them it must
be implied simply from the nature of the grant, and cannot be
inferred from the words by which the grant is made.” “The
inquiry, then, is, does the charter contain such a contract on the
part of the State? Is there any such stipulation to be found in
thatinstrument? It must be admitted on all hands that thereis none
no words that even relate to another bridge, or to the diminution of
their tolls, or to the line of travel. If a contract on that subject
can be gathered from the charter, it must be by ¢mplication, and
cannot be found in the words used. Can such an agreement be
implied? The rule of construction, before stated, is an answer to
the question. In charters of this description no rights are taken
from the public or given to the corporation beyond those which
the words of the charter, by their natural and proper construction,
purport to convey. There are no words which import such a con-
tract as the plaintiffs in error contend for, and none can be implied.
The whole community are interested in this inquiry, and they have
aright to require that the power of promoting their comfort and
convenience, and of advancing the public prosperity, by providing
safe, convenient and cheap ways for the transportation of produce
and the purposes of travel, shall not be construed to have been
surrendered or diminished by the State, unless it shall appear by
plain words that it was intended to be done.”

The whole reasoning of the court, it will be perceived, rests upon
the ground that no exclusive privileges were expressly given over
the waters of the Charles river above or below the bridge. No
right to prevent other persons from erecting a bridge within any
limits over the same river.

The opinion of the learned chief justice would clearly lead to the
inference, that had the charter to the Charles River Bridge Com-
pany contained the same restrictions as are found in the charter of
the Chenango Bridge Company it would have been declared void,
or THE Starz or New Yorn, ~ 215

as impairing the obligations of a contract. And even to this quali-
fied decision I ought to add, that those of the most learned judges
of the court, Mr. Justice McLean, Story and Thompson, dissented ;
they holding that the exclusive privileges to the Charles River
Bridge Company were implied from the charter, and that the sub-
sequent act to incorporate the Warren Bridge Company was uncon-
stitutional and void.

My attention has been directed to the case of the Oswego Falls
Bridge Company vy. Fish and others reported 1 Barbour’s
Chancery Reports, page 547, which is certainly a case, as far as its
authority goes, in favor of the constitutionality of the act referred
tome. The act incorporating the Oswego Falls Bridge Company
(Laws of 1816, page 216) declared that it should not be lawful for
any person or persons to erect a bridge or establish a ferry across
the said river within two miles from the place where the said
bridge shall be erected and built. The Legislature of ‘this State
subsequently, in 1838, authorized a free bridge to be built within
the prescribed limits. The Oswego Bridge Company filed a bill to
enjoin the commissioners authorized by the act of 1838 from erect-
ing such free bridge. This bill was dismissed by Vice-Chancellor
Gridley, and his judgment and decree were afterward affirmed by
the chancellor on appeal. But the decision of the vice-chancellor
is founded upon the decision of the Charles river case in the
Supreme Court of the United States. And hesays: “I feel bound
to say under the decision in that case that the act under which the
defendants were proceeding when arrested by the injunction is
valid.” And Chancellor Walworth, after referring to the Charles
river bridge case, says that “that case cannot be distinguished from
the present.” Both the vice-chancellor and the chancellor rely
upon the decision in thé Charles river bridge case as settling the
. question, and the chancellor assumes that that case established the
principle which he had before incidentally declared in the Mohawk
Bridge Company v. The Utica and Schenectady Railroad Com-
pany, reported in 6 Paige’s Chancery Reports, page 554, etc., to
which case I shall afterward advert.

The force of this decision, which is apparently conclusive in favor
of the constitutionality of the law now submitted to me, is dimin--
ished, if not destroyed, by several considerations. The case is very
. 216 OPINIONS OF THE ATTORNEYS-GENERAL

briefly reported, and there is no allusion, either in the statement of
the case, the imputed arguments of counsel, or in the opinion
of either the vice-chancellor or chancellor to the prohibitory section
of the charter against the erection of any other bridge within two
miles of the one erected by the Oswego Bridge Company.

Several of the positions taken by the counsel for the complainants,
such as that public interest did not demand the new bridge, and that
the commissioners had not pursued the directions of the statute
appointing them, are controverted by Vice-Chancellor Gridley, and
overruled, but no allusion is made to the important, and as I think con-
trolling fact, of the prohibition contained in the complainants’ charter.

It is certainly strange, that if this section had been pressed upon
the attention of the court, no allusion should have been made to it
by the vice-chancellor in his opinion, when arguments of the coun-
sel, comparatively unimportant, were considered and answered.
And the chancellor, in affirming the decree of the vice-chancellor,
says: “The only question is, whether the Legislature had the right
to authorize the erection of a new bridge across the Oswego river,
so near to the bridge which the complainants had erected under
their charter, as to diminish their tolls and materially impair the
profits of the company.” If this were the only question presented,
then all that was decided was, that the diminution of tolls and the
loss of profits was no restraint upon the power of the Legislature,
and formed no objection to the erection of a new bridge, and this
alone had, in my judgment, been decided by the United States
Supreme Court, in the case of the Charles River Bridge Company.
But the great and important question growing out of the prohibi-
tion of the erection of a new bridge within the limits prescribed in
the complainants’ charter, does not appear, from the report of the
case, to have been decided, or even considered, by the court. It is
obvious, too, that both these learned judges relied upon the deci-
sion of the Supreme Court of the United States, as decisive of the
case submitted to them. But if the construction which I have
given to the opinion of the majority of the Supreme Court, as
delivered by the learned chief justice, be correct, then such opinion,
so far from authorizing and sustaining the decree of the vice-chan-

-ce:lor and chancellor, was in direct hostility to it, and formed no
foundation for the decree of the court which rested upon it.
or THE Stare or New Yorx. 217

The next case, seemingly adverse to the positions I have taken, is
the case of The Mohawk Bridge Company v. The Utica c Scheneo-
tady Railroad Company, reported in 6 Paige’s Chancery Reports,
page 555. The seventh section of the act, incorporating the
Mohawk Bridge Company, declared that after the erection of their
bridge, it shall not be lawful for any person to erect or keep any
ferry over the said river, within one mile above or below the said
bridge.

The act incorporating the Utica and Richerisatady Railroad Com-
pany, authorized it to cross any stream of water, etc., to construct
the road across the stream. They, under this power, proceeded to
construct a bridge across the Mohawk. The Mohawk Bridge.
Company filed their bill to enjoin them from erecting such bridge,
upon the ground, among others, not affecting the question now
under consideration, that the carrying of passengers across the
river in railroad cars would be a damage to the bridge company,
by diverting the travel from their toll bridge.

The chancellor, in denying the injunction, says: “There cannot
be a reasonable doubt as to the right of the Utica and Schenectady °
Railroad Company, under the provisions of their charter, to trans-.
port their passengers across the river in their railroad cars, so long
as they confine themselves to those who travel on the railroad, and
while they do not attempt to interfere with the privileges of the
toll bridge company by crossing with those who merely wish to
cross the river in that way to avoid paying toll at the other bridge.
The Legislature has indeed protected the Mohawk Bridge Com-
pany, in the enjoyment of an exclusive right to carry passengers
across the river at Schenectady, to a certain extent, by prohibiting
others from establishing a ferry within a certain distance from the
toll bridge. But it has not deprived a future Legislature of the
right to authorize the erection of another bridge, within the pre-
scribed limits, whenever the public good shall appear to require it.
Much less is the Legislature deprived of the power to provide for
the conveyance of freight and passengers, from.one part of the
State to another, by an improvement which was entirely unknown
at the time when the grant to the bridge company was made. And
if that grant had in terms given to the corporation the exclusive
right of erecting a toll bridge across the river at Schenectady, this
218 OprINIoNS oF THE ATTORNEYS-GENERAL

subsequent grant to the railroad company to cross the river with
their railway, and to transport passengers thereon in the ordinary
course of their business, in the conveyance of travelers trom one
place to another, would not have been an infringement of the
privileges conferred by such prior grant, as the railroad bridge
would not be a toll bridge within the intent and meaning of the
grant to the first company. Grants of exclusive privileges being
in derogation of public:rights belonging to the State, must be con-
strued strictly, and with reference to the intent and particular pur-
pose of the grant.”

The decision of the chancellor, it will be manifest, rested upon
the fact, that the transportation of passengers in the conveyance
of travelers from one place to another, could. not be an infringe-
ment of the privileges conferred by such prior grant. As the rail-
road bridge would not be a toll bridge, within the intent and
meaning of the grant to the first company, as all grants of exclu-
sive privileges must be construed strictly. This was the ground
of the decree dismissing the bill, and the declaration as to what he
considered the power of the Legislature in other cases, is an obdter
dictum not called tor by the facts, nor necessary to the decision of
the case, and doubtful as to the precise meaning which is to be
attached to his language, and uncertain as to the extent to which
he intended the principle should be carried.

But, in addition to these decisions of the chancellor, and vice-
chancellor of our State, to which I have not attributed for the
reasons stated by me, as much weight as their high judicial charac-
ter would otherwise demand, there are others which decide the
question fully, and upon argument and consideration. I refer to
Thompson v. The New York and Harlem Railroad Company
(reported in 3 Sandford’s Chancery Reports, page 657), and The
Enfield Toll Bridge Company v. The New Haven and Hartford
Railroad Company (in 17 Connecticut Reports, page 460.)

In both these cases, questions almost identical with the one pre-
sented by the act referred to me, arose, and in both, the decisions
of the court, after full argument, was in favor of the constitution-
ality of the law as not impairing the obligations of contract.

The decision of the Supreme Court of the United States must,
until reviewed or modified, remain, as to all questions arising under
or THE Srare or New Yorn. 219

the Constitution of the United States, the supreme law of the
land.

My. views as to the extent and meaning of that decision, I have
already expressed; and if they differ from the construction that
has been given to it by the learned judges and courts to whom I
have referred, I have as an-excuse for venturing to express my own
opinion, the authority of Chancellor Kent, who, in his com-
mentary on this branch of constitutional law, says: “The decision
in the Charles River Bridge Company case is not only universally
acknowledged, but its doctrine has been carried to an extent far
beyond the reasoning of Chief Justice Taney,” and cites the cases
from Connecticut and New York as a proof of the assertion.

In answer, therefore, to the first branch of the question pro-
pounded to me, I will say, that although my own opinion, taking
the Charles River Bridge Company case as my guide, remains
unchanged, and that the law proposed does violate the obligations
of a contract, yet in deference to the judgments and decrees of the
high judicial tribunals of our own and other States, to which my
own individual opinion ought to yield, I must declare that the
weight of authority is in favor of the constitutionality of the law,
as not repugnant to the Constitution of the United States.

But if it be not repugnant to section 10 of the first article of the
Constitution of the United States, is it in violation of the fifth
article of the amended Constitution of the United States, and of
the sixth section of article 1 of the Constitution of this State?

The Constitution of our State, as well as the Constitution of the
United States, declares, “that private property shall not be taken
for public use, without just compensation.”

Is, then, the charter to.erect a bridge and collect tolls, as granted
by the authority of the State, private property belonging to the
corporation of the Chenango Bridge Company, and is it taken by
this bill for public use ?

An estate in a franchise and an estate in land rests upon the same
principles, being equally grants of a right or privilege, and Mr.
Dane, in his abridgment, after having spoken of a ferry as imposing
burdens “publici juris,” adds :

“In this way a ferry becomes property, an incorporeal right, in
legal contemplation ; has body and extension, and having been
220 ‘OPINIONS OF THE ATTORNEYS-GENERAL

granted, is not less scrupulously guarded by the principles of law
than an interest in the soil. It isa substantial right in law, and
can no more be resumed by the Legislature, when once granted,
than any other right.”

But it is said that any check to the exercise of this discretion by
the Legislature, will operate against the advance of improvements.
Will not a different efféct be produced? If every bridge or turn-
pike company were liable to have their property wrested from them
under an act of the Legislature, without compensation, could much
value be attached to such property? Would prudent men expend
their funds in making such improvements? “ When land is
granted, the State can exercise no acts of ownership over it, unless
it be taken for public use,” and the same rule applies to a grant for
a bridge, a turnpike road, or any other improvement.

It has been decided by the Supreme Court of New York, that
unless the act making the appropriation of private property for
public use contained provisions of indemnity, it is void.

But was the complainant’s property appropriated under the char-
ter granted to the respondents for public purposes? If the new
bridge were deemed necessary by the Legislature to promote the
general convenience, and the defendants were consequently author-
ized to construct it, and a part of the plaintiff’s franchise was
granted to the defendants, 7¢ was an appropriation of private pro-
perty for public use. It was as much an appropriation of the
ground of an individual for a turnpike or a railroad authorized by
law. (11 Peters’ U. States Reports, 560, 564, 569, 570.)

And if it is said that this act does not take any property belong-
ing to the Chenango Bridge Company, the answer is, that it takes
the life of it when it takes the means whereby it lives; or, as Jus-
tice McLean well says: “ The Legislature cannot bring a citizen to
the block ; may it open its arteries? It cannot cut off his head; may
it bleed him to death?”

The value of the franchise is not to be estimated by the quantity
of timber and stones the bridge may contain, but by the travel over
it; and if one-halfof the travel over it be diverted to the new bridge,
the injury is as great, and may be greater, than if the whole bridge
had been taken and destroyed. The diverting the travel is pro
tanto, the taking the property of the owners of the franchise.
‘

or THE STATE or Nuw York. 921

And Justice Story, in the case above cited (11 Peters, 638), says
“the franchise of a bridge or ferry, so far as it reaches, is private pro-
perty. Suppose a man is the owner of a mill and the Legislature
authorizes a diversion of the water-course which supplies it whereby
the mill is injured or ruined, are we to be told that this is a conse-
quential injury, and not within the scope of the Constitution? If
not within the scope of the Constitution, it is, according to the
fundamental ‘principles of a free government, a violation of private
rights, which cannot be taken away without compensation.”

The case of Gardner v. The Village of Newburgh (2 Johnson’s
Chancery Reports, 139) would be a sufficient authority to sustain
this reasoning, if it did not stand upon the eternal principles of jus-
tice recognized by every government which is not a despotism.

And in the case thus cited by Justice Story (from 2d Johnson),

‘Chancellor Kent, after admitting the power of the Legislature to
take private property for necessary purposes, says: “ But to render
the exercise of the power valid, a fair compensation must in all

_eases be made to the individuals affected, under some equitable
assessment, to be provided by law. Such necessary qualification
to the exercise of legislative power is adopted by all temperate and
civilized governments from a deep and universal sense of its jus-
tice. Jam, therefore, forced to conclude that a provision for com-
pensation is an indispensable attendant on the constitutional exer-
cise of the power of depriving an individual of his property.”

If this, then, be private property, is it taken for public use?
The objection has been stated that in the case of railroad corpora-
tions the property has been taken not for public use, but for the
private use and. benefit of the corporation. But such proceedings
have always been sustained upon the ground that although the
enterprise has been undertaken with a view to private emolument, |
yet the ultimate purpose is the public convenience, and that if the

. Legislature can take private property for such purposes, it may be
taken through the agency of a corporation, as well as that of a pub-
lie executive officer. I am aware that acts similar to the one now
under consideration have often been passed by the Legislature,
which acts have interfered with the chartered rights of companies
previously incorporated, and have been acquiesced in by such com-
929 OPINIONS OF THE ATTORNEYS-GENERAL

panies as valid, and that such acquiescence has been invoked as jus-
tifying the inference that they must be constitutional.

It is not for me to judge or determine, what were the motives
which governed such companies in such acquiescence, but I cannot
admit that either their acquiescence or resistance to the law, would
form an element of the judgment which is to be pronounced as to
their.constitutionality. I am upon the whole, after much reflec-
tion, of the opinion that the franchise of erecting a bridge, and
collecting tolls within the limits prescribed by their charter, is the
private property of the Chenango Bridge Company. That the
erection of a new bridge within their limits, would be the taking
of their private property for public use, to the extent, and so far
as such new bridge would diminish their tolls, and thus impair
their exclusive right which they now possess, and that unless the
act shall provide for just compensation being made to the Chenango
Bridge Company, it is in violation of both the Constitution of this
State, and of the United States, and is void.

O. HOFFMAN,
Attorney-General.

(Assembly Document No. 129.)

The Attorney-General, to whom was referred the following
resolution :

“In Assempiy, March 22d, 1854.

“ Resolved, That the Attorney-General be, and he is hereby
requested to inquire and report to this House, whether the sums
recovered against the agents of the several prisons of this State, for
carelessness, negligence, or default of the officers, agents, or ser-
vants of said prisons are collectable on the official bonds of the said
agents, or otherwise,”

Respectfully submits the following opinion:

I presume that the Assembly only intended to inquire, although
the language of the resolution is general, whether the sums
recovered against the agents of the several prisons of this State,
on account of their carelessness, negligence, or default, where such
or THE State or New Yorx. 993

judgments have been paid by the State to the judgment creditors,
are collectible by the State upon the official bonds of such agents.

And I also presume, that the question proposed has direct refer-
ence to the sureties of the agent on his official bond ; for, if the
agent himself, whose negligence, carelessness, or default caused the
damages recovered, had sufficient property or means to answer for
the wrong, the State would never have voluntarily paid the judg-
ment, but would have left the injured party to obtain his satisfac.
tion from the individual property of the unfaithful agent.

The facts appear to be these: The agent of the State prison so
negligently performed his duties as to cause damages to certain
individuals, by reason of his negligence. :

The State, by the fiftieth section of the act passed’ December,
14th, 1847, relative to prisons, had authorized suits, the nature of
which I will afterward examine, to be brought against such agent
“by his name of office.”

The persons injured, in pursuance of such act, brought their
suits against such agent by his name of office, for the damages sus-
tained by them in consequence of such negligence. In these suits
judgments were obtained, and these judgments were subsequently
paid by the State, and satisfied of record. ’

The question is: Are the sureties of such agent liable to the
State for the amount of the judgments thus paid ?

By the forty-third section of the act entitled “An act for the
better regulation of the county and State prisons of the State,
and consolidating and amending the existing laws in relation
thereto,” passed December 14th, 1847, ° it is required “that
each agent of the State prison, and each warden, when required
to perform the duties of an agent, before entering on the duties
of his office, shall execute a bond to the people of this State, with
sufficient sureties, to be approved by the inspectors, in the penal
sum of $25,000, conditioned for the faithful’ performance of his
duties according to law, which bond shall be filed in the office of
the Comptroller of this State.”

The agents of the several prisons of this State gave such bonds,
with the condition that if said agent “shall well and truly perform
and discharge all the duties of such agent, as required. by the laws
of this State and the rules and regulations of said prison, making
224 OPINIONS oF THE ATTORNEYS-GENERAL

full and true returns of all moneys or property received by him as
such agent, without fraud or delay, then the obligation to be void,
otherwise to remain in full force and virtue.”

If any injury was done to the buildings or property of the
State, or money embezzled or lost, by the negligence of the agent,
by which the State was directly damnified, there would be no
doubt that the sureties would be liable to the State, to indemnify
them for such injury and loss. But here the injury was to third
persons against the agent for the wrong they had sustained, and
such judgment was paid by the State. .

The State does not claim from the sureties indemnity for any
damages done to their property or effects directly, or by the negli-
gence of their principal. On the contrary, the injury done, it. is
admitted, was only to third persons, to whom the sureties were not
bound, who had no interest in the bond, and could not have main-
tained a suit upon it.

The liabilities of the sureties were fixed at the time the unfaith-
ful or negligent act was done by the agent; and could the volun-
tary subsequent payment by the State create a liability, on the part
of the sureties, to the State, which, before such payment, did not
exist? The plaintiff clearly had no claims against the sureties, and
could not have sued them. Did the State, by paying these judg-
ments, succeed to any other rights than the original judgment
creditors had? Was then the payment of these judgments by the
State a voluntary payment, and creating no liability on the part of
the sureties of the agent to indemnify them? In one sense of the
term, every payment by the State is voluntary, for no suit can be
brought against them. -But nevertheless the State may have so far
bound themselves by previous legislation as to create a legal lia-
bility on their part to pay the amounts recovered against their
agents. :

And such liability and subsequent payment might, if the sure-
ties did, in judgment of law consent at the time of the execution
of the bond, to such liability on the part of the State, form a good
consideration to support the action against the sureties to the extent
of such payment.

The law of 1847, in authorizing suits to be brought “against the
agent by his name of office,” did undoubtedly recognize the rela-
or THE State or New York. 995

tionship as existing between the State and him, so far as the rights
of others were concerned, of principal and agent. It authorized
the claims of individuals to be presented against such agent as their
representative in such particular suit, and so far impliedly, admit-
ted their obligation or liability to pay the amount recovered. And
to this obligation assumed by the State, the sureties in judgment of
law assented, for the bonds executed by them were in 1851, and
the law of 1847 authorizing such proceedings became a part of
their contract, and is to be incorporated with their bonds in deter-
mining their rights and liabilities. The whole question must, there-
fore, depend upon the true construction of the fiftieth section of the
act of 1847. This section has, in my opinion, been wholly miscon-
strued, or misapplied. It does not in spirit or in letter, relate to
any suits growing out of the misconduct of the agent. It never
authorized any suit for damages “‘on account of his negligence or
carelessness,” to be brought against him as agent in his name of
office, nor expressly or impliedly admit the liability of the State to
pay the claims or satisfy the judgments recovered.

The United States have always refused to pay the liabilities of
their agents, founded on torts, unless. acting in obedience to the
commands of their superior officers, which commands they were
bound to obey, and such has always been the policy of this State

And the act of 1847 goes not one step beyond this principle.
It relates only to the “fiscal transactions and dealings on account of
the prison.” It relates entirely to actions on contract, and has no
reference to actions such as those contemplated by the resolution
of the Assembly, and upon which the judgments have been reco-
vered, and afterward paid by the State.

These suits, in my opinion, could only have been brought against
the agent individually. The plaintiffs in them had no authority
of law to commence them against him in his name of office. The
judgments recovered were invalid. The payment of them by the
State was in its own wrong, and it can have no right to recover
back from the sureties the amount thus paid.

‘The fiftieth section of the act of 1847 is as follows: “ All the
fiscal transactions and dealings on account of each prison shall be
conducted by and in the name of the agent thereof, who shall be

capable in law of suing and being sued in all courts and places, and
15

s
226 OPINIONS OF THE ATTORNEYS-GENERAL

in all matters concerning the prison, by his name of office, and by
that name shall be authorized to sue for and recover all sums of
money due from any person to any former agent of the prison or to
the people of this State on account of such prison.” *

“ The fiscal transactions and dealings shall be conducted by and
in the name of the agent,” and then follows the authority “to sue
and be sued by such name of office ;” as much to say that as the
fiscal dealings and transactions are to be in the name of office, so by
such name of office he may sue or be sued on account of such fiscal
transactions and dealings. The accounts are to be kept in his name
as agent, and all suits growing out of such accounts, whether
against or by him, are to be brought in the “same name of office.”
The right to sue and the liability to be sued are controvertible
terms; that is, he can be sued in all cases in which he can sue in
his name of office, and vice versa. And in the concluding part of
the section, when they substitute him to act for the former agent,
they expressly limit his right in his name of office to sue for and
recover all sums of money due to such former agent or to the State.
But he is capable of suing and being sued in and by his name of
office in all courts and places, and in all matters concerning the
prison. “The matters concerning the prison” must be construed
in subjection to the matters of which the section was treating, the
fiscal dealings and transactions on account of such prison. Besides,
the injury done to another’s property by the negligence of the
agent isnot amatter concerning such prison. It is amatter wholly
independent of the concerns or dealings, or transactions of such
prison. It is the individual wrong of the agent, and is outside of
the concerns of the prison, and in hostility to his duty as agent,
and for which wrong he individually and alone is answerable.

If money be due to the prison, the agent can collect it in “his
name of office.” If the prison become indebted, in his dealings
and transactions, to any person, such person may sue the agent for
such indebtedness in “his name of office.” But for all acts done
by him to the injury of another, whether willfully or carelessly, or
negligently, he can no more be sued in his name of office, than
he could for trespass on another’s lands, or an assault and battery

1 This section is amended by section 8, chapter 399, Laws of 1860. The words
“and being sued” are stricken out.
or THe Stare or New York. 227

on another’s person. I am, therefore, of the opinion, that the
fiftieth section of the act. of 1847 is confined solely to contracts, and
gives no right to sue the agent in his name of office for torts
founded on his negligence, carelessness, or default. That the pay-
ment by the State of such judgments was a voluntary payment,
and made in its own wrong, and furnishes no right of action in
behalf of the State, against the sureties on the official bonds of the
agent, and that the sums recovered against such agent, and paid by
the State are not, in the language of the resolution, “collectible
(from the sureties) upon the official bonds of the agent.”

O. HOFFMAN,
Attorney-General.

(Assembly Document No. 181.)

The Attorney-General, to whom was referred the following

resolution :
“Tn Assempiy, April 4th, 1854.

“ Resolved, That the Attorney-General be requested to commu-
‘nicate to this House, to what extent the Legislature has power to
establish and regulate-ferries between the Canadas and this State,
and if such power were conferred upon the city of Buffalo, within
its limits, by an act passed April 13th, 1853,”

Respectfully submits the following opinion:

If the Legislature had the power to establish and regulate ferries
between the Canadas and this State, they had the right to delegate
such power to the city of Buffalo, to be exercised by the common
council of that city within the limits prescribed by the act giving
such authority.

The twenty-seventh section of title 3, of the act entitled “An
act to revise the charter of the city of Buffalo, and to enlarge its
boundaries,” passed April 13th, 1853, declares, that “the common
council shall have exclusive power to establish ferries and tunnels
within the city, and may license and regulate, or prohibit those now
established therein.”

By this statute, the State has delegated to the city of Buffalo
the exclusive privileges of establishing ferries within the city. The
228 OPINIONS oF TEE ATTORNEYS-GENERAL

act confers on the city of Buffalo no jurisdiction extra-territorial.
‘It only authorizes the common council to license and regulate the
ferries established therein. The common council, by virtue of the
power delegated to them by their charter, have the right to regu-
late, within their jurisdiction and upon the waters of this State,
the manner in which the ferry shall be conducted as to boats, land-
ing, tolls, ete.

It is not, of course, pretended that the charter confers the right
to regulate intercourse or commerce with Canada. It only gives to
the common council the right to make a police regulation, to be
confined in its exercise to the jurisdiction of this State, and the
limits of Buffalo. When the ferry boat has passed out of the
waters of our State, and beyond the jurisdiction of the common
council of Buffalo, she becomes subject to the laws and regulations,
which Canada or the mother country may have prescribed for her
government. That the power thus claimed by the State, and dele-
gated by them to the city of Buffalo, belongs to the sovereignty of
the State, and has not been surrendered to the general govern-
ment, has been expressly decided by the Supreme Court of this
State, in the case of The People v. Babcock (11 Wendell’s Reports,
page 590). In that case Babcock was brought before a justice of
the peace, on the charge of having violated the statutes of the
State regulating ferries, by having transported across the Niagara
river, from Youngstown in the county of Niagara, persons and
goods, without having obtained a license from the court of common
pleas, to whom the power of granting such license had been dele-
gated by the Legislature of this State.

The justice discharged Babeock, and the district attorney there-
upon sued out a certiorari, by virtue of which the proceedings were
brought before the Supreme Court.

It was urged by the counsel for Babcock, that the act of this
State regulating ferries, had no application to rivers separating this
State from foreign territories; that no power to regulate such
ferries, existed in the State, and that its exercise would be in con-
flict with a conceded power of the general government.

Mr. Justice Nelson, in delivering the opinion of the court, says:
“The county of Niagara extends westwardly to the middle of the
Niagara river, and the power of the court of common pleas of that
or THE SvaTE or New Yor. 229

county to license ferries within its limits, is without qualification.
(1 R. S., 526, § 1.) So far as jurisdiction is concerned, it is as com-
plete over this river to the center thereof, as over any other stream
within the county. I understand the case of Gibbons v. Ogden (9
Wheaton, 1), distinctly to concede that this power which belongs
to the sovereignty of a State, and is essential to the regulation of
its internal police, has not been surrendered to the national gov-
ernment, and that the clause in the Constitution giving to Congress
the power ‘to regulate commerce with foreign nations, and among
the several States, and with the Indian tribes,’ does not include it.
The constitutional power of Congress to regulate commerce with for-
eign nations, stands upon the same footing as that which may exist
among the.several States; and if the State has not reserved the
right to establish and regulate ferries upon the waters in question
within her limits, then she has not the right to establish and regu-
late ferries upon the waters separating her from other States, and the
consequence would be, that no public ferries could exist in all these
cases, unless under the authority of Congress. Such power has never
been claimed by Congress, and on the contrary it has always been exer-
cised by the several States, between which a ferry is practicable and
convenient. There are numerous acts in our statute books establishing
ferries across the river in question; also the St. Lawrence, Lake Cham-
plain, the river Hudson, opposite New Jersey, and Long Island
sound, opposite Connecticut. That the State has the power to
establish and regulate ferries is indisputable, unless it has been con-
ferred on the national government by some clause in the Constitu-
tion.- That it has been so conferred has not been claimed by that
government, and, on the contrary, it has been expressly disclaimed
by the judicial department thereof. Iam, therefore, of opinion, that
the commissioner erred in discharging the defendant, and that he
ought to have remanded -him into custody.”

The opinion of Mr. Justice Nelson is so clear and explicit, that
any views or illustrations of mine could add nothing to its authority.*
Lam, therefore, of the opinion, that the Legislature of this State
has the power to establish and regulate ferries between the Canadas
and this State, to the extent of her own territorial limits and juris-

1 See also Conway et al. v. Taylor's Executor (1 Black, 603).
930 OPINIONS OF THE ATTORNEYS-GENERAL

diction, and that such power has been conferred by the act of April
13, 1853, upon the city of Buffalo, to the extent of her limits and
jurisdiction.
O. HOFFMAN,
Attorney-General.

ATTORNEY-GENERAL’s OFFICE, \
Axpany, January 25, 1855.

By the act incorporating the Sackett’s Harbor and Saratoga
Railroad Company, passed April 10, 1848; it was, in the second sec-
tion, declared that whenever said corporation shall be organized, and
have paid into the treasury of this State the sum of $5,000, then
and from the time of such payment, for and during the term of
three years thereafter, the said corporation should have the right
to select and purchase publie lands in the counties of Herkimer and
Hamilton, under the conditions mentioned in the act, at the rate of
five cents per acre, and that the Comptroller should convey such
lands, ete., etc. ; and by the third section it was provided “that the
selection should be made within three years from the passage of the
act.”

This time, by the act of March 29, 1851, was extended one year.

The company was not organized, and the required payment was
not made, until February, 1852.

But, before the organization of the said company, and before the
payment of the $5,000, the Legislature, by the act of the 9th of
April, 1850, declared that certain lands “which include the lands
in question,” should be sold by the Comptroller only at public
auction, and at not less than fifteen cents per acre, which sum, at
the same session was raised to thirty cents per acre. The law pre-
soribing the duty of the Comptroller was passed before the pay-
ment by the company of the $5,000, and has never been repealed,
and I am not prepared to advise that it is void and unconstitutional,
as impairing the obligation of a contract. The Comptroller is,
therefore, not authorized to. sell to the Sackett?s Harbor and Sara-
toga Railroad Company, or any other person, the lands in question,
except at public auction, and for a price not less than thirty cents
per acre.
oF THE Srarz or New Yor. 931

But there is another question submitted of greater importance
and more surrounded by difficulties. Has the Comptroller a right
to convey to the Sackett’s Harbor and Saratoga Railroad Company
any public lands ; or, in other words, is the agreement on the part
of the State to give the company the pre-emptive right of selecting,
ete., as contained in the second section of the act of April, 1848,
above referred to, a valid and subsisting agreement ?

This agreement with the State is contained in the second and
third sections of the act of 1848, and was that the company should
have three years from the 10th of April, 1848, in which to orga-
nize and pay to the treasury of this State the $5,000 which was the
condition precedent to the pre-emptive right. The organization
and payment did not take place until February, 1852, nearly four
years from the time of the incorporation, and nearly one year
beyond the time within which the payment was to be made and
the pre-emptive right vested.

On the 10th of April, 1851, all the rights of the company as an
existing incorporation would have ceased, had it not have been for
the-act of March 29, 1851, which declared “ that the right, power
and privileges of said oe as incorporated April 10th, 1848,
are extended one year.”

What rights, ete., were thus extended ? May not the act be con-
strued as giving to the company another year within which to
organize and enjoy the powers and privileges of their charter,
which, in a few days, unless for the intervention of the State, they
have lost, without affecting in any way the terms of the agreement,
by which the State was to convey the land, upon the payment of
the specified sums and the performances of other conditions.

If this. be a fair construction, then it follows that the time to
exercise the privileges of the charter was extended one year. But
that the agreement with the State remained as it originally stood,
and was not affected in express terms by such extention.

It is true that the act of April 15th, 1853, declared that the said
corporation should hold and enjoy from the 28d of February, 1852
(the day upon which they filed their articles of association, affida-
vits, etc.), all the rights and privileges conferred, or intended to be
conferred on the corporation by the act of 1848, and the subsequent
acts, etc. But it is apparent that the sole object of the act of 1852,
932 OPINIONS OF THE ATTORNEYS-GENERAL

was to make effectual the filing of the articles of association, etc.,
and to legalize irregular proceedings, which had taken place in the
organization of the company under the act of 1848, and the subse:
quent acts, and did not in any way affect, enlarge, or control the
agreement as it then existed with the State.

T do not mean to assert that in my opinion, the privileges secured
to the Sackett’s Harbor and Saratoga Railroad have so certainly
ceased that they have no longer the pre-emptive right of selecting
any public lands other than those referred to in the act of 9th
April, 1850, and that, therefore, the Comptroller is not authorizec
to convey to them in pursuance of the conditions of the act of
1848, any public lands. On the contrary, I am rather inclined to
the opinion, that the agreement with the State still exists, and that
the Comptroller may be compelled to convey. But the question is
of so much importance, affects such large interests, and is sur-
rounded by so many difficulties and-doubts, that I deem it the
safest course to advise the Comptroller not to convey to the Sackett’s
Harbor and Saratoga Railroad Company under the provisions of
the act of 1848, any of the public lands of the State, and I give
this opinion with less hesitation and reluctance, because if I be
wrong the company can speedily invoke the interference of a court
and have their rights, if they exist, protected by judicial decision.

O. HOFFMAN,
Attorney-General.

 

ATTORNEY-GENERAL’s OFFICE,
Axpany, January 26, 1855, }

Dear Sm.—Y our letter, with the questions submitted, is before me.

I am of the opinion that but one bill is necessary to cover the
whole subject of the claims presented by several of the citizens of
Canajoharie, for damage arising from some defect in the canal at
that place.

The constitutional provision, declaring that “no private or local
bill which may be passed by the Legislature shall embrace more
than one subject, and that shall be expressed in the title,”

* Section 16, article 3, as to what bills are local or private, and what is a suffi-
cient entitling, see 19 N. Y., 116; 35 N. Y., 449; 88 N. Y., 193; 41 N. Y., 187;
42 N. Y., 404; 43 N. ¥.,10. See, also, post, p.381.
or THE State or New York. 933

undoubtedly means that no two or more subjects, entirely dissimi-
lar and different in object, shall be introduced in the same bill.
The provision was intended to prevent, under a pretense of enact-
ing a law for one purpose, the incorporation of something entirely
different and perhaps antagonistic. The word “subject” jis to be
understood one matter or thing complete in itself, without reference
to the question as to who or how many may be parties to the
benefit of the act.

It would doubtless be safer, as a general thing, to pass separate
- bills for each individual claim, but I cannot perceive that any. diffi-
culty can arise under the provisions of the Constitution referred to,
in embracing in one bill the claims to be provided for in the bill
you propose.

Yours respectfully,
OGDEN HOFFMAN,

Attorney-General.
Hon. T. B. Garus,

Of Committee on Claims, Assembly.

ATTroRNEY-GENERAL’s OFFICE,
Axpany, January 26, 1855. t

Dear Sm.—The question referred to me by you in relation to
the sheriff of-your county has been examined by me.

The statute declaring the circumstances by which an office shall
become vacant is decisive and peremptory,' but in cases in which
the statute imposes a condition upon which depends the continu-
ance in office, it may be deemed as only directory; as, for example,
the statute requires a sheriff to renew his bond every year, within
twenty days after the first Monday of January in each year subse-
quent to that in which he entered upon the duties of his office” If
he does not so renew his bond, his office is by law vacant, and the
statute gives the power to the Governor, upon notice to that effect
from the clerk of the county, to appoint some one to fill the
vacancy. But if, within a reasonable time after that fixed by law
and before any notice to or action by the Governor, the sheriff

14 Rev. Stat., 122, $34; 1 Edmonds’ Stat., 112.
24 Rev. Stats., 379, § 70; 1 Edmonds’ Stats., 351.
234 OPINIONS oF THE ATTORNEYS-GENERAL

renews his bond, in every respect according to the requirements of
the law, I am inclined to the opinion that he may be considered to
have placed himself within the spirit thereof, and that he has by
such act remedied the laches which, by the mere letter of the law,
would deprive him of his office.

Yours respectfully,

O. HOFFMAN,

Attorney-General.
Hon. Grorcr Ricnarpson, Senator, ete.

ATTORNEY-GENERAL’s OFFICE, {
Axpany, January 29, 1855.

My Dear Srr.—Upon the examination of the affidavit of Lucius
D. Hill, upon which you are requested to grant a requisition upon
the Governor of the State of Michigan for the surrender of Nathan
Earl, a fugitive from justice, charged with abducting a child, the
daughter of the said Hill, under the age of four years, with the
intent to detain and conceal such child from its said parent, I am
of the opinion that the act of the said Earl comes within the statute
defining the crime of “abduction or decoying children,” and that
the affidavit is sufficient to warrant the granting of a requisition.

But the case is so singular, and has about it an air of so much
mystery, from the absence of all motive, or a statement of any cir-
cumstances which would induce, or in any way excuse, the act of
the defendant, as to render it advisable, in my judgment, to delay
the granting of a requisition until a judicial investigation be had,
and an indictment be found.

Very respectfully, your ob’t serv’t,

O. HOFFMAN,

Attorney-General.
His Excellency Gov. Cuark.

Atrornry-GENnERAL’s OFFIcE,
Axpany, January 29, 1855.

My Dear Srr.—I have examined the papers handed to me by you
upon which a requisition is asked for the surrender of Martin Fox,
of THE STATE or New York. 235

‘

a fugitive from justice, under indictment for a breach of the excise
law in Clinton county. The demand, as appears from the papers,
is made by the bail of Fox, whose recognizances were forfeited in the
month of October, 1854.

The right of bail to take and surrender their principal has been
decided by the Supreme Court of our State in the case of Wicholls
v. Ingersoll (1 Johnson’s Rep., page 145), Justice Thompson
giving the opinion of the court “that bail may depute another to
take and surrender their principal, and the dad or the’ person
deputed by him for that purpose may take the principal in another
State, or at any time and in any place.” The principles of this
decision have been recognized by the courts of the State of Penn-
sylvania.

Tam therefore of the opinion that, in the case under considera-
tion, a requisition is not necessary.

Very respectfully, your ob’t serv’t,

O. HOFFMAN,

. Attorney-General.
His Excellency Gov. Ciarx.

Aupany, Lebruary 5th, 1855.

Dear Srm.—Mr. Cook has handed your letter to me with the
request that I will answer it. I am unable to perceive in what
way any aid can be rendered you in the matter of obtaining the
money from Buck, deposited with him by Hawks, by either the
Comptroller or this department. It is a matter which affects the
commissioners and their bail.

The State is secured by the bond of the commissioners, and not
until a defalcation occurs, or the commissioners fail in the perform-
ance of their duty, can there be any cause of action on the part of
the people, and then the suits would be brought on the bonds.

Nor can I see how the commissioners can bring an action in this
case. Their powers and duties are defined by statute, and the-
statute declared under what circumstances actions may be commenced
and prosecuted by them. The statute does not seem to cover this
236 OPINIONS OF THE ATTORNEYS-GENERAL

case. The commissioners remaining and the sureties must act in
the premises as they shall be advised by their counsel.

Yours respectfully,

O. HOFFMAN,

Attorney-General.
J. R. Swarn, Rogo, Monroe Co. N. ¥.

AtTToRNEY-GENERAL’s OFFICE,
Auzany, March Tth, 1855. }

Dear Sir.—Yours of the 26th ult. was duly received, and would
have been answered before but for want of time. I have con-
versed with Mr. Hoffman the Attorney-General in reference to the
question submitted by you, and am happy to say that he concurs in
the opinion which I gave you in my letter of the 10th of February.

I have not the pleasure of a personal acquaintance with Mr. R.,
who has given an opinion adverse to mine, and will not, therefore,
say that his opinion is worth nothing, but I must say that the
grounds upon which he bases his opinion are in my judgment
untenable. As I understand it, he says “that the manner of taking
the vote by ballot, without giving previous notice of intent so to
do, was illegal, and therefore said vote was void.”

Now I can find no statute which prescribes the manner of voting
upon such questions at town meetings. It may, therefore, by bal-
lot, by ayes and nays, or viva voce. It may possibly be the custom
of town meetings to fix the place of holding the next annual town
meeting by motion and calling the ayes and nays; but in the
absence of any statute prescribing such a mode, and no other, it
certainly must be optional with the electors to express their wishes
in any other way they may chose. No “notice of intent” is
necessary. The selection of the place where the next town meeting
shall be held is an tncident of every town meeting. The electors
know it, and require no notice to inform them of the fact.

I have not changed the opinion which I expressed in my letter
of the 10th ult., nor shall I until compelled to do so by a reference
to some law which prescribes positively that electors shall not vote
by ballot, and shall vote in some other way at their annual town
meeting upon the question, “ when the next town meeting shall be
or THE State or New York. 937

held.” And Iam confirmed in the opinion by the full concurrence
of Mr. Hoffman.

Yours truly,

LEONARD LATHROP,
Deputy Attorney-General.

Wm. Surrs, Esq., Howard, Steuben Oo., NV. Y.

ATTORNEY-GENERAL’s OFFIoE,
Axsany, March 31, 1855. I
Duar Sr1z.—I have examined the question whether rents upon
durable leases upon lands in several towns in the same county are
subject to taxation in the several towns where the lands are situa-
ted, or in the town where the owner resides; and I am of the
opinion that they are taxable where the lands lie.

Yours respectfully,

O. HOFFMAN,

Attorney-General.
J. Kuicxrrzocker, Waterford, WV. ¥.

ATTORNEY-GENERAL’s OFFIcE, }
April 16, 1855. f

Str.—I have examined the bill increasing the capital stock of
the Manhattan Gas Light Company, and have the honor to submit
to you the following opinion.

The Manhattan Gas Light Company was incorporated in 1850,
and its charter contains no clause making corporators liable per-
sonally for the debts of the corporation. The Constitution of 1846
contains this provision :

Article 8, section 2: “Dues from corporations shall be secured
by such individual liabilities of the corporators and other means
as may be prescribed by law.”

In 1847 an act was passed to increase the capital stock of said
company, and containing a provision that the debts of the com-
pany shall not at any time exceed fifty per cent of the amount of
238 OPINIONS OF THE ATTORNEYS-GENERAL

its capital actually paid in, and making stockholders jointly and
severally personally liable for any such excess. (Act of 1847,
sec. 2.)

This was such individual liabilety of the corporators as the
Legislature under the new Constitution then saw fit to prescribe by
law, and became part of the organic law of the company, and
attaches to all capital at any time held or to be held by the said
company.

In 1852 the stock of the Manhattan Gas Light Company was
increased. In this act nothing is said of personal liability of cor-
porators.

The bill submitted, still further increased its capital, and it
also says nothing of personal liability of corporators.

It is, at least, doubtful whether, if there had been no liability
clause in the act of 1847 increasing the capital, and there was none
in their original act of incorporation, such would have furnished a
valid constitutional objection.

1. Because the company having been incorporated in 1830, before
the Constitution of 1846, is not affected by its provisions, and its
capital may be increased where no additional privileges are given,
without any clause in the act for its increase imposing personal lia-
bility on stockholders.

In confirmation of this view of the case, I have been informed
' that an act was passed at the present session and approved by the
Governor, increasing the capital stock of the Albany Gas Light
Company, in whose charter or any amendment thereto, there is no
provision imposing personal liability for debts on stockholders.

But my opinion is founded chiefly on this fact that, in the act of
1847, increasing the capital stock of the Manhattan Gas Light Com-
pany, there is a clause imposing personal liability on its stockholders
for debts in a more stringent manner than is provided in the general
law for the incorporation of gas light companies passed in 1848.

The dues “of this company are, therefore, within the meaning
of the Constitution, secured by such individual liability of the
corporators as the Legislature has scen jit by law to prescribe.”
This is all the Constitution requires. What the individual liability
shall be is left entirely to the judgment of the Legislature.

That judgment was exercised in passing the act of 1847.
oF THE Svat or New York. 239

The provisions of that act apply to the company at all times, no
matter to what extent the capital may be increased.

Iam therefore of the opinion that the bill submitted to me by
your excellency for the increase of the capital stock of the Man-
hattan Gas Light Company, passed the day of is free
from all constitutional objections, and do so officially advise.

Very respectfully, your ob’t serv’t,

O. HOFFMAN,
Attorney-General.

His Excellency Myron H. Crarx, Governor, etc.

ATTORNEY-GENERAL’S OFFICE, |
Aupany, April 14, 1855.
DxrarSir.—I have examined the question whether the Governor
has the power to appoint a person to fill a vacancy in the office of
county clerk, and am of the opinion that he does possess such
power.

Section 54, article 4, chapter 5, part 1‘ of the Revised Statutes
declares, “In every. case where a vacancy in the office of sheriff or
county clerk, except where such vacancy shall arise from the death
of the incumbent, the Governor shall appoint some fit person who
was eligible to the office, to execute the duties thereof until it shall
be supplied by an election, etc.,” and in the next section’ the power
of appointment vested in the Governor is extended “to all cases
of vacancy in the office specified in section 4 where the vacancy
shall arise from the death of the incumbent.” The question was
decided in the case of Zhe People v. Fisher (24 Wend., 214), and
in The People ex rel. Paxton v. Parker (6 Hill, 49), though the

last case was that of a sheriff.
Yours, etc.

O. HOFFMAN,

Attorney-General.
H. D. Hutt, Hampstead Beach.

11 R.8,, p. 124, sec-49; 1 Edmonds’ Stat., 114.
3 Chap. 58, Laws 1830.
240 OPINIONS OF THE ATTORNEYS-GENERAL

ABany, April 15th, 1855.

Opinion as To Payment or JupGMENTs AGAINsT AGENTS oF SraTE
PRISONS IN PURSUANCE OF LAW PASSED 1855.

The same question arises in each of the bills presented by you
for my consideration, and the opinion as to one is applicable to them
all. Bill No. 303 appropriates the sum of $31,53583,, with inte-
rest on the same from the 15th day of March, 1833, until paid,
being the amount of a judgment recovered, ete. Section 8, article 7,
of the Constitution, declares that every law making an appropria-
tion shall distinctly specify the sum appropriated.

Does the act above referred to distinctly appropriate a specific
sum? As far as the principal sum is concerned, it certainly does.
The doubt arises as to the interest

The time from which the interest is to commence is distinctly
stated, viz., the 15th day of March, 1853. But the time to which
it is to run is not stated, but is left to depend upon the volition of
Messrs. Fitch, Coley & Hunt in presenting their claims and receiv-
ing payment. The limitation in the act being “ until paid.”

The object of the Constitution in requiring the sum appropri-
ated to be distinctly specified undoubtedly was, that each legislator
in voting on the bill might learn from the bill itself, without resort-
ing to any computations the distinct sum that was appropriated, and
thereby knew the extent of the charge on the treasury. A case
might be supposed, when from the ancient date of a judgment or
award upon which the interest was to be calculated, the interest
might more than double the sum distinctly specified in the appro-
priation.

These bills do not, on their face, distinctly specify the whole sum
appropriated, and, although they give their date by which such
sum may be calculated, yet it may be well doubted whether a sum,
which is dependent upon such calculations, is a sum distinctly spe-
cified within the letter and spirit of the Constitution.

My attention has been called to an act for the relief of McMaster
and Merritt, passed February 21st, 1854, under which payment
was made by the present Comptroller as a precedent to justify the
payment now demanded.

But it will be perceived, by reference to that act, whether the.
or rH State or Naw Yorx. 941

former action of the Comptroller can or ought to have any bearing
upon the question of law now submitted. That act distinctly spe-
cified the time when the interest was to commence, as does the
present bill ; and as it was to cease “ until this act shall take effect,”
which was in the same act declared to be “immediately after its-
passage.” ,

The bill in question, as I have before said, prescribes no such
distinct termination, but leaves it at the discretion of the persons
interested as to when the payment shall be demanded and be made;
and it is, moreover, by no means certain that the McMaster and
Merritt bill, even with distinct limitations, was within the letter of
the Constitution.

The case is one of much difficulty, and I am not confident that
the construction which I have above suggested, rather than declared,
is the true one. Many arguments may be urged in opposition to
such construction, and I regret that on so important a question I
am obliged to give an opinion for your guidance when the nume-
rous: demands upon my time at the close of the session leave me
but little leisure for EBEASER upon the question that is, at least, a
doubtful one.

Upon the best orien of the case which I have been able
to give to it, Iam not prepared officially to advise you that the
interest as well as the principal mentioned in the billsubmitted can
be paid by you. That you are bound to pay the principal sum
specifically appropriated, I have no doubt.

Respectfully, etc.,

O. HOFFMAN,
Attorney-General.

Axpany, April 13, 1855.
My Dzar Srr.—I have examined the act entitled “ An act for the
payment to William George Barnhart, Jacob Barnhart, George
Robertson, George Gollinger, and George Sintsinger the amount
to which they are entitled as a compensation for the damages sus-
tained by them in consequence of the sale by the State of their
lands and improvements thereon, situate on Barnhart Island,” and

16
949 OPINIONS OF THE ATTORNEYS-GENERAL

am of opinion that it does not conflict with section 16, article 3 of
the Constitution of this State, and that the said act is constitutional
and valid.

The constitutional provision declaring that “no private or local
bill which may be passed by the Legislature shall embrace more
than one subject, and that shall be expressed in the title,” undoubt-
edly means that no two or more subjects entirely dissimilar and
different in object shall be introduced in the same bill. The pro-
vision was intended to prevent, under a pretense of enacting a law
for one purpose, the incorporation of something entirely different
and perhaps antagonistic. The word “ subject” is to be understood
as one matter or thing, complete in itself, without reference to the
question as to who or how many may be parties to the benefits of the
act. The subject of the act submitted is to allow compensation to
the owners of Barnhart Island for damages sustained by them by
reason of their eviction by the State from their lands and improve-
ments. The only question before the Legislature was, whether
these owners should be ¢hus compensated or not. This was the one
and only subject embraced in the bill, and it can, in my opinion,
make no difference whether such compensation is to be made to
one or four different owners. .

It would doubtless be safer as a general thing to pass separate
bills for each individual claim, but I cannot perceive that any dif-
ficulty can arise under the provision of the Constitution referred to
in embracing in one bill the claims to be provided for in the bill
submitted by you.

Respectfully yours, etc.,

O. HOFFMAN,
Attorney-General.

——

ATTORNEY-GENERAL’s OrFior, }

: July 12th, 1855.
His Excellency, Myron H. Crarx.

My Dear Sir.—I have your note of the tenth instant, and in
answer to the inquiries therein contained say: A vacancy in the
office named is not caused by expiration of term. The provisions
of the Revised Statutes authorizing the Governor to supply vacan-
or Tun Statn or New Yorn. 243

cies that happen during the recess of the Senate, in offices to which
an appointment has been made by the Governor, with the consent
of the Senate, do not authorize him to make an appointment when
the office is not actually vacant, and when the duties of the office
continue to be performed by the officer, whose term of office has
expired, as authorized by a previous section of the Revised Statutes. -

(Tappan v. Gray, 9 Paige Chan. Rep., 507.) To the second
question: “Can the Governor fill a vacancy caused by eee
tion?” I answer, yes.

To the third question. “ Can a notary (holding over) resign after
his term has expired?” I answer, that I am of opinion that he
cannot. The statute (1 Revised Statutes, page 328, section 12)

‘declares that “every officer duly appointed, except the justices of
the Supreme Court, who shall have duly entered upon the duties
of: his office, shall continue to discharge the duties thereof,
although his term of office shall have expired until a successor
in ‘such office shall be duly qualified”, But if I am wrong
in this opinion, and he can resign, I am inclined to ‘the opinion
that his resignation would not constitute such a vacaricy as the
statute intended to authorize the Governor to fill.

Very respectfully,

LEONARD LATHROP,
Deputy Attorney-General.

 

ATrorNEY-GENERAL’s Or¥icx, \
January 14th, 1856.

His Excellency, Myron H. Crarx, Governor.

My Dear Sm.—Yow?’s of the twelfth instant inclosing copy of
the resolutions of the board of supervisors, of Schuyler county,
and the answer to the clerk of the county, with a request for me to
give an opinion as to the course for you to pursue in the premises,
is duly received, and I hasten to reply. Your right to remove is

1 By chapter 29, Laws of 1864 (6 Edmonds, Stats., 226), the term of office of
Notary Public is limited to two years, and his official powers and duties cease at
the expiration of this time. See, however, chapter 448, Laws of 1869 (7 Edmonds,
Stats., 451.) ,
944 OPINIONS OF THE ATTORNEYS-GENERAL

undoubted, after giving to the officer a copy of the charges pre-
ferred against him and an opportunity for his being heard in his
defense. (Constitution, section 10.) This copy appears to have
been served, for I find the answer of the clerk to the charges.

These charges are general, without any statement of facts upon

‘which they are based. The clerk has met these charges by a
detailed statement which you can, for the purposes of your action,
take as true, and leave the petitioners to take further action if they
are untrue; or, in pursuance of section 50, page 334, of the first
volume, fourth edition, R. 8.,' direct the district attorney to con-
duct an inquiry to be made into the truth of the charges. But I
presume your excellency will assume the facts stated in the clerk’s
return to be true, in the absence of a detailed statement by the
supervisors, particularly as the clerk admits a state of facts which,
if the supervisors’ view of the law be correct, would justify their
application to you, or to some other legal tribunal.

The whole question presented by these papers is, in my opinion,
simply this:

Had the board of supervisors or the county judge aright to
fix the place for the holding the County Courts for a longer period
than the completion of the court-house, to be erected by the pro-
visions of the act incorporating Schuyler county? Without giving
specific reasons for this opinion, I do not doubt that ‘they could
not. That upon the completion of the clerk’s office, that was the
place where the records and papers must be kept ; and on the com-
pletion of the court-house, there the courts must be held. But if I
am mistaken in this, the clerk seems to have acted under the view
of the law and under legal advice; and if that advice was errone-
ous and his conduct illegal, still it would not, in my opinion, justify
his removal from office.

It is only in cases of intentional disregard of his duties or mani-
fest incompetency that should warrant the extreme remedy of
removal. Honest, though mistaken action, can be reached by the
ordinary process of legal tribunals.

In the above I have had no reference to the action of the board
of supervisors in seeking to change the site of the county build-
ings, or to any alleged defect in the title to the site, or to any other

11 Revised Statutes, page 124, section 45 (1 Edmonds’ Stats., 118.)
or THE SraTe or New Yor. 245

questions outside of the case, which, from my personal knowledge,
may come before me in some other aspect. -

Your action is upon the-papers before you, and I have no hesi:
tancy in advising the rejection of the prayer of the petition.

' Very respectfully yours,

'S. B. CUSHING,
Attorney-General.

(Assembly Document, No. 19.) .
January 17th, 1857.

Communtcation From AtrornEY-GrenreraL Rewative to Surrs
AGAINST CoMMISSIONERS oF Loans.

STATE OF NEW YORK:

Orrice oF THE Arrorngy-GENERAL,
Axsany, January 16, 1857.

Hon. D. C. Lirrinyoun, Speaker of the Assembly :

There are several suits now pending in my office, against the
commissioners for loaning the United States Deposit Fund, and
their sureties, for not accounting for moneys in their hands, and in
one or more of these suits the defense is interposed, that said com-
missioners are not legally appointed, and the defendants conse-
quently not liable.

For reasons, not necessary now to give, I think this defense can-
not avail a principal and his sureties, when he has received the
money on the fact of the Governor’s appointment, and the security
thus given. ,

But, for apparent reasons, I deem it proper, at the present time,
to call the attention of the honorable the Assembly td the subject.

The office of Commissioners of Loans was created, and its duties
defined, by chapter 150 of the Laws of 1837. By that act the com-
missioners were appointed upon the nomination of the Governor,
by and with thé advice of the Senate, and have been so appointed
up to the present time. Several of these offices become vacant.
during the ensuing winter, and are to be reappointed. By the
Constitution of 1846, article 10, section 2, “All county officers,
whose election or appointment is not provided for by this Consti-
246 OPINIONS OF THE ATTORNEYS-GENERAL

tution, shall be elected by the electors of the respective counties, or
appointed by the boards of: supervisors, or other county authorities,
as the Legislature shall direct.”

The election or appointment of loan commissioners is not pro-
vided for by the Constitution; and the question I submit to the”
Legislature is, are these Commissioners of Loans county officers ?
If so, they must be elected or appointed in the manner specified by
the Constitution.

It has been decided by a justice of the Supreme Court, in the
fourth district (7 Barb., 30), that the office of Commissioner of
Loans, under the act of 1808, is a county office, within the meaning
of the article of the Constitution above cited; and if that office
was a county office, I cannot see why the present Commissioner of
Loans, under the act of 1837, is not equally so, as he not only now
performs the duty of that office under the law of 1850, but in all
respects is analogous.

Adopting the reasoning of that case, to which I respectfully refer
the honorable the Assembly, I am inclined to think the present
Commissioner of Loans is a county officer, within the meaning of
the Constitution ; and if the honorable body over whom you pre-
side shall agree with me, they will doubtless see that such a law is
passed as the Constitution requires. If the question is one of
doubt, unless there are cogent reasons for leaving the appointment
in the hands of the Governor, would it not be well to give the
selection of these officers to the counties, either by election or
appointment, as the wisdom of the Legislature shall direct.

Pardon me, also, for calling the attention of the honorable the
Assembly to a recommendation of the Comptroller, on page 30 of
his report, to wit, the nwmber of. these commissioners. I do this
with the less‘reluctance, as the State, through my office, has had
expensive experience in this respect. In addition to the reasons so
well given by him, for the selection of but one, another is found in
the fact, that several sales of land under the foreclosure of mortga-
ges, have been declared void, in consequence of the non-attendance
of one of the commissioners on the day of sale. The importance
of the subject is my only apology for this communication.

8. B. CUSHING,
Attorney-General.
oF THE State or New Yorks. 247

STATE OF NEW YORK:

ATIORNEY-GENERAL’s OFFICE,
January 8, 1858. }
E. Van Wacezner, Esq. :

Dear Sir.—The electors having fixed the place for holding your
town meeting, that is the place for them to assemble, and that
order remains in force until altered or repealed at the subsequent
town meeting, no power being lodged in anybody except the Legis-
lature to change the place.

When they have, however, assembled, they may on motion, by a
majority of the electors voting on such motion, change the place
for holding such meeting. This can be done as soon as the meet-
ing is duly organized.’ (1 R.S., 339, § 1; 1 R. S., 342, § 2037 1
R. S., 342, § 17.)

Yours truly,

LYMAN TREMAIN.

STATE OF NEW YORK:

AtTToRrNEY-GENERAL’s OFFICE,
February 8, 1858.

To the Assembly of the State of New York:

The Attorney-General submits the following opinion in answer
to the resolutions passed by the Assembly on the 3d inst., relating
to the counties of Broome and Livingston:

’ From an examination of the census of 1855 and the legislative
history of the matters, to which the resolutions refer, the following
facts appear:

On the 23d of March, 1857, an act of the Legislature was passed,
annexing the town of Ossian, in the county of Allegany, which
was in the eighth judicial district, to the county of Livingston,
which was in the seventh judicial district. (See chap. 166 of Laws
of 1857.) On the 13th day of April, 1857, an act was passed for
the apportionment of the members of Assembly of this State;
under which it now appears, by a reference to the census, that

1 See The People ex rel, Simonson v. Martin, § N. Y., 1 Sel., 28.
*Prokably p. 339, § 2. See 1 Edmonds’ Stats., pp. 312, 814.
248 OPINIONS oF THE ATTORNEYS-GENERAL

Livingston, with the addition of:the town of Ossian, became enti-
tled to and was awarded two members of the Assembly, and Broome
county but one; whereas, if the counties of Livingston and Allegany
had remained unchanged Broome county would have been awarded
two members of Assembly and Livingston county but one. It is
provided in the sixteenth section of the sixth article of the Consti-
tution, “that the Legislature may re-organize the judiciary districts
at the first session after the return of every enumeration under the
Constitution in the manner provided for in the fourth section of
this provision, and at no other ‘ime.” The object of this provision
was to secure stability to the judicial districts, and to place it
beyond the power of the Legislature to change such organization
except at the ‘time therein mentioned, and this intention is placed
beyond all room for argument by the peremptory and positive pro-
hibition to re-organize at any other time.

If it were competent for the Legislature at any time to transfer
one or more towns from one individual district to another, the
whole individual district system of the State might be annually
changed, and the provision in question thus entirely nullified. I
am, therefore, clearly of the opinion that the act of the Legislature
annexing the town of Ossian to the county of Livingston was
unconstitutional and void, for the reason that it re-organized in
part the seventh and eighth judicial districts, and was not done at
the session of the Legislature when alone such power can be exer-
cised. To this same effect is the decision of the Supreme Court of
the sixth judicial district in the case of Edward Lyon against Jabez
Swan. I concur entirely in the learned opinions of the three
learned justices delivered in that case on this question, and espe-
cially in the observation of Justice Balcolm, that “an act would be
" unconstitutional which should take a town from a county lying in
_ another, passed by any Legislature except one next succeeding the
taking of the State census, if made to take effect at any time prior
to the completion of the next enumeration of the inhabitants after
its passage.”

The effect of this unconstitutional law having been to introduce
an improper basis for the apportionment, in creating the represen-
tation to which Livingston would have been entitled upon a correct

? See opinions, ante, pp. 11, 67, 82, and cases cited in note, p. 119,
or Tan Starz or New York. ~  QA9 |

and valid apportionment, and reducing the just representation to
which Broome would have been legally entitled, the question arises
whether that error can now be corrected by the Legislature. On
that point my opinion is unhesitatingly in the affirmative.

The lapse of time since the last census interposes no barrier to
the exercise of this power. The provision of section 4 of article
8, relating to the re-apportionment of members of Assembly, unlike
that which relates to the re-organization of the judicial districts,
contains no words of restriction limiting the Legislature in its
exercise of this power to the first session after the return of renu-
meration. The Legislature, therefore had, in my judgment, the
constitutional power to discharge the duty of reappointing the
members of Assembly in any succeeding year. In the opinion of
my predecessor upon the question, eontained in Assembly Docu-
ment No. 9 for 1857, I entirely concur.

When, however, re-apportionment of members of Assembly has
once been constitutionally performed by the Legislature their power
over the subject is exhausted, until the recurrence of the constitu-
tional period for its exercise.

But an unconstitutional exercise of the power is a nullity, and it
is well settled, that an act which is absolutely void must be treated
by the Legislature and the courts as if no such act had been passed.

I do not discover that this error affects any part of the appor-
tionment law, except those parts which relate to the counties of
Livingston and Broome. As to these counties, I think the law was
unconstitutional and void. Where the bad and illegal portions of
a law or written instrument may be separated from the good, the
- latter shall stand, and the former be set aside. No constitutional
apportionment of members of Assembly has yet been made for the
counties of Livingston and Broome in my judgment, and the Leg-
islature may now discharge that duty. I therefore answer all three
of these resolutions sent to me in the affirmative.

Very respectfully yours,
LYMAN TREMAIN.
950 —=«. OPINIONS oF THE ATTORNEYS-GENERAL

Mr. Wadsworth presented the following communication from the
Attorney-General, which was referred to the judiciary committee :

STATE OF NEW YORK:

Orricr or THE ATTORNEY-GENERAL,
Ausany, February 8, 1858.
Hon. James Noxoy,.
Chairman of the Judiciary Committee of the Senate :

Dear Sm.—I have the honor to acknowledge the receipt of your
communication requesting, on behalf of the judiciary committee
of the Senate, my opinionas to the constitutionality ofa bill enti-
tled ‘An act authorizing and directing the payment of the travel-
ing expenses of certain judges of the Court of Appeals and justi-
ces of the Supreme Court.”?

The proposed bill providés for the payment to each of those
officers elected before the first of January, 1856, and now in office,
pursuant to such election, of the sum of $1,000 annually for tra-
veling expenses, office rent, stationery, and other expenses incurred
by them, in discharging the duties of their respective offices.

It is entirely clear that the power to pass this law is embraced
within the legislative authority of the State, unless it is restrained
by section 7, article 6 of the Constitution, which reads as follows:
“The judges of the Court of Appeals and justices of the Supreme
Court shall severally receive, at stated times, for their services, a
compensation to be established by law, which shall not be increased
or diminished during their continuance in office.”

The whole question turns upon the true interpretation of the
words “compensation for their services,” and it.is a familiar rule
in the construction of a Constitution that the words used are to be
understood and explained according to the signification which
common usage has affixed to them. It is not, ordinarily, to be
presumed that either the framers of the Constitution or the people
who adopted it intended to annex any different meaning to the words
employed than that which would be conformable to their common
use.

The late Constitution of this State contained a clause declaring

1 See 15 Barb., 529.
"By section 14, new Judiciary article, adopted 1870 only the diminution is pro-
hibited. But the opinion is applicable to quite a number of other offices,
oF THE STATE or Nuw Yor. O51

that the Governor should, at stated times, receive for his services a
compensation which should neither be increased nor diminished
during the term for which he should have been elected. (Article 3,
section 4.) Under that Constitution, it was the constant practice
for the Legislature to make allowance, annually, to the Governor
then in office for his house rent, taxes and other incidental expenses
incurred in the discharge of his official duties. (See Laws of 1823,
p. 427, §§19, 20; 1824, p. 800, §$5, 6; 1825, p. 430, §§ 4, 5; p.
440; 1826, p. 373, §4; p. 374, §8; 1827, p. 874, §4; p. 375, §7.)

In 1827, a general act was passed making an allowance for these
expenses, which was increased the following year. (See Laws of
1827 and 1828.)

In the Constitution of the United States will be found a pro-
vision relating to the compensation of the President of the United
States from which the several clauses in our State Constitutions
are substantially copied; but on referring to the, appropriations
that are constantly made by acts of Congress, it will be discovered
that liberal provisions are made to cover the expenses incurred by
the President in sustaining the dignity and discharging the duties
‘of his office. .

Our State Constitution provides in a similar way for the com-
pensation of State officers (see art. 5, $1), and yet provision has
been constantly made by law for reimbursing to them the expenses,
incurred by them in performing their several duties.

Both the late and present Constitutions prohibited an increase
of comnpensation to members of the Legislature per diem allow-
ances allowed by the Constitution. (Constitution of 1821, art. 1,
sec. 9, and Constitution of 1846, art. 3, sec. 6), but:the annual
allowances made for their incidental expenses and other articles
regarded as necessary for the discharge of their duties are quite
familiar. ‘ ;

The distinction existing between allowances for services and
disbursements paid out or incurred, is recognized in the various
statutes that have been from time to time enacted in this State,
regulating the cost and fees of attorney’s and counselors-at-law, and
their disbursements.

It would seem, therefore, from the action of the executive and
legislative branches of the general and State governments for
952 OPINIONS OF THE ATTORNEYS-GENERAL

more than thirty-five years, that the words “compensation” or

“salary for services,” are not understood to include allowances for.
expenses incurred in the discharge of official duties. Nor do I

discover any sufficient reason for supposing that the words were

intended to be employed in any different sense from that in which

they had been commonly used.

In determining the amount of such expenses, the Legislature may
exercise the discretion with which it is from necessity invested.
Both classes of officers referred to in the bill are State officers, and
it is my opinion that the bill sent to me does not conflict with the
Constitution of the State.

With great respect, I am yours, very truly,
LYMAN TREMAIN.

STATE OF NEW YORE:

ArrTornry-GENERAL’s OFFICE,
Axsany, February 9th, 1858.

To the Assembly of the State of New York:

The Attorney-General has the honor to acknowledge the receipt
of the following resolution :

* * * * * * * * * *

Assuming that the several adjournments referred to in the reso-
lution were made without .the consent of both Houses, two ques-
tions arise; the first involving the constitutionality of such
adjournments, and the second, their effect upon the existence of
the Legislature.

Does the Constitution exclude Sunday from the two days beyond
which neither House can adjourn without the consent of the other?
It is a day within the ordinary popular acceptation of the term.
By the method of computing time in this State, a day, in legal par-
lance, consists of twenty-four hours, and commences and ends at
midnight. (Pulling v. The People, 8 Barb., 384.) It was evi-
dently intended as a day in another part of the same Constitution,
where it is declared that if any bill “ shall not be returned by the
Governor within ten days (Sundays excepted), after it shall have
been presented to him, the same shall be a law in like manner as
oF THE STATE or New York. 953

if he had nad it, unless the Legislature shall, by their adjourn-
ment prevent its return” (article 4, § 9); for the exception would
have been unnecessary, if Sunday would, without it, have been
excluded.

It is at least doubtful whether the Legislature can hold its session
on Sunday. In England, the parliament was called by Sir Edward
Coke, “ the high court,” and by Blackstone “the Supreme Court
in the kingdom, not only for the making but also for the exeoution
of laws.”

By the common-law, all judicial acts are prohibited on Sunday.
This day was said in the books to be “dies non juridicus” by
canon of the church incorporated into the common law. Accord-
ing to Lord Mansfield, the court of justice did anciently sit on Sun-
day, in opposition to the superstitious observance of certain days
and times by the heathen, and also by keeping their courts always
open to prevent christian suitors from resorting to the heathen
courts. But as early as the year 517, a canon was made prohibit-
ing the hearing of causes on Sunday, which, with other canons and
constitutions were received and adopted by the Saxon kings of
England; confirmed by William the Conqueror, and Henry the |
Second, and so became part of the common-law of England. (Swan
v. Broome, 8 Burr., 1597; 2 Black., 526, S. OC; Story v. Elliott,
8 Cowen, 27.)

If our Legislature, therefore, occupies the same position as the
English parliament, any legislation on Sunday would be contraty
to the common-law in force in this State, and offensive to religion
and morality.

But itis well settled, in the construction of a statute, Sits
requires an act to be done within a certain number of days, and
one of the intervening days is Sunday, it must be counted; and
even when the last day for the performance of the act is Sunday,
the act must be done the preceding day. (Hx. Parte Dodge, 7
Cowen, 147; Bissell v. Bissell, 11 Barb., 96; King v. Dowdall,
2 Sandford S. O. R., 181.)

In an anonymous case decided at on term before a single
judge, and reported in 2 Hill, 375, it was held, that when an act

1 For interesting history of rule, as to legal sanctions of the Sabbath, see 81
Barb., 38 ; 20 How. Pr., 76.
254 OPINIONS oF THE ATTORNEYS-GENERAL

was required by statute to be done in a given number of days, less
than a week, an intervening Sunday may be excluded in the com-
putation of time; but in the later cases that authority is declared
to rest on no sound principle, and is held to be erroneous. Thus,
in King v. Dowdail it was adjudged, that in a summons required
to be returnable in not less than two, nor more than four days,
Sunday being an intervening day, should be counted, and Chief
Justice Oakley remarks of the contrary rule indicated in 2 Hill,
that it was not the rule in this State, and could not be followed.
In Bissell v. Bissell it was held, that when the four days within
which a justice of the peace was required to enter judgment expired
on Sunday, the judgment should not legally be entered on Monday.
When, however, the time within which an act is to be performed
is fixed by a rule of practice established by the court, or by con-
tract, a different rule prevails; and with the single exception of
the days of grace allowed for promissory notes, bills of exchange,
if the last day falls on Sunday, the act may be done on the follow-
ing Monday.

Granting, therefore, for the purpose of the argument, that no
business can properly be transacted by the Legislature on Sunday,
still the interpretation of the constitutional provision in question
must, I think, be the same as exists in the construction of statutes.
In the absence of any indication that the words were used in the
Constitution in any other than the sense in which they are used in
public statutes, I am constrained to the conclusion that each of
the three adjournments referred to in the resolution of the
Assembly, was a violation of the Constitution. But the question
still remains, do such adjournments operate as a dissolution ‘of
the Legislature, and place it beyond the power of that body to reas-
semble on the: day named in the resolution of adjournment, and
proceed with ordinary business? I think they do not.

The practice here, as to the manner and time for the Legislature
to assemble and adjourn, is radically different from the practice of
the English parliament; owing, in a great degree, to the difference
existing in the structure and nature of our government. In Eng.
land the parliament has no right, of its own authority, to assemble,
but it is a branch of the royal prerogative to summon the parlia-
ment by a writ or letter issued out of chancery, by advice of the
or THE STATE or New York. 255

privy council. Nor can parliament be either prorogued or dis-
solved, except by the royal authority, expressed either in person or
by representation. _

With us, however, the people of the State, the source of all
political power, acting through their agents, devolved upon the
Senate and Assembly the whole legislative power of the State.
(Art. 3, § 1.) They have fixed the time for them to assemble
annually ; limited the number. of days for which they shall receive
compensation, except when convened in an extra session called by
the Governor; conferred upon the Governor the power to con-
vene them on extraordinary occasions, and instructed, them not to
adjourn more than two days without the consent of both Houses.
They have affixed no penalty to a violation of this provision, nor
can I perceive how, or why, the same body cannot again convene
on the day indicated, and resume its appropriate duties.

It cannot pass laws without the assent of a majority of the mem-
‘bers elected. It is the same body in which the whole legislative
power of the State is vested, assembled together without a viola-
tion of any statutory or constitutional provisions; nor can I dis-
cover anything in the nature of the business to be transacted, or
the character of the prohibition in question, which, either from

, necessity or according to sound reason, should prevent them from
proceeding legitimately without the interposition of the Governor.

I am, therefore, of the opinion, that the Legislature of the State
is now legally assembled, and that no proclamation of the Governor
is necessary to give validity to its action:

, LYMAN TREMAIN.

STATE OF NEW YORK:

Atrornry-GENERAL’s OFFICE, }
Ausany, february 19, 1858.

To the Assembly of the State of New York:

The Attorney-General submits to the Assembly this communi-
cation, in response to the following resolution :

On motion of Mr. Chanter :

Resolved, That the Attorney-General of this State be, and
hereby is, requested to communicate to this House his opinion of
256 OPINIONS oF THE ATTORNEYS-GENERAL

the constitutionality of the act entitled “An act relative to the
incorporation of colleges and academies,” passed April 12, 1853,
chapter 184, page 354, of Laws of 1853.

Corporations may be formed under general laws, but shall not
be created by special act, except for municipal purposes, and-in
cases where, in the judgment of the Legislature, the object of the
corporation cannot be attained under Pee laws. (Constitution,,
art. 8, § 1.)

As ‘early as 1813, by an act of the Legislature of this State, a
university was instituted, which was incorporated by the name of
“The Regents of the University of the State of New York.” The
regents were authorized, on certain conditions particularly specified
in the act, to found, organize and incorporate colleges and acade-
mies. (See chap. 59 of the Laws of 1813.)

The act of 1853, referred to in the resolution of the Assembly,
makes it the duty of the Regents of the University to prescribe,
by general rules and regulations, the requisites and conditions for
the incorporation, by them, of any college, university, academy or
other institution of learning, pursuant to the powers vested in the
regents by the laws then in existence, and empowered them by an
instrument, under their common seal, which should be recorded in
the office of the Secretary of State, to incorporate any college, uni-.
versity, academy or institution of learning under such name, with
such powers and privileges, and subject to such limitations as should
be prescribed by law, or as said regents should deem proper in con-
formity thereto. .

I think this act is in conformity with the constitutional provision
authorizing the formation of corporations under general laws. It
is not liable to the objection, that the vitality of the law itself was
made to depend on the action of somebody other than the Legis-
lature.

The law was complete at the time it was enacted ; and not having
been able to discover that it comes in conflict with any provision
of the fundamental law of the State, it is my opinion that the act
is constitutional.

LYMAN TREMAIN,
Attorney-General.
or Tan State or New Yorx. 257

STATE OF NEW YORK.

Smnate CHAMBER,
Atpany, February 3d, 1858.

ExxrouttvE SEssion.

On motion of Mr. Noxon:

Lesolwed, That the question in relation to the power of the
appointment of Loan Commissioners by the Governor and Senate,
be referred to the Attorney-General for his opinion, and that he be
requested to report thereon at an early day.

By order of the Senate.
(Copy.) S. P. ALLEN, Clerk.

STATE OF NEW YORK:

OFricz oF THE ATTORNEY-GENERAL,
Asany, February 10th, 1858.

To the Senate of the State of New York (in executive session) :

The Attorney-General, in answer to the resolution relating to the
appointment of Loan Commissioners by the Governor and Senate,
of which a copy is hereto annexed, submits the following opinion:

By section 2, article 10, of the present Constitution of this State,
it is declared that “all county officers, whose election or appoint-
ment isnot provided for by this Constitution, shall be elected by
the electors of the respective counties, or appointed by the board
of supervisors or other county authorities as the Legislature shall
direct ;”? and in a subsequent section of the same article, the duty
is imposed upon the Legislature, of prescribing by law the time for
electing all officers named in that article.

If the office of Loan Commissioner is a “ county office,” within
the spirit and intention of the Constitution, it can scarcely be
doubted that it must be filled in the manner prescribed in that
instrument. The mode directed in the organic law for electing or
appointing county officers, would, in my opinion, control all ‘elec-
tions and appointments after the Constitution took effect, to the
entire exclusion of every other mode which previously existed.
Under section 17, of article 1, such of the acts of the Legislature
of this State as are repugnant to the Constitution were abrogated,

17
258 OPINIONS OF THE ATTORNEYS-GENERAL

thereby permitting such county officers as were then in office to
. continue until their successors were duly elected or appointed: in
the way pointed out by the Constitution.

What is meant by a “county officer?” The Constitution itself
does not define it, and we must resort to other sources for informa-
tion. This question was considered by Judge Edmonds in the
matter of Whiting (2d Barbour, 514), and he there declared that
all officers, who were appointed or elected for a county, were
required to reside within the county, were county officers within
the meaning of the Constitution.

Independent of the weight to which this exposition is entitled,
from the consideration that it is the remark of a judge pertinent
to the matter then under discussion, it commends itself to favor by
its simplicity and good sense.

Tested by this criterion, is the office to which the resolution
refers a county office? Although that resolution, in terms, speaks
of the appointment of Loan Commissioners, the Attorney-General
understands the inquiries to refer to the office of “the commis-
sioner for loaning certain moneys of the United States;” an office
created by the act of 1837, upon which were imposed, by the act
of 1850, certain duties which had been formerly discharged by the
“loan officers,” and “ Commissioners of Loans for the State.” It
is believed that a concise history of the legislation of the State, in
reference to the loan officers is proper, and may throw some light
upon the question.

In 1786, an act was passed which, after reciting the distresses
occasioned by the late calamitous war, and the difficulties arising
from the want of a sufficient circulating medium, authorized the
emitting of bills of credit to the value of £200,000; and directed
the election in each county, by the judges of the inferior courts,
and the supervisors, of two freeholders in each county, to be Loan
Commissioners for the same county. The loan was apportioned
among the counties by the fifth section of this act. (See chapter
40 of Laws of 1786.)

In 1792, another act was passed authorizing an additional loan,
and directing the appointment by the judges of the court of com-
mon pleas, and supervisors of the respective counties in the State,
of two freeholders who were declared to be, in the several counties,
or THe STATE or New York. 259

bodies politic and corporate, by the name and style of “ the new
loan officers of the county” of which they were respectively loan
officers. (See chapter 25 of Laws of 17992.)

In 1808, another act was passed authorizing a loan of other
moneys belonging to the State, and providing for the appointment
by the Governor and council of appointment, of two freeholders in
each county of the State, who are called throughout the act “ com-
missioners for loaning money of the county” in which they were
elected. (See chapter 216 of the Laws of 1808.)

In 1832, the loan officers, under the loans authorized by the acts
of 1786 and 1792, were directed to transfer all the books and
papers in their hands to the Commissioners of Loans, who were
declared ex officio commissioners under those acts. By this act, the
loan of 1786 was directed to be paid into the treasury, and the
account thereof to be liquidated and closed by the Comptroller.
(See chapter 118, of the Laws of 1832.)

In 1837, another act was passed, authorizing a loan of the
United States Deposit Fund, and the appointment of two reputable
inhabitants, resident in each of the counties of this State, who
were called “commissioners for loaning money of the United
States, of the county” where they resided. (Chapter 150, of Laws
of 1837.) In 1850, an act was passed directing the Loan Commis-
sioners to transfer and deliver to the commissioners created under
the act of 1837, all the mortgages which should remain in their
hands, belonging to the loan of 1792 or 1808, and abolishing the
offices of Loan Commissioners of the loans of 1792 and 1808.
(Chapter 337, of 1850.)

It will be found on examination of these various statutes autho-
rizing the loans and creating the officers to take charge of the
moneys, that while these names have been slightly varied, their
duties are substantially the same.

Thus, the act of 1837, creating the office now under considera-
tion, is a substantial transcript from the act of 1808.

In every act the officer was called an officer of the county for
which he was appointed. In every instance the officer was required
to reside in the county for which he was appointed; was confined
to that county in the execution of his official duties; vacated his
office on removal from the county; received the moneys appor-

\
260 OPINIONS OF THE ATTORNEYS-GENERAL

tioned to his county according to its population; was required to
loan such moneys to the citizens of his county ; while his accounts
and the securities received by him were subject to the scrutiny and
control of the board of supervisors in his county.

In the Revised Statutes these loan officers have always been
classified as county officers.

In the third edition of the Revised Statutes, published before the
sitting of the convention which framed the Constitution, the learned
revisers had again classified them as county officers, embracing in
that classification loan officers and commissioners of loans, inclu-
ding the commissioners under the act of 1837.

The question came before Judge Willard, in a case reported in
7th Barbour Reports, page 30, and that distinguished jurist, in an
elaborate opinion, came to the conclusion that the office of commis-
sioner of loans was a county office, and could not be filled by the
Governor and Senate.

An opinion by my immediate predecessor, arriving at the same
conclusion, will be found in Assembly documents, vol. 1, No. 19,
for 1857.

According to the tests established in the two reported eases to
which I refer, the office of commissioner of loans, as it now exists, -
is a county office, because its incumbent is appointed for a particu-
lar county, and must reside and perform its duties within its boun-
daries. Considering that the officer was called a county officer in
the several statutes creating the office, and the classification in the
Revised Statutes, which, it is presumed, was known to the conven-
tion and the people, I think that it was an office intended to be
embraced within the words “ county officers.”

It is also evident from a perusal of the Constitution and a refe-
rence to the contemporaneous history of the State, that one of the
prominent reforms contemplated was the decentralization of politi-
cal power by removing the appointment of officers from the central
authorities and transferring it to the people of the several locali-
ties where the officer was placed. I think this intention is
expressed with sufficient clearness in reference to the office of Loan
Commissioners, as it now exists, and I am, therefore, of the opinion
or THE State or New York. 261

that the Governor and Senate have not the power under the Con-

stitution to appoint these officers."
LYMAN TREMAIN,
Attorney-General.

STATE OF NEW YORK:

ATTORNEY-GENERAL’ OFFIOE,
March 3, 1858.

To the Assembly of the State of New York:

I have received from the Assembly the following resolution ;

“On motion of Mr. Crain,

“Resolved, That the Attorney-General be and he is hereby
requested to furnish to this House at an early day his opinion as to
whether there is anything in the Constitution or laws of this State
requiring that a member of Assembly should be a resident of the
Assembly district from which he is elected at the time of the
election.”

And in reply I have the honor to submit the following
opinion :

A disqualification to hold any particular office should be expressed
in explicit terms either in the Constitution or laws of the State, or
follow by necessary implication from what is declared. Whenever
residences in the locality from which the officer is to be elected is
chosen is essential, it is usually declared to be a necessary qualifica-
tion, in unequivocal language. Thus we have a statute providing
that no person shall be eligible to any town office unless he shall be
an elector of the town for which he shall be chosen. This pro-
vision, of course, renders it necessary that he should be a resident
of the town at the time of his election.

In the case of sheriffs, clerks of counties, district attorneys, judges
of county courts, recorders of cities, and other officers particularly
named in the statutes, they are required to reside within the cities
or counties for which they shall be respectively appointed or elected.

We have also a general statute declaring that no person shall be

1 The learned Attorney-General has evidently overlooked the able opinion to.
the contrary of Attorney-General Jordan (ante, p.194).
962 OPINIONS OF THE ATTORNEYS-GENERAL

capable ot holding any civil office in the State unless at the time
of his election or appointment he shall have attained the age of
twenty-one years, and shall be a citizen of this State.

It is further provided by general statutes that any office shall
become vacant whenever the incumbent shall cease to be an inhabi-
tant of the State; or if the office be local, of the district, county,
town or city, for which he shall have been chosen or appointed, or
within which the duties of his office are required to be discharged.

The Constitution provides for the apportionment of the members
of the Assembly among the different counties, according to the
number of inhabitants; but seems to be entirely silent in reference
to the qualifications of such members in regard to residence, or in
any other particular, nor is there any statute of this State that I
have been able to discover, providing, as in the case of town offi-
cers and certain county officers, that the member of Assembly shall
reside within the district for which he shall be elected.

It is well known that under the act of 1821, providing for hold-
ing a constitutional convention consisting of delegates, equal in
numbers with the members of Assembly, and to be elected in the
same manner that at least one distinguished member of the con-
vention was elected from a county of which he was not a resident,
and participated prominently in the proceedings of the conven-
tion. Under the act of 1845, providing for a constitutional conven-
tion, similar to the act of 1821, part of the people of Chemung
county voted for a candidate residing in another county. The
office of member of Assembly is not a local office, but on the con-
trary the duties of the office may be discharged beyond the limits
of the district from which the member is chosen. It is my opinion
that there is nothing in the Constitution or laws of this State
which prohibits the people in any Assembly district from electing
a member to represent them in the Assembly of this State who
resides in another Assembly district, providing he is of age, a citi-
zen of the State, and not otherwise disqualified.

LYMAN TREMAIN,
Attorney-General.
or rue Srare or New York. 263

- STATE OF NEW YORK:

ATTORNEY-GENERAL’s OFFICE, |
Aupany, March 22, 1858.

Lo the Assembly of the State of New York:

I avail myself of the earliest interval afforded to me, amid other
engagements and ill health, to answer the inquiry of the Assembly
concerning streams of water which have been declared public high-
ways, of which the following is a copy:

“On motion of Mr. Hall, the following preamble and resolution
were adopted:

“ Whereas, Most of the streams in the timbered sections of this
State were, in the several surveys made thereof, disregarding in the
divisions of the different tracts into lots, computed at so many acres
of land; and,

“Whereas, Such lots have been conveyed by letters patent to
private individuals for a valuable consideration, thereby vesting in
such individuals the entire and exclusive rights to such streams;
and,

“ Whereas, It has been usual for the Legislature to enact laws
declaring such streams public highways, thereby taking private
property for public use, without compensation, and without any
notice to the owners of such streams; and,

“ Whereas, The history of legislation shows that, in such cases,
the first step is a declaration of a stream to be a public highway,
the second step an appropriation to improve the same, and the
third step, claims ‘ad infinitum’ on the State treasury, to pay the
liabilities of the State for damages resulting from such use of such
streams; therefore,

“ Resolved, That the Attorney-General be requested to report to
this House his opinion as to the constitutionality of laws making
such streams public highways. .

“ By order.

“DAVID WILSON, Clerk.”

‘The preamble and resolution are not remarkable for the clearness
and certainty with which they refer to the acts of the Legislature,
upon the constitutionality of which my opinion is desired. They
do not specify the laws, either by their titles or the years in which
264 OPINIONS OF THE ATTORNEYS-GENERAL

they were passed; the names of the streams are not furnished, nor
is their location given, except in the general description, that in
former surveys they were found among the timbered sections of
this State; nor is this difficulty obviated by any statement of the
uses to which the streams were capable of being applied in a state
of nature, which will be found essentially necessary to form an
intelligent opinion upon the question submitted. I refer to this
want of precision as my apology for not communicating a categori-
cal answer to this resolution, and as a reason for expressing to the
Assembly the leading doctrines and principles applicable to all
kinds of water-courses, hoping that this will enable the Assembly
to arrive at a satisfactory conclusion upon the question involved.

By the common-law of England, which is in force in this State,
all rivers, streams and water-courses are divided into the three fol-
lowing classes :

1st. In this class are included all navigable publie rivers. The
word navigable, however, must be understood in its technical, and
not in its ordinary sense. By the civil law, as well as in common
parlance, navigable rivers mean those rivers which are boatadle, or
capable of being employed in transporting property for purposes
of commerce. According, however, to the common-law, the word
navigable river is confined exclusively to such public rivers as are
subject to the ebb and flow of the tide from the ocean; and are,
therefore, frequently called arms of the sea.

2d. In this class are embraced those rivers or parts of rivers as
are above tidal influences, but are capable of being used in a state
of nature without artificial structure, as public highways, with boats,
rafts, and floats for purposes, in the sense in which that term is
understood in the common-law.

3d. This class embraces those shallow streams which are not
subject to the ebb and flow of the tide, and are not capable of
being employed for boating purposes in the sense in which that
term is understood in the common-law.

The Hudson river has been appropriately mentioned as furnishing
at different points between its source and its mouth, a good illus-
tration of each of the kinds of water-courses herein before classified.
Thus, from the ocean as far up as the tide ebbs and flows, it is a
public, navigable river, according to the common-law sense of the
oF THE STATE or New York. 265

term. From that point, still further up above the influence of the
tide, to where it ceases to be boatable, it illustrates the second class
of streams. From that point to its head waters, it belongs to the
third class, and is exclusively private and owned by the riparian
proprietors.

The interests of the public and of the owners of the soil, over
which these streams flow, vary essentially, according to the class of
water-courses to which they belong. ¢

It is believed by the Attorney-General that the resolution of the
Assembly has no reference to public navigable rivers, because it is
not supposed that the lands forming the beds of such rivers have
been treated in the manner mentioned in the preamble; and,
because, also, the rights of the public in such rivers are familiar,
and generally understood. It is sufficient to say of this class of
rivers, that the soil forming the bed of the river, as well as the use
of the water itself, belongs exclusively to the public.

The second class of rivers or water-courses is governed by diffe-
rent principles. The riparian proprietors own the soil to the
center; or, as it is technically termed, the thread of the stream,
subject, however, to an easement or servitude for the benefit of the
public. The public have aright to pass and repass upon these
waters, using them as a public highway for purposes of transpor-
tation of property and of commerce.

Efforts have been made in this country, and in some instances
with partial success, to modify the doctrine of the common-law,
applicable to this kind of rivers. It has been claimed by the advo-

-eates for the relaxation of the common-law rule, that the common-

law of England is inapplicable to the large fresh water rivers of
this country, and that, as to such rivers the ebb and flow of the
tide should not be regarded as the true test, by which they are to
be deemed navigable rivers.

That it has been adjudged in the States of Pennsylvania, North
Carolina, and Alabama, that this class of fresh water rivers is gov-
erned by the same rules that prevail in reference to rivers which
are subject to the tide from the ocean, and that the riparian propri-
etors are excluded from all right in the bed of the ocean.

Eminent jurists in this State have, from time to time, expressed
a disposition to relax the common-law rule in its application to
966 OPINIONS OF THE ATTORNEYS-GENERAL

large fresh water rivers; but it must now be deemed definitely and
deliberately settled, by the repeated judgments of our highest judi-
cial tribunals, in favor of the common-law doctrine and the rights
of the riparian owners.

In reference to this class of rivers or water-courses, it is not per-
ceived that an act of the Legislature, declaring them to be public
highways, is liable to any constitutional objection. Independent
of any such legislative enactment, they were already known in the
old law as public highways by water. The legislative declaration,
therefore, simply proclaims an existing, established truth. Such
proclamation by the Legislature would confer no new right upon
the public, nor would it warrant any invasion of the rights belong-
ing to the riparian proprietors.

The people of a sovereign State, acting through the Legislature,
would possess by virtue of the right of eminent domain the right
to take possession of the rights and property of the riparian pro-
prietors in this class of streams, and appropriate them to the public
use; provided the Legislature, in the exercise of its discretion,
should conclude that such appropriation was required by the public
interest. It must, however, be borne in mind that this right of
eminent domain is controlled and regulated by those familiar pro-
visions of the Constitution of the United States and Constitution
of the State of New York which prohibits the taking of private
property for the public use without just and adequate compen-
sation. ;

If the Legislature, in taking possession of such rivers or streams,
after its declaration that they were public highways, should merely
conform itself to reasonable and proper efforts to increase the facili-
ties for navigating such rivers and streams, and thereby facilitate
communication between the inland portions of the State and our
maritime cities, without at all interfering with the rights of the ripa-
rian proprietors to erect mills upon the banks of the stream, or to
enjoy such other privileges as belong to them, subject to the public
easement, I do not think that such action on the part of the State
would violate any constitutional provision. If, however, the act.
of the Legislature should pass beyond the boundary here indicated,
and authorize an invasion upon or seizure of the rights and pro-
perty of the riparian owners, without their consent, and without
oF THE SrvaTH or New York. 967

making provision for just compensation, such act of the Legislature
would be wholly unauthorized and unconstitutional. From what has
already been said, it will be seen what my opinion is in relation to the
third class of streams. These, and the soil over which they flow,
belong to the riparian owners, free from any servitude, partaking
of the character of a public highway. Any act of the Legislature
declaring them to be public highways, and authorizing their sei-
zure for the public use, against the consent of the owner, and with-
out providing adequate compensation, would. be unauthorized by
the Constitution and void. Nor could possession, taken under such
legislative action, change such stream into a public highway, unless
the owner should acquiesce in the use of such stream as a public
highway, under an adverse claim for a sufficient length of time, to
bar his right and authorize the presumption of title by user.’

It is believed by the undersigned, that the general principles
stated in this communication will enable your honorable body,
with the aid of the facts in the possession of the Assembly, but
not communicated to me, to apply satisfactory tests to the acts of
the Legislature intended to be referred to in the preamble and
resolution sent to me. 2

Reference is made in that preamble, to claims presented against
the State for damages resulting from such use of the streams, as
followed the appropriation for their improvement. The Assembly
will pardon me for suggesting, that if these claims are made on the
ground of a want of skill and care on the part of the State,
authorized in the erecting or maintaining such improvements, or
by reason of changes made in the natural flow of the stream, by
reason thereof, such claim, if otherwise well grounded, could scarcely
be impaired, because the action of the State and its agents was
unwarranted and unconstitutional. If such action was proper and
authorized, the claim would rest on the duty imposed upon the
State of so using its own as not to injure the property of another;
if otherwise, however, the claim would be strengthened rather than

1 This opinion is fully sustained by the case of Morgan v. King (85 N. Y., 454).
968 OPINIONS OF THE ATTORNEYS-GENERAL

weakened, by the consideration that the acts causing the damage
were wholly wrongful, illegal, and unconstitutional.
All of which is respectfully submitted.
LYMAN TREMAIN,

Attorney-General.

STATE OF NEW YORK:
OrFicr of THE ATTORNEY-GENERAL, |
Axpany, April 28th, 1858.
Hon. Wr1am Winton, Mayor of Syracuse :

Dear Sm.—I have the honor to acknowledge the receipt of
your favor of the 26th inst., communicating to me the resolutions
adopted by the common council of Syracuse, asking for my opinion
as to the constitutionality of the ninth section of the act recently
passed by the Legislature of this State, to amend the charter of the
city of Syracuse. Such an opinion can hardly be regarded as fall-
ing within the line of my official duties, yet my high respect for
the source from which the inquiry emanates, has induced me to
furnish it.

The ninth section changes the former boundary of the city of
Syracuse, by cutting off, as I learn, a portion of territory upon the
eastern side, and declaring that such territory shall form a part of
the town of De Witt. It is also represented to me, that the terri-
tory thus cut off is transferred, by this act, from one Assembly
district of the county of Onondaga to another, and that there were,
at the time of the passage of such act, several duly qualified elec-
tors of this State residing thereon.

Article 3, sections 4 and 5 of the Constitution of this State pro-
vides that, in 1855, and every ten years thereafter, the members of
Assembly shall be apportioned among the several counties of this
State, and the counties shall be divided into Assembly districts, in
the manner therein provided. The division of a town in the
formation of such districts is prohibited, and it is declared by sec-
tion 5 that the districts so to be made shall remain unaltered, until
another enumeration shall be taken under the provisions of the
preceding section.
or THE STATE or New York. 269

The ninth section makes no reservation in favor of the Assembly
districts then existing, but it is an absolute and unconditional man-
date, and in determining its constitutionality it must be construed
according to its obvious language and intention without disregard-
ing or interpolating conditions not expressed. It seems to me that
upon this rule of construction, this ninth section attempts to alter
the Assembly districts of your county, and is therefore unconsti-
tutional.

If this act can be upheld, I see no limit to the power of the
Legislature to break up the existing boundaries of Assembly dis-
tricts in the State. The effect of such legislation would be to
introduce great confusion into such districts and disturb the sta-
bility which it is the purpose of the Constitution to preserve.

Tt has been adjudged in the sixth judicial district that an act of
the Legislature transferring a town from one judicial district to
another, at any other session of the Legislature than that which
succeeds the enumeration under the Constitution, is unconstitu-
tional, because it conflicts with section 16 of article 6 of the
Constitution. I think this decision must. be regarded as determin-
ing the laws of the State until reversed by the Court of Appeals;
nor am I able to distinguish the case upon principles from the case
you present to me.

I am aware it may be claimed, and indeed in a communication
which I have received from a highly esteemed friend in Syracuse,
it is said that the Assembly districts are not altered; but the only
effect of the change in the boundaries will be, that those who are
eut off from the city and annexed to De Witt will not be able to
vote until a new apportionment is made.

This opinion must, of course, proceed upon the assumption that
the old lines of the Assembly districts must be regarded and
treated as still existing, and the amended charter must be construed
as if this condition had been expressed in the act. In this opinion
I cannot concur. I read the act as I find it, without any such pro-
viso or condition. It must stand or fall, according to its terms.
‘But, even if such a construction could be adopted, in order to
uphold the law would it obviate all objections on the score of its
unconstitutionality? Under existing laws the boundaries of elec-
tion districts are fixed and settled in cities by the common council,
270 OPINIONS OF THE ATTORNEYS-GENERAL

and in town by the town officers; both cities and towns being con-
fined to their own territory in the formation of such districts.

Suppose we attempt to carry out the theory that, while the
boundaries of the town and city are properly changed, yet the
Assembly district remains unchanged.

A voter residing in the exscinded territory desires to vote, say
for a member of Assembly, where shall he go? If he goes beyond
his own town and presents himself in the city district, he is met by
the objection that he neither resides in the election district nor in
the city, and is not entitled to vote without subjecting himself to an
indictment for misdemeanor, and if he swears in his vote, for
perjury.

If he goes to the town of De Witt, he finds that he cannot vote,
because the law only provides one Assembly ballot-box,, and that is
for the assemblyman who is chosen from another district besides
that in which the elector resides (assuming, for the purpose of the
argument, that he still resides in his old assembly district). If
this construction should be rendered necessary, then it seems to me
the act would be invalid, because it disfranchises citizens who are
entitled to vote, and thus conflict with section 1, of article 2, of the
Constitution.

“Every male citizen of the age of twenty-one years, who shall
have been a citizen for ten days, and an inhabitant of this State
one year next preceding any election, and for the last four months
a resident of the county where he may offer his vote, shall be enti-
tled to vote at such election in the election district of which he shall
at the time be a resident and not elsewhere, tor all officers that now
are or hereafter may be elected by the people. But such citizen
shall have been for thirty days next preceding the election a resi-
dent of the district from which the officer is to be chosen for whom
he offers his vote.”

Without intending to express any opinion upon the power of the
Legislature to pass a law changing the lines of assembly districts
for certain limited purposes, providing means at the same time for
all the citizens affected by such alteration to exercise the elective
franchise, ] am constrained to believe that a law which deprives an
elector necessarily of the right to vote, according to the provisions
of the Constitution and the existing laws, and which furnishes no
or THE STaTE or New York. 271

‘means to vote, in lieu of those now enjoyed, cannot be
upheld.

In answer to your question I would add, that if the ninth section
is void for the reasons hetein indicated, the other sections of the
act would not be invalidated thereby, because they are wholly
separate from that section as to subject-matter, and would not be
affected by its cancellation. :

In the view I have taken, I have not deemed it necessary to
inquire whether the act in question comes in collision with the
16th section, of article 3, of the Constitution.

I have thus frankly and freely communicated to you my impres-
sion adverse to the law under consideration. I cannot avoid, how-
ever, expressing to you my own hesitation and distrust in this
opinion, arising, not so much from the nature of the questions
involved, as from my respect for the Legislature and Executive
departments of the State government, by whom the act seems to

have been approved!.
Yours, very truly,

LYMAN TREMAIN.

Aupany, October 26, 1858.
Hon. Lyman Tremain:

Sm.—Having been nominated by the American convention held
at Clarksville on the 12th inst., for the office of justice of sessions
of Albany county, I most respectfully ask your opinion as to my
being eligible to that office under the statute relating thereto. I
am now acting justice of the peace of the town of Watervliet, by
virtue of an election for a full term of years, which term will expire
on the last day of October next, and was also re-elected to the

same office in April last, for the full term commencing on the first
day of January, 1859.
Respectfully yours,

JAMES REMINGTON.

1The views of the learned Attorney- coe were sustained by Court of Appeals.
(See Kline v. City of Syracuse, 3 Keyes, 11 :
272 OPINIONS OF THE ATTORNEYS-GENERAL

OFFICE OF THE ATTORNEY-GENERAL,
Axxzany, October 26, 1858.

Hon. James Remeron : .

Srr.—I have received your favor asking for my opinion as to
your eligibility to the office of “justice of sessions.”

By the fortieth section of chapter 180 of the Laws of 1847, it
was provided that at every general election held thereafter, two
justices of the peace should be designated in each county, except
the city and county of New York, to hold Courts of Sessions in
their respective counties. During the same year another act was
passed! containing the following section :

“There shall be no designation of justices under the fourth sec-
tion of said chapter (referring to chapter 280 aforesaid) at the gene-
ral election in the year one thousand eight hundred and forty-eight ;
every justice hereafter so designated shall be a member of the
Court of Sessions for one year, commencing on the first day of
January next after his designation; and no justice shall be so desig-
nated until he shall be entitled to serve asa justice of the peace
during such year by virtue of the election under which he shall be
acting as such justice at the time of such designation.”

Under this law two conditions are essential ; first, that the per-
son designated shall be acting justice at the time of his designation ;
and, second, that the election by virtue of which he shall be an
acting justice at the time of his designation shall entitle him to
serve for one year from the first of January next succeeding such
designation.

In your case only one of these qualifications exists. You would
be an acting justice at the time of your designation as justice of
sessions; but inasmuch as the term of office under which you
would be acting at that time would expire on the first of January
thereafter, you are not, in my opinion, eligible to the office.

Yours, very truly,
LYMAN TREMAIN.

1 Section 84, chapter 470, Laws of 1847 (4 Edmonds’ ed., 587).
or THE State or New Yorn. 273

In toe Marrer or tHE Application or Exr anp James W. Wu

SON AND OTHERS, FOR Reiease or Tire.
‘i

Lo the Hon. the Commissioners of the Land Office of the State of
New York.
The portion of the canal to which this controversy relates, hav-

ing been declared abandoned by the canal board, conflicting claims
are presented to the Board of Commissioners of the Land Office
for a grant of such abandoned canal, under chapter 267, of the
Laws of 1857. On the one hand, Eli and James M. Wilson, being
heirs-at-law of Eli Wilson, who was the owner of the lands when
the State appropriated them, ask for a grant. On the other hand,
other parties, who have derived title from said Wilson to the lands
along said canals, claim a release or grant. It appears that the
grant or conveyances made by the heirs of Eli Wilson are bounded
on the banks of the canal, and do not, therefore, in terms, cover
the bed of the canal.

The statute in question is loosely drawn; and it becomes neces-
sary, in order to decide between the claimants, to put a construction
upon it.

That, upon an appropriation of lands by the State for a canal,
the State becomes the owner in fee simple, and that, after such an
exercise of the right of eminent domain, the title to the lands would
not revert to the original owner upon the abandonment of their use
for the purposes of a canal, are propositions determined by the
Court of Appeals in Rexford v. Knight (1 Kern., 308), and in
Hayward v. The Mayor, ete., of New York (8 Seld., 314).

While the title thus remains in the State, there could be no
“heirs” or “grantees” of such lands; and, hence, it would be
impossible to give any effect to those words in the first section of
the act. It is, however, incumbent upon those who are required to
put a construction upon any statute to give meaning and point, if
possible, to every word of the statute, and, for this purpose, to look
at the whole of the act, and to the circumstances under which it was
enacted. That it was the intention of the Legislature to give a
preference to those persons whose lands joined the canal, is appa-
rent from the language of the second section. It was eminently

proper that such persons should have a preference. With sucha
18
274 OPINIONS OF THE ATTORNEYS-GENERAL

purpose, the Legislature could not have intended to direct and
require a grant of a strip of land to a person who had no interest
in the adjoining lands. Such an owner would not, like the State,
be under any obligation to maintain the bridges over such canal ;
and the owner of the farm through which the abandoned canal
passes would be a trespasser every time he crossed it in passing
from one part of his farm to the other. “Would it be reasonable to
impute such a purpose to the Legislature ?

The first part of section one authorizes, generally, a grant of the
abandoned canal, without any limitation as to the persons to whom
such grant should be made. The word purchase, there used,
covers all cases where the State acquire title to such lands, whether
with or without the payment of money. Such is the legal signifi
cation; and the subsequent language shows that such was the sense
in which it was used. The subsequent part of the same section is
permissive merely, and authorizes a release on such terms as may be
deemed for the interest of the State, in cases where nothing had
been paid by the State to the original owners, their heirs, grantees,
or assigns. The only restriction, in reference to the persons to
whom the grant shall be made, is contained in section two, which
provides that preference shall be given to the original owners of
the abandoned canals, their heirs or assigns, who may be the owners
of the lands adjoining thereto. The heirs of the original owner are
not entitled to this preference, because they are not the owners of
the lands adjoining the canals. I have arrived at the conclusion
that the Commissioners of the Land Office have full power, in this
case, to grant the interest of the State in the abandoned canals to
the grantees of the original owner of lands adjoining the canals;
and that the heirs of the original owners have no preference what-
ever over such grantees.

'

LYMAN TREMAIN,
Attorney-General.
oF THE StaTE or New York. 275

The Attorney-General, to whom was referred the following reso-
lution:

‘“‘Sratze or New Yorx,
“SunaTte CuamBer, January 21, 1859. }

“ Teesolved, That the Attorney-General be requested to furnish
the Senate with his opinion upon the following points:

“First. Whether the act abolishing tolls on railroads, passed July
10, 1851, was of a character requiring its passage by a majority of
all the members elected to each House, when a three-fifths quorum
was present.

“Second. Whether said act appropriated public moneys or pro-
perty in such a sense as to require, for its constitutional validity, the
assent of two-thirds of the members elected to each branch of the
Legislature.

“Third. Whether said act does not conflict with sections 1, 2, 3.
and 6 of article 7 of the Constitution.” +

Respectfully submits this opinion :

On examining the journals of the Senate and Assembly for the
year 1851, it will be discovered that the act abolishing tolls on rail-
roads, passed July 10, 1851, was passed (the ayes and noes being
entered upon the journal) by a vote, in the Senate, of twenty-two
to five, and, in the Assembly, by a vote of eighty-one to sixteen.

‘(Journal of the Senate of 1851, page 909; journal of the Assembly
of 1851, page 1657.) .

It appears, however, from an inspection of the law, as published
in the statute book, that, in the publication of the law, the Secre-
tary of State did not add the words, “three-fifths being present ;”
and tliat leads to the inquiry, whether such omission would invali-
date the law, provided it belongs to that class of acts which require
for their passage a quorum of three-fifths of all the members elected
to each House to be present on their final passage. The act of the

. Legislature of 1847 is as follows: ,

1 The question as to constitutionality of this act was settled in the case of The
People vy. N. Y. C. R. RB. Co. (24 N. Y., 485). The then Attorney-General Myers,
whose opinion, contra, is to be found, post, page 311, appeared for the plaintiff, and
Mr. Tremain for the defendant. Only the last point discussed in this opinion
appears to have been insisted on. The act is declared constitutional. As this
question was of such importance, and excited so much interest at the time, both
opinions are given.
276 OPINIONS OF THE ATTORNEYS-GENERAL

“ No bill shall be deemed to have been passed, when three-fifths
of all the members elected to each House were present on the final
passage thereof, unless so certified by the presiding officer of each
House; and in the publication of every law, in all cases where a bill
is certified by the presiding officers as having been passed in the
presence of three-fifths of all the members elected to each House,
the Secretary of State, after stating when the bill became a law,
shall add the words, ‘ three-fifths being present.’” (Laws of 1847,
chap. 253, §1.);

“The addition of the words, ‘three-fifths being present,’ shall be
presumptive evidence that the bill was certified by the presiding
officers.’ (Same chap., § 32.)

It is now well settled, by the adjudication of the courts of this
State, that this statute affords merely a rule of evidence, by which
the publication of the law in the statute book, under the direction
of the Secretary of State, with the requisite addition, shall be przma
facie evidence that it was constitutionally passed, but that the
statutory directions are directory merely ; and if the law was actu-
ally passed by the constitutional vote, the act does not become
invalid by reason of the omission, on the part of either the presiding
officers of the Senate and Assembly, or of the Secretary of State,
to give the required certificates. Under the former Constitution of
this State, a law similar in all respects to the act of 1857 was passed
in reference to laws which required the assent of two-thirds of the
members elected to each House; and, under this law, it was fre-
quently held, by the Supreme Court, that the validity of the law
depended, not upon the presence or absence of the certificate, but
upon the fact whether it received the votes of the requisite number ;
and, to ascertain this, the judges were accustomed to examine the
journals of the Legislature. (See the cases of De Bow v. The
People, 1 Denio, 9; Commercial Bank of Buffalo v. Sparrow, 2
id., 97; Thomas v. Dakin, 22 Wend., 103; People v. Purdy, 2
Hill, 31; 4 id., 384.) This question came before the Court of
Appeals, under the law of 1847, and was settled in favor of the
right to examine the journals and the validity of the law constitu-
tionally passed, but not duly certified, in the case of Zhe People v.
The Supervisors of Chenango (4 Seld., 329). I quote the following
extract from the unanimous opinion of court: “ Although the act of
or THE STATE oF New York. Q77

May 18, 1847, page 276, directs the presiding officers of each House,
when a bill requires for its passage a quorum of three-fifths of all
the members elected to each House to be present on the final pas-
sage thereof, to certify to such fact, yet it makes the certificate only
presumptive evidence of the fact contained in it. Hence, a bill,
certified to be passed when the requisite quorum was present, may
be shown, under proper pleadings, to have been passed when three-
fifths were not present. On the same principle, if the proper offi-
cers have failed to give the certificate, the fact that three-fifths were
present when it was passed may be shown from the journals or other
evidence of an equally satisfactory character.”

The act of 1847 does not make the certificate, or the want of one,
conclusive, but only presumptive evidence. On a reference to the
journals of both Houses, it appears that, in the present case, there
was the quorum of three-fifths present in each House on the final
passage of the act. The act was thus passed in full compliance with
the Constitution, even if we admit that a quorum of three-fifths
was indispensable. It is not competent for the Legislature to make
the failure of its officers to append the proper certificate defeat the
provisions of the Constitution. Such would be the effect of the act
if the want of the certificate was made conclusiwe evidence that
three-fifths were not present when the final vote was taken. The
Constitution has clothed the Legislature with no such.power. And
in the present instance, they have not arrogated to themselves any
such power.

It appears, therefore, that the act, to which the resolution of the
Senate refers, was passed when a quorum of three-fifths of all the
members elected to each House was present, and that more than
that number of votes were cast in favor of the bill.

It is believed by the Attorney-General that the Senate does not
desire an examination on his part, or the expression of an opinion
by him, in reference to a mere abstract proposition; and that the
first question presented in the resolution was the result of a belief
by the Senate that the law therein referred to was obnoxious to the
objection that a quorum of three-fifths was not present on its final
passage. Entertaining these views, it has seemed to me proper to
withhold my opinion upon the first inquiry in the resolution until
978 OPINIONS OF THE ATTORNEYS-GENERAL

I am informed by the Senate that my views upon it are still desired ;
in which case it will afford me pleasure to furnish it.

The remaining questions presented to me are of a grave charac-
ter, and involve a wide range of investigation. ‘They require my
opinion upon the validity of a law which, after having passed through
all the forms of legislation, has been acquiesced in by the State and
the parties interested for more than seven years. Under this lawa
vast amount of revenue that, but for its passage, would have been
paid into the treasury of the State, has been withheld by the cor-
porations interested. The examination required at my hands ren-
ders it necessary to consider the effect of the financial article of the
State Constitution, and the power of the Legislature to authorize
the construction of new lines of communication, or the use of those
already established, in such a manner as may divert from the canals
of the State property that would, but for these lines, be likely to
seek a transit upon the said canals. I have given these questions
all the consideration which it has been in my power to bestow upon
them, and submit herewith the result of my deliberation.

The act abolishing tolls upon railroads, although brief, is compre-
hensive. It consists of three sections; the first of which releases
all railroad companies from the duty of paying any sum of money
into the treasury of the State for the transportation of property on
any railroad on and after December 1, 1851; the second releases
them from the duty of making monthly statements to the Comp-
troller of the property carried; and the third repeals all laws con-
flicting with this act.

By an act of the Legislature, passed May 12, 1847, the Albany
and Schenectady, the Troy and Schenectady, the Syracuse and Utica,
the Auburn and Syracuse, the Auburn and Rochester, the Tona-
wanda, the Attica and Buffalo, and the Oswego and Syracuse rail-
road companies were required to make returns of the property
transported upon such roads, and to pay the same tolls into the
treasury of the State as would have been paid on the property
transported by said railroads, from the point of receipt to the point
of delivery, had it been transported on the Erie canal. The first
section of this act authorized the Utica and Schenectady Railroad
Company to take and transport upon their railroad all goods, chat-
tels, and other property that might be offered for transportation.
or THE STATE or Naw Yor, 279

This company was chartered in the year 1833, and was prohibited
by its charter from the transportation of all property except the
ordinary baggage of passengers. By the charters of the other com-
panies, they were allowed to transport property, in some instances,
' without payment of tolls, and, in others, were required to pay tolls
either during the whole year or during the season of canal naviga-
tion. The provisions of their several charters, in reference to this
subject, will be found concisely and accurately stated in the report
of the Senate committee which accompanies the bill abolishing State
tolls on railroads. (See Senate Documents of 1851, No. 86.)

Sections 1, 2 and 3 of article 7 of the Constitution, referred to in
the resolution of the Senate, need not be recited in this opinion.
It is sufficient for the purposes of this communication to say, that
they provide for the appropriation and application of the “surplus
revenues of the State canals,” after paying the expenses of collec-
tion, superintendence and ordinary repairs, for the purpose of extin-
guishing the canal debt and the general fund debt, and of complet-
ing the Erie canal enlargement and the Genesee Valley and Black
River canals. To accomplish these objects, sinking funds, to be
supplied from those revenues, were created, the principal and income
of which were to be sacredly applied to these objects. The finan-
cial history of the State discloses the fact that the charges upon
these funds, created by the Constitution, are not yet extinguished,
and that the present “surplus revenues of the, State canals” are
entirely inadequate to accomplish the purposes which they were
designed by the framers of that instrument. This brings me to the.
consideration of the question, whether these financial provisions of
the Constitution prohibited the Legislature from releasing the rail-
road companies mentioned in the act of 1851 from the future pay-
ment of tolls upon property transported upon their roads.

It will be conceded that, if they do thus operate, it is a prohibi-
tion by implication merely. The Constitution does not, in terms,
restrain the Legislature from authorizing the construction or use of
rival channels of communication from the lakes to tide waters that
may divert property that might and would otherwise be transported
upon the canals, and would thereby increase the “surplus revenues”
provided for by the Constitution.

Neither the State, nor the creditors of the State, holding obliga-
980 OPINIONS OF THE ATTORNEYS-GENERAL

tions to the payment of which the surplus revenues of the canals
might be pledged, could have any greater or better right to com-
plain of the act of 1851 than would an incorporated company to
which the canal and its future revenues might have been granted,
either by a constitutional or legislative enactment, under a perpetual
charter empowering such company forever to hold, manage and enjoy
the canals and their revenues. Such a charter would have been a
contract between the people, of the one part, and the company, of
the other. The Constitution of the United States would have pro-
hibited the Legislature from passing any law impairing the obliga-
tion of such a contract. The true test, it seems to me, of the
constitutionality of the act in question, is, whether such a
company, thus chartered, could restrain the execution of the
law.

There are cases to be found in the books; cases which, at an early
period, received the sanction of the courts in this State, and were
sustained by that eminent jurist, Chancellor Kent, adopting a lati-
tudinarian view of this question, and encroaching largely upon
legislative power. This view is thus expressed by the learned
chancellor, in his Commentaries:

“Tf the creation of the franchise be not declared to be exclusive,
yet it is necessarily émplied in the grant, as in the case of a grant of
a ferry or a bridge, turnpike or railroad, that the government will
not, either directly or indirectly, interfere with it so as to destroy
or materially impair its value. Every such interference, whether it
be by the creation of a rival franchise or otherwise, would be in
violation, or in fraud, of the grant. All grants or franchises ought
to be so construed as to give them due effect, by excluding all con-
tiguous competition which would be injurious and operate fraudu-
lently upon the grant.”

This doctrine, however, that the legislative power of a sovereign
State, in the creation of new roads, can be tied up by implication,
has been, in more recent cases, entirely overthrown; and Chan-
cellor Kent concedes that it has been completely subverted. (38
Kent’s Com., 459, note.)

The question came before the Supreme Court of the United
States, and was elaborately discussed in the great and leading case
of The Charles River Bridge v. Warren Bridge et al. (11 Peters’
or THe State or New Yorn. 981

Reports, 240). The history of that celebrated case, and the deci-
sion of the court, is this:

A company had been incorporated by the Legislature of Massa-
chusetts to build a bridge over the Charles river, from Charlestown
to Boston, under a charter which was originally for forty years, but
was afterward extended to seventy years, with authority to receive
tolls, and subject to the payment of $200 a year to Harvard College
during the continuance of the charter. The bridge was built by
the company, and the corporation received the tolls allowed by the
law, always keeping the bridge in order, and performing all that
was enjoined on them to do. During the existence of the charter
the Legislature incorporated another company for the erection of
the Warren bridge over the same river, commencing and termina-
ting near the same points where the Charles river bridge commenced
and terminated. This bridge was to become free after a few years,
and had become free. Passengers who had formerly passed over
the Charles street bridge now passed over the Warren bridge, and
the value of the franchise granted to the former company had
become entirely destroyed.

The proprietors of the Charles river bridge filed a bill for relief
against the proprietors of the Warren bridge, and claimed that the
act of the Legislature authorizing the building of the Warren bridge
was an act impairing the obligations of a contract, and, therefore,
repugnant to the Constitution of the United States. The Supreme
Court of Massachusetts dismissed the bill of the complainants, and
the judgment of the court was affirmed by the Supreme Court of
the United States.

The argument of Chief Justice Taney, who delivered the opinion
of the court, is a powerful and masterly vindication of the legisla-
tive power of a State against the loose doctrine of a surrender by
implication. The arguments of the court seem to me quite perti-
nent and conclusive upon the question under consideration. The
chief justice says:

“But the object and end of all government is to promote the
happiness and. prosperity of the community by which it is esta-
blished; and it can never be assumed that the government intended
to diminish its power of accomplishing the end for which it was
289 OPINIONS OF THE ATTORNEYS-GENERAL

created. And in a country like ours, free, active and enterprising,
continually advancing in numbers and wealth, new channels of
communication are daily found necessary both for travel and trade,
and are essential to the comfort, convenience and prosperity of the
people. A State ought never to be presumed to surrender this
power, because, like the taxing power, the whole community have
an interest in preserving it undiminished. The community have a
right to insist, in the language of this court above quoted, that its
abandonment ought not to be presumed in a case in which the
deliberate purpose of the State to abandon it does not appear.”

“The whole community are interested in this inquiry; and they
have a right to require that the power of promoting their comfort
and convenience, and of advancing the public prosperity by pro-
viding safe, convenient and cheap ways for the transportation of
produce, and the purposes of travel, shall not be construed to have
been surrendered or diminished by the State, unless it shall appear
by plain words that it was intended to be done.”

The argument drawn from the Constitution would be, that the
Legislature cannot destroy the value of the canals. The same argu-
ment was used in the Charles river bridge case, and was thus
answered by the court: “The argument in favor of the proprietors
of the Charles river bridge is the same, almost, in words, with that
used for the Providence Bank; that is, the power claimed by the
State, if it exists, must be so used as not to destroy the value of the
franchise they have granted to the corporation. The argument
must receive the same answer. And the fact that the power has
been already exercised so as to destroy the value of the franchise
cannot, in any degree, affect the principle. The existence of the
power does not, and cannot, depend upon the circumstance of its
having been exercised or not.

The principles established by the court in this case have been
sanctioned in this State, both by the Supreme Court and the Court
of Appeals. (Thompson v. The New York and Harlem R. R.
Co.,3 Sandf. Ch., 625; The Oswego Falls Bridge Co. v. Fish and
others, 1 Barb. Ch., 547; Auburn and Cato Plank-road Co. v.
Douglass, 5 Seld., 444.)

If the Legislature of this State were prohibited by the Constitu-
or THE STATE or New Yorg. ‘283

tion from establishing rival lines of communication and transporta-
tion to the canals, to what extent of territory from the canals does
that prohibition extend? Is it confined within a certain distance,
or is it left to the judgment of a court to determine whether the
new line diverts trade and commerce from the canals? Does it
reach only a few miles from the blue lines upon the map embracing
the canals, or does it prevent the establishment of a road on the
southern tier, like the New York and Erie railroad? How much;
and to what extent, must the new line interfere with the canals?
These and similar inquiries will be found to arise and embarrass the
advocate for the surrender of power by implication.

A. broad line of distinction exists between the powers of the
State and the powers of the national legislature. In reference to
the latter, the amendment of the Constitution of the United States
declares that “the powers not delegated to the United States by the
Constitution, nor prohibited by it to the States, are reserved to the
States respectively, or to the people.”

In reference to the former, however, the Legislature of the State
represent the people, the source, in this country, of all political
power. To it is committed supreme authority over all the legiti-
mate subjects of legislation, excepting only the matters which the
people have withdrawn from its jurisdiction. In the language of
Judge Denio, “ Plenary power in the Legislature, for all purposes
of civil government, is the rnle. A prohibition to exercise a par-
ticular power is an exception. In inquiring, therefore, whether a
given statute is constitutional, it is for those who question its vali-
dity to show that it-is forbidden.” (Zhe People v. Draper, 16
N. Y., 543.)

It is not enough that the statute may seem to be ill-advised, inex-
pedient and unjust. It is not enough that it may impair the credit
of the State, derange its finances, or impoverish its treasury. In
the language of the same learned judge, “ There is room for much
bad legislation and misgovernment, within the pale of the Consti-
tution; but, whenever this happens, the remedy which the Consti-
tution provides, by the opportunity for frequent renewals of the
legislative bodies is far more efficacious than any which can be
afforded by the judiciary.”

To establish plank-roads, turnpikes and railroads; to regulate the
984 OPINIONS OF THE ATTORNEYS-GENERAL

powers of incorporated companies in reference to the transportation
of property and the payment of tolls; to alter and amend all char-
ters in which that right was reserved ; to raise means for the support
of government, and in so doing, to determine what property shall
bear the burden of taxation, and what shall be exempt; these are
among the ordinary and acknowledged powers of the State Legis-
lature. The act in question falls within these powers. It neither
sells nor assumes to sell or “lease or dispose of any of the canals
of this State,’ nor does it interfere with the right of the State to
manage such canals,

It does not seem to me that the act appropriates public moneys
or property for local or private purposes. Future tolls, not earned,
-and which it was competent for the Legislature to release or abolish,
cannot, in any sense, be regarded as public money or property, nor
is it appropriated for local or private purposes. They were released
upon the assumption, argued elaborately in the report recommend-
ing the passage of the law, that to impose them according to the
act of 1847, was unequal, calculated to retard the public prosperity
by preventing fair competition, and contrary to public policy.
Whether this argument was sound or fallacious, it does not become
me to say. It is enough for me to express the opinion that the law
did not appropriate public money or property for private or local
purposes.

It has seemed to me proper, in view of the magnitude of the
interests involved, and the doubts that have been honestly enter-
tained and frequently expressed upon the questions submitted to
me, to give them much reflection, and to state, at some length, the
reasons for my conclusions.

Upon the whole, I am of the opinion that the act abolishing tolls
upon railroads, passed July 16, 1851, does not conflict either with
section 6 of article 1, or with sections 1, 2, 3 and 6 of article 7,
of the Constitution.

LYMAN TREMAIN,
Attorney-General.
OF Tan STATE oF New Yorn. 285

STATE OF NEW YORE:

ArrorNEY-GENERAL’s OFFICE, }
Aupany, May 20, 1859.
Hon. Epwmy D. Morean, Governor: :

Dear Sir. —I have examined the papers submitted by you to me,
in reference to the proper place for holding a special or extraordi-
nary term of the Supreme Court, Circuit Court, and Court of Oyer
and Terminer, in and for the county of Schuyler; and in com-
pliance with your request, I send you herewith the result of my
examination. The following statement embraces all the facts that
are deemed essential in reference to the question presented.

On the 17th of April, 1854, an act was passed by the Legislature
of this State to erect the county of Schuyler, and appointing com-
missioners to examine and impartially determine and select a proper
site or sites for the court-house, jail and clerk’s office to be erected
in said county.

Section 15 of said act provided that the County Court and Gene-
ral Sessions of the Peace, and also the Circuit Courts and Courts
of Oyer and Terminer and General Jail Delivery, in and for said
county of Schuyler, should be held at the court-house to be there-
after erected in said county, in pursuance of the act, and in the
meantime the said courts should be held at such place in the county
as the supervisors should appoint.

Section 18 authorized the commissioners to determine and select
the site for the court-house, jail and clerk’s office to be erected ; to
reduce their determination to writing, and cause the same to be filed
in the office of the clerk of the county of Chemung, and to deliver
a copy thereof to the commissioners therein appointed for erecting
the public buildings. Said section 18 concludes in the following
language :

‘ Jt shall be the duty of the commissioners in the next section
named forthwith to notify the owner or owners of such premises so
selected ; and in case a good, unencumbered title, free of charge or
expense to the board of supervisors of the county of Schuyler, for
the use of the people of the said county of Schuyler for such premi-
ses, is made to the said county of Schuyler, and delivered within
twenty days after such notice to the owner or owners as aforesaid,
286 OPINIONS OF THE ATTORNEYS-GENERAL

then such determination and location shall be final and conclusive.
In case such title is not made as aforesaid, within the time aforesaid,
the said first named commissioners in this section shall be notified
of such failure, and proceedings shall again be taken by them to
make another selection in the same manner as if no previous deter-
mination had been made.

The commissioners appointed under this act selected Havana as
the site for the court-house. Some questions were raised in reference
to the legality of the action of the commissioners, arising from the
terms of the deed that had been executed for the lands selected as
the site at lavana, and from other causes that need not be particu-
larly mentioned. On the 13th of April, 1857, an act of the Legis-
lature was passed, confirming the location for the site of the county
buildings made by the commissioners, and declaring such site to be
the site for the court-house, jail and clerk’s office for said county.
This act also authorized and required the trustees of the village of
Havana to execute and deliver to the supervisors of the county,
within twenty days after the passage of the act, a deed of all rever-
_ Sionary interest in the lands that had been selected as the site for
the county buildings. These are the acts and proceedings upon
which it is claimed, on the one hand, that Havana is the proper
place for holding courts in the county of Schuyler.

It further appears, however, from the papers submitted to me,
that, after the passage of the act of 1857, and in November of the
same year, the board of supervisors of the county of Schuyler,
pursuant to the application of freeholders, resolved, by a two-third
vote, to change and remove the site for the county buildings, from
the place selected by the commissioners, in Havana, to a place
designated by the freeholders, in the village of Watkins, in said
county.

In November, 1858, the board of supervisors of Schuyler county,
by a two-third vote, again passed the resolution that had been
adopted in November, 1857, for the change and removal of the site
for the county buildings from Havana to Watkins. It is inferred,
from the recitals in these resolutions, that the application of the
freeholders, and the publication of the preliminary notice, were in
compliance with the provisions of section 6, chapter 194 of the Laws
of 1849, relating to the change of the location of county buildings.
\

or THE STATE or New York. 287

Pursuant.to the proceedings herein named, two court-houses have
been erected, one at Havana and another at Watkins. In conse-
quence of the question relating to the constitutionality of the law
erecting the county of Schuyler, no Circuit Court has been held in
that county for several years. The Court of Appeals, however,
having adjudged said law to be constitutional,! the justices of the
Supreme Court, members of the bar, and others, have made appli-
cation to the Governor to appoint an extraordinary term of the
Cireuit Court and Oyer and Terminer ; and the question arises, for
what place shall such court be appointed?

The Constitution of 1846 empowered the Legislature to confer
upon the board of supervisors of the several counties of the State
such further powers of local legislation and administration as they
should, from time to time, prescribe. (Const., art. 3, § 17.)

Pursuant to this section of the Constitution, an act passed April
3, 1849, entitled ‘‘ An act to vest in the board of supervisors certain
legislative powers, and to prescribe their fees for certain services.”
(Chap. 194 of Laws of 1849.)

Among the powers thus conferred are the power to purchase any
real estate necessary for a site for any court-house or other public
building ; the power to tix upon and determine the site of any such
buildings, where they are not already located; the power to autho-
rize the sale or leasing of any real estate belonging to such county,
and to prescribe the mode in which any conveyance shall be made;
the power to remove or designate a new site for any county build-
ings, on the conditions therein prescribed ; the power to erect neces-
sary buildings; to borrow money to be expended in the purchase
of real estate or the erection of such county buildings, and to raise
the money for such purposes by tax, not exceeding the sum of $5,000
in any one year. (§4.)

Section 6 of said act reads as follows: “The boards of supervi-
sors shall also have power, within their respective counties, to change
the location of court-houses, jails, clerks’ offices, surrogates’ and
treasurers’ offices, or other public buildings, when the distance shall
not exceed one mile, upon notice having been given, signed by at

1 This opinion was written just after decision of nia vy. The People (19 N. Y.,

41), and the learned Attorney-General was evidently misled by the head-notes, as
it does not decide the act of 1854 constitutional. (See, ante, p. 119, note.)
988 OPINIONS OF THE ATTORNEYS-GENERAL

least twelve freeholders, for six successive weeks immediately before
any meeting of such board, and specifying the new site, and pub-
lished in some newspaper printed in the county; but the power
granted in this section for the removal of public buildings, where
the distance exceeds one mile, shall not be exercised unless, at the
next annual meeting after the publication of the aforesaid notice, a
resolution shall be passed to change the site of the building or
buildings to the place mentioned in said notice, by a vote of two-
thirds of all the members elected, and then only upon said resolu-
tion being published for at least six weeks successively in some
newspaper printed in the county immediately previous to the next
annual meeting of the supervisors, when, by a vote of two-thirds
of all the members elected, the said resolution, being again passed,
shall go into effect.”

Under these provisions of the act of 1849, it will scarcely be
denied that full power existed in the board of supervisors to change
the location of court-houses and other public buildings in the county
of Schuyler, unless the acts of 1854 and 1857, herein mentioned,
have deprived them of that authority. Hence, in an able and elabo-
rate written argument, prepared by counsel, on behalf of the claim
of Havana, and submitted with the other papers, it is claimed and
insisted that, by the act of 1854, the location to be made by the
commissioners became, not only “final and conclusive,” as an origi-
nal designation or selection of a site, but that it was “final and
conclusive,” in all future time, in reference to any control over the
subject of a change by the board of supervisors of the county.

This view is ingeniously supported, and presents the principal legal
question involved in the case. It has received my careful considera-
tion; but I'am compelled to inform your excellency that I cannot
adopt this conclusion consistently with my views of well settled rules
that have been established for the construction of statutes. If this
is the correct view of the effect of the act of 1854, then, although
the county of Schuyler had raised the money by tax for the erec-
tion of the county buildings, as required by this act, yet under no
circumstances could the local legislature of the county authorize a
sale of such property or designate a new site for such county build-
ings. In other words, the county of Schuyler, alone of all other
counties in the State, was not to be regarded as a proper locality
or THE Srarn or New York. +289

for placing in the hands of the local authorities the power to remove
the site for its public buildings which was intrusted to the board of
supervisors in every other county. In my judgment, a purpose on
the part of the Legislature to establish such an extraordinary excep-
tion to the general law of the State, and evincing such a distrust
of the supervisors, who are the immediate representatives of the
people in the county, can only be inferred from the most satisfactory
and conclusive evidence. With’a view to ascertain whether such
was the intention of the Legislature, I have examined, with delibe-
ration and care, not only the act of 1854, but also, so far as I could,
the history of the surrounding circumstances.

Did the act of 1854 repeal so much of the statute of 1849 as
authorized the board in Schuyler county to remove the site for the
court-house? What is the well established rule in reference to the
repeal of statutes? It is thus stated by the elementary works, and
in adjudicated cases in our own State:

It is against the policy of the law to favor repeals by implication.
If, by interpretation, both statutes may stand together, they shall so
stand; and if two laws only so far disagree or differ as that they
may, by any other construction, both stand, they will both be
upheld; for, wherever this can be done, the rule that subsequent
laws abrogate prior ones does not apply, and the last law will not
operate as a repeal of the former. When it is not manifestly the
intention of the Legislature that a subsequent act shall control the
provisions of 4 former act, the subsequent act shall not be construed
as having such an operation, even though the words, taken strictly
and grammatically, would repeal the former act. (Smith’s Com-
mentaries on Statutory and Constitutional Construction, § 757;
Canal Co. v. Railroad Co., 4 Gill & John., 6; Bowen v. Lease, 5
Hill, 291; Willams v. Potter, 2 Barb., 316.)

It follows, therefore, that if full effect can be given to the pro-
visions of the subsequent act, consistently with the existence of the
former act, such a construction must be adopted ; and, if it is impos-
sible that both can stand together, entirely, still both must be con-
strued together, and only so much of the former statute must be
regarded as repealed as shall be deemed necessary to give full force
and effect to the later expression of the legislative will. Applying
these elementary principles to this case, to what result do they lead?

19
290. OPINIONS OF THE ATTORNEYS-GENERAL

The power to fix upon, determine, or designate a site for county
buildings, where they are not already located, and the power to
remove or designate a new site for such buildings, are powers
entirely separate and distinct in their nature, and are so treated and
classified in the act of 1849. ($4, subs. 3 and 5.) It is manifest that
the first may be taken away, and the other remain. Did the act of
1854 do anything more than to take away the power of designating
the site in the new county, where one had not already been selected ?
I think not. The commissioners were “to determine and select a
proper site.” Their “determination and location” were to be final
and conclusive, unless the title was not made; in which case, the
commissioners were to proceed and make “another selection,” in
the same manner as if no previous determination had been made.
($18 of act of 1854, chap. 386.)

It seems to me entirely clear that this language only refers to the
original location, and makes that “final and conclusive.” If any
doubt existed that this was the intention, it would be removed, I
think, by the language of the act of 1857. This act declares that
the location for the site, made by the commissioners, should be con-
firmed, and the said site was declared to be the site for said build-
ings for said county. (§1, chap. 345 of Laws of 1857.)

The Legislature took into its own hands the power of selecting a
site in the first instance. This action was necessarily exclusive.
The act of 1854, therefore, repealed so much of the act of 1849 as
authorized the board of supervisors to make such original selection.
Building commissioners were also appointed by the Legislature, and,
to that extent, the power of the board of supervisors, in assuming
to act in the selection of the site, prior to 1857, was in hostility to
the act of the Legislature; and I lay such action entirely out of
view in the examination of this question.

But the action of the board, in 1857 and 1858, stands, in my
judgment, upon wholly different grounds. By the act of 1857, if
not before, the site of the county buildings had: become fixed. It
was determined in the same manner as every other site in the State
had been fixed, viz., bylaw. The original determination was “ final
and conclusive,” and could not be reviewed. But the power to
remove commenced as soon as the location had been fixed. Whether
it was seemly or discreet to institute proceedings so speedily to
or roe State or New York. 291

remove the site, is a question with which I have no concern. It
was a power lodged in the board. It was regarded as a power well
guarded, and could only be exercised, after due notice, upon the
application of twelve freeholders, and by a two-third vote of two
consecutive boards. I am wholly unable to discover any evidence,
in the acts of 1854 or 1857, indicating an intention, on the part of
the Legislature, to take away this power.

A case arose in the third judicial district, which was determined
in accordance with the views here presented. In 1853 an act was
passed, entitled “An act authorizing the sale of the county poor-
house of Sullivan county, and for other purposes.” (Chap. 296 of
Laws of 1853.) The first section authorized a majority of the board
of supervisors to sell the old poor-house and farm. The second
provided for a deed; and the third authorized the board to purchase
real estate for the site of a poor-house, and to raise $5,000 therefor
by tax.

The board, regarding the act as a repeal of the law of 1849, pro-
ceeded to make a contract for a new site, and to impose a tax for the
purchase-money thereof, but were restrained by an injunction, issued
in an action instituted in order to set aside their proceedings, upon
the ground that the act of 1849, requiring notice and the application
of the freeholders prior to the change of site, had not been repealed,
and, therefore, the acts of the board were illegal. This view was
sustained by Judge Parker, at Special Term, in an elaborate opinion,
which is now in my possession. He held that the two acts must be
construed together, and that every part of the act of 1849 which was
not expressly, or by necessary implication, repealed, must be deemed
in force, and sustained the injunction. His decision was sustained,
upon appeal, by the unanimous judgment of the General
Term.

My conclusion is, that the original location was fixed at Havana,
and such original location was “final and conclusive,” so that the
board had no jurisdiction over the question of fixing or locating the
original site. But the power to remove commenced when the power
of location terminated. It could be exercised as well at the erid of
six months after the location became fixed, as after the buildings
had been destroyed by fire or years had elapsed. It was a power
legally vested in the board, and, under it, the site for the
292 OPINIONS OF THE ATTORNEYS-GENERAL

court-house was legally changed or removed to the village of
Watkins.

Full effect is given, by this construction, to the words “final
conclusion,” in the act of 1854. It would seem, from the context,
that those words had reference to the title to the land, and were
intended to show that, if the title was procured, the commissioners
could not reconsider their action, while, if it was not, they might
make a second determination. It was proper enough, also, to employ
this language, in order to deprive the board of the concurrent power
which otherwise might, perhaps, be vested in them to take measures
to locate the site for the county buildings.

I have examined the cases cited in the brief to which I have
referred, from 1 Kernan, 276; 2 Kernan, 406; and 12 Howard, 97.
They proceed upon the ground that, in the cases before the court,
it was apparent, from the language of the special acts referred to,
that no appeal beyond the Supreme Court was contemplated, because
its judgment was declared to be “final and conclusive.” In this
case it is conceded that no appeal, in any form, would lie to review
the action of the commissioners in making the original location. In
those cases, the right to an appeal would be plainly inconsistent
with the mandate that the determination of the Supreme Court
should be final and conclusive. On the other hand, in this case, as
I have already endeavored to show, the right to remove the site is
entirely consistent with the finality of its original location.

The question, however, still remains, at what place in the county
of Schuyler shall courts be held? If I have been correct in my
previous view of the case, the county of Schuyler is possessed of
two court-houses. No measures have been taken, that I learn, to
sell either of these court-houses. The legal site of the public build-
ings may have been changed; but we must look still farther, in
order to ascertain in which of these court-houses the courts must be
held.

The Governor is authorized, by the Code of Procedure, to appoint
extraordinary General and Special Terms, Circuit Courts and Courts
of Oyer and Terminer, whenever, in his judgment, the public good
shall require. (§23 of the Code.)

The places appointed within the several counties for holding the
General and Special Terms, Circuit Courts and Courts of Oyer and
or THe Starz or New York. 293

Terminer, shall be those designated by statute for holding County
or Circuit Courts. (§24 of the Code.)

What is the place designated by statute for holding County or
Circuit Courts in the county of Schuyler ?

On referring to former statutes, it will be seen that “the places
to be appointed for the holding of Circuit Courts, when not specially
designated by law, shall always be the court-houses, or such other
places as now are, or shall be hereafter, provided by law for holding
the County Courts of the respective counties. (2R.S., 2d ed.,
p- 129, §6.) In all cases not specially provided for, the Courts of
Common Pleas and General Sessions shall be held at the court-
houses in the several counties. (2 R. S., 2d ed., p. 142, § 21.)

This provision is made applicable to County Courts and Courts
of Sessions, under the present Constitution, by the judiciary act of
1847. (Chap. 280 of Laws of 1847, §§36, 43.)

There being two court-houses, these general laws fail to determine
the question where the courtsshall be held. Perhaps, in the absence
of other legislation, the claim of the legal site would prevail. In
reference, however, to the county of Schuyler, a place has been
specially designated by statute for holding courts.

Thus, in the original act of 1854, for the erection of the county,
is contained the following provision: “The County Courts and
General Sessions of the Peace, and also the Circuit Courts and
Courts of Oyer and Terminer and General Jail Delivery in and for
the said county of Schuyler shall be held at the court-house to be
hereafter erected in said county in pursuance of this act.”

The court-house, erected in said county pursuant to said act, was
erected at Havana. That act is the only “statute designating the
place for holding County and Circuit Courts.”

It is entirely consistent with the general law authorizing a change:
of site, and entirely consistent with the ownership of several court-
houses. So long as there is a court-house at Havana, owned by the
county, which was erected pursuant to the act of 1854, so long that
court-house is the place designated by statute for holding courts in
the county of Schuyler.

These conclusions have not been reached without some difficulty 5.
but they are believed to be correct. In view, however, of the rival
interests between the villages of Watkins and Havana, and the
994 OPINIONS oF THE ATTORNEYS-GENERAL

importance of the question, it would be eminently desirable that,
at the earliest period, a case should be presented to the courts fora
legal determination. In the mean time, I shall advise your excel-
leney to appoint the Special Term to be held at Havana.
LYMAN TREMAIN,
Attorney-General.

 

(Assembly Document, No. 162.)

In Assempty, March 25, 1859.
To the Assembly:

I have received from your body a resolution in the following
words:

“ Resolved, That the Attorney-General be requested to furnish to
this House his opinion as to the extent and application of the act
declaring the Sacandaga river a public highway.”

“9. Asto the liability of the State for damage accruing to persons
owning dams on said stream by reason of the floating of logs or
rafts over said dams subsequent to the passage of said act.”

“3. As to the rights and powers conferred upon persons floating
rafts or logs upon said river, by said act.”

“4, Also, whether an acquiescence, on the part of owners of pri-
vate property or dams on said river, in damages incurred by them,
by reason of floating logs or rafts on said river, would bar any claim
they might have against the State for damages so sustained, and the
extent of time required to bar said claim.”

“5. The extent of the liability of the State for damages sustained
by owners of dams on said river, by reason of floating logs or rafts
over said dams, under and by virtue of the act declaring said river
a public highway.”

And have the honor to submit, in answer thereto, this opinion:

There are different principles of law applicable to different
classes of water-courses ; and the answers required by the resolution
involve an inquiry into the nature of the Sacandaga river, in a state
of nature, and possibly, also, an inquiry as to the length of time

1 See case of Morgan v, King (85 N. Y., 454) ; also, post, p. 807.
or THe Srarz or New Yorx. 295

the dam or dams affected by the act have been erected and main-
tained. In a communication which I had the honor to submit to
your immediate predecessors, I endeavored to state the leading
doctrines of the law relating to this subject; and for the purpose
of classifying the river in question, I beg leave to refer to that
communication, instead of repeating it in this opinion. It will be
found among Assembly documents of 1858, vol. 4, No. 112.

Prima facie, all rivers, where the tide ebbs and flows, are exclu-
sively public, and all rivers above tide-water are exclusively private.
There is, however, a class of rivers above tide-water which are
partly private and partly public. They belong to the riparian
owners, subject to the easement which the public have therein for
purposes of transportation and convenience.

In this country, such small streams as are not boatable, that is,
as cannot, in their natural state, be used for the carriage of boats,
rafts, or other property, are wholly and absolutely private; not
subject to the public interest, nor to be regarded as public highways
by water. That the streams are capable, for a few weeks in the
year, in the time of freshets, of carrying down logs and floating
matter committed to them, in no sense makes them navigable.
(Angell on Water-courses, §539; Munson v. Hungerford, 6 Barb.,
265; The People v. Platt, 17 Johns., 195.) The riparian proprie-
tors do not make the water-course public, or subject to public use,
by making it boatable by artificial means, at their own expense.
In order to be subject to the public use, the stream must, naturally,
have sufficient depth for valuable floatage, and “afford a passage
for the king’s people,” and be navigable for boats, vessels, or rafts.
(Same authorities; Hale’s Treatise De Jure Maris, chap. 3.)

If upon the application of these rules, it shall appear that the
Sacandaga river was not navigable, and was, therefore, exclusively
private property, then I have no hesitation in declaring it as my
opinion that any act of the Legislature declaring it a public high-
way, and authorizing its common and public use, without providing
adequate compensation for damages sustained by private individu-
als in consequence of such use, would be unconstitutional.

The Legislature of a State cannot, by declaring a river navigable,
which is not so in fact, deprive the riparian owners of their rights
to the use of the water for hydraulic and other purposes, without
296 OPINIONS OF THE ATTORNEYS-GENERAL

rendering them compensation. (Angell, §541; Walker v. Board
of Public Works, 16 Ohio, 540.) By the law of eminent domain,
a State has not the right, without making compensation, to destroy
or injure the property of individuals, situated upon a water-course,
in making it navigable, when it is not so by nature; or in appro-
priating such water-course to the public use. (Angell, chap. 11,
and p. 557; The Commissioners of the Canal Fund v. Kempshall,
26 Wend., 404.)

If the river in question belonged to the class of rivers in which
the public have an interest, another question may be involved. It
may be necessary to ascertain whether the dam or dams constructed
upon the river were nuisances, or whether they were lawful struc-
tures. When adam has been maintained under a claim of right
for twenty years, it is well settled that the law presumes a grant ;
and such presumption, according to the modern cases, is so conclu-
sive that it cannot be repelled by evidence that no such grant was
ever made.

The case of Bealy v. Shaw (6 East, 208), was a leading case in
England, and in delivering the opinion of the court, Lord Ellen-
borough, O. J., says: “I take it that twenty years exclusive enjoy-
ment of the water, in any particular manner, affords a conclusive
presumption of right in the party so enjoying it, derived from
grant or act of Parliament.” This same doctrine has been declared
by the courts of this State and the Supreme Court of the United
States. (See Angell, §$208, 209.) According to Sir Matthew
Hale, a subject may have a right in creeks or arms of the sea, by
charter or grant, and the sovereign power may also “ grant that
very interest itself, viz., a navigable river, that is, an arm of the sea,
the water and soil thereof.” Presumptions of a grant may also
arise from legislative recognitions of the rights of the riparian
owners. In the act referred to in the resolution, I find the Barber
dam mentioned; and in an act passed in 1854, relating to the same
river, an appropriation is made for the purpose, among other things,
of constructing an apron or shute upon another mill-dam, so as to
enable logs or lumber to pass over the same. (See chap. 163 of
Laws of 1854.) Upon the question as to the lawfulness of such
dams, these acts would furnish proper and competent evidence.

It is believed that sufficient has been suggested, in this commu-
oF THE STATE or New York. 297

‘

nication, to enable your honorable body to determine, in any par-
ticular case, the rights of the State, and of the riparian owners of
dams or other structures upon this river. If in consequence of the

.act of 1849, declaring the Sacandaga river free and navigable, inju-
ries have been sustained by the owners of dams upon said stream,
and such dams, upon the rules herein stated, were built upon pri-
vate streams, and therefore, exclusively private property, or if
erected upon a navigable stream, were lawful, then it is my opinion
that the owner would have a claim against the State for the amount
of his damages thereby sustained. As between individuals, such a
claim could, in my opinion, be enforced in a court of law. If on
the other hand, the dam was a legal nuisance, for the reason that it
was erected without authority, upon a public highway, then no claim
could arise against the State in consequence of the legislative decla-
ration that such stream was navigable.

I am not aware of any limitation by which a claim, which can
only be paid through the action of the Legislature, is barred. It
has been long regarded, as a legal presumption, that the State gov-
ernment was always ready, on proper proofs, to pay all claims due
to citizens; and hence the practice has been, not to allow interest
on such claims. With the exception of losing interest, I am not
aware of any penalty incurred by acitizen for delay in presenting
his claim.

If the resolution refers to the time necessary to cut off the right
of ariparian owner upon a stream, in consequence of an adverse
use by the public, I will add, that the better opinion now is, that,
except in reference to roads and streets, there can be no dedication
to the public of individual rights, and hence user of a private
stream would not operate as a dedication to the public. (See 6
Barbour, 265; 20 Wendell, 111; 22 id., 425; 2 Smith’s Leading
Cases, 193.)

It is hoped that the Assembly will find this opinion broad enough

‘to cover all the points presented in the resolution.

LYMAN TREMAIN,
Attorney-General.
298 OPINIONS oF THE ATTORNEYS-GENERAL

(2.)
(Assembly Document, No. 163.)
In Assematy, March 28, 1859.

To the Assembly of the State of New York:

The Attorney-General has received from the Assembly the follow-
ing preamble and resolution:

“ Whereas, by virtue of an act of the Legislature of this State,
entitled ‘An act to establish bulk-heads and pier lines for the port
of New York, passed April 17, 1857, the corporation of the city
of New York is busily engaged in filling in and extending the
Battery, and many bulk-heads and piers out to the water line thus
established by law, adding many acres of ground to the island of
New York, at an expense to the tax-payers of said city of millions
of dollars; and,

“ Whereas, much doubt exists upon the question of whether said
property, when made and completed, will belong to said city or to
the State of New York; therefore,

“ Resolved, That the Attorney-General be and he is hereby
requested to furnish to this House, at his earliest convenience, his
opinion upon the question of said ownership of said made ground.

“ By order.
“WM. RICHARDSON, Clerk.”

And submits, in answer thereto, the following report:

The act of the Legislature, referred to in the resolution, declares
and establishes a bulk-head line, or line of solid filling, and the pier
line adjacent to the shores of the port of New York, and declares
that it shall be unlawful to fill in beyond such line, except as therein
specified. The purposes of the act were to preserve the harbor of
New York from encroachments, and to protect its necessary navi-
gation. It does not profess to convey to the city of New York, or
to any person, any title to lands that had hitherto been vested in
the State; nor does it assume to take possession, by virtue of the
right of eminent domain, of any lands belonging to the city or to
private individuals. No information, therefore, in reference to the
title of any lands that had been made since that time can be derived
from that act.
or THE StaTE or New York. 299

To ascertain the ownership of any land upon the “island of New
York,” it will be necessary to ascertain in whom the title was vested
when the said law was passed. I do not understand that my opinion
is desired merely in reference to the ownership of the lands created
in consequence of the extension of the Battery; but the resolution
seems to be general in its terms, and to call for my opinion in refe-
rence to the title of any and all lands upon the “island of New
York,” made by filling in up to the bulk-head and pier lines estab-
lished by the act of 1857.

To answer the resolution, as thus understood, requires a know- _
ledge of facts that are not in the possession of the Attorney-General.
He has neither records, title deeds, maps, surveys, grants from the
State, or from the United States, nor any information indispensably
necessary to the formation of an intelligent opinion. He takes
occasion however, to add, that in 1857, a resolution was adopted
by the Assembly, requesting the Attorney-General to bring an action
in behalf of the State to recover the property now known as Castle
Garden, in the city of New York. (See Assembly Journal, pp. 1,
514.) That action was brought against the city of New York and
the Commissioners of Emigration, and is still pending.

If the Assembly desires to become familiar with the history of
the title to the Battery and Castle Garden, it will find a very elabo-
rate and interesting statement of the law and the facts relating to
the entire subject in the case of Phenix v. The Commissioners of
Emigration (1 Abb. Pr., 466), and the same case, on appeal, as
reported in 12 Howard’s Practice Reports, p. 1.1

LYMAN TREMAIN,
Attorney-General.

STATE OF NEW YORK:

AttTorNeyY-GENERAL’s OFFICE,
AxBany, October 15, 1859.
I have received your communication asking my opinion upon the
question of jurisdiction raised between the Board of Pilot Commis-

1 As to effect of act of 1821 and 1857, see People v. Vanderbilt (26 N. Y., 287);
8. C. (28 id., 896).
3800 OPINIONS OF THE ATTORNEYS-GENERAL

sioners of New York and the chief magistrate of New Jersey,
together with the accompanying documents.

It appears that the Board of Commissioners of Pilots, pursuant
to the authority vested in it by section 7 of chapter 671 of the Laws
of 1857, on the 22d of September last, ordered that all matter exca-
vated from the docks, slips or harbors of the port of New York
should be deposited upon the island of, or shoal known as, Oyster
Island, or upon the flats lying south and west of Bedloe’s Island,
and in no other place below high water mark. On the first of
October instant the Governor of New Jersey issued his proclama-
tion, commanding all persons to desist from making further deposits
upon land claimed by him as the property of New Jersey, and
which seems to be described in his proclamation as including all
land “lying west of the middle of the bay of New York, and west
of the middle of that part of the Hudson river which lies between
Manhattan Island and New Jersey.”

The charter of the city of New York, granted in 1730, under the
administration of John Montgomerie, Captain-General and Gov-
ernor-in-Chief of the Province of New York and Province of New
Jersey and territories depending thereon in America, establishes
the boundaries of the city of New York “so as to include Great
Barn Island, Little Barn Island, Manning’s Island, Nutten Island,
Bedlow’s Bucking, and the Oyster Island.”

It appears, therefore, that under the charter, jurisdiction over
Oyster Island and Bedlow’s Island was conferred upon the city of
New York.

In 1833 an agreement was entered into between commissioners
appointed by the State of New Jersey to settle the boundary line
between New York and New Jersey. This agreement was duly
confirmed by an act of the Legislature of the State of New York;
also by an act of the Legislature of the State of New Jersey ; and
the compact between the two States was ratified by an act of Con-
gress.

That agreement contains the following provisions:

“ ArtioLe Frest.— The boundary line between the two States
of New York and New Jersey, from a point in the middle of Hud-
son river, opposite the point on the west shore thereof, in the forty-
first degree of north latitude, as heretofore ascertained and marked,
oF THE SraTE or New Yorn. 801

to the main sea, shall be the middle of the said river, of the bay of
New York, of the waters between Staten Island and New J: ersey
and of Raritan Bay, to the main sea, except as herein particularly
mentioned. -

“Artictz Szconp.—The State of New York shall retain its present
jurisdiction of and over Bedlow’s and Allis’ Islands, and shall also
retain exclusive jurisdiction of and over the other islands lying in
the waters above mentioned, and now under the jurisdiction of that
State.”

It is my opinion, upon these facts, that Oyster Island and Bed-
low’s Island are clearly within the jurisdiction of the State of New
York, and that the State of New Jersey has no jurisdiction over
said islands or either of them. ;

I have the honor to be, yours, very truly,

LYMAN TREMAIN,

Attorney-General.
To Hon. E. D. Moraan, Governor.

STATE OF NEW YORK:

CanaL Department,
Auzpany, Vovember 30, 1859.

Hon. Lyman Tremam, Attorney-General, Albany:

Dear Sm.— Will you have the kindness to give me your opinion,
in writing, for my official guidance, as to the legal effect of the
certificates authorized, or permitted to be made, by the Canal Com-
missioners, under the fourth section of the act, chapter 149 of the
Laws of 1859, and whether, under the existing laws, the Auditor

1 This question of jurisdiction over the waters of the Hudson river and the
islands therein has been a fruitful source of trouble and litigation between the
States of New York and New Jersey and their inhabitants, at times engendering
such excitement of feeling as almost to threaten a collision between the States.
It was supposed this question was definitely settled by the agreement or compact
of 1833; but it has arisen in various forms since then. The late case of The
People v. The Central Railroad of New Jersey (42 N. Y., 288), decides, that while
the jurisdiction of this State over the waters to low water-mark on the New Jer-
sey shore is exclusive, it is qualified and limited for police and sanitary purposes,
and to promote the interests of commerce. This case has gone to the United
States Supreme Court, where it is now pending.
302 OPINIONS oF THE ATTORNEYS-GENERAL

of the Canal Department has any authority to pay these certificates
by making a warrant on the treasury for the amount of money
expressed in the certificates ?

You will notice that, by the provisions of the said fourth section,
the Canal Commissioners are prohibited from making any more
drafts upon the Auditor until the receipt from him of a notice that
there was money on hand subject to draft, and then permitted the
certificates to be made for certain indebtedness by the State existing
at the passage of the act.

By reference to page 9 of the Canal Laws, the Attorney-General
will see in what cases the Auditor can make warrants on the Trea-
surer.

By referring to page 31 of the Canal Laws, sections 53 and 54,
the Attorney-General will find in what manner the Canal Commis-
sioners can make payments upon contracts. Since the act of 1848,
the Canal Commissioners have made their drafts on the Auditor,
instead of the “Commissioners of the Canal Fund.” In reading
section 53, I suppose the word Auditor should be inserted for, or in
the place of, the “‘ Commissioners of the Canal Fund.”

Section 53 directs the Auditor to pay the Canal Commissioners ;
but section 4 of the act, chapter 149 of the Laws of 1859, neither
authorizes nor directs the Auditor, in terms, to pay these certificates.
These certificates will be accompanied by the proper engineer’s
certificates required for the drafts by section 54.

The question to be answered seems to be this: Can the Auditor
treat these Canal Commissioners’ certificates issued under the act
of 1859, and can he pay them?

Canal Commissioners’ drafts have always been treated as negotia-
ble paper, transferable by indorsement. The Auditor has not con-
sidered those certificates in that light.

I hand herewith a blank draft and blank certificate used by the
Canal Commissioners.

Respectfully yours,
N. 8. BENTON, Auditor.
or Tun Srarz or New York. 803

STATE OF NEW YORK:

AtrorNEY-GENERAL’s OFFIoE, t
Axzsany, December 1, 1859.
Hon. N. 8. Benton, Auditor, Albany:

Dear Sir.— The Attorney-General has had under consideration
the Auditor’s communication relating to the power and duty of the
Auditor in reference to the payment of the certificates issued by
Canal Commissioners pursuant to section 4 of chapter 149 of the
Laws of 1859.

By section 3 of chapter 271 of the Laws of 1859, entitled “ An
act to submit to the people a law authorizing a loan of two millions
five hundred thousand dollars, to provide for the payment of the
floating debt of the State,” the sum of $2,500,000 was appropriated
to be paid out of the treasury, on the warrant of the Auditor of
the Canal Department, from the moneys to be realized from the
loan, for the payment of claims against the State specified in the
last preceding section. The claims thus specified were claims, not
otherwise provided for, for work done on the canals of the State,
and for private property appropriated by the State for the use of
such canals, and for injury to private property growing out of the
construction of the canals.

These claims against the State were, prior to the passage of chap-
ter 149 of the Laws of 1859, attested only by the drafts of Canal
Commissioners; but since that law, which prohibited drafts being
issued except in special cases, such claims may be evidenced also by
certificates. No preference is given by the provisions of the loan
law to drafts over certificates. The purpose of that law, as expressed
in its title, and indicated by contemporaneous history, was to provide
for the payment of the floating debt of the State; not for part of such
debt, but for the wholedebt. The authority given to the Auditor is
plenary to draw his warrant for the payment of all the claims speci-
fied; and all previous statutory regulations, which are inconsistent
with such authority, are modified or repealed. The Attorney-Gene-
ral is wholly unable to discover any reason, either in the nature of
these claims or in the legislation of the State, to warrant the con-
clusion that these certificates cannot be paid by the Auditor. The
fact that they are not negotiable, like drafts, only affects the mode
304 OPINIONS OF THE ATTORNEYS-QENERAL

of their transfer, but does not weaken their validity, or furnish any
reason for postponing their payment.

The Attorney-General entertains no doubt whatever that the
Auditor is authorized and required to pay certificates issued by
Canal Commissioners for the payment of claims against the State
specified in section 2 of chapter 271 of the Laws of 1859, from the
moneys to be realized by the loan to be made under that law.

Yours, very truly,

LYMAN TREMAIN,
Attorney-General.

ATroRNEY-GENERAL’S OFFICE, }
Axzany, January 14, 1860.

His Excellency Epwim D. Morean, Governor, ete.:

Sr. — The accompanying papers, being charges against
, Sheriff of the county of Tioga, have been examined, at
your request.

The complainant asks the removal of the sheriff, upon certain
specifications of official misconduct. The facts alleged, or some of
them, are admitted in the answer of the sheriff, mitigated only by
the denial of criminal intent on his part, and the assertion that like
derelictions of duty have been customary with his predecessors in
office.

It is quite clear, upon authority, that the permitting a prisoner
committed to the jail by due legal process to go at large beyond the
prison, without legal authority, is a voluntary escape and a misde-
meanor, on the part of the sheriff and jailer, at common-law.
(People v. Stone, 10 Paige, 606.) It is also expressly prohibited by
section 21' of article 3, title 4, chapter 1, part 4, of the Revised
Statutes; and the penalty provided by section 29? of the article
is much more severe than the action invoked on this complaint.

The Constitution, section 1, article 10, gives to the Governor the
power to remove a sheriff, as well as other officers therein specified ;

 

 

' Section 18, 2 Edmonds’ Statutes, 706.
7 Section 18, 3 Edmonds’ Statutes, 70.
oF THE Srare or New York. 305

“giving such officer a copy of the charges against him, and an oppor-
tunity of being heard on his defense.” And sections 51 to 55 of
article 4, title 6, chapter 5, part 1, of the Revised Statutes, provide
for proceedings in cage it is necessary to take proof in relation to
the charges preferred.t

As, in this case, the sheriff has had “an opportunity of being heard
in his defense,” and has not denied the substantial fact alleged
against him, nor demanded proof thereof, such proceedings are, in
this case, unnecessary. :

The Constitution and the statutes are alike silent in respect to the 7
eauses for which the Governor may remove, but would seem to
invest the executive with the broadest discretion to remove in all
cases of official delinquency, and whenever it shall appear conducive~

to the public welfare.
CHAS. G. MYERS,

Attorney-General.

ATTORNEY-GENERAL’s OFFICE,
ABany, January 1, 1860.

His Excellency E. D. Moreay, ete. :

Sm.— Your communication, accompanying charges against ——
, Clerk of Schuyler county, and papers connected therewith,
have been received and considered.

The charges are drawn in a very loose manner, and the evidence
is entirely defective in omitting to set out the injunction mentioned
therein, and the proceedings upon which it was granted.

Further evidence in the case seems to be absolutely indispensable
to its proper and just determination.

The mode in which such evidence is to be obtained is prescribed
in the first volume of the fifth edition of the Revised Statutes, page
414, section 52, which provides: “The Governor may direct the
district attorney of the county in which such officer shall be, to
conduct an inquiry, and who shall give notice of the time and place

 

! Sections 44 to 49, 1 Edmonds’ Statutes, 113. See, also, chapter 629, Laws of
1866; 6 Edmonds’ Statutes, 789.
20
806 OPINIONS OF THE ATTORNEYS-GENERAL

when he will proceed to the examination of witnesses before some
judge of the County Court.”

This statute, although permissive in its language as to the person
to be directed to conduct the proceedings, is believed to be manda-
tory, within the principle decided in the Vewburgh Turnpike Com-
pany v. Miller (5 Paige Ch., 113); that the word may, means must
or shall, “when the public interests or rights are concerned.” The
district attorney must, therefore, it seems to me, conduct the pro-
ceedings.

The examination must also be had, by the same section, before
“some judge of the County Court.” What County Court? Does
this statute contemplate the examination to be held by any county
judge in the State, or by a judge of the County Court of the county
where the officer resides? I think, clearly the latter. It is the
district attorney of the county “ where such officer shall be” who is
to conduct an inquiry; and it would seem that the inquiry should
be conducted in his county and before a judge having jurisdiction
therein. When this statute was passed, there were, in each county,
a first judge and four judges of the County Courts, any one of
whom, it would seem, might take the testimony under this act.
Changes in our judicial system since then have but one county judge
in a county, and I am inclined to think the examination must be
had before him.

It would appear, from the papers submitted, that the complain-
ants apprehend that their officers will not faithfully perform their
duties in taking the evidence and conducting the inquiry. Such a
presumption against any public officer is not to be entertained, nor
is any such danger, I trust, to be apprehended. Should, however,
the district attorney fail intentionally to fully perform his part of
the duty in conducting the inquiry diligently and faithfully, he is
amenable to discipline under this very statute. The duties of the
judge would seem to be almost entirely ministerial, in taking and

11 Revised Statutes, section 45, 1 Edm. Stat., 113. By chapter 629, Laws of

1866, the Governor may appoint a commissioner to take the testimony. 6 Edm.
Stat., 789.)
OF THE STATE or New Yorn. 307

certifying the testimony adduced before him; and any failure to
perform his duty can be corrected in another proceeding.

CHARLES G. MYERS,
Attorney-General.

STATE OF NEW YORK:

ATTORNEY-GENERAL’s OFFICE,
Apany, March 10, 1860.

To the Honorable the Senate:

The Attorney-General has received from your honorable body the
following resolution :

“ Resolved, That the Attorney-General be requested to furnish the
Senate with his opinion upon the following points:

“1. As to the right of the Legislature to declare a stream which
is not navigable for boats or other water-craft, but is the property
of individuals, a public highway for the purpose of floating rafts
and logs.

“9, As to the extent of the right or privilege granted to the
public by section 4 of chapter 406 of the Laws of 1849, entitled
‘An act to improve the upper waters of the Hudson river.’

“3. As to the liability of the State for damages resulting from the
destruction of a mill-dam across the west branch of the Hudson
river, which was built in 1826, before the stream was declared
‘navigable for logs and rafts, and the destruction of which was
caused by floating rafts and logs over the same, under the license
and authority granted by said statute of 1849.

“By order of the Senate.”

And in answer, respectfully submits :

That this subject was referred, by the Assembly of 1859, to the
learned predecessor of the undersigned, and his opinion will be
found in No. 162 of the Assembly documents for 1859,! to which the
undersigned begs leave to refer, as ‘embodying much of the legal
learning on this subject.

1 See Antz, p. 294.
808 OPINIONS OF THE ATTORNEYS--GENERAL

The undersigned, however, begs leave to remark, that there is a
conflict of authority as to the right of the public, at common-law,
to an easement for floatage in streams only occasionally susceptible
of such use, and then only in seasons of freshet.

In Munson v. Hungerford (6 Barbour, 265), cited in the opinion
above referred to, a case arising upon the Black river, at Watertown,
Mr. Justice Gridley, of the fifth district, says: “A stream, to be
navigable, within the authorities (17 Johns., 209), mnst furnish a
common passage for the king’s people, must be of common or pub-
lie use for the carriage of boats or lighters; must be capable of
bearing up and floating vessels for the transportation of property,
conducted by the agency of man. It is not enough that a stream is
capable (during a period, in the aggregate, of from two to four
weeks in the year, when it is swollen by the spring and autumn
freshets), of conveying down its rapid course whatever may have
been thrown upon its angry waters, to be borne at random, over
every impediment in the shape of dams or bridges which the hand
of man has erected. To call such a stream navigable, in any sense,
it seems to us, is a palpable misapplication of the term.” On the
other hand, in Browne v. Scofield (8 Barbour, 239), a case arising
upon the Canisteo river, and decided in the seventh district, Mr.
Justice Johnson says: “ Not only in this State, but in our sister
States, these great natural channels and avenues of commerce,
wherever they are found of sufficient capacity to float the products
of the mines, the forests, or the tillage of the country through which
they flow, to market, have always been adjudged by our courts to
be subject to the right of passage, independent of legislation. The
common-law of England upon this subject, from its utter want of
fitness and adaptation to the condition of things here, in our extended
territory, with its numerous inland lakes and countless streams, capa-
ble of floating the products of the country, hundreds and thousands
of miles from the ebb and flow of tide-water, has never been adopted,
or, if adopted, it has been in a form modified and improved to fit
the conditions of the country and the wants of its inhabitants.”
Both these cases arose in justices’ courts, and the decision of the
General Term of the Supreme Court was final.

The Supreme Court, in the fourth district, in a case not yet reported,
have however held, in a case arising upon the .Racket river, that
oF THE State or New York. 309

the public have an easement and right of passage for floating the
products of the forest, in the shape of saw-logs, upon a stream not
susceptible of any other navigable use, and where logs will only float
in season of freshets in the spring and fall; and this latter case is
believed to be on its way to a decision in the Court of Appeals.

To answer the first’ question submitted in the above resolution
definitely, it is necessary to determine, upon these conflicting
authorities, whether at common-law, the public were entitled to
the easement in question. If they were, the Legislature had, no
doubt, the right to declare it, and improve the easement, as was
done by the act of 1849; and the long practice of the Legislature,
in declaring streams, not actually navigable, within the common-law
rule, public highways, and which action has never been directly
questioned, would seem to furnish a strong argument to prove that
such right exists. If on the other hand, the stream in question was
strictly private property, the Legislature had no right to take it for
the public use, without in the language of the Constitution, “ just
compensation ;” and, as no compensation is provided by the act
referred to, if no right ‘of passage existed in the public, such act is
simply unconstitutional and void, and conferred no right upon indi-
viduals or the public to use and navigate the stream.

The second question propounded in the resolution is, perhaps,
answered best by the section of the statute referred to, which declares
“the several tributaries of the Hudson river improved under this
act shall be free and navigable for purposes of navigation and raft-
ing logs and timber.”

In answer to the third question, the undersigned would remark,
that, if it is held that no easement upon this stream existed, and the
act above referred to in that respect void, any injury done to the
dam in question is the act of the person or persons who inflicted
the injury, and he or they alone, and not the State, liable for the
damages occasioned thereby. If, on the other hand, the easement
existed, and the law declaring the stream navigable the act of the
State, and persons using that easement have wnnecessarily injured

1This is the case of Morgan v. King (85 N. Y., 454). The judgment of the
Supreme Court was reversed, and it was held that an act of the Legislature, mak-
ing a private stream.a public highway, without providing compensation, is uncon-
stitutional.
310 OPINIONS OF THE ATTORNEYS-GENERAL

the dam in question, still those persons, and not the State, are liable
in damages. If the existence of this dam was utterly inconsistent
with the use to which the act dedicated the stream, and the owner
of the dam had the right to maintain it, either by grant actually
made or presumed from the lapse of time, the dedicating this stream
to the public use would be, in effect, to take this private property for
public use, which we have already seen, could not be done without
just compensation ; and the dedication and taking of the private
property would be simply void. If the dam could stand consist-
ently with the public right of way, reasonably exercised, then that
is to be presumed to be the legislative intent; and if injury resulted
to the owner from an improper use of the easement by individuals,
they alone are liable for the resulting damages.
All which is respectfully submitted.

CHARLES G. MYERS,
Attorney-General.

STATE OF NEW YORK:

ATTORNEY-GENERAL’s OFFICE, i
Axpany, March 10, 1860. t
To the Senate:

The Attorney-General has received the following resolution :

“ Resolved, That the Attorney-General be requested to report to
the Senate his opinion as to the liability of the State to pay dama-
ges to individuals whose property in land or buildings has been
injured or reduced in value in consequence of raising the grade of
embankments leading to the new bridges of the enlarged canal, and
whether the Canal Appraisers have, jurisdiction in such cases to
award damages, where such damages are sustained.

“By order of the Senate.”

And, in answer, respectfully submits:

That whenever the State, in prosecution of its works, injures or
renders less valuable adjoining property, in such manner that, were
the same injury effected by the act of an individual, instead of
the State, an action would lie at the suit of the party injured,
beyond doubt the State should compensate the party for such injury.
or THE STATE oF New York. sll

It will be seen, by article 3, title 2, chapter 9, part 1, of the
Revised Statutes, that the Canal Appraisers are authorized to
appraise damages in three cases only :

1. When lands, waters or streams are appropriated by the Canal
Commissioners to the use of the public.

2. When damages are claimed by the owner of any land which
the Canal Commissioners have occupied for temporary purposes, or
on which they shall have entered for the purpose of obtaining
materials for repairs.

3.. When damages are caused by temporary occupation of lands,
other than for repairs.

As the injury mentioned in the resolution is not occasioned by
the appropriation or occupation of the lands of the claimant, but
results incidentally from the nature and form of the State structure
upon their own adjacent lands, I think the Canal Appraisers have
no authority to appraise or estimate such damages.’

CHAS G. MYERS,
Attorney-General.

STATE OF NEW YORE:
ATTORNEY-GENERAL’s OFFICE,
Auzany, March 31, 1860.
To the Assembly :
The Attorney-General has the honor to acknowledge the receipt
of the following resolution :
“Tn AssEMBLY, }
“ Arpany, March 30, 1860.
“ Resolved, That the Attorney-General be requested to furnish
the Assembly with his opinion upon the following points:

1 By chapter 321, Laws of 1870, the jurisdiction of the Appraisers is extended to
all claims against the State for damages sustained from the canals or their use or
occupation. In a late case, however, of a claim for damages resulting from build-
ing a wall and raising embankment in a highway (the main street of the village of
Albion), which passes over claimant's land, it was held by the Appraisers that the
State was not liable. On appeal to the Canal Board, the decision or award was
affirmed.
312 OPINIONS OF THE ATTORNEYS-GENERAL

“1, Whether the act abolishing tolls on railroads, passed July 16,
1851, was in accordance with the Constitution of the State.’
“9, Whether it was constitutionally passed.
“ By order.
“WM. RICHARDSON, Clerk.”

And, in answer thereto, respectfully submits the following opinion :

The questions presented may be considered together, for the
answer to one determines the other. If the tolls theretofore col-
lected upon freight transported on railroads, released by the act of
1851, were “public moneys or property,” within section 10, article
1, of the Constitution, they were a part of the revenues of the State
canals, within article 7, sections 1, 2 and 3; and, if they formed a
part of the “revenues of the State canals,” within the meaning of
the seventh article, it will be necessary to ascertain whether the
provisions therein contained have the effect to limit the power of
the Legislature in disposing of them. If euch tolls were not a part
of the “revenues of the State canals,”’ as understood at the time of
the adoption of the Constitution in 1846, they were not “ public
money or property,” within article 1, section 10, and a vote of two-
thirds of all the members elected to each House not requisite to the
validity of said act.

An examination into the origin and progress of the canal policy
of this State will, perhaps, aid us in our inquiry as to the true
import of the language, “the revenues of the State canals,” in the
Constitution.

The subject of an internal navigation between the lakes and the
Atlantic ocean attracted the attention of our statesmen at an early
day, and the first legislative action to that end appears to be the act
of April 3, 1811, which appointed commissioners with power “to
make application in behalf of this State to the Congress of the
United States, or the Legislature of any State or Territory, to
co-operate and aid in this undertaking ;” to cause surveys to be

' See, ante, p. 275, note. Although this important question was decided contrary
to this opinion, yet the complete history it gives of canal and railroad legislation,

as well as the ingenuity and ability displayed in the argument, renders it well
worthy of publication.
or THE Strate or New York. 313

made; to inquire and ascertain whether loans could be procured;
and to report to the Legislature at their next session.

On the 19th of June, 1812, the commissioners having reported,
an act was passed, authorizing them to receive grants or donations
of land, and to purchase the right of “the president, directors and
company of the Western Inland Lock Navigation in the State of
New York;” to make a loan of $5,000,000, and to invest the same,
to, be applied to such purpose, “if, upon examination by a competent
and practical engineer, and mature deliberation, the Legislature
shall hereafter deem it expedient to undertake that interesting
work.”

The war of 1812 intervened; no loan was made, and nothing
effected under this Legislature.

The war being ended, the canal policy was resumed, and, on the
17th of April, 1816, Stephen Van Rensselaer, De Witt Clinton,
Samuel Young, Joseph Ellicott, and Myron Holley, were, by act
of Legislature, appointed commissioners “to consider, devise and
adopt such measures as may or shall be requisite to facilitate and
effect the communication, by means of canals and locks, between
the navigable waters of Hudson’s river and Lake Erie, and the said
navigable waters and Lake Champlain.”

They were authorized to cause surveys to be made, and explora-
tions to determine the routes, and to adopt and recommend plans
for the canals, locks, dams, embankments, tunnels and aqueducts ;
to make applications to Congress, to other States and Territories ;
to receive donations and open books for subscriptions; and were
required to ascertain whether a loan could be effected on the credit
of the State, and to make an estimate of the cost of completing the
canals, and to report to the Legislature within twenty days after the
commencement of the next regular session thereof.

This brings us to the act of April 15, 1817 (Session Laws of that
year, page 301), which is the real foundation of the canal policy of
this State, and initiated its great work of internal improvement.
It recited that, ‘

“ Whereas, navigable communication between Lakes Erie and
Champlain and the Atlantic Ocean, by means of canals connected
with the Hudson river, will promote agriculture, manufactures and
commerce, mitigate the calamities of war and enhance the blessings
314 OPINIONS OF THE ATTORNEYS-GENERAL

of peace, consolidate the Union, and advance the prosperity and
elevate the character of the United States:

“ And, whereas, it is the incumbent duty of the people of this
State to avail themselves of the means which the Almighty has
placed in their hands for the production of such signal, extensive,
and lasting benefits to the human race :

“ Now, therefore, in fall confidence that the Congress of the
United States, and the States equally interested with this State in
the commencement, promotion and completion of these important
works, will contribute their proportion of the expense ; and in order
that adequate funds may be provided, and properly arranged and
managed, for the prosecution and completion of all the navigable
communications contemplated by this act,

“1. Be it enacted by the People of the State of New York, repre-
sented in Senate and Assembly, That there shall be constituted a
fund, to be denominated The Canal Fund, which shall consist of aii
such appropriations, grants and donations as may be made for that
purpose by the Legislature of this State, by the Congress of the
United States, by individual States, and by corporations, companies
and individuals; which fund shall be superintended and managed
by a board of commissioners, to be denominated ‘ The Commis-
sioners of the Canal Fund, consisting,” etc. .

By this act the work was authorized to be commenced, and, by
section five of the same, there was appropriated and pledged, for
the purposes contemplated by that act, “aduty of twelve anda half
cents per bushel upon all salt to be manufactured in the western
district of this State; a tax of one dollar upon each steamboat pas-
senger, for each and every trip or voyage such passenger may be
conveyed upon the Hudson river, on board any steamboat, over one
hundred miles, and half that sum for any distance less than one
hundred miles, and over thirty miles; the proceeds of all lotteries
which shall be drawn in this State, after the sum now granted upon
them shall be paid; all the net proceeds of this State from the
Western Inland Lock Navigation Company ; all the net proceeds
of the said canals, and each part thereof, when made; all grants and’
donations made, or to be made, for the purpose of making said
canals; and all duties upon sales at auction, after deducting,” ete. ;
and the eighth section of the act provided for the collection of the
oF THE SvaTE or New York. 315

tax on steamboat passengers by the captains, who are to make
monthly returns, under oath, and pay the proceeds into the treasury.

Here we find the Board of Commissioners of the Canal Fund
created, a board which has had an uninterrupted succession to the
present time; and we also find a Canal Fund established, and have
seen of what, in its origin, “the revenues of the State canals” con-
sisted; that tolls imposed upon property actually transported upon
the canals formed only an item, at first inconsiderable, but destined
to an almost illimitable expansion; and the right and the policy of
taxing another line of travel, toward the creation of which the State
had contributed nothing, and over which its only right was that of
sovereignty, asserted and adopted.

By the act of the 30th of March, 1820, the collection of the tax
on steamboat: passengers was suspended, and the president and
directors of the North River Steamboat Company were directed to
pay into the treasury $5,000 annually, in lieu of the tax. The
Constitution of the State, adopted in 1822 (art. 7, § 10), contains the
following provisions :

“Rates of toll, not less than those agreed to by the Canal Com-
missioners, and set forth in their report to the Legislature on the
twelfth of March, one thousand eight hundred and twenty-one, shall
be imposed on and collected from all parts of the navigable com-
munications between the great western and northern lakes and the
Atlantic ovean, which now are, or hereafter shall be, made and
completed ; and the said tolls, together with the duties on the manu-
facture of all salt, as established by the act of the fifteenth of April,
one thousand eight hundred and seventeen, and the duties on goods
sold at auction, excepting therefrom the sum of thirty-three thou-
sand five hundred dollars, otherwise appropriated by the said act,
and the amount of the revenue established by the act of the Legis-
lature of the thirtieth of March, one thousand eight hundred
and twenty, in lieu of the tax upon steamboat passengers, shall be
and remain inviolably appropriated and applied to the completion
of such navigable communications, and to the payment of the inte-
rest and reimbursement of the capital of the money already bor-
rowed, or which hereafter shall be borrowed, to make and complete
the same. And neither the rates of toll on the said navigable
communications, nor the duties on the manufacture of salt afore-
316 OPINIONS OF THE ATTORNEYS-GENERAL

said, nor the duty on goods sold at auction, as established by the act
of the fifteenth of April, one thousand eight hundred and seventeen,
nor the amount of the revenue established by the act of March the
thirtieth, one thousand eight hundred and twenty, in lieu of the tax
upon steamboat passengers, shall be reduced or diverted at any time
before the full and complete payment of the principal and interest
of the money borrowed, or to be borrowed, as aforesaid.”

Thus stood the canal policy of the State, and thus were consti-
tuted the “revenues of the State canals,” on the 1st day of Janu-
ary, 1823.

The first railroad company chartered by this State, in 1826, and
after the adoption of the said constitutional provision, was the
Albany and Schenectady Railroad Company. By its charter the
company was allowed to transport property, and no tolls were
required to be paid.

In 1832 the Tonawanda Railroad Company was chartered, and
empowered to carry freights, and no tolls were imposed.

The Utica and Schenectady Railroad Company was chartered in
1833, and their charter prohibited them from the transportation of
property, other than personal baggage.

The Auburn and Syracuse Railroad Company was chartered in
1834, empowered to transport property, and no tolls imposed.

The Syracuse and Utica Railroad Company was chartered in
1836; they were empowered to transport property, but required to
pay canal tolls on all property transported during the season of navi-
gation. In the same year the Auburn and Rochester Railroad
Company was chartered, with power to carry freight, and without
the payment of tolls. In the same year, also, were chartered the
Attica and Buffalo Railroad Company, and the Troy and Schenec-
tady Railroad Company, with power to carry freights, and without
canal tolls.

In 1850, the Tonawanda and Attica and Buffalo were consolida-
ted, under the title of the Rochester and Buffalo Railroad Com-
pany.

In 1839, the Oswego and Syracuse Railroad Company was char-
tered, and authorized to transport property during the suspension

of canal navigation only, and then subject to the payment of canal
tolls.
or THE STATE oF New York. 317

The New York and Erie Railroad Company was chartered in
1832, and allowed to transport property without the payment of
canal tolls; and the Northern Railroad Company was chartered in
1845, with like power; but neither of them were completed when
the Constitution of 1846 was adopted, nor had their business, in any
degree, diverted freights from our canals.

It will be observed, from an examination of these several charters,
that, although several of the roads west of Utica, which formed a
part of the great central route from the western to the tide-waters,
were authorized by law to carry freight, some during the suspension
of canal navigation, and some at all times; some subject to the
payment of canal tolls, and others without that restriction; yet the
Utica and Schenectady, the most important of them all, and with-
out which no freight could be transported from the western lakes,
or even the interior of the State, to tide-water, was absolutely pro-
hibited from carrying freight at all (except the baggage of passen-
gers); that the charters of all these roads were, by their terms,
made subject to alteration by the Legislature, and many of them
contained a reservation of aright, on the part of the State, to pur-
chase the roads and take them as State property, upon certain con-
ditions.

The act of May, 1844, “to amend the act incorporating the Utica
and Schenectady Railroad Company,” authorized “to take and
transport, on their railway, all goods, chattels, and other property
that may be offered for transportation, during the suspension of
canal navigation in each year only,” required them to make returns
as directed by the Commissioners of the Canal Fund, and to pay to
the Commissioners of the Canal Fund the same tolls per mile on all
goods, etc., as would have been paid on them had they been trans- |
ported on the Erie canal.

The third section of that act required the Syracuse and Utica,
the Auburn and Syracuse, the Auburn and Rochester, the Tona-
wanda, and the Attica and Buffalo railroads (the roads which, with
the Utica and Schenectady, and Schenectady and Albany, at that
time, formed the only completed and connected line of railroad
communication from the western to the tide-water, and the nucleus -
of the present Central railroad), to “make returns in the same
manner, and subject to the same regulations as are provided in the
318 OPINIONS oF THE ATTORNEYS-GENERAL

third and fifth sections of this act, and shall pay the same tolls as
provided in said section; but the Canal Board shall make such rules
and regulations, regulating the transportation of freight west of
Utica, so as to continue to said roads the privilege of transporting
local freight, without the payment of tolls, wherever they now
enjoy that privilege, and to enforce and insure the collection and
payment of tolls on all such freight as shall be carried on the said
roads, by reason of the privileges in this act granted to the Utica
and Schenectady railroad.” Observe here that this privilege to
carry freight is confined and limited to be exercised during the
suspension of canal navigation only.

Thus stood the law at the time of the adoption of the Constitu-
tion of 1846. No doubt can be entertained, that by the law at that
time tolls upon all freight, which, but for the railroads, would have
been transported on the canals (except only local freight trans-
ported by roads west of Utica, whenever they then (in 1844)
enjoyed that right), were devoted to and formed a part of the
“revenues of the State canals.”

The 1st, 2d and 3d sections of article 7, of the Constitution of
1846, specifically and permanently appropriated all the revenues
of the State canals:

“Ist. $1,300,000, annually, until June Ist, 1855; and after that,
$1,700,000, annually, as a sinking fund to pay the canal debt, as it
existed June 1st, 1846.

“2d. $350,000, annually, until a sufficient sum should be set apart,
under the first appropriation, to pay the interest and extinguish
the principal of the entire canal debt; and after that, $1,500,000,
annually, as a sinking fund, to pay the interest, and redeem the
principal of the general fund debt.

“3d. After providing, as above, $200,000, annually, to the general
fund to defray the necessary expenses of the State, and,

“4th. The remainder of the revenues of the said canals shadZ, in
each fiscal year, be applied in such manner as the Legislature shall
direct, to the completion of the Erie canal enlargement, and the
Genesee valley and Black river canals, until said canals shall be
completed.”

This Constitution took effect on the first day of January, 1847;
and it appears by the last annual report of the commissioners
oF THE Strate or New Yor. 319

of the canal fund (table Ne. 75), that the payments into that,
fund for tolls on property transported upon railroads were,
in the year 1845, the first year they were empowered to carry
freight during suspension of canal navigation, $10,458.44, which,
the next year (that of the adoption of the Constitution), had
increased to the sum of $23,201.89, more than doubled in one year,
though still limited to the period of suspension of canal navigation ;
and that sum, to wit, $23,801.89, for tolls collected on freights trans-
ported upon railroads competing with the canals, formed a part of
the revenues of the State canals, and was appropriated and pledged
in that name, with its anticipated increase, by the above mentioned
constitutional provisions.

On the 12th of May, 1847, an act was passed entitled “an act
relating to the transportation of freight on certain railroads (chap-
ter 270, of the Session Laws of 1847), which took effect November
first of the same year.

The first section of that act authorized the Utica and Schenec-
tady Railroad Company to transport freight on their road, without
restriction, to the period of suspension of canal navigation.

The second section, to regulate and receive compensation for
such transportation.

The third provides: “The said company shall make returns at
such period and in such manner as may be directed by the Com-
missioners of the Canal Fund, of all goods, etc., transported; and
shall pay into the treasury of the State the same tolls per mile on
all goods, etc., so transported, as would have been paid on them
from the point of receipt to the point of delivery, had they been
transported on the Hrie canal.” When the distance by canal is
greater than by railroad, the toll to be paid on such greater dis-
tance.

The fourth section required the Albany and Schenectady, the
Troy and Schenectady, the Syracuse and Utica, the Auburn and
Syracuse, the Auburn and Rochester, the Tonawanda, and the
Attica and Buffalo Railroad Companies to make returns, as pro-
vided in said act, and to pay the same tolls as provided in said
third section; but the Canal Board shall make such rules and
regulations regulating the transportation of freight on the said
roads west of Utica, so as to continue to the said roads the privi-
820 OPINIONS OF THE ATTORNEYS-GENERAL

lege of transporting local freight without the payment of tolls
wherever they now enjoy that privilege, and to enforce and insure
the collection and payment of tolls on all such freight as shall be
carried on the said roads by reason of the privileges in this act
granted to the Utica and Schenectady railroad; but no freight
passing from any one of said railroads to a connecting railroad, to
be transported thereon, shall be deemed local freight on either
road.

By section five, the Oswego and Syracuse Railroad Company
were invested with the same privilege, and subject to the same
obligations.

The sixth section declared: “ The tolls collected by the State for
freight transported on railroads, as provided by this act, shall be
deemed to belong to the Canal Fund, and shall be paid over and
applied in the same manner as tolls collected on freight trans-
ported on the canals of this State.

Here we have a contemporaneous construction of the words
used in the above quoted constitutional provisions, “the revenues
of the State canals.” The freight which then belonged to the
canal by reason of the restrictions upon the railroads, which were
inherent in the acts creating them, were allowed to be carried by
the railroads on the sole condition that the same tolls should be
paid into the treasury of the State, as if they were transported on
the canals; and the constitutional restrictions were obeyed by the
provision of the act, that they should be “applied in the same
manner as tolls collected on freight transported on the canals of
this State.” A plain recognition of the constitutional restriction.

The tolls collected on railroads, which we have seen, were, in
1846, $23,801.89, under the act of 1847, increased steadily and
annually, until, in the year 1851, they amounted to the sum of
$171,055.01. (Report of the Commissioners of the Canal Fund,
1860, table 75.)

On the tenth of July, 1851 (Session Laws of year, chapter
497, page 927), the act in question was passed and took effect on
the first day of December of that year.

It declared that, after the first day of December, 1851, it should
not be necessary for any railroad company to pay any sum of money
into the treasury of this State, on account of the transportation of
oF THn State or Nuw Yorr. 321

any property on any railroad, nor to make monthly statements to
the Comptroller of property carried on its railroad, and it repealed
all acts and parts of acts conflicting therewith.

Under the operation of this act, we learn from the report above
referred to (table number 82), that the gross revenue of the State
canals, which, in the year ending 30th September, 1851 (the last
before the act went into operation), were $3,708,999.34, steadily
and annually decreased, until the whole amount thereof, for the
year ending on the 30th day of September last, was $1,814,362.47 ;
a loss in eight years of more than one-half of the entire revenues
of the State canals, which, as we have seen, were, in 1846, with all
their anticipated increase (an increase, as shown by the same table,
which had been steady, annual and nearly uniform in ratio from
1826 to 1851), solemnly pledged by the fundamental and paramount
law of the State, to the objects therein expressed; and by the
Comptroller’s report, in answer to a resolution of your honorable
body (Assembly Doc. No. 154), at the present session, that the
necessity exists of raising by a direct tax, to meet the deficiency
thus accrued, about four millions of dollars.

The cause which produced this effect, may perhaps be found in
the following eloquent figures: It appears by Senate documents of
1852, number 94, that the whole tonnage of the line of roads now
composing the New York Central railroad, for the year 1851, was
89,569 tons, and by the Auditor’s report on tolls and tonnage for
1860, that the tonnage of the New York Central railroad for the
year 1859, was 834,319 tons. This diversion of tonnage, with the
constant reduction of tolls to counteract railroad competition and
rendered necessary thereby, accounts for the decrease of revenue.
It is not a pertinent answer to the inquiry to say, that if freight
ean be transported more cheaply by railways than canals, as is
some times asserted, railways should have the privilege for the
benefit of commerce. The figures do not prove that, unless it be
assumed that the freighting business has been a source of profit to
the railroads, and not an attempt to render the canals so burden-
some as to produce their alienation by the people through a sacri-
fice for that purpose, voluntarily incurred in the expectation of
combining the canals with the railroads in one immense mass of

21 ?
822 OPINIONS oF THE ATTORNEYS-GENERAL

aggregated capital, to control the whole transit business, nay, the
whole power of the State, and by temporary sacrifice, to realize
immense profits in the future. But if the assumption be conceded,
it will not advance us in our inquiry, which is not a question of
policy, but of power.

We have seen the high purpose and the disinterested patriotism
which induced the people of this State in 1817 to undertake, single-
handed, a work of such magnitude, and involving such tremendous
responsibility as did then the canal system.

That they did so, conscious of the great responsibility for
national objects, and “the lasting benefit of the human race” in
the confident expectation that the Congress of the United States,
and the States equally interested with this State in the commence-
ment, prosecution and completion of these important works, would
contribute their full share of the expense.

We know, that while their most sanguine expectations of national
advancement have been realized tenfold, while, by reason of these
works millious of enterprising men have subdued the then solitary
wilderness of the west, and untold millions of values have been
created, both the Congress, the States equally interested, and
all States, have not only refused to “contribute” their just propor-
tion of the expense, but it is now claimed for them, as a right, to
send their productions to a market, toll free, through the avenues
created by the people of the State.

We have seen the funds, provided by the original act, to pay the
interest and redeem the principal of the debt to be incurred in the
construction of these canals, and irrevocably pledged therefor; and
that these pledges were renewed and confirmed, beyond legislative
power to divert, by the Constitution of 1822. That by that Con-
stitution, the tolls, as then established, were pledged both to the
public creditors and to the tax-paying people of this State, to be
“imposed on and collected from all parts of the navigable commu-
nications between the great western and northern lakes, and the
Atlantic ocean, which now are, or hereafter shall be, made and
completed. What was the principle here established? Nothing
short of an imposition of duty upon the internal commerce, the
carrying trade of this State, to redeem these pledges. Times, cir-
cumstances, names, the form and manner of doing things may
or THE StaTH or New York. 323

change, principles never. And most of all, should a principle of
constitutional law be adhered to, observed and preserved, amidst
the fluctuations of sublunary things.

We know, that whilst this Constitution remained the funda-
mental law of this State, in the progress of science and mechanic
skill, a new mode of transit was perfected and introduced into this -
State, which alone is capable of being substituted for’ “navigable
communications” in the transportation of property. Railroads
were chartered by this State at first, in fragmentary portions, and
either without authority to transport property at all, or when
judged by the Legislature to come in competition with the canals,
with the power limited, and conditioned for the payment into the
treasury for the use of the canal fund of full canal tolls. When
these portions, together and connected, formed one entire line from
the great western lakes to the tide waters of the Atlantic, and in
1844 applied for authority to transport freight, it was only during
the suspension of canal navigation that the privilege was sought,
and then only on the condition of paying into the canal fund the
same toll as if the property had been transported on the canals.
And no murmur was then heard from these corporations, who owed
their existence to governmental grace, and whose structures could |
have been completed only by the delegation (at that time a ques-
tionable policy), of that highest attribute of sovereignty, the right

-of eminent domain. The tolls then paid by them, in every sense,
became and were a part of “the revenues of the State canals.”
Tolls imposed upon what had then become, within the spirit of the
Constitution of 1822, “part of the navigable communications
between the great western and northern lakes, and the Atlantic
ocean,” and which, after the adoption of that Constitution, had
been “made and completed.”

The Constitution of 1846, we have seen, continued the pledges,
in this respect, of that of 1822, and the application of the entire
revenue then existing; and its confidently expected increase was
pledged to be applied in a manner and for purposes specially pro-
vided therein.

The sovereignty of this State resides in the people thereof. Its
Legislature, unlike the British Parliament, is not, in a legal sense,
omnipotent. All branches of the State government are limited and
324 OPINIONS oF THE ATTORNEYS-GENERAL

circumscribed in the exercise of power by the fundamental law, and
can do no act in violation of its letter or its plain spirit and intent;
if such act be attempted by any branch of the people’s government,
it is simply void—nothing.

The Constitution of 1846 renewed the restrictions against decreas-
ing the rate of toll contained in that of 1822, and vested its legis-
lative and other official agents with a discretion in the management
of the canal revenues in this respect. But this discretion must be
exercised to promote, not to defeat, the expressed will of their prin-
cipals, the people. These agents have a large discretion to promote,
foster, and improve the revenues committed to their charge, and are
bound to exercise it so as, in their best judgment, to effect the pur-
pose expressed in their commission, the Constitution, to wit, the
payment of the debts and the completion of the canals of the State
by the means and revenues provided by the Constitution ; and any
act in violation of that trust is unconstitutional and void.

When, in 1847, immediately after the adoption of the Constitu-
tion of 1846, it was believed. promotive of commercial prosperity,
in order to secure more rapid transit, when necessary, to allow the
railroads competing with the canals to carry freight during the
period of canal navigation, the people’s agents, mindful of the consti-
tutional limitations of their power, and loyal to the Constitution they
had sworn to support, imposed tolls upon all freights so to be trans-
ported, and declared they shall be deemed to belong to the canal
fund, and shall be paid over and applied in the same manner as tolls
collected on freights transported on the canals.

We have a judicial vindication of these same constitutional pro-
visions by the court of last resort, in the case of Zhe People v.
Newell (3 Selden, 1), which decided that these revenues can only be
applied in the manner and for the purposes provided by the Consti-
tution, and that an act of the Legislature, applying any portion
thereof to the payment of interest on a debt, not authorized by the
Constitution, even when that debt was contracted to effect the end
which the Constitution proposed, the completion of the canals, but
in a manner not authorized by the Constitution, was unconstitutional
and void.

No legal principle is more fally established, or more universally
recognized, than this, that whatever cannot be directly done, can-
or THE Srare or New Yor. 325

not be indirectly accomplished. If these revenues cannot, by the
Legislature, be directly bestowed upon the railroads, it cannot indi-
rectly effectuate the same result, first, by diverting to the railroads
the freight out of which the revenues grew, and, second, by releas-
ing the payment of the tolls-whose payment had been made a con-
dition of such diversion. Nor is the extent of such diversion mate-
rial to our inquiry. No portion of the revenue whose application
is prescribed by the Constitution; no portion of the source which
produced that revenue, can be diverted, abandoned, or misapplied,
without a palpable violation of the Constitution.

The Attorney-General is, therefore, of the opinion that the act
of July 10, 1851, abolishing tolls on the freights transported on
railroads therein mentioned is unconstitutional and void.

All which is respectfully submitted. ,

CHAS. G. MYERS,
Attorney-General.

—_

STATE OF NEW YORK:

SuPERINTENDENT’s OFFICE,
Department Pusiic Iysrruction,
Auzany, N. Y., August 17, 1860.

Hon. Onas. G. Myzrs, Attorney-General :

The law creating the office of school commissioner (chap. 179,
of 1856) provides, that, “at the general election in 1857, and
every three years thereafter,” there shall be elected “a school com-
missioner for each district or section.” The persons so elected are
to “hold office for three years, and until their successors shall have
qualified, according to law.” It is provided by the same act, that,
in case of a vacancy from resignation, death or removal, the county
judge “shall appoint a successor to fill such vacancy till the next
following general election, when a successor shall be chosen by the
electors, as hereinbefore provided.” Under this latter provision
elections have been held; and: the question arises, whether the
persons so chosen hold their offices for the full term of three years,
or only for the unexpired period intervening between the time
of election and the period indicated in the first provision of the
statute, viz., every three years after 1857? The Secretary of State,

og
326 OPINIONS oF THE ATTORNEYS-GENERAL

interpreting the law to require an election of a school commis-
sioner in every district or section at the coming general election,
has given notice accordingly. Asa difference of opinion prevails
in regard to the construction to be given to the statute, will you
favor me with your views upon the subject, to the end that they
may be made public, for the guidance of those interested ?

Very respectfully, I remain your obedient servant,

H. H. VAN DYCK,
Superintendent Public Instruction.

 

STATE OF NEW YORK:

Arrorney-GENERAL’s OFFICE, }
Auzany, August 17, 1860.

Hon. H. H. Van Dyck, Superintendent Public Instruction:

Srr.—I am in receipt of your communication of this date,
asking my views as to the tenure of office of a school commis-
sioner when elected under chapter 179, of the Laws of 1856, as a
successor in case of vacancy in that office.

The Constitution, article ten, section one, provides that “sheriffs,
clerks of counties, including the register and clerk of the city and
county of New York, and district attorneys, shall be chosen once
in every three years, and as often as vacancies shall happen.”
Under this provision it has been decided, and I doubt not cor-
rectly, that, in case of a vacany in any of these offices, the suc-
cessor elected at a succeeding general election holds his office for
the full term of three years.’ There is no provision that elections
for these offices shall be held throughout the State at the same
time, but only that they shall be chosen “once in every three
years, and as often as vacancies shall happen.”

The second section of the same article provides, that “all county
officers whose election or appointment is not provided for by this
Constitution, shall be elected by the electors of the respective
counties, or appointed by the board of supervisors or other county
authorities, as the Legislature shall direct.”

People v. Green, 2 Wend., 266; Constant v. People, 11 Wend., 511,
or THE Srare or Naw Yor. 327
\

The fourth section of the same article provides, that “ the time
of electing all officers named in this article shall be prescribed by
law ;” and the fifth section, that “the Legislature shall provide for
filling vacancies in office, and in case of elective offices, no person
appointed to fill a vacancy shall hold his office by virtue of such
appointment longer than the commencement of the political year
next succeeding the first annual election after the happening of the
vacancy ;” and-the sixth section of the same article provides, that
“the political year and legislative term shall begin on the first day
of January.”

The Legislature, by chapter 179 of the Laws of 1856, being the
act entitled “An act to provide for a more thorough supervision
and inspection of common schools, and further to amend the
statutes relating to public instruction in this State,” passed April '
12, 1856, pursuant to the constitutional provisions above extracted,
established a county office denominated school commissioner, and
provided by section first of that act, for his election by the board
of supervisors of the respective counties, to hold from the day of
his election until the first day of January, 1858.

The seventh section of the same act provides that, “ at the annual
general election held in the year 1857, and every three years there-
after, there shall be elected,” etc, “in the several Assembly
districts,” etc., “a school commissioner for each district or section ;”
and that “the persons so elected shall enter into office on the first
day of January, 1858, and shall hold office for three years and
until their successors shall have qualified according to law.”

By the ninth section of the same act, in case of vacancy in the
office, “the county clerk shall give immediate notice to the county
judge of said county, who shall appoint a successor to fill such
vacancy till the.next following general election, when a successor
shall be chosen by the electors as hereinbefore provided.”

The precise question presented is, whether such “ successor,” so
elected under the said ninth section of said act, holds his office for
three years, as in the case of sheriffs, clerks, etc., under the above
constitutional provisions, or only for the unexpired term of his last
elected predecessor.

There ‘may be no very obvious reason in the nature of things
why the cases should be held to differ, but I am inclinéd to believe
328 OPINIONS OF THE ATTORNEYS-GENERAL

that the “suecessor” so elected under the said ninth section, holds
only for the unexpired term for the following reasons:

' The Legislature had full power to prescribe the term of office
and mode of election thereto, so that it were “ by the electors of
the respective counties, or the boards of supervisors, or other
county authorities,” and were expressly required “to prescribe by
law,” “the time of electing” such officers. They have expressly pre-
scribed the term of office only of those officers who should “ enter
into office on the first of January, 1858, and shall hold office for
three years and until their successors shall have qualitied according
to law.” The provision for triennial elections of these officers,
sufficiently defines the term of those who shall be subsequently
elected in the regular course of election prescribed by the act; but
the Legislature have not expressly declared for what time the per-
sons elected to fill vacancies under the ninth section of the act shall
hold the office. It has, however, declared that school commission-
ers shall be elected for “each district or section” “at the annual
election held in the year 1857, and every three years thereafter,”
and I see no reason why the distinctly expressed will of the Legis-
lature in this section can be disregarded. It has thereby fixed the
time for the election of these officers “in each district or section.”
It passed over the general election of 1856 for good reasons, we are
bound to assume, and fixed upon the annual general election of
1857 as the first election by the electors of these officers, and then
prescribed that “every three years thereafter” a commissioner
should be elected “for each district or section.” I am, therefore,
of the opinion that a school commissioner must be elected in each
district or section every third year, from and after the election of
1857, without reference to the time or manner in which vacancies
may have been filled.

Respectfully, your ob’t serv’t,

CHAS. G. MYERS.

ALBANY, N. Y., December 9, 1861.
To His Excellency Epwm D. Morean, Governor, ete. :

I have the honor to acknowledge the receipt of your excellency’s
note of the fourth instant, requiring my opinion as to the extent
or THH SraTz or Nuw Yorks. 329

of the power of the State to contract debts under section eleven,
article seven, of the Constitution.

This section is found in, and forms an important part of the
financial article of the Constitution, the general policy of which
is to prevent the State, as far as is consistent with the public weal,
from contracting debts, and to prevent lavish and improvident
expenditures.

The tenth section of this article authorizes debts to be con-
tracted, “to meet casual deficits, or failure in resources, or for
expenses not provided for; but such debts, direct and contingent,
singly or in the aggregate, shall not at any time exceed one mil-
lion of dollars.”

The eleventh section, to which you direct my attention, is as
follows: “In addition to the above limited power to contract
debts, the State may contract debts to repel invasions, suppress
insurrections, or defend the State in war; but the money arising
from the contracting of such debts shall be applied to the purpose
for which it was raised, or to repay such debts, and to no other
purpose whatever.”

The twelfth section provides: “Except the debts specified in
the tenth and eleventh sections of this article, no debt shall be
hereafter contracted by or on behalf of this State unless such debt
shall be authorized by a loan for some single work or object to be
distinctly specified therein, and such laws shall impose and pro-
vide for a direct annual tax to pay, and sufficient to pay, the inte-
rest on such debt as it falls due, and also to pay and discharge the
principal of such debt within eighteen years from the time of
eontracting thereof.” Such law is not to have effect until passed.
upon and adopted by a direct vote of the people at a general elec-
tion held more than three months after the passage of the law, and
at which election no other. law authorizing a debt or amendment
of the Constitution shall be submitted.

These are the conditions, and the only conditions, upon which
debts may be constitutionally contracted by the State. The pre-
ceding sections of this article sacredly pledges all the considerable
revenues of the State, except the proceeds of taxes, to objects not
yet attained. The expenditures of the State are, consequently,
limited; and improper appropriations of public moneys are scarcely
830 OPINIONS OF THE ATTORNEYS-GENERAL

to be apprehended so long as the means to meet them must be
raised by a direct tax, imposed by the votes of a Legislature or
house whereof the members are annually amenable to their con-
stituents, or by direct vote of the people themselves. The finan-
cial policy of the Constitution forbids the accumulation of funds
in the treasury to meet and provide for the great public emergen-
cies specified in the eleventh section. A Constitution which should
leave the State defenseless against intestine or foreign war would
be fatally defective. The only resource of the. State in such a
contingency is the pledge of the public credit. This is accord-
ingly authorized by the section under consideration, with no
niggard hand. The State is thereby authorized to contract debts
without limit as to the amount, rate, interest, or time of repay-
ment. The laws authorizing such debts are not required to be
submitted to the people, nor to impose a tax to pay the interest
and repay the principal, as in all other cases. The only limita-
tions are, that the debts shall be contracted for, and the moneys
arising therefrom applied to the purpose as specified, and to no
other purpose, save the repayment of the debt.

The times and circumstances, too, when such debt may be con-
tracted, are limited only by the sound discretion of the Legislature.
The Constitution must be construed liberally and benignly to effect,
not to defeat, its object. The debts are authorized to be con-
tracted only during the actual existence of an insurrection or inva-
sion or war. Thus to limit might tend to defeat the very object
of this power.

The insurrection might become formidable, the invasion disas-
trous, or the war a conquest of the State, before it could provide
measures for its defense, and the very disasters render it difficult
and ruinously expensive, if not impossible to negotiate a loan.
The language of this section is not susceptible of such construc-
tion. The State “may contract debts to repel invasions, etc. The
ancient mode of expression was for to repel,” etc., for the purpose
or with the object of repelling invasion. And we have seen it is
only for the purpose specified in this section, required that the
highest of confidence should be reposed in the discretion of some
public agent. The Constitution merely reposes such trust in the
Legislature, fresh from the body of the people, and expressing the
oF THE Srate or New Vorx. 331

sentiments of every district and every interest in the State. The
power thus conferred upon that body, imposes upon it the gravest
responsibility. The obligation that this power should be exercised
only when and to the extent the concurrence and judgment of the
Legislature and people determined, the safety and honor of the
State, required.

On the other hand, carefully and conscienciously refraining from
imposition of unnecessary burdens upon the people; on the other
with a wise and prudent forecast, adequately providing for the
public safety and defense.

I have the honor to be,
Your excellency’s most ob’t serv’t,
CHARLES G. MYERS,
Attorney-General.

AtrornrY-GENERAL’s OFFICE,
Axsany, March 9, 1861.
The Attorney-General has the honor to acknowledge the receipt
of the following resolutions from the honorable the Assembly:

“STATE OF NEW YORK:

“Tw AssEMBLY,
“ Arpany, March 1, 1861.

“ Resolved, That the Attorney-General be requested to transmit
to this House his opinion as to the constitutional vote necessary to
pass Senate bill No. 31, entitled ‘An act to facilitate the construc-
tion of the Albany and Susquehanna railroad.’

“ Resolved, That the clerk of this House be directed to furnish
the Attorney-General a copy of said bill, with copy of foregoing
resolution, and that he be further requested to furnish said opinion
by the tenth day of March next, if consistent with his other public

duties. ae 5
dotnet’ “anit ep RISLEY, Clerk.”

And in reply thereto, respectfully submits the following opinion:
Section 9, article 1, of the Constitution, provides that “the assent
of two-thirds of the members elected to each branch of the Legis-
332 OPINIONS OF THE ATTORNEYS-GENERAL

lature shall be requisite to every bill appropriating the public mon-
eys or property for local or private purposes.” *

Section 9, article 7, of the Constitution, 1822, contains the same

provision.

~ Section 14 of article 7 of the existing Constitution provides:
“On the final passage in either House of the Legislature of every
act which imposes, continues or revives a tax, or creates a debt or
charge, or makes, continues or revives any appropriation of public
or trust money or property, or releases, discharges or commutes any
claim or demand of the State, the question shall be taken by ayes
and noes, which shall be duly entered on the journal, and three-
fifths of all the members elected to either House shall, in all such
cases, be necessary to constitute a quorum therein.”

The bill accompanying the above resolution, and mentioned
therein, imposes a tax of three-sixteenths of a mill on each dollar
of the real and personal property of this State in each of the fiscal
years commencing on the first day of October, 1861 and 1862, and
appropriates the money so to be raised to the credit of the Albany
and Susquehanna Railroad Company, upon the performance by that
company of certain precedent conditions, to be applied and used in
the construction and equipment of the said road.

The question propounded in this resolution must be solved by
ascertaining whether the bill appropriates moneys for a “local or
private purpose.”

The purpose of the bill is to aid the construction of a railroad
from the capital of this State to Binghamton, in the county of
Broome, passing through portions of the counties of Albany, Sche-
nectady, Schoharie, Otsego, Delaware, Chenango, and Broome,
seven important counties of this State, and would seem scarcely to
be obnoxious to the charge of being a mere local purpose.

The professed object of the bill is to “aid the said company in
developing the resources of a sequestered portion of the State.”

All improvements must have of necessity some locality, but if
the object is the accommodation and advancement of such portions
of the community, or may be properly called, the public, it is not
local within the meaning of the Constitution. Justice Story, on
commenting on the rights of Congress to make appropriations

1 See, ante, p. 232, note.
or THE Srare or New Yorx. 333

where a kindred provision is involved, says: “The true test is
whether the object be of a local character and local use, or whether
it be of a general benefit. If it be purely local, Congress cannot
appropriate money for the object. But if the benefit be general,
it matters in point of locality, not whether it be in one State or
several of a large or small: extent, its nature and character
determines the right, and Congress may appropriate money for it,
for it is then for the general welfare.”

The bill appropriates this money to the use of a corporation, a
body politic, an artificial person created by law and having
generally, within the scope of the powers conferred upon it, the
same rights and none other than a natural person.

If the question was an original one, I fancy something might be
said tending to show that the money is appropriated for private
benefit, ‘the corporation being quasi a private person, and the
stockholders, its constituents, a limited number of private persons.

But the Constitution protects the citizen in his property abso-
lutely; the only exception being the right of eminent domain; the
right of the government to appropriate private property for pub-
lic use, and even this is prohibited without providing just compen-
sation.

No sooner did the State commence to authorize the construction
of said roads by corpohrations, tan the question arose whether it
could constitutionally authorize said corporations to take private
property whereon to construct their roads without the consent of
the owner. If such authority did not exist, said roads could not
have ‘been constructed, for no sooner would it be ascertained that

-certain lands were necessary to a corporation, than the price
demanded by the owner would be limited not by the value of the
property, but only by the necessities of the corporations.

It was decided at an early day by the Supreme Court. Mr.
Justice Sutherland delivering the opinion in Bloodgood v.
Mohawk and Hudson Railroad Company (14 Wendell, 51). That
no doubt could ‘be entertained “of the entire constitutionality of
that provisions of the act in question which authorize the defendant
to take the land which may be necessary for the construction and
maintenance of the road against their will and without the con-
sent of the owners.”
334 OPINIONS OF THE ATTORNEYS-GENERAL

The same point has been frequently and uniformly held by all
the courts in the same way ; the reason being that said roads are a
public benefit and improvement, and the principle is firmly estab-
lished Sy judicial authority.

There are other numerous legislative precedents. In 1843, the
bill in relation to the New York and Erie railroad was held, by
Lieut. Gov. Dickinson, to be a majority bill, and his decision was
given in an elaborate opinion.

Mr. Speaker Davis also held the same way upon the same bill;
and the same question was decided the same way in 1851 by Lieut.
Gov. Raymond on the bill granting the supply water of the Erie
canal to the Sodus Canal Company. There are other like pre-
cedents, including the decisions of the able presiding officers of the
present Legislature.

The authorities and precedents would seem to settle the question
propounded in the resolution. I am of the opinion that the bill in
question would be well passed by a majority of both Houses, three-
fifths of all the members elected to either House being present.

CHAS. G. MYERS,
Attorney-General.

Or¥icE oF THE ATTORNEY-GENERAL,
Auzany, March 6, 1862. }

Sre.—In relation to the county judge of the county of Lewis,
my opinion is, that the resignation sent to the Governor in Novem-
ber, to take effect on the first of December, not ‘having been filed
in the office of the Secretary of State, was clearly within the con-
trol of the incumbent of the office, and that he has power to with-
draw or continue the resignation at any time before it took effect or
any steps were taken to appoint a successor. The office is, therefore,
not vacant.

‘I see no way in which the Governor can furnish a county judge
to the county of Lewis, unless the clerk of that county shall certify
that the late incumbent has removed from the county; in which
case the Governor can fill the vacancy, or unless a vacancy shall be
or Tam Srate or New Yorx. 335

created by proceedings under section 11 of article 6 of the Consti-
tution.

I have the honor to be, ete., your obedient servant,

DANIEL 8. DICKINSON,
_ Attorney-General.
His Excellency, E. D. Moraan, Governor, ete.

STATE OF NEW YORK:

Orrick or THE ATTORNEY-GENERAL,
Auzany, February 12, 1868.

Lo the Honorable the Assembly :

‘The Attorney-General, in answer to the following resolution of
the Assembly, to wit:

“Tn AssEmaty,
“ Arpany, February 9, 1863.

“On motion of Mr. Woodward :

“‘ Whereas, in the editions of the Session Laws of this State for
the year 1862, laws are stated to have been passed at a time long
subsequent to the final adjournment of the Senate and Assembly ;
it is hereby

“ Resolved, That the Attorney-General of the State of New York
be requested to give his opinion, in writing, to this House, as to the
validity of laws, purporting to have been passed ten days, or more,
after the final adjournment of the Legislature.

“ By order.
“J, B. CUSHMAN, Clerk.”

Respectfully submits his opinion, that laws purporting to have
been passed ten days or more after the final adjournment of the
Legislature are not, for that reason, invalid. The ten days’ limita-
tion provided by the Constitution evidently applies only to bills not
approved and signed by the Governor; and if his approval is valid
within ten days after the adjournment, it is clearly so after the expi-
ration of that period.

The question was, for a time, regarded as a serious one, and
engaged the consideration of the Legislature and the courts; and
Attorney-General Tremain, in an able and elaborate opinion (Assem-
336 OPINIONS OF THE ATTORNEYS~GENERAL

bly documents of 1859, No. 129), advised the Legislature of that
year, that acts which had received the executive approval after the
final adjournment were valid. But, since that time, the question
has been directly and authentically adjudicated, and is no longer
open or debatuble.

The litigation in which it was decided was commenced in the city
of New York, in an action entitled The People v. Bowen, a history
of which may be found in the twelfth volume of Barbour’s Supreme
Court Reports, p. 24.

By an act of the Legislature of 1855, “The Metropolitan Gas
Light Company of the city of New York” was incorporated by the
Legislature; but it appeared to have received the Governor’s appro-
val after the final adjournment of the Legislature. The corporation
having commenced the exercise of its functions, an action in the
nature of a guo warranto was commenced against it, to restrain its
corporate action and cancel its pretended charter. One of the alle-
gations against it, and the principal one, too, was, that the bill
passed by the Legislature had not been approved and signed by the
Governor until after the final adjournment.

To this allegation a demurrer was interposed; and it was held in
the Supreme Court, at Special Term, in a well-reasoned opinion of
Judge Sutherland, that the Governor had power to approve and
sign a bill, and thus make it a valid and authentic act of the Legis-
lature, after their final adjournment; and this decision was directly
and fully affirmed, upon appeal, in the Court of Appeals. The
opinion of the court may be found in 21 New York Reports, at
page 517. It may, therefore, be regarded as the settled law of the
State, that the Governor has power to sign bills after the final
adjournment of .the Legislature, and that such acts, though purport-
ing to have been passed at the date of the executive approval, have
the full and complete authority of law.

D. 8. DICKINSON,
Attorney-General.
or THE STATE oF New York. 337

(Senate Document, 1863— No. 77.)
Lo the Hon. the Senate of the State of New York:

The undersigned has the honor to transmit to the Senate his
opinion, as requested by the following resolution, to wit:
“On motion of Mr. Cook:

“ Resolved, That the Attorney-General be requested to give to
the Senate his opinion, in writing, whether the land and the land
scrip donated by the United States to the several States and Terri-
tories by the act of Congress of July 2, 1862, entitled “ An act dona-
ting public lands to the several States and Territories, for the pro-
motion of agriculture and the mechanic arts,” may be assigned to
one or more colleges. within this State, and be located by such
college; and whether, after such location, the State would be liable
to pay taxes thereon, under the provisions of said act.”

By chapter 139 of the acts of the thirty-seventh Congress,
entitled “ An act donating public lands to the several States and
territories which may provide colleges for the benefit of agricul-
ture and the mechanic arts,” it is provided, in the first section,
that land shall be granted for the purposes of the act to each State,
in a quantity equal to 30,000 acres for each senator and representa-
tive in Congress, etc.

The second section provides, amongst other things, that when
there are lands within a State subject to private entry, the quan-
tity to which such State is entitled shall be selected from such
lands within its limits; and when there is not, then land scrip
shall be issued to such State to supply such deficiency, etc. ; such
scrip to be sold, and the proceeds applied-to the uses and purposes
prescribed by said act. It prohibits the State to which such scrip
shall be issued, from locating the same within any other State or
territory, but permits such location to be made by the assignees
of such State, etc.

The third section provides, that the State shall pay all expenses
for superintendence and management of said lands, and all taxes,
ete., from the time of their location, so that the fund arising from
the proceeds shall remain unimpaired. And the fourth section
prescribes the mode of investment of the proceeds, and the pur-

poses to which the income shall be applied.
22

\
338 OPINIONS OF THE ATTORNEYS-GENERAL

From the time lands are apportioned to, or selected for a State,
such State becomes immediately chargeable with all incidental
taxes and expenses; but this is only applicable to States which
have within their limits lands subject to private entry, etc.

This and other States which have no public lands within their
limits will receive only land scrip. This scrip they cannot locate,
but must sell bona fide for an equivalent, and invest the proceeds
in stocks, ete.

These States.will, therefore, at no time be the owner of any
of the lands donated, and will not be chargeable with taxes
unless by special arrangement with their assignees. They may
assign their scrip to any one who will purchase, whether natural
or artificial persons, individuals or corporations, and, of course, to
one or more colleges. And such persons or corporations may
rightfully locate the land scrip assigned them; and will, after
such assignment, be liable for the taxes and other individual
charges, unless the State shall by special agreement assume to pay

them.
D. 8. DICKINSON,

Attorney-General.

(Senate Documents, 1863— No. 114.)

STATE OF NEW YORK:
Orrice or THE AtroRNEY-GENERAL,
Azany, April 15, 1863. }
To the Senate of the State of New York:

I am honored with the resolution of the Senate of the 14th
instant, in the following words, to wit:

“STATE OF NEW YORK:

“In Senate,
. “ Arpany, April 14, 1863.
“On motion of Mr. Low:

“ Resolved, That the Attorney-General be requested to examine
Senate bill No. 300, entitled ‘An act to secure the elective fran-
chise to the qualified voters of the army and navy of the State of
OF THE Svatre or New York. 839

New York,’ and that he be requested to inform the Senate whether,
in his opinion, the bill is in conflict with the Constitution, and
whether any amendment to the Constitution is necessary to secure
the elective franchise to such voters while absent from the State.

“ By order of the Senate,

“JAS, TERWILLIGER,
» “ Clerk.”

I am advised informally, that an early answer is desired, and
being pressed with other official engagements, I have not the time
for such examination as the gravity of the subject merits, and
must give the results upon such partial consideration as I have
been enabled to bestow upon it.

It is provided by article one, subdivision one, that “no member
of this State shall be ‘disfranchised, or deprived of any of the
rights or privileges secured to any citizen thereof, unless by the
law of the land or the judgment of his peers.” ,

Article two, section one, provides, “that every male citizen of
the age of twenty-one years, who shall have been a citizen ten
days, and an inhabitant of the State one year next preceding an
election, and for the last four months a resident of the county
where he may offer his vote, shall be entitled to vote at such elec-
tion, in the election district of which he shall at the time be a
resident, and not elsewhere, for all officers that now are, or here-
after may be elected by the people; but such citizen shall have
been for thirty days next preceding the election a resident of the
district from which the officer is to be chosen for whom he offers
his vote.”

Section three of the same article provides, that, “for the pur-
pose of voting, no person shall be deemed to have gained or lost a
residence by reason of his presence or absence while employed in
the service of the United States,” etc.

These are all the provisions relating to the matter, and I am not
aware that they, or similar ones, have ever received judicial con-
sideration or construction. The question is, therefore, an open
one, and must be decided by the best lights which can be drawn

1An amendment of section 1, article 2, of the Constitution was adopted in
March, 1864, securing to the soldier and sailor the right to vote in time of war.
340 OPINIONS oF THE ATTORNEYS-GENERAL

from the letter and spirit of the Constitution. We have seen that
neither the soldier nor the sailor loses his residence by absence in
the service of the United States; and this leaves but a single ques-
tion, and that is, whether the actual presence of the elector is
required by the Constitution, or whether the Legislature may
authorize the deposit of his vote while he yet continues in service
abroad.

That the proposed method may be inconvenient, cumbrous and
liable to fraud and abuse, is no answer to its validity, for unless it
is prohibited by the Constitution, it may be authorized by law.
The elector “ must offer his vote,” but must he necessarily do so in
person, and with his own hand, or may the Legislature authorize
him to offer it in other modes? He clearly need not offer it with
his own hand, for the sick and infirm and paralyzed may vote, and
so may the soldier or sailor who has lost both hand and arms in
the service of his country; and unless the Constitution requires
his presence at the polls, the Legislature may dispense with it.
The elector is abroad, but he is still regarded by the Constitution
as a resident of his election district, and entitled to vote there and
not elsewhere. If he continues to serve his country, he must either
be disfranchised at a time and under circumstances when all the
privileges of citizenship, and especially those of an elector, are
more inestimable than ever, or some method must be devised under
the laws and Constitution he is defending, to secure to him his
birthright. There is nothing in the Constitution indicating the
manner of voting, unless by implication, and there is certainly
nothing in it, either express or implied, which prohibits the Legis-
lature from prescribing such forms for depositing the votes of
electors as, in its wisdom, it may deem best. I, therefore, hold
that Senate bill No. 300, entitled “An act to secure the elective
franchise to the qualified voters of the army and navy of the State
of New York,” is not in conflict with the Constitution, and, conse-
quently, that no amendment of that instrument is necessary to
secure the elective franchise to such voters while absent from the
State in the service of the United States.

All of which is respectfully submitted.

D. 8. DICKINSON,
Attorney-General.
or THE SraTH or New York. 341

STATE OF NEW YORK:

ATTORNEY-GENERAL’s OFFICE, i
March 31, 1864. °§
To the Hon. the Senate:

T have the honor to acknowledge the receipt of the following
resolution :

“* Resolved, That Senate bill, No. 199, being an act for the
relief of James Morrison and others, be referred to the Attorney-
General, with the request that he communicate his opinion to the
Senate, whether said bill is in conformity with the provisions of
section 16, article 3, of the Constitution of the State, and report
by Friday next.”

Section 16, article 3, of the Constitution of this State, is in
these words: “No private or local bill, which may be passed by
the Legislature, shall embrace more than one subject, and that shall
be expressed in the title.”

From a careful examination of the bill accompanying the resolu-
tion, I am unable to find that there is more than “one subject”
embraced therein; that for ascertaining the “damages occasioned
by a breach in the canal as specified in chapter 119, of the Laws
of 1863.”

. The combining of several claims, all proceeding from and relat-
ing to the same object in one bill, for convenience or other good
cause, does not seem to me to be prohibited by the section of the
Constitution referred to.t :

The title of the bill, I think, is defective in its failure to state
the single subject of the bill, in respect to which relief is intended
for James Morrison and others named in the bill.

I think that such a title as the one following, would render
the entire bill unobjectionable, viz.: “An act authorizing the
rehearing and determination of the claims of James Morrison,
Horatio N. Curtis, etc. (naming the persons and firms), alleged to
have been caused by a breach in the Erie canal.

I am, very respectfully, your obedient servant,
JOHN COCHRANE,
Attorney-General.

1 For cases construing this provision of the Constitution see 5 N. Y., 1 Seld.,
28; 8N. Y., 4 Seld., 241; 16 N, Y., 58; 19 N. Y., 116; 42 N. Y., 128.
342 OPINIONS OF THE ATTORNEYS-GENERAL

STATE OF NEW YORK:

OFFIcE oF THE ATTORNEY-GENERAL, t
Atzany, N. Y., October 16, 1865.
Col. W. H. Sxumway: :

Dear Smr.—Absence from the State for quite a time is my
apology for not replying earlier to your letter of the 4th of August
last.

I have examined, with care, the question you present, and now
give you my opinion upon it.

The disability contemplated by section 146, of the militia law of
1862, to exempt from further liability to military duty, evidently
rust have occurred in the service, and is not to be regarded as
among the conditions of original exemption. .*

Subdivision two of section one of the law, exempts from military
duty “persons who have been or hereafter shall be regularly and
honorably discharged from the army or navy of the United States,
in consequence of the performance of military duty, in pursuance
of any law of this State, and such firemen as are now exempted by
law.t

As to this class of exempts, it is to be observed that three con-
ditions must unite before the persons having performed military
duty can be held exempted.

First. They must have been regularly and honorably discharged
from the army or navy of the United States.

Second. Such discharge must have been in consequence of the
performance of military duty.

Third. This duty must have been in pursuance of a law of this
State. 2

If any one of these conditions is wanting, the person is not an
exempt; and if they all unite, no other consideration can defeat
his privilege.

A discharge from the army or navy of the United States because
of “physical disability,” does not fulfill the condition of a discharge
“in consequence of the performance of military duty.”

A “muster out” is, in truth, a “discharge,” and a regular and
honorable one.

' Subdivision 2 is suspended by section 2, chapter 651, Laws of 1868 (7 Edwards’
Statutes, 325.) But see subdivision 1, section 1, chapter 80, Laws of 1870.
or THE Svate or New York. 343

I think, that in connection with the terms “army” or navy pre-
viously occurring in subdivision 5, section 1, the word “ military”
therein used, is to be beneficially enlarged to a nautical sense also.
Then the soldier or sailor “honorably” or regularly discharged
from either the army or navy, if a citizen, before he can claim an
exemption from military duty to the State, must show that the
military or naval duty which he performed, and in consequence of
the performance of which he was thus discharged, was “in pursu-
ance of a law of this State.”

Now, the men who volunteered, or were drafted, into the United
States service during the war, went first into organizations of State
volunteer regiments, under State officers. Some law of our Legis-
lature recognized every requisition by the President on the State
for its quota of troops, and provided for raising it. The regiments
so raised, organized and officered, were thence and thereafter mus-
tered, in pursuance of that law, into the United States service,
under general officers of federal appointment. Sometimes the
United States took into the naval service those volunteers or drafted
men who preferred it, and allowed them on the State quota. But
all, whether volunteers or drafted men, in either the United States
army or navy, were thus therein “in pursuance of a law of this
State.” You will perceive, therefore, that, plainly and easily, these
facts put subdivision 5 of section 1 of the law of 1862 in full opera-
tion.

Now, whether these persons, so. in possession of these three con-
ditions, had been previously or were subsequently enrolled in the
State militia, is of no consequence. In the one case, the subsequent
law of exemption absolved them from military duty, and in the
other, their subsequent enrollment was a nullity.

My conclusion, therefore, is, that a person, whether or not enrolled
in the State militia, who shall have, under any of the requisitions
of the President of the United States upon the State for troops
during the war, been mustered into the army or navy, and have
therein performed duty, whether military or naval, and in conse-
quence of the performance of which duty, whether for one, two or
more months or years, shall have been regularly and honorably dis-
charged from the service, is, under subdivision 5 of section 1 of the
militia law of 1862 (re-enacted in the law of 1863, as subdivision
344 OPINIONS OF THE ATTORNEYS-GENERAL

2 of section 1), exempt from any performance of further military

duty.
Yours, respectfully,
JOHN COCHRANE,

Attorney-General.

—_—\—

STATE OF NEW YORK:

Orrick or THE ATTORNEY-GENERAL, }
Axpany, January 14, 1865.

To the Senate of the State of New York:

In answer to the resolution of the honorable the Senate, request-
ing the opinion of the Attorney-General “as to the constitutionality
of providing means, by the issue of State stocks, redeemable at
some future day, to encourage voluntary enlistments in the military
service of the United States, for the purpose of suppressing the
present rebellion,” the Attorney-General respectfully submits, that
the organic law, which, at section 11 of article 7 of the Constitution
of the State, to “ contract debts to repel invasion, suppress insur-
rection, or defend the State in war,” is not applicable to the national
exigency specified in the Senate’s resolution, but is virtually, by its
terms, as clearly it was intended to be, restricted to debts for the
purpose of repelling invasion of the State, of suppressing insurrec-
tion within its borders, or of defending the State in war.

The issue of State stocks in the manner and for the purpose
declared in the Senate’s resolution, would, in the opinion of the
Attorney-General, be the creation of a State debt of the character
of those contemplated by section 12 of article 7 of the Constitution.

Your obedient servant,
JOHN COCHRANE.
OF THE STATE or New York. 3845

(Senate Document, 1866—.No. 80.)

The Commissioners of the Land Office, in answer to: the follow-
i lution :
Petar “STATE OF NEW YORK:

. “Ty Senate, j
: “ Arpany, January 25, 1866. {

“On motion of Mr. Andrews,

“ Resolved, That the Commissioners of the, Land Office be
requested to furnish the Senate with all such information as they
possess relative to the claim of the Stockbridge Indians; how
much has heretofore been paid to them; the amount they were to
receive for their lands in the State, anal such other information as
they may possess.

“ By order.

“JAS. TERWILLIGER, Clerk.”

Respectfully report?:

The resolution under consideration assumes that some claim is
made on the State by the Stockbridge Indians, without defining it ;
but it is supposed that the claim is the same which has heretofore
been presented to the Legislature, and induced appropriations of
moneys to those Indians in the years 1848, 1850, 1857, and 1862.

The history of these appropriations discloses the whole claim
made on the State by this nation of Indians. It is, therefore, sup-
posed that the inquiry of the Senate, though expressed in general
terms, is only designed to obtain information as to the sale of lands,
out of which this claim has arisen, and the.amount of money which
they have received therefor, and such otherginformation as will
explain the obligations of the State, legal or equitable, resulting
from such sale.

The Senate is respectfully referred to a report of the Commis-
sioners of the Land Office, to be found in Assembly Document No.
158, of the year 1846, where this claim first appears in the public
records.

1 This report and the one following were written by District Attorney-General
Martindale, who has made the study of Indian affairs and the examination of
Indian titles a specialty. They are valuable not only as legal opinions but as con-
taining matter of historic interest.
346 OPINIONS OF THE ATTORNEYS-GENERAL

It is not necessary to repeat here all the facts disclosed in that
report.

It appears that, in 1822, this nation of Indians held and occupied,
in their tribal character, a reservation of 6,000 acres of land in the
counties of Madison and Oneida, in this State. By treaty, made in
‘that year, they ceded their title to those lands to, the State, for the
conéideration-price of $12,000, being at the rate of two dollars per
acre.

The whole consideration was paid to them, except that the sum
of $1,200 was disbursed to defray the expenses attending the execu-
tion of the treaty, and they retired from the reservation and removed
to the territory of Wisconsin, on to lands which they had acquired
in that territory from the Winnebago and Menominee Indians.

In 1846 a claim was made to the Legislature of this State to pay
to the Indians a claim of $1,200, expended in the execution of the
treaty.

The report of the Commissioners of the Land Office of that year,
above referred to, was adverse to this claim.

In 1848 the claim was renewed, and expanded into a claim for
the whole net proceeds obtained by the State from the sale of the
lands in question, subsequent to the treaty of 1822. A report of
the Commissioners of the Land Office, to be found in Assembly
Document No. 53, of the year 1848, shows that the net proceeds
of these sales by the State amounted to the sum of $79,130.41.

A petition of the chief and head men of the Stockbridge Indians,
who had come from their nation in Wisconsin to present it, will be
‘found in Assembly Document No. 81, of 1848.

This petition presents the claim as founded in an equitable obli-
gation of the State, as the “guardian” of the Indians, to pay to
them, as “ wards,” these net proceeds, as so much profits made out
of the purchase and sale of the lands in question.

The Legislature thereupon appropriated the sum of $10,000, out
of which sum $6,000 was invested for their benefit as a school and
gospel fund; $3,000 was paid to the tribe, and $762.75 was paid to
defray the expenses of removing to Wisconsin, a remnant of the
tribe still resting in the State of New York.

By the Laws of 1850, the further sum of $30,000 was directed to
be invested for their benefit, and places the $6,000 above referred
or THE Starr or New York. 347

to under the control of the Commissioners of the Land Office.
Under chapter 19, Laws of 1852, the sum of $9,000 was paid to
John W. Quinney and John Hadcock, and $9,000 to A. O. Stone,
agents of said tribe. By chapter 494, Laws of 1857, the Commis-
sioners of the Land Office distributed the sum of $18,000.

These several payments made the sum of $36,000, invested for
their benefit, and includes the $6,000 set apart for a gospel and
school fund, and the $30,000 appropriated by the Laws of 1850.

In 1862 the further sum of $10,000 was appropriated and paid by
A. C. Stone, the agent appointed by the Governor, under chapter
320 of the Laws of that year.

It thus appears that, in addition to the consideration-price of
$12,000 paid’by the State, under the treaty of 1822, which extin-
guished the whole of the Indian title to the lands in question, there
has been paid to them further sums, amounting in the aggregate to
$49,762.75. .

There still remains a balance of the “net proceeds” arising from
the sales made by the State of the lands in question, amounting to
$29,367.66. ,

This is the remaining sum for which a claim is now made. Is
there any obligation, legal or equitable, resting on the State to pay
it? There is no pretense that these Indians were constrained by
the State to sell and remove to Wisconsin. On the contrary, their
right to remain as long as they chose to occupy their reservation,
unmolested by intruders, was fully recognized and guarded. They
came to this State and settled on the ldnds of the Oneidas, shortly
after the conclusion of the revolutionary’ war.

By the treaty of Fort Stanwix, in 1788, the Oneidas set apart to
their friends, the Stockbridge or Mohican Indians, a portion of land
six miles square, and which was confirmed to them by the govern-
ment of this State, by subsequent act of the Legislature. This act,
revised, will be found in chapter 92 of the Revised Laws of 1813,
and provided that the tract “shall be called New Stockbridge, and
be and remain to the said Stockbridge Indians and their posterity
forever, but without any power of alienation or right of leasing or
disposing of the same or any part thereof.”

The most stringent laws were also passed to guard them against
intrusion and settlement by persons other than Indians, declaring
j
348 OPINIONS OF THE ATTORNEYS-GENERAL

such settlement to be a misdemeanor, and punishable as
such.

Provision was also made by the State to extinguish, by purchase
and payment out of the treasury of the State, the claims on the
lands occupied by them, which were set up by the Oneidas. But
the Stockbridge Indians were uneasy in their new homes. In the
petition of their head men and sachems, sent from Wisconsin and
presented to the Legislature in 1848, they say that “the State of
New York did not coerce us to sell our lands; but the approach of
civilization to our border, and the forerunners of civilization, far
more disastrous to the Indian than most other evils pervading the
outskirts of civilized life, caused us to move away, and a sale was
the necessary consequence.”

They solicited the Stateto make the purchase. They represented
to the Legislature that they were desirous to remove. An act rela-
tive to the Stockbridge Indians, passed March 23, 1821, found in
chapter 135 of the Laws of that year, contains a recital expressing
that they represented to the Legislature that they were desirous to
remove out of the State, and solicited an advance of the principal
of an annuity agreed to be paid to them for lands granted by them
to the State in 1818, to aid them in such removal. Thereupon, the
act of March 23, 1821, complying with such solicitation, was accord-
ingly passed. No just pretense can be indulged that the considera-
tion paid by the State in 1822 for the lands in question was inade-
quate. Contrasted with the prices paid by the United States, and
by the grantees of Massachusetts for lands similarly held by Indians
in the western part of this State as late as 1838, the price of two
dollars per acre, paid to the Stockbridge Indians in 1822, was a large
consideration.

Has the State made any profit out of this transaction ?

The right of these Indians to the reservation in question, before
its surrender by the treaty of 1822, was a right of occupancy and
enjoyment, as long as they remained in possession in their tribal
character. But the ultimate fee was in the State.

A long course of legislative and judicial action had settled this
question. The Supreme Court of the United States, in the case of
Mitchell v. The United States, reported in the 9th Peters’ United
oF THE STATE or Nuw Yorn. 349

States Court Reports, page 711, has defined this Indian right in
explicit terms, as follows:

“One uniform rule seems to have prevailed in the British Ameri-
can provinces in America, by which Indian lands were held and
sold, from their first settlement, as appears by their laws; that
friendly Indians were protected in the possession of the lands they
occupied, and were considered as owning them by a perpetual right
of possession in the tribe or nation inhabiting them, as their com-
mon property from generation to generation, not as the right of the
individuals located on particular spots. Subject to this right of
possession, the ultitnate fee was in the crown, and its grantees,
which could be granted by the crown or colonial Legislatures, while
the lands remained in possession of the Indians; though possession
could not be taken without their consent.

“Individuals could not purchase Indian lands without permission
or license from the crown, colonial Governors, or according to the
rules prescribed by colonial laws; but such purchases were valid
with such license, or in conformity with the local laws; and by this
union of the perpetual right of occupancy with the ultimate fees
which passed from the crown by the license, the title of the pur-
chaser became complete.

“Indian possession or occupancy was considered with reference to
their habits and modes of life; their hunting grounds were as
much in their actual possession as the cleared fields of the whites;
and their rights to its exclusive enjoyment in their own way, and
for their own purposes, were as much respected, until they aban-
doned them, made a cession to the government, or an authorized:
sale to individuals. In either case, their rights became extinct; the
lands could be granted, disencumbered of the right of occupancy,
or enjoyed in full dominion by the purchasers from the Indians.
Such was the tenure of Indian lands by the laws of Massachusetts,
Connecticut, Rhode Island, New Hampshire, New York, New
Jersey, Pennsylvania, Maryland, Virginia, North Carolina, South
Carolina and Georgia.”

In view of the nature of this Indian right of occupancy, it will
be seen that the “ net proceeds” of the sales made by the State, are
not “ profits” made out of the sale of the title acquired from the
Indians. These proceeds cover the consideration for the grant of

°
850 OPINIONS OF THE ATTORNEYS-GENERAL

the “ ultimate fee”: which the State owned before the Stockbridge
Indians had ever removed from Massachusetts.

If the assertion of this right to the “ ultimate fee ” by the State,
violates any rule of equity, then it was inequitable for our ancestors
to settle in America as conquerors, without first obtaining the con-
sent of the native Indians who inhabited the continent.

The policy which would require the people of the United States
to adopt such a rule of equitable obligation, when applied at this
day to the government of the United States, and their relations to
the western Indians, would lead to very extraordinary results. It
would convert the land office into a bureau for receiving as trust
funds, for the native Indians, all the “net proceeds” arising from
the sale of the public lands. It would recognize all the enhanced
value imparted to these lands by the settlement and improvements
of civilized communities, as equitably belonging to distinct, though
dependent nations, who are not subject to any of the burdens of
government while receiving its protection.

The foregoing embodies all the information possessed by the Com-
missioners of the Land Office, bearing on the inquiry addressed to
them by the resolution of the honorable the Senate, relating to the
claims of the Stockbridge Indians.

All of which is respectfully submitted.
THOMAS G. ALVORD, Lieutenant-Governor.
FRANCIS C. BARLOW, Secretary of State.
THOMAS HILLHOUSE, Comptroller.
J. H. MARTINDALE, Attorney-General.
JOSEPH HOWLAND, Treasurer.
J. P. GOODSELL, State Engineer and Surveyor.
February 8, 1866.
or THE STATE or New Yors. 3851

(Senate Document, 1866— No. 50.)

The honorable the Senate sent to this board a resolution, in the
following words:

“ Resolved, That the Commissioners of the Land Office be
requested to examine, or cause to be examined, the treaty of the
22d day of September, 1788, and agreements of the State with thé
Oneida nation of Indians, the lands reserved therein to said Indians
in said treaty, the location and condition thereof, and the several
releases by said Indians to the State of New York, to the end that

it may be determined, whether there are any lands within this State “ -

to which the title of said Oneida Indians has not been released or
extinguished, and how the same are now held; and that they report
the result of their researches to the Senate at as early a day as con-
venient.”

This board respectfully responds and reports, that the treaty made
by the Oneida Indians with the State of New York, at Fort
Stanwix, on the 22d September, 1788, contains the following
grant:

“The Oneida Indians do cede and grant all their lands to the
people of the State of New York forever.”

This unqualified grant is followed by a description of certain
reservations of land for the use and occupation of the Indians, and
certain other reservations of lands which they are permitted to lease
to such persons as they may deem proper.

The treaty contains also the following eunee conditions and
reservations :

“The Oneidas and their posterity forever shall enjoy the free
right of hunting on every part of the said ceded lands, and fishing
in all the waters within the same; and, especially, there shall for-
ever remain ungranted by the people of the State of New York
one half mile square, at the distance of every six miles, of the lands
along the northern bounds of the Oneida lake; one-half mile in
breadth of the lands on each side of the Fish creek ; and a conve-
nient piece of land at the fishing place in the Onondaga river, about
three miles from where it issues out of the Oneida lake, and to
remain ag well for the Oneidas and their posterity as for the inhabi-
tants of the State, to land and encamp on; but, notwithstanding
352 OPINIONS oF THE ATTORNEYS-GENERAL

any reservation to the Oneidas, the people of the State of New
York may erect public works and edifices, as they shall think pro-
per, at such place and places at or near the confluence of the
Wood creek and the Oneida lake as they shall elect, and may take
and appropriate, for such works or buildings, lands to the extent of
one square mile at each place.”

’ By subsequent treaties, made in 1802 and.1809, the strip of
“one-half mile in breadth of the lands on each side of the Fish
creek” was ceded to the State, reserving, nevertheless, to the Indi-
ans, “the right to take fish in said river with spears, and with
hooks and with lines, and not otherwise.”

But it is claimed : .

First. That the free right reserved to the Oneidas and their pos-
terity forever, “of hunting on every part of the said ceded lands,
and fishing in all the waters within the same,” has never been
extinguished by any treaty; that the settlement of the country by
the white inhabitants, and the building of the dam across the
Oswego river, for canal purposes, are inconsistent with the enjoy-
ment of such reserved “ free rights,” and have practically destroyed it.

Second. It is also.claimed that the State has violated the condi-
tions attached to the small reservation of one-half mile square, on
the northern bounds of Oneida lake, (which are three in number).

Third. That the same violation attaches to the reservation of one
mile square at the confluence of Wood creek and Oneida lake, for
such public works and edifices as the people of the State might
“think proper” to erect.

The alleged violations of the conditions of the treaty, is supposed
to result from the fact, which is established, that the State has
granted and conveyed to the white settlers, all of these reservations,
and has not preserved the first three, “ as well for the Oneidas and
their posterity, as for the inhabitant of the said State to land and
encamp on.” ‘

It is not deemed necessary to dwell upon the reservation of “ the
convenient prece of land at the fishing place in the Onondaga river,
about three miles from where it issues out of the Oneida lake,”
because, it is not pretended that any practial location of it was
ever made. On the contrary, all the ceded lands on the Onondaga
river, for the distance of at least four miles from the outlet, was
oF THE Srare or New Yor. 353

patented by the State to Ezra L’ Hommedieu and Barent I. Staats,
during the two succeeding years.

As tothe jirst claim, namely, the practical destruction of the
reserved “free right ” to hunt in the extensive territory ceded to
the State, by the Oneidas in the treaty of Fort Stanwix, and to fish
in all the waters within that territory, it is necessary to admit two
facts, to wit: that such “free right” has not been expressly sur-
rendered or extinguished by treaty, but that it has been gradually
interrupted and overborne by the settlement and improvement of
the country, and the exclusive and necessary rights of property
asserted and enjoyed by the grantees of the State.

What legal or equitable obligations, if any, do these conceded
facts impose on the State ?

If the Indians, with whom the treaty was made, had represented
an educated and civilized people, it could not be reasonably
assumed that they intended or expected, that the large territory
ceded by them, was to remain unoccupied by white inhabitants
and citizens of the State; nor that it should continue forever, in
unreclaimed wildervess and hunting grounds alone.

The State acquired the territory for the settlement of its people,
to be devoted to the uses of an advancing civilization.

The value of the hunting grounds would be necessarily dimin-
ished and finally destroyed. The same consequence, less apparent,
but not less inevitable, would. happen to the use and value of the
streams for fishing. It was intended that mills and dams should be
built on the streams, and the ownersand occupants should be vested
with the exclusive powers in, and control incident to ownership.
But the State did not make a treaty with an educated people.
Unquestionably they anticipated that the country would be improved
and settled. The treaty itself discloses this fact, because it pro-
vides for unconditional grants by the State of several portions of
the ceded lands to various white inhabitants designated by the Indi-
ans, to whom they were under friendly obligations. Still, there
was nothing in the condition of the State of New York, at that
early day, to forewarn them of the whole consequences which have
since resulted from the settlement of a dense population upon the
ceded lands. How can it be justly assumed against these ignorant
people, that they foresaw their ultimate exclusion from the streams

23
354 OPINIONS OF THE ATTORNEYS-GENERAL

flowing through the farms into which their once extensive territory
has been since divided, or that the game would not continue in as
great abundance as in the unimproved woodland of the white men
along the Mohawk and the Hudson. Can the State justly resist the
force of the impression, which would probably be made upon the
minds of the unlettered Indians by the solemn treaty stipulation,
that “the Oneidas and their posterity forever shall enjoy the free
right of hunting in every part of the said ceded lands, and Jish-
ing in all the streams within the same?” What expectations did
that stipulation incite in the minds of the Indians at Fort Stanwix
in 17882 How did the commissioners of the State intend that it
should appear to the Indians then? On every just, legal and equita-
ble principle, the State should admit the intention ‘which the lan-
guage of the treaty would reasonably impart to the comprehension
of these uninstructed parties. The “free right” to hunt and fish,
as provided in the treaty, may not now be of any great value to the
Indians ; but what ever it may be, the Legislature can alone determine
whether the right is abrogated without any just claim for compen-
sation by the succeeding settlement of the country. As to the
second claim, founded on the grant and conveyance of the three
tracts, reserved for the common use of the white inhabitants and
Indians “to land and encamp on,” there is strong evidence to
presume that the Indians have ceded all their tracts to the State.
The evidence appears in the report of Surveyor-General Simeon
DeWitt, to be found in the Assembly Journal of 1822, at page
545. That report affirms that, at a (then) late treaty, the small
reservations referred to, had been ceded to the State, and were
then advertised to be sold as unappropriated land. An act of the
Legislature, found in chapter 66, of the Laws of 1822, authorizes
and requires the sale of one of those small reservations to two per-
sons, who had settled thereon and made improvements. All of
these reservations were sold in that year. The treaty, referred to
in the report of Mr. DeWitt, cannot be found ; but it is incredible
that he should have stated such a fact, in a report to the Legislature,
if it was untrue, and equally incredible, that the Indians living in
proximity to these reservations, have acquiesced in their sale with-
out a claim for compensation during a period of forty-four years, if
or Tan Svarz or New Yor. 355

their rights were then invaded and appropriated by the State with-
out their cession or consent.

An abandonment of the use of lands by an Indian nation will
itself extinguish their title, which is a right of occupancy alone,
and dependent upon it.

The remaining claim, arising out of the sale of the lot one ‘mile
square at the confluence of Wood creek and the Oneida lake,
appears to be unfounded.

The State has express authority, by the treaty of Fort Stanwix, to
take and appropriate this lot for purposes connected with such
works or buildings as it might think expedient to erect. The
Indians had no interest in the use to which the land was to be
applied, and if the public interests were best subserved by granting
it to citizens, the treaty did not interpose any obstacle. The nature
of the Indian tenure and title, as before explained, made it inevita-
ble that such title would cease eee on the appropriation of
the lot by the State.

All of which is respectfully submitted.

THOMAS G. ALVORD, Lieutenant-Governor.
FRANCIS C. BARLOW, Secretary of State.
J. H. MARTINDALE, Attorney-General.

J. P. GOODSELL, State Engineer and Surveyor.
THOMAS HILLHOUSE, Comptroller.

(Senate Document, 1866 — No. 54.)

STATE OF NEW YORK:

ATIORNEY-GENERAL’s OFFICE,
Axzany, March 12, 1866.

To the Honorable the Senate :

The following resolution has been transmitted to this office from
the honorable the Senate: |

“ Resolved, That the Attorney-General be requested to report to
the Senate whether, in his opinion, there is any uncertainty under
the laws of the State as to the right of railroad companies to engage,
directly or indirectly, in the manufacture of any articles, except
such as are necessary for their own use, or in the storage of any
356 OPINIONS OF THE ATTORNEYS-GENERAL

property not destined for railroad transportations ; and whether, in
his opinion, any additional legislation is required to restrain the
powers of railroad companies, and to make the law certain in the
premises.”

The Attorney-General respectfully responds and reports:

That, under the general railroad act passed 1850, railroad com-
panies may be formed for the conveyance of persons and property
in the extraordinary modes, and with machinery required and used
in that kind of transportation and travel. Land for the roads and
necessary depots, machine-shops for the construction of cars and
engines, and keeping them in repair, mills for the manufacture or
repair of iron, warehouses for the receipt and delivery of property
transported over the roads, are obviously required for the purposes
of the business in which railroad companies are authorized to
engage.

And the railroad act referred to expressly provides, that the cor-
porations organized under it are empowered to purchase, hold and
use such real and personal property as may be necessary for the
construction and maintenance of their roads, and the stations and
other accommodations necessary to accomplish the objects of their
incorporation, and to erect and maintain all convenient buildings,
stations, fixtures and machinery for the accommodation and use of
their passengers, freight and business.

But railroad corporations, like all other corporations, in the use
of their property and exercise of their powers, are not permitted to
exceed the limits and uses prescribed in the laws or charters under
which they are organized, and the general laws made applicable to
them.

Therefore, while railroad corporations may keep machine shops,
and manufacture therein articles necessary for their own use, they
are prohibited from engaging in such manufacture for sale to others.
Public policy, not less than the prohibitions in the statutes, forbids
that these corporations shall enter into competition with manufac-
turers and machinists of the State, in the production of such articles
for sale in the market.

The same conclusion applies to buildings and structures for the
receipt, storage and delivery of property transported by them.
Such buildings and structures are necessary in the business of trans-
or THE Srate or New Yorx. 857

portation. But railroad companies are prohibited from engaging in
a general storage and warehouse business, in respect to property not
designed for transportation over their own roads. They are not
permitted, and, for many obvious reasons, ought not to be permitted,
to enter into competition with other citizens whose capital is
embarked in the same kind of general business, and who might
find themselves placed at great and ruinous disadvantage if con-
fronted by the capital, power and influence possessed by such cor-
porations.

The comments of Judge Selden, in the case of Bissell against the
Southern Michigan and Northern Indiana Railroad Companies,
and found in the 22d New York Reports, at pages 287 and 288,
may be properly cited here. They are as follows:

“ The importance of limiting corporate bodies to the exercise of
those powers and the enjoyment of those privileges and franchises,
which have been specifically conferred upon them, must, I think,
be obvious. They are rapidly multiplying. Their privileges give
them decided advantages over mere private unincorporated part-
nerships.”’

“ They have large capital and numerous agents, and are capable
of entering into combinations with each other. They are not only
formidable to individuals, but might even, under some circum-
stances, become formidable to the State. They are, or should be,
created, as we have seen, for public reasons alone; and the Legis-
lature is presumed, in every instance, to have carefully considered
the public interest, and to have granted just so much power and so
many peculiar privileges as those interests are supposed to require.
This reason is confirmed by the action of the Legislature, in expressly
prohibiting corporations from exercising the powers not granted to
them.”

But the undersigned respectfully reports, that, in his opinion, the
existing laws are adequate, and not doubtful, to restrain the railroad
companies from engaging directly in the kind of business for which
their shops and storage houses are adapted and have been erected,
except so far as is necessary for their own use or transportation.

If, however, the Legislature shall deem it expedient, and if con-
siderations of public policy demand, that the capital of the corpo-
rations, and their shops, structures and warehouses shall not be used,
358 OPINIONS OF THE ATTORNEYS-GENERAL

directly or indirectly, by private persons, employees or lessees of
the railroad corporations, on their individual account, in the general
business of manufacture or storage, so as to be brought into com-
petition with the business of citizens similarly engaged, it is the
opinion of the undersigned, that additional legislation is necessary
to restrain the powers of such corporations.

It is not perceived why railroad corporations, under existing laws
and prohibitions, may not lease their shops and warehouses to par-
ties who will use them to subserve all the lawful objects of the
companies in their erection, and may then, in addition, use such
shops and warehouses on their own account for any and all other
parties who desire to purchase manufactured articles, or to store
property not designed for railroad use or transportation.

It is true that, in such cases, the capital and indirectly, the power
and influence of the corporations might be used and brought in
competition with the general business of unincorporated citizens,
and the substantial evils which might ensue, intended to be avoided
by the statutes and rules of public policy, which enjoin the corpo-
rations themselves against such use and competition.

But, whether it is desirable to impose such prohibitions on such
use of capital and structures of railroad corporations, is, at present,
in the opinion of the undersigned, a question of expediency for the
Legislature, and not a question of law; and, if it shall be deemed
expedient to prohibit such use, then further and appropriate legis-
lation to secure that end will, as above shown, become necessary.

All of which is respectfully submitted.

J. H. MARTINDALE,
Attorney-General.

Opinion in Rererence to Act Propostna tHe APPOINTMENT oF
JupGEs TO HoLD SprcraL Terms in New Yorx Crrv.

Tam requested to examine the act regulating the practice in the
first judicial district as to holding Special Terms at chambers,
passed at the last session of the Legislature, and to state my opinion
whether the act is repugnant to the Constitution.

Under the Constitution of 1777, the Supreme Court consisted of
a chief justice and four justices, who performed the duties of justi-
or THE STATE or New York. 309

ces of the court at General and Special Terms, and at the Circuit
Courts and Courts of Oyer and Terminer throughout the State.

Under the Constitution of 1822, the Supreme Court was made
to consist of a chief justice and two justices, any of whom might
hold the courts. But further provision was made for circuit judges
to be appointed for each of the circuits into which the State was
to be divided, and who were invested with the powers of a justice
of the Supreme Court a¢ chambers, and in the trial of issues joined
in the Supreme Court and in courts of Oyer and Terminer, and
jail delivery.

Under the Constitution of 1846, the office of circuit judge was
abrogated, and the Supreme Court was retained with general juris-
diction in law and equity. By the fourth section of the sixth arti-
cle, the State was divided into eight judicial districts, and four
justices were provided for each district and power given to increase
the number in the district composed of the city of New York.

It is perfectly obvious that these justices, each and all of them,
were intended to participate in and perform all the judicial duties
theretofore performed by the chancellor, justices of the Supreme
Court, and the circuit judges. In order to secure uniformity and
homogenity in the opinions of the judges, and in the judicial sys-
tem of the State, further provision was made, by which each one of
these judges should spend one year of his term in the Court of
Appeals, and by which one-half of that court of final resort should
be composed of judges having practical experience acquired in all
the departments and branches of the Supreme Court.

By the fifth section of the same article, the Legislature is inves-
ted with power to alter and regulate the jurisdiction and proceedings
in law and equity. This affects only the remedies which the courts
may afford, but gives no power to classify the judges and invest a
portion with superior authority, privilege or dignity above the rest ;
nor to degrade any portion of them below the rest.

The only authority vested in the Legislature in this respect, is
contained in the sixth section of the same article. By that article,
the Legislature may provide for designating a presiding justice at
General Term, who, with any three or more other justices, may
hold such General Term. The same section provides that any one
or more of the justices may hold Special Terms and Circuit Courts,

’
360 OPINIONS OF THE ATTORNEYS-GENERAL

and any one of them may preside in courts of Oyer and Terminer,
in any county.

I think the act under consideration contravenes this section. It
deprives all the justices of the Supreme Court in the State, except
one to be designated by the Governor, of authority and jurisdiction
to hold Special Terms in the city and county of New York. It
separates that district into a distinct and peculiar one, subjected to
the judgment of a single justice; and that, too, without any right
of review in the large and important class of cases which are by
law submitted to hisdiscretion. This experiment (absolutely with-
out precedent) is attempted in a portion of the State where the
largest amount of Special Term business is transacted involving the
disposal of millions of money annually. This large field of practice
and judicial experience is shut against all the justices of the Supreme
Court save one, and is proportionably withdrawn from the Court
of Appeals. It is not necessary to enlarge on the dangers which
will attend the administration of such a law. They will occur to
the mind as affording reason for considering carefully the constitu-
tional objections to the act.

If the Legislature may thus deprive a part of the justices of the
Supreme Court of authority to transact Special Term business, they
may also deprive them of power to hold Circuits and General Terms.
In short, they may, by legislative act, substantially revive and
re-inaugurate the old system of a separate Supreme Court and sepa-
rate Circuit Courts, which were created by special constitutional
provision in 1822, and was supposed to be abrogated by the Con-
stitution of 1846.

It may be said that the act in question does not disqualify any of
the justices to perform Special Term business, but is a2 convenient
and legal mode of designating which one, among all, shall do a cer-
tain class of business in a certain locality.

Suppose some exciting political question shall arise and be pend-
ing in the Special Term of the Supreme Court in any judicial dis-
trict of the State, Could it be considered within the constitutional
authority of the Legislature to designate the particular justice who
should decide it? That exercise of power would not be more
repugnant to the Constitution than the act in question.

If the Legislature may authorize the Governor to designate some
oF THE State or New York. 3861

justices who may and others who may not perform a certain class
of judicial duties in one of the counties of the State, the designa-
tion may be made directly in the act without the intervention of
the Governor at all, and may be extended to any number of coun-
ties. Would it be constitutional to enact, for example, that the
present distinguished presiding justice of the first judicial district
should not hold, or in other words, should be disqualified from
holding Special Term any where? The Constitution provides that
he and all other justices may hold them “in any county.” For
further example, would it be constitutional to enact that some other
justice might hold Special Terms, but should not sit as a justice at
General Term in the first or any other judicial district?

Iam impressed with the conviction that such legislative acts,
limiting the judicial authority of the justices of the Supreme Court
and making an invidious discrimination between them, are repug-
nant to the Constitution, and that the Governor will be justified
should he omit to make the designation directed by the law in

question.
J. H. MARTINDALE,

Attorney-General.

In roe Marrer or CoMPENSsATION, ETC., OF THE TREASURER OF
QvueEENs County.
February, 1867.

The county treasurer is a county officer; as such he receives and
pays out the moneys collected for county as distinguished from
State purposes. (1 R.S., 863, 5th ed., sec. 86.)

He, also, secures and pays to the State Treasurer the amount of
State tax collected in his county. (Id.)

He, also, receives and pays out the moneys which are deposited
with him by order of the Supreme Court. (Chap. 277, Laws of
1848 ; chap. 357, Laws of 1859.)

Previous to 1846, the laws had prescribed a general rule of com-
pensation for his services, to wit: he was entitled to retain a com-
mission of one per cent for receiving and one-half per cent for
paying. (1 BR. S., 864, 5th ed., sec. 92.*)

11 RB. &., p. 870, sec. 126 (1 Edmonds’ Stats., 343).
362 OPINIONS OF THE A TTORNEYS-GENERAL

The compensation of the county treasurer is declared to be a
county charge. (1 RB. S., 5th ed., 902, sec. 3.1)

The context seems to disclose that this provision relates to the
service rendered for the county and not to courts or State.

Chapter 189, section 1 of the Laws of 1846, authorized the boards of
supervisors to fix the compensation of county treasurers at a rate
not exceeding the old commission of one per cent, and not exceed-
ing $500.

Section 5 of chapter 393 of the Laws of 1863, provides, in
reference to the receipt and payment of the State tax, that county
treasurers shall pay to the State Treasurer the amount of the State
tax, etc., retaining the compensation to which they may be entitled,
and which compensation shall not exceed the amount now autho-
rized by law, and shall not in any case exceed the sum of $2,000.

The case which has led to this examination is presented by the
county treasurer of Queens county.

He was elected in 1860, and served as county treasurer from the
beginning of 1861 to the end of 1866.

At the meeting held in the fall of 1860, the board of supervisors
passed a resolution fixing his annual compensation “at the sum of
$500 for doing the ordinary business of the county.”

No rate or commissions, or sums received or paid out, was fixed
by the resolution.

Since then he has received, out of the moneys collected for the
State treasury, and has been allowed by the Comptroller, sums of
money exceeding $500 per annum, but not exceeding the statutory
commission of one-half per cent on the sums received and one-
half per cent on the sums paid into the treasury; and which sums
he now claims he has a legal right to retain. The board of super-
visors, on the contrary, claim that such sums belong to the county
and not to the county treasurer.

Two questions may arise suggested by these conflicting claims:

1st. Is the county treasurer entitled to retain this sum of one per
cent as a compensation to himself?

2d. If he is not, is the county of Queens entitled to receive and
retain it in the county treasury ?

"1 R. S, p. 385, sec. 8 (1 Edmonds? Stats., 857).
oF THE Svate or New York. 363

In respect to the first question, it cannot be said that there is no
plausible ground for the claim.

The law of 1846, authorizing the boards of supervisors to fix the
compensation of county treasurers at a sum not exceeding $500, is
entirely consistent with section 3 of title 4, chapter 12, part 1 of
the Revised Statutes, which provides that the compensation of the
county treasurer shall be deemed a county charge.

No proposition can be clearer than that these concurrent laws
forbid the payment of the compensation, authorized by the act of
1846, out of the State treasury.

No law, imposing a State tax for collection of money to be paid
into the State treasury, has specified the payment of the salary of
the treasurer of Queens county as one of the objects to which the
tax is to be applied, and, without such specification, the application
of the tax to such a purpose would violate the 13th section of the
7th article of the Constitution.

Besides, the county treasurer, although a county officer, and, as
such, entitled to compensation, may be designated by the Legisla-
ture as an agent to render peculiar services to the State, and to the
courts, and may be the recipient of compensation for such services.

And the laws above cited contain provisions specifying a fixed
commission as the measure of his compensation for such services.

Can it be plausibly claimed that he is not entitled to one per cent
commission on the moneys received and paid out by him by order
of courts, pursuant to chapter 357 of Laws of 1849? And does
not the same argument entitle him to a like commission, not exceed-
ing, in the aggregate, $2,000, on the State tax which he receives
and transmits, under the provisions of chapter 393 of the Laws of
1863 ?

The law of 1863 does not, in terms, or by implication, repeal or
alter the law of 1846, conferring authority on the board of super-
visors to fix compensation, and to limit it to $500.

The act is general, and embraces all the county treasurers of the
State. These acts are consistent in terms, and fairly construed,
regulate and restrict the compensation which may be allowed for
services performed for the county, and also for services performed
for the State.

This view has been uniformly taken by the Comptroller of the
364 OPINIONS OF THE ATTORNEYS-GENERAL

State, and the county treasurers have been allowed by that officer to
retain the commission of one per cent, as fixed by law (but, since
1863, limited in the total to $2,000).

But it appears incontrovertible that the State, and not the county
of Queens, is entitled to recover back these commissions, as errone-
ously allowed by the Comptroller, if the treasurer has no legal right
to retain them as a compensation to himself.

The foregoing considerations clearly sustain and demonstrate this
conclusion.

I do not hesitate to express my opinion that the county treasurer
of Queens county is entitled to these commissions, in addition to
the sum of $500, which is prescribed for cownty services, so far as
the question arises between him and the county.

Whether he will be legally liable to refund them to the State,
will be a question for the official consideration and action of other

public agents.
J. H. MARTINDALE,

Attorney-General.

STATE OF NEW YORK:

ATTORNEY-GENERAL’s OFFICE,
Axpany, January 22, 1868.

To the Honorable the Contracting Board:

In response to your resolution adopted on the 14th day of Janu-
ary, 1868, wherein I was requested to give an opinion to your board
whether such board has a legal right to declare the certificates of
deposit, and the bonds that accompanied the proposals of certain
contractors therein specified, forfeited to the State, I have the honor
to reply, that an unexpected call from the city has prevented an
earlier unswer.

Assuming the facts recited in the preamble to the resolution to
be true, it is difficult to see how any question, involving legal doubt,
can arise, as it is stated that all the proceedings of the board have-
been strictly in pursuance to the laws governing the case. Those

' See Supervisors of Otsego v. Hendryz (58 Barb., 279, 284); also, People v. Devlin
(83 N. Y., 269, 273).
or rHE Stare or New York. 3865

proceedings are stated in detail, and are alleged to have been in all
respects a compliance with the statutes under which the powers of
the Contracting Board were exercised in this instance.

From a document, however, containing a statement of the case,
and which accompanies the resolution of your honorable body, and
which was submitted to this department with the resolution, I am
led to believe it was intended, that the examination of the question
should have a wider scope than if confined to a reply to the pre-
amble and resolution adopted by your board.

Without reciting the statements contained in this document, it
appears to be conceded that the proposals for the lettings of the
several contracts included a schedule of “‘ boats, tools and imple-
ments,” amounting in the aggregate to about $60,000, portions of
which the several contractors were required to take and pay for in
cash, which boats, tools, implements, etc., then belonged, or had
belonged to the outgoing contractors upon the several sections cov-
ered by said proposed lettings.

Upon this part of the subject referred, the grave question arises,
whether the Contracting Board has any power, under the statute,
to include, in these proposals and contracts, this class of property ?

The statute under which this power is claimed is found in chap-
ter 105 of the Laws of 1867, the first (1st) section of which act
empowered the Contracting Board to let by contract to the lowest
bidder, sections of the canal for repairs, “under such regulations
as said board shall prescribe.”

The second section is as follows: “ An inventory shall be made
by the commissioner in charge, of all boats, tools, and other imple-
ments owned by the State, and belonging to each portion of the
canal so let, with their appraised value; which inventory shall be
published with the notice of letting said sections, and the person or
persons taking such contract will be required to take the boats, tools
and other implements at their appraised value, as part payment on
their said contracts.”

Prior to the passage of this law the State had repaired its own can-
als, through the agency of superintendents and other public officers.

By it a change in this respect was inaugurated, and the same class
of duties let by contract, to be performed by individuals. Asa
consequence, the State had on hand, at the time of the change of
366 OPINIONS OF THE ATTORNEYS-GENERAL

the system of keeping the canals in repair, “ boats, tools, and other
implements,” rendered useless by this change.

It would seem to be the intention of the law I have cited, that,
when the change was made, the State should divest itself of this
now useless property, and it is, accordingly, appropriately provided
for. After appraisal, it was transferred to the first set of contract-
ors, in payment upon their contracts.

The legal as well as the natural inference must be, that, when
this power was exercised by the board upon the property then
owned by the State, it was spent; and I am unable to find any law
conferring upon the Contracting Board, after such full exercise of
its authority, by arrangement or otherwise, the power to become
the agency, or make the State the agency, to sell or transfer the “tools,
implements, etc.,” of the outgoing, and barter them to the new
contractor, or of becoming the conduit through which the title
should pass.

It has been suggested that the provisions of the first section,
declaring the power to let the repair contract, “ wnder such regula-
tions as the said board shall prescribe,” enlarge the powers of the
board in this respect. I do not so construe this provision. It does
not enlarge the powers of the board. It authorizes such regulations
only as may effect a more complete and perfect exercise of the
power expressly granted, which is, in short, to let out the repairs
of the canals in the future by contract, and to divest the State of
the “ boats, tools and implements” then remaining on hand.

It would seem to follow, therefore, that a bid for the work, under
the published proposals, if made in the manner required by law,
would only bind the bidder to take such part of the contract as the
Contracting Board had the legal power to make, and that the pub-
lished proposals, on the one hand, and the bid, on the other, would
only bind the parties to the extent authorized by law.

It is asserted in the document submitted, and herein before
referred to, that the contractors did, on the 28th day of December,
1867, offer in writing to the board to enter into said contracts, as
required by chapter 105 of the Laws of 1867, and laws amendatory
thereof, etc., and demanded the execution of said contracts on the
part of the State, which offer, it is further asserted, was declined
by the Contracting Board.
or THE SraTe or New Yorn. 367

If this is a true statement of what occurred between the several
contractors and the board, on the occasion referred to, it is difficult
to see why it was not a substantial compliance, by the parties propos-
ing to enter into said contracts, with all the stipulations upon their
part authorized by law to be exacted at their hands. And in such
view, of course, by the refusal of the board to execute the contracts
in pursuance of such demand, and of law, the said contractors and
their sureties became discharged therefrom, and did not subject
themselves to any forfeiture of the moneys deposited, or breach of

the condition of their bonds.
M. B. CHAMPLAIN,

Attorney-General.

ATTORNEY-GENERAL’s OFFICE,
Apany, May 5, 1868.

Governor :

In an interview with your private secretary, upon the act known
as the “ convict labor printing bill,” in which he requested me to
specify objections to the bill, if any, in my judgment existed. I
mentioned several, which for greater certainty, I will take the liberty

. to repeat in this note :

The contract mentioned in the bill, was referred to this depart-
ment by resolution of the Assembly, a few days since, with direc-
tions to inquire into the contract, and if found to be invalid, to take
such measures as would annul the same. From the brief examina-
tion I had been able to give the subject, I had come to the conclu-
sion, its validity is open to grave doubts.

By its terms, the agent and warden of the Sing Sing prison cove-
nants, to “ hire and let unto the contractors (Swain and Fisher), for
the term of one year, from the first day of April, 1868, the labor
and services of seventy-five convicts, to be employed at the printing
business and its branches.”

From the history of the legislation upon this subject, it is quite
apparent it has been the intention of the Legislature and State
authorities, as expressed in Statutes and invariably practiced in
custom, to confine such labor to the manufacturing of articles of
wares, for sale in the market, and mainly of such a character as the
368 OPINIONS OF THE ATTORNEYS-GENERAL

chief supply were exported from foreign countries. This has been
the uniform spirit of the Legislature, and the constant custom in
practice. The authorization for the quarrying and cutting of stone
at Sing Sing, and for mining and manufacturing iron at Clinton,
were by special statutes.

Construing this contract by the fundamental rule of law, that
the spirit of the law, rather than its letter, is always to govern, it
is difficult to see how the agent was authorized to makeit, as it only
provides for jobbing out convict labor in the business of printing.
It was suggested to me by one of the inspectors, that it includes
“ stereotyping and electrotyping,” which he claimed were branches
of printing, and that, therefore, it was for the manufacture of wares
for sale, in the spirit of thelaw. I donot think this contract autho-
rizes the manufacture of stereotypic and electrotypic plates, or types
of any kind, or printing presses. The printing business, as men-
tioned in the contract, must be held to include only the right to use
types and plates and presses, furnished by the contractors ready
made, for the business of printing.

If these views be correct, it was a clear excess of power upon the
part of the officer to make the contract, and it is void.

Again, without stopping to question the right under the Consti-
tution, for the Legislature to submit jurisdiction over a sovereign
State to its own courts for adjudication of claims against it, it is in
my opinion a serious ground of objection to this bill, that it autho-
rizes such submission to be made by the two parties interested to
uphold and enforce the contract. It provides that the contractors
may apply to the courts, and the officer who made the contract,
appear as the opposing party.

It is plain the contractors would assert the validity of the con-
tract, and the officer who made it, would be loth to plead his own
excess of official power in making it as a defense or allege its invali-
dity. There is no right given in the bill for the law officer of the
State, or any other officer who would be disposed to assert the true
interest of the State by setting up the invalidity of the contract
for the excess of power in the office making it, to appear in the
suit or become a party to it. The case is to be made up and con-
ducted by parties, whose interest in the grave point of the legal
validity of the contract are identical, and it is not difficult to see
or THE Stare or Naw Yorr. 369

that the State would go unrepresented and undefended upon the
vital point that should be raised at the threshold of the litigation,
—the power of the officer to make the contracts and its legal validity.
But assuming the validity of the contract, the parties have no legal
or equitable claim to damages under it, if annulled. It contains
the stipulations that “the State shall not be held responsible for
any loss or damage, if the business aforesaid, shall be prohibited
in prison by any existing law of the State.”

It is clear that this provision authorizes an annulment of the con-
tract, without giving rise to a claim for d&mages. If the contract
or business was prohibited by any existing law, this clause would
be unnecessary. Effect must always be given to every part of a
contract, and the parties upon familiar and well settled principles,
must be held to have intended to apply this provision to a future
prohibition of the business. This bill annuls the contract only
upon the written consent of the contractors, and then proceeds to
provide the proceeding before mentioned, to assess and pay the
damages.

The act is highly objectionable as a legislative waiver of this
solemn provision of the contract inserted for the benefit of the
State, and as a shield against the very claim for damages, which. it
is unquestionably the chief purpose of the law to enable the con-
tractors to obtain.

There are several other less important objections to the bill that
might be suggested, but I do not deem it necessary to state them

here.
All of which is respectfully submitted.

M. B. CHAMPLAIN,
Attorney-General.

Cusa, AttEcany Co., N. Y., }
August 1, 1868.

Hon. 8. T. Harr, Canal Commissioner :

Dear Srr.—The communication addressed by you to my office,
concerning copy of contract between the State and J ames K. Ledlie,
was forwarded to me here.

From the partial examination which I have been able to give

the question submitted, I am of opinion the contract is terminated
24
A

870 Opinions or THE ATTORNEYS-GENERAL

so far as the new work now proposed to be let is concerned. It is
obvious to me, from the whole scope and spirit of the contract, that
when final payment for work done, and the fifteen per cent should
be made, that the right of the contractor to continue the construc-
tion of work, newly estimated and ordered, would be at an end.
It may be that the State has an option to order the resumption of
the work at any time, without there being any corresponding right
in the contractor to claim such work. It is provided in the con-
tract “ That fifteen per cent of the work done or materials furnished
under this contract, at the contract price thereof, shall be reserved
by the Canal Commissioners until the whole work which is the sub-
ject of the contract shall be fully and fairly completed, or until
the moneys appropriated therefor shall have been exhausted, at
which time the contractor shall be paid up in full for all work
done on the contract.” _

This and other provisions in the contract would seem to leave
little doubt, but that upon the happening of either of two contin-
gencies the contract was to be at an end, so far as the contractor is
concerned. .

ist. The full performance of the work which is the subject
of the contract.

2d. The exhausting of the moneys then appropriated for the work.

The second contingency did happen. The money was exhausted ;
the contractor was paid up in full for all work done which included
the fifteen per cent reserved.

This was some twelve years ago. There are many cogent con-
siderations which might be urged, bearing upon the question to
sustain this construction, one of which is, that it will cost the State
some $15,000 more to do the work, at the contract prices, than is
now proposed by other competent contractors.

It cannot be claimed with any reason that it was ever the inten-
tion of the State authorities to bind themselves for such a long term
of years, thereby depriving the State of the benefits of depreciation
in the prices of work and materials, and such change of plan,
material and construction as time might demonstrate to be necessary.

Respectfully yours,

M. B. CHAMPLAIN,
Attorney-General.
or THE StaTE or New York. 3871

STATE OF NEW YORK:

ATTORNEY-GENERAL’s OFFICE,
August 28th, 1868.

Sm.—A necessary absence from the city has prevented an earlier
examination of the questions propounded in relation to the proposed
loan of a portion of the “Cornell Endowment Fund” upon a
security of a mortgage upon “Cascadilla Place.”

The authority to loan this fund upon mortgages of real estate
exists, if at all, under chapter 554 of the Laws of 1868. This act
becomes a law without the approval of the Governor, by reason of
his omission to return if to the Legislature with his objections
within the time prescribed by the Constitution. (Article 4, § 9.)

I have examined the question with all the care its importance
demands, and am of the opinion, that a loan of any part of the
moneys realized by the State from the sale of the scrip or lands
donated by the United States, by act of Congress approved July 2,
1862, upon any security other than stocks of the character men-
tioned in the act of Congress, would be a breach of trust on the
part of the State.

The grant was accepted by the State, upon the terms and subject
to the conditions named in the act, and by it the moneys realized
from the sale of the scrip or lands are directed to be invested in
. stocks of the United States, or of the States, or some other safe
stocks, yielding not less than five per centum per annum on their
par value. By other sections of the law, Congress requires the State
to keep the fund unimpaired, and to make good all losses of the
capital or income, so that the entire proceeds of the sale of the
lands shall be applied, without diminution, to the purposes of the
act, and there can be no doubt that Congress had the right to pro-
vide safeguards and prescribe the investments which should be made
of the fund, and the State, accepting the grant, became a trustee
charged with the duty of executing the trust, in the manner pre- |
scribed by the law creating it, and subject to all the limitations and
restrictions imposed by the act.

Good faith demands a strict compliance with the act of Congress
in all matters pertaining to the investment of the capital of the
fund, as well as the use and disposal of the revenue, even if a
departure from the act should not invalidate the grant and autho-
372 OPINIONS OF THE ATTORNEYS-GENERAL

rize the general government to reclaim the lands or their pro-
ceeds.

It is conceded that a law authorizing the investment of all the
moneys received by the State, for the scrip or lands in bonds and
mortgages, would be in contravention of the law of Congress and
void. It is, however, sought, by the act of 1868, to distinguish
between that portion of the proceeds of' the sales which it assigned
to the “College Land Scrip Fund,” and that which is set apart to
the “Cornell Endowment Fund.” This distinction, if any exists,
is based upon the agreement between the Commissioners of the
Land Office and Mr. Cornell, of the 4th of August, 1866, which
does, in terms, provide for these ¢wo funds. It is not important to
inquire whether this agreement was in all its parts authorized by
the act of Congress, or the laws of this State upon the subject, and
I have not considered that question. It may never be of any practi-
cal importance. The Commissioners of the Land Office were’ of
the opinion, that the restrictions of the law of Congress did not
apply to the ultimate profits to be derived from the location and
sale of the lands by the purchaser, but only to the purchase-money
received by the State. I am of the opinion that whatever the
State receives under and in virtue of the contract of sale is neces-
sarily a part of the purchase-money. It is a part of the considera-
tion for the sale and transfer of the land, and whether received
directly or indirectly, by one name or another, it is none the less
“ purchase-money,” the price of the lands secured by the State as
a faithful trustee disposing of the lands so as to secure the largest
amount for the purposes of the grant. The State could not have
taken that portion of the moneys, which now go to make the “ Cor-
nell Endowment Fund,” for the general fund of the State, or for
any use foreign to the purposes of the act, without violating the
trust; and if not, it is because it is within the terms of the act of
Congress, and, if within the act so as to regulate its use, it is within

* the act directing the mode of investment.

I understand that all the moneys thus far received have been
received upon a sale of the scrip, and that there has been no “ profit
from the location and sale of the lands by the purchaser” s0 as to
bring the fund within the reasons assigned by the Commissioners of
the Land Office for constituting two funds. But, be this as it may,
oF THE Srare or New Yorr. 373

I would advise against loaning any part of the moneys received by
the State for these lands, upon any securities other than those pre-
scribed by the act of Congress, even if there were less doubt than
there is as to the validity of chapter 554 of the Laws of 1868.
The interests of the State, and of the institutions entitled to the
revenues from the fund, ought not to be hazarded unnecessarily,
and it cannot be denied that it may with much force be claimed,
that all the proceeds of these lands secured to the State constitute
but one fund, and that subject to all the restrictions and conditions
imposed by Congress.

A sale of the land for sixty cents, or any other sum per acre, with
an agreement on the part of the purchaser to donate to the State an
additional sum for some purpose foreign to the intent of Congress,
would be a sale for the aggregate of both sums, and the State would
be held to an investment of the whole for the purposes of the act
of Congress, and I can see nothing to distinguish such an arrange-
ment from the one actually made.

Respectfully. yours,

M. B. CHAMPLAIN,

Attorney-General.
To Hon. Wu. F, Atuzn, Comptroller. .

—_—

ATTORNEY-GENERAL’S OFFICE,
i September 2, 1868.

To Hon. Jamus A. Bett, Auditor:

I have examined the question which you presented to me on the
subject of your authority to pay the draft of Canal Commis-
sioner Fay, for repairing the wall of the canal at Albion, by chang-
ing it from a slope to a vertical wall.

The Legislature at its last session, authorized and directed the
Canal Commissioners (among other things) to construct, or cause
to be constructed, a vertical stone wall along the berme bank of the
Erie canal in the easterly part of the village of Albion (particularly
describing it) “in such manner as shall render the canal best
adapted to navigation, at a cost not exceeding four thousand dol

1 See Comptroller's report for 1869, page 148.

1
374 OPINIONS of THE ATTORNEYS- GENERAL

lars,” to be paid out of the appropriation for ordinary repairs of
the western division of the canal. _

This act furnishes clear legislative authority for the payment of
the cost of the work in question. But the point suggested by you
is, whether the legislature had constitutional power to authorize
such work to be paid out of the ordinary repair fund. The bank
of the canal, at the point named, had been protected by a slope
wall, which it is alleged, was out of repair, and it is unreasonable
to infer, from the language of the act, was either out of repair or
in such a condition as not to “render the canal best adapted to navi-
gation.” The commissioners would clearly have had authority,
independent of any act, to have made the repairs, in question, by
rebuilding the slope wall and placing it in the same condition as it
was before, but were prohibited by law, from changing the plan in
such a way as to increase the expense. The Legislature, however,
had full power to change the plan of making the repairs, and the
change made by the Legislature, was not, it seems to me, of such
a character as to take the work out of the constitutional designa-
tion of “ordinary repairs.” It is certainly not so clear as to require
you to disregard an act of the Legislature, expressly directing the
work to be done and paid for in the manner indicated. It cannot
be'assumed, but that the mode directed by the Legislature of doing
the work, was the best, and in the end, the most economical that
could have been adopted. I understand, also, that the work has
been done upon the faith of the act in question ; that the same ques-
tion which you have suggested, was presented to, and considered
by the Governor, when he signed the bill, and that he took the
sdme view of the subject which I have expressed. Under all the
circumstances, I entertain no doubt but you would be entirely
justified in making the payment, and I think it your duty to
do 50.

Respectfully yours,

M. B. CHAMPLAIN,
Attorney-General.
or THE SraTe or New Yorz. 375

QUALIFICATION oF VOTERS.
STATE OF NEW YORK:

Orrice or THE ATTorNEY-GENERAL,
Atpany, October 19, 1868.
To Atserr Brusu, Inspector of Election in the town of Constable,
franklin Oo., N. ¥.:

Dear Sirx.— Your letter was forwarded to me at the place of my
residence, Cuba, Allegany county, N. Y., which is the cause of the
long delay in answering the questions you submit.

You inquire if there is any act of the Legislature of this State
disfranchising voters who left the State to shirk the draft during the
late war, and you state that your town is situated on the frontier,
and that several voters so left it and went to Canada.

I am not aware that the State Legislature has ever enacted any
such law. The Legislature has no constitutional power over the
subject. The qualifications of electors are defined in the second
article of the existing Constitution of the State. These qualifica-
tions cannot be changed by any mere legislative enactments. In
case of actual conviction, by @ competent court, of any person “for
bribery, larceny, or other, infamous crime,’ etc., under the second
section of the suffrage article, the Legislature might declare such
conviction a disqualification. But the Legislature has no power to
exclude an elector under such second section, except upon actual
conviction for the crime. The act of Congress, approved March 8,
1865, which subjected persons duly enrolled, who went beyond the
limits of the United States to avoid the draft, to the forfeiture of
citizenship, and the proclamation of the President issued in pursu-
ance of it, is not retroactive in effect, and was not intended so to
be; but, by the express terms of the act, it is applied only to per-
sons who should so leave after its passage. If it had been retro-
active in its operation, it would have been open to the objection
that it was ex post facto, and, therefore, unconstitutional and void.
It is my understanding that there has been a general amnesty
granted, by a subsequent proclamation, for all such offenses.

I allude to these enactments, in response to your inquiries, to
acquaint you with all the legislation on the subject, and not because
they have, in my judgment, any legal force to disqualify an elector ;
876 Opinions oF THE ATTORNEYS-GENERAL

because, finally, I am of the opinion that the people of this State,
in virtue of their constitutional sovereignty, have the undoubted
right to establish and regulate for themselves the elective franchise,
without interference or control by any other authority whatsoever,
and that they have so established the qualifications of electors in the
article of the Constitution above cited, and that every person hay-
ing the qualifications specified in such article is a legal voter.’

M. B. CHAMPLAIN,
Attorney-General.

_—_——

STATE OF NEW YORK:
Arrorney-GEnERAL’s Orricr,
Asany, October 19, 1868.
Messrs. Norton and Montanye:

GenTLEMEN.—Absence from the city has prevented me from
answering the inquiries contained in your letter of September 30th,
until the present moment.

The law does not require a naturalized citizen in any case, to pre-
sent his certificate of naturalization to the board of inspectors on
offering his vote on election day. Such board have no legal autho-
rity to require it. On offering his vote, if challenged, he is only
required to take, first, the preliminary oath, and answer all ques-
tions authorized to be put to him under that oath. It is immaterial
as to his ultimate right to vote, how he answers such questions, if
he does not refuse to answer such. He is, although the challenge
is not withdrawn, still entitled to vote, if he will take, second, the
general oath, it must be administered; and his vote cannot, on
taking such oath, for any cause, be rejected. The object of the
preliminary oath is to elicit facts upon which the person offering
his vote, may be advised as to his rights. But such advice is not
controlling. The right is with the elector, to judge of his own

1See Green v. Shumway, 39 N. Y., 418. That decision holds unconstitutional
and, votd the provision of chapter 194, Laws of 1867 (the act providing for a con-
stitutional convention) requiring a person offering to vote for delegates, when chal-
lenged, to take an oath that he had not aided the rebellion and was not a deserter.
The prevailing opinion of Justice Miller agrees with the opinion of the Attorney-
General. See, also, 53 Penn., 112; 58 id., 338.
or THe Srarz or New Yorn. 377

qualifications as a voter ; and, if he is willing to take the general .
oath, his vote must be received by the board.

The board, when met to make registration of voters, have a right
to require the production of the naturalization papers of a natural-
ized citizen offering himself for registry. You ask “if the inspec-
tors have the right, arbitrarily, to reject the vote, because of a mere
suspicion that the papers were wrong?” If the papers are in form,
and have the signature of the clerk and seal of the court impressed,
I am of opinion that the board has no legal power to disregard
them. If they should assume that the papers were spurious in any
case and reject them, and refuse to register the name, they would
do so at their peril and render themselves liable, if the person
rejected was a legal voter. It is very difficult to imagine a case in
which it would be a prudent or a proper: exercise of official duty
to doso. The principle is fundamental, as applied to all judicial
proceedings, that the seal of the court from which the record ema-
nates, implies the absolute verity of the record, and makes it con-
clusive. A certificate of naturalization, under the seal of a court
of competent jurisdiction, I do not believe can be disregarded at
the mere caprice of the board; and it would be an arbitrary and
illegal exercise of power to assume that the seal so impressed, was
forged or surreptitiously affixed.

Respectfully yours,

M. B. CHAMPLAIN,
Attorney-General.

STATE OF NEW YORK:

Orricz or THE ATTORNEY-GENERAL,
Axpany, October 22, 1868.
Srr.— An unavoidable absence from the city has prevented a
reply to your letter of a recent date, submitting several questions
touching the qualification of voters for my opinion, until the present

¥

moment,
By the provisions of the second article of the State Constitution,

which defines the right of suffrage, the person claiming the right to
exercise it must possess certain qualifications in order to entitle him

o
378 OPINIONS oF THE ATTORNEYS-GHNERAL

to vote. They are the following: Being of twenty-one years of
age, he must have been a citizen for ten days preceding the election.
As this provision applies only to naturalized citizens, the certificate
of naturalization must have been procured ten days before the elec-
tion at which the person offers his vote. Further, he must be a
resident of the State for one year, and of the county for four months,
next preceding the election, and he must be an actual resident of
the election district in which he offers his vote. All these qualifica-
tions must be possessed to entitle a person to vote for any officer.
There are additional qualifications, applied only to persons of cclor,
‘ not involved in the inquiry you submit.

There is, in all cases, a further qualification as to residence, requi-
site in order to entitle the elector to vote for certain officers of a
local character, and which apply only to persons offering to vote for
officers to be chosen from congressional, senatorial and assembly
districts, and to the election of aldermen, councilmen, etc., if any
are to be elected at such election. This further qualification is,
thirty days residence next preceding the election in the district from
which such officer ts to be chosen.

You inquire, what is the meaning of “ district,” in section 1, arti-
cle 2% The district mentioned in the following provision of the
suffrage article of the Constitution to which you refer, “But such
citizen shall have been for thirty days next preceding the election a
resident of the district from which the officer is to be chosen for
whom he offers his vote,” 2s such congressional, senatorial, assem-
bly or other local district formed for the election of officers from tt,
and not the election district in which the party offers his vote. I
am not aware any officers are chosen at a general election from the
election districts as such, and the provision quoted plainly applies
only to districts of the character herein specified, which are the
districts mentioned in the general oath.

If an elector who had resided in the State for one year, and in
the county for four months, should remove from one congressional,
senatorial, assembly or other district, from which an officer was to
be chosen as such, into another similar district in the same county,
he would be entitled to vote for all officers to be elected at such elec-
tion, except.the candidates for Congress, Senator, or Assemblyman,
alderman, councilman, etc. (a8 the case might be), to be chosen from
or THE StatTE or Nuw York. ' 379

such district into which he has so removed. We would not be enti-
tled to vote for these officers unless he possessed the additional quati-
Jication of thirty days’ residence in the district from which such
officer is to be chosen. The principle which originated this pro-
vision is clear. It was to prevent the colonization of voters just
before an election, from a strong district into a close one, for the
purpose of controlling the election within it; and it was presumed
that a thirty days’ residence in a district would acquaint the elector
somewhat with the local interests in the election and the merits of
candidates.

You ask, “Must he have been a resident in the county for four
months to vote for all officers ?”

I have already explained that certain qualifications must be pos-
sessed by. the voter in order to entitle him to vote for any officer.
If the person offering his vote had removed from one county to
another within four months of the election, he would not be a legal
voter at such election. You repeat the same inquiry as to State
residence. It is clear that a person, as I have before stated, who
has not resided in the State for one year preceding the election at
which he offers his vote, is not a qualified elector under the Consti-
tution, and cannot vote at such election.

Respectfully yours,
M. B. CHAMPLAIN,
Attorney-General.

Mr. Wituuam Hemsteeet, Inspector of Election, Brooklyn, N. Y.

ATTORNEY-GENERAL’s OFFICE,
Axzany, October 29, 1868. }

Dear Sm.—Yonur letter inquiring as to the right of the soldiers
at West Point to vote, forwarded to me by Judge Nelson, has just
been received.

The amendment to the State Constitution, to extend the elective
franchise to persons in the military service of the United States,
adopted and ratified in 1864, applies only to persons in such service
during actual war, and to persons so engaged absent from the State.
It, therefore, has no application to soldiers or officers stationed at
West Point. By the 3d section of article 2 of the existing Con-
380 OPINIONS OF THE ATTORNEYS-GENERAL

stitution, it is declared: “ For the purpose of voting, no person shall
be deemed to have gained or lost a residence, by reason of his
presence or absence, while employed in the service of the United
States.” * * It will be preceived that, by this provision, such
person is invested with no new rights or privileges by reason of
being employed in the service of the United States; neither is he
deprived of any right or privilege by being so employed, but
stands in this respect just like any other elector. It follows that a
person, although a soldier in the service of the government, if
within the State, if possessed of the qualifications specified in sec-
tion one of the sufferage article above cited, is a legal voter.

It is difficult to see what question could arise in such a case,
unless it was the one of residence. Your letter seems to assume
that this qualification is possessed, as you inquire as to “the right
of the resident soldiers at West Point to vote.” If residents there
under the law, and possessing the other qualifications, their right to
vote is undoubted. The question of residence is to be determined
in the case of a soldier in the same manner and by the same rule
as is applied to any other citizen. It is, as you are aware, mainly
determined by the intention of the voter. If he is there with an
intention to remain an indefinite time, he would be a resident. On
the other hand, if he has left a residence elsewhere, and his stay
there is temporary and definite, and he intends to return to his
home when his term of service shall expire, or at some fixed time,
he would not be a resident, and would lack this essential qualifica-

tion of a voter. ‘
Respectfully yours,

M. B. CHAMPLAIN,

Attorney-General.
Hon. O. H. Wuvrretp, Newburgh.

STATE OF NEW YORK:

Attorney-Grnerat’s OrrFioz,
Axsany, October 30th, 1868. |
Dear Sm.—Y our letter of the 15th instant, is received.
In the case proposed by you for my opinion, if the person claim-
ing citizenship was born in the United States. and under the alle-
or THE Stare or New Yorx 381

giance of the government, sohe was a native subject. The weight
of judicial authority is, that his removal to Canada, and being natu-
ralized there under provincial laws, does not destroy his allegiance
to and national character as a citizen of the United States. But, by
his voluntary return in good faith, to reside in his native country, he
is reinvested with all the rights of citizenship. It follows that, if
he has the other qualifications as to residence, ete., prescribed by the
suffrage article of the State Constitution, he is a qualified voter.

Respectfully yours,

M. B. CHAMPLAIN,

Attorney-General,
Mr. J. J. Larmorun CE EI

STATE OF NEW YORK:

ATTORNEY-GENERAL’s OFFicr,
‘ Aupany, October 31, 1868. }

Dzar Sr: — I have this moment received your letter of yesterday,
submitting for my opinion certain inquiries.

In the third section of article 2 of the State Constitution, which
defines the right of the elective franchise, it is declared that, “for
the purpose of voting, no person shall be deemed to have gained or
lost a residence, by reason of his presence or absence * * * while
a student of any seminary of learning.” ©

You will perceive that presence at a seminary of learning invests
the person offering his name for registry, or his vote at election,
with no new rights whatever. His claim to vote’ must be deter-
mined like that of every other elector not in a seminary of learning.
He neither acquires nor loses his residence by such presence.

It follows, unless a scholar at such seminary has‘come to the town
or election district in which it is located, with the bona jide inten-
tion of becoming a permanent resident there for an indefinite time,
he would not be a resident, and, therefore, not a voter. ;

If he is there for a temporary purpose, or to attend school, and
intends to leave when his term of instruction ends, he is not a voter.
It is mainly to be determined by the honest intention of the voter.
It is my understanding the board have a right to put any question
382 OPINIONS oF THE ATTORNEYS-GENERAL

the answer to which bears upon any one of the requisite qualifica-
tions of electors. The questions you suggest bear upon the inten-
tion of the person alluded to, as to residence, and, it seems to me,
are proper upon achallenge. The preliminary oath is to be admin-
istered. If the person answers all pertinent questions (no matter
whether in the affirmative or negative), his vote cannot be rejected
unless he refuse to take the general oath. The object of the pre-
liminary oath is to elicit facts upon which the board may advise him
as to his rights. But such advice is not controlling upon the party.
The board have no power to reject the vote upon any facts elicited
under the preliminary oath, if the party is willing to take the gene-
ral oath. It is only in case he refuses to answer, that the board may
reject. If the challenge is not withdrawn, the board must admin-
ister the general oath; and, if the party will take it, his vote must
be received. If he refuses outright to answer any proper question
under the preliminary oath, or to take the general oath, his vote
must be rejected.

The foregoing, I believe, substantially answer all of your inqui-
ries.

M. B. CHAMPLAIN,
Attorney-General.

Swarm anp Fisoer acamst Tue Prorite or tae State or New
Yorx—Bzrorz Commissioners APPOINTED TO APPRAISE Damacezs.

The following objections to the award of any damages to the
claimants is respectfully submitted by the Attorney-General.

First. The contract mentioned in the bill was referred to this
department, by resolution of the Assembly, a few days before its
passsage, with directions to inquire into the contract, and if found
to be invalid, to take such measures as would annul the same.

From the brief examination I was there able to give the subject,
T had come to the conclusion its validity is open to grave doubts.
By its terms, the agent and warden of the Sing Sing prison cove-
nants to “hire and let unto the contractors (Swain and Fisher) for
the term of one year from the first day of April, 1868, the labor
and services of seventy-five convicts, to be employed at the print
amg business and its branches.”
or THE Svate or New York. 883

From the history of the legislation upon this subject, it is quite
apparent it has been the intention of the Legislature and State
authorities, as expressed in statutes, and invariably practiced in
custom, to confine such labor to the manufacturing of articles of
wares, for sale in the market, and mainly of such a character as the
chief supply were exported from foreign countries. This has been
the uniform spirit of the Legislature and the constant custom in
practice, The authorization for the quarrying and cutting of stone
at Sing Sing, and for mining and manufacturing iron at Cinton,
were by special statutes.

Construing this contract by the fundamental rule of law, that the
spirit of the law, rather than the letter, is always to govern, it is
difficult to see how the agent was authorized to make it, as it only
provides for jobbing out convict labor in the business of printing.
It was suggested to me, by one of the inspectors, that it includes
“ stereotyping and electrotyping,” which he claimed were branches
of printing ; and that, therefore, it was for the manufacture of wares
for sale, in the spirit of the law. I do not think this contract
authorizes the manufacture of stereotypic or electrotypic plates, or
types of any kind, or printing presses. The printing business, as
mentioned in the contract, must be held to include only the right
to use type and plates and presses, furnished by the contractors,
ready made, for the business of printing.

If these views be correct, it was a clear excess of power, upon the
part of the officer, to make the contract, and it is void. Chapter
8, title 2, article 1, of part 4, of Revised Statutes, 83d volume (5th
edition), pages 1066, 7, 8, etc.; sections 34, 50, 55; see article
2, same ; sections 85, 86, 88, etc. ; see, also, title 3, same.

Sections 85, 86 and 88, expressly forbid the labor of convicts
being employed in any new trade except to manufacture articles,
the chief supply of which are imported. ~

Second. But assuming the validity of the contract, the parties
have no legal or equitable claim to damages under it if annulled.
It contains the stipulation that the “State-shall not be held respon-
sible for any loss or damage, if the business aforesaid shall be pro-
hibited in prison by any existing law of the State.”

It is clear that this provision authorizes an annulment of the
contract, without giving rise to a claim of damages. If the con-
884 OPINIONS oF THE ATTORNEYS-GENERAL

tract or business was prohibited by any existing law this clause
would be unnecessary. Effect must always be given to every part of
a contract, and the parties, upon familiar and well settled principles,
must be held to have intended to apply this provision to a future

prohibition of the business.
M. B. CHAMPLAIN,

Attorney-General.

ArrornEy-GEnERAL’s OFFICE, t
December Tth, 1868.
Epwarp B. Lanstne, Auburn:

Siz.—Your letter was duly received.

The point I wished made before the judge, in the case of Burns
was, that he could be compelled by law, to serve out the unex-
pired term of his sentence.

If IJ understand your letter, he was sentenced February 1, 1864,
for two years and six months. Escaped second time, November 27,
1864 ; he had then served nine months and twenty-seven days; he
was retaken June 22, 1868, and imprisoned five months and eight
days, when the writ was served out, making the whole term of
imprisonment a few days over fifteen months. I think he should
have been remanded to serve out the remaining part of the term
for which he was sentenced, fifteen months. Will you please see
your counsel, and show them this letter, and have them write me,
if the papers and proofs before the judge clearly establish the
above facts. If so, we will remove the case for review, as I desire
to have the question set at rest by the decision of the Court of
Appeals, if necessary. I infer from your letter, Justice Dwight
did not decide this question.

Respectfully yours, .

M. B. CHAMPLAIN, ©
Attorney-General.
or THE Starr or NEw York. 385

ATYoRNEY-GenERAL’s OrFiox,
December 12th, 1868.

Hon. Joun L. Frage:

Srr.—I have examined the question submitted by you, as to the
power of the board of supervisors of Rennselaer county, to audit
and allow the claim for publication of the Session Laws in the
Northern Budget.

There is no limit in the statute as to the number of papers which
the board may authorize to publish the laws. If two or more
newspapers are published in a county, the board is required to desig-
nate by ballot, two newspapers, in which the laws shall be pub-
lish in the manner specified. The object being to insure the pub-
lication in one paper at least, represented by a minority of the
board.

The publication in additional papers, may be ordered by resolu-
tion.

While the resolution, a copy of which is submitted to me, is rather
inartifically worded and does not use the most apt and appropriate
language to express the object sought, yet I think the intention is
plain. The concluding paragraph fixing the compensation for the
publication authorized, “at the same pro rata rates for each insertion.
as is paid to the papers of the county publishing such notices,” can
only referto the two papers designated by ballot in pursuance of law,
to publish the Session Laws ; and may be construed to embrace the
publication of the same matter to be so published in such designated
papers, although the language used is “notice” instead of “laws,”
as the whole object of the enactment upon this subject, is to give
the people “ notice” of the laws passed, that they may obey them.
It is easy to see that such was the intention of the resolution.

Beyond this the board is authorized, under the general powers
conferred by statute, to audit claims against the county.

Respectfully yours,

M. B. CHAMPLAIN,
Attorney-General.

25
886 OPINIONS OF THE ATTORNEYS-GENERAL

ATTORNEY-GENERAL’8 OFFICE, {
Axpany, December 17, 1868.

To the Hon. James Butz, Auditor:

Srr.—In reply to yours of December 16th, instant, submitting
estimate of the cost of rebuilding a pier under the towing-path
bridge across the Mohawk river at Cohoes, I have to inform you, I
have come to the following conclusion :

1. That the work not being within the legal authority of the
commissioner in charge to direct, as the same involved a change of
plan, such work is not within the terms of the repair contract, and
the contractor is, therefore, entitled to extra compensation therefor.

2. That there is no authority to pay for said work, as an extraor-
dinary repair, out of the fund provided for such repairs by chapter
715 of the Laws of 1868, for the reason that maps, plans and esti-
mates of such work were not submitted to and approved by the
Canal Board, and the work advertised and let to the lowest bidder,
as required by section 3 of said chapter.

3. There is no authority to pay for said work out of the ordinary
repair fund, because, by section 2 of chapter 714 of the Laws of
1868, the Auditor is expressly forbidden to pay out any part of the
moneys appropriated by said chapter for the ordinary repairs and
maintenance of the canals to any contractor or other person for
repairs done upon “what is called a change of plan.”

4, There being no authority, under existing laws, to pay for said
work, the only remedy would seem to be an appeal to the Legisla-
ture for an appropriation for that purpose.

Respectfully submitted.

M. B. CHAMPLAIN,
Attorney-General.

ATTORNEY-GENERAL’s OFFICE,
December 29, 1868.

Mr. James O. Writs:

Srr.— Upon the question submitted by you, I am of opinion that
your county is ultimately liable for any loss that may accrue to the
State, from the default or neglect of your county treasurer to pay
oF THE STATE or New Yor. 387

into the State treasury any part of the State tax, and that it will be
the duty of the board of supervisors to assess and collect any sum
so lost by such default or neglect, upon the taxable property of the
county, upon being required to do so by the Comptroller, notwith-
standing the provisions of chapter 696 of the Laws of 1866.1

Respectfully yours,

M. B. CHAMPLAIN,
Attorney-General.

——

STATE OF NEW YORK:

ATTIORNEY-GENERAL’S OFFICE,
Agany, January 2, 1869. }
E. R. Foor:

Sir.—In reply to your letter of 28th December last, I have to
inform you, that when a military tax is regularly laid, and a war-
rant for its collection, with the other taxes, duly issued, such mili-
tary tax is to be collected in the same manner as other taxes, in all
respects. If it becomes necessary to proceed by levy and sale, the
law authorizes such course. The class of property exempt from
levy and sale under execution, is not exempt from levy and sale
under a warrant for the collection of a military tax.

I am of the opinion the law imposing such tax does not conflict
with any provision of the Constitution.

Respectfully yours,

M. B. CHAMPLAIN,
Attorney-General.

ATTORNEY-GENERAL’S OFFICE, t
ABany, January 2d, 1869.
Daz Sm.—Your letter of December 28th, has been duly con-
sidered.
The duty is not devolved upon the Attorney-General to take

1 This act simply amends section 18, 1 R. 8.,371 (1 Edmonds’ Statutes, 343). It
in no wise affects section 5,1R. 8.,419 (1 Edmonds’ Statutes, 379), by which losses:
sustained by default of county treasurers are made chargeable upon the county.
388 OPINIONS oF THE ATTORNEYS-GENERAL

official action against the supervisors to compel them to perform
their duty, under the law referred to by you. Indeed I doubt
if he has power so to proceed. His duty is confined to bringing
actions in cases especially authorized or directed.

If it was the duty of the Attorney-General to proceed in this
case, it would be equally his duty to proceed against every public
officer or body of officers in the State, who it should be charged
had neglected official duty.

There ig no doubt about the power of the commissioners to
apply for a mandamus, to compel compliance in this case with the
lawsand performance of the duty enjoined.

Respectfully yours,

M. B. CHAMPLAIN,
Attorney-General.

At a meeting of the Contracting Board held at their office in the
city of Albany, on Thursday, January 7, 1869, pursuant to adjourn-
ment, present :

John D. Fay and Oliver Bascom, Canal Commissioners; Van
R. Richmond, State Engineer and Surveyor ; James A. Bell, Audi-
tor.

Mr. Fay offered the following :

fesolwed, That the Attorney-General be and is hereby requested,
to furnish to this board his written opinion as to whether the Canal
Commissioners have the power to purchase for and in behalf of the
State, the boats, dredges, tools, implements, lumber and materials
belonging to any contractor for repairs, whose contract has or is
about to expire, and to embrace the same in any present or future
notice of letting made by the Contracting Board, as property of
the State, which the person or persons to whom any such work of
repairs may be awarded, must take at the prices specified in such
notice, and pay the commissioner or State, therefor, in cash, at the
time named in any such notice of letting. Adopted.

I certify that the foregoing is a correct copy of the original.

N. ACKLEY, Clerk.
or THE Srare or New York. 389

STATE OF NEW YORK:.

Arrorney-GENERAL’s OFFiox,
Azany, January 8, 1869.
To the Contracting Board :*

GerntLemun.—TI have considered the questions referred for my
opinion in the resolution adopted yesterday.

The power is fully conferred by law upon the Canal Commis-
sioners to purchase tools, implements, and materials for the repair
of the canals.

He may so purchase himself, or through the agency of superin-
tendents.

It is a power that can only be exercised under the safeguards
prescribed by law. The commissioners, I doubt not, are familiar
with these provisions, and they need not be repeated in detail here.
They are, in brief: The contracts are to be made in writing; the
tools, materials, etc., are to be carefully examined by the commis-
sioner or a superintendent; the contract for the purchase is generally
to be made upon notice, and awarded, upon sealed proposals, to the
lowest bidder.

The Court of Appeals having decided that the power exists to
appoint superintendents,’ the provision may be regarded as in force
requiring the estimates of that officer as to materials necessary, and
approval by the commissioner in charge.

In all cases, the purchases are to be confined to such tools and
materials as the commissioner, acting under his official responst-
bility, believes to be actually necessary.

In case of a breach of the canal, the notice, proposals and letting
may be dispensed with by the commissioner, to meet the exigency,
and in all cases the commissioners may direct the superintendent to
purchase materials and tools for ordinary repairs, without advertis-
ing for the same, whenever, in their opinion, the interest of the
State will be promoted thereby.

My attention has been called to chapter 252 of Laws of 1864.
This act authorizes, in certain cases, an abandonment by the repair
contractor of his contract. It is to be done upon ten days’ notice,

1 Contracting Board abolished, chapter 55, Laws of 1870. As the questions dis-
cussed were much agitated and excited a good deal of interest, the opinion is pub-
lished.

2 People ex rel. Kearney v. Bell, 38 N. Y., 386.
390 OPINIONS OF THE ATTORNEYS-GENERAL

and, if he has fully performed his contract, the board may accept
the surrender. The same act requires the board, upon the abandon-
ment or surrender, to proceed and relet the work so abandoned, as
now required by law. The sixth section authorizes the commis-
sioner in charge to take, of the person holding such contract, such
tools, boats, and other implements as the interest of the State may
require for working and repairing the section so abandoned, and
pay such reasonable price therefor as the commissioner may deter-
mine. This provision only applies to abandoned contracts, and its
language only includes tools, boats, and implements. If it extended
to materials, it would not seem to require a purchase of any quan-
tity beyond such as might be necessary through the period interven-
ing between the abandonment and reletting of the work. As before
stated, this act does not apply to a case in which the contract has
expired by its own limitation.

If the question, as I infer from your resolution, intended to be
submitted upon this subject, is as to the power of the commissioners
to purchase in gross the entire property accumulated by the outgoing
contractor, upon the expiration of his contract, with the purpose of
selling the same in gross to the incoming contractor, without a due
observance of the restrictions mentioned, I answer, I believe such
act would be a departure from official duty. It would not be giving
full effect to the enactments I have referred to, so wisely intended
to guard the interests of the State, and would violate their obvious
spirit and intention.

The second question involved in the resolution is as to the power
of the Contracting Board to require the proposer for a contract for
repairs, to take with the repairs any dredge, boats, tools and mate-
rials then owned by the State upon the section awarded, and pay
Jor the same in cash, I am not aware of any law authorizing the
board to make this requirement. Section 2 of chapter 105 of the
Laws of 1857, which authorizes the Contracting Board to let the
repairs by contract, authorizes an inventory of all boats, tools and
other implements owned by the State, belonging to each section ; and
further authorizes the board to require the person to whom the
contract for repairs upon such section may be awarded to take the
same at their appraised value, as part payment on their said con-
tracts. No conflicting regulation prescribed by the board could
oF THE STATE or New York. 391

annul this statute. The only regulations authorized are such as are
in harmony with the statute. I am of opinion the Contracting
Board has no power to require payments in cash for such property,
as a condition of entering into the contract.

Respectfully submitted.

M. B. CHAMPLAIN,
Attorney-General.

Supreme Covurt.— Tue Prorrtz v. Tue Conrractina Boarp.

I. The act of 18517 does not apply to this case. Because,

1. From its language and history, it appears it was only intended
to apply to a board or officer who were performing official duty,
and in good faith executing a law, which law is claimed to be con-
stitutional. It cannot be applied to a case where the board or officer
ts violating both his duty and the law he pretends to execute, or has
usurped power, and is proceeding contrary to law. (9th ed. Voor-
hees’ Code, 402, and note.) See Senate journal as to history of bill,
which shows it was intended to regulate an application to test the
constitutionality of the nine million bill.

II. The act, in terms and obvious intention, only applies to “State
officers” “‘and boards” created and recognized as such by the Con-
stitution and laws at the time of its passage. (Const., art. 5; 1
Hilton’s Reports, 584.) :

The Contracting Board is a creation of the Legislature in 1854.
These powers were devolved upon it in 1857. (Laws, 1854, chap.
327; id., 1857, chap. 105.)

The second section of the act of 1851 clearly shows it only applies
to officers and boards, and it was the duty of the Attorney-General
to defend. He is not required by any law to defend the Contract-
ing Board.

III. Whatever may be found to be the intention of the law, as

1 Chapter 488, Laws of 1851, section 1, forbids the granting of an injunction to
restrain any State officer or board from the performance of a duty enjoined by law,
unless granted by the Supreme Court sitting in the district. Section 2 requires
eight days’ notice ; and, if the Attorney-General is unable or omits to appear and
defend, the Governor may employ counsel, etc.
392 OPINIONS OF THE ATTORNEYS-GENERAL

applied to other cases, it is clear it does not apply to an action
brought by the Attorney-General against an officer or board.

The second section shows that it applies to cases only in which
the Attorney-General is to defend. It is an utter absurdity to say
it applies to cases in which he prosecutes.

Did the Legislature intend to tie up the hands of the people, in
restraining their agents and officers from illegal acts? Confusion
and anarchy can only follow such construction.

IV. Neither chapter 105 of the Laws of 1857, nor any other law
or statute of the State, authorizes the board to include in the notice
of letting, the inventories of tools, implements and materials inclu-
ded in this case. It is a gross assumption of power.

No such inventories can be included under law, unless the pro-
perty is owned by the State.

As the law of 1857 authorized a change of the system of repairs
from the superintendent to the contract system, it was intended
merely to divest the State of such property, which would become
useless.

It was also illegal to require the $6,000 United States bonds to
be put up as security. This duty is devolved upon the Auditor
alone officially to require upon reasonable notice after the contract
as awarded. (See act, 1867.)

The board having obeyed the injunction in this particular, it is

unnecessary to state this point more fully.

STATE OF NEW YORK:
ATTORNEY-GENERAL’s OFFICE,
Axzany, January 9, 1869. }

Sr. —In reply to your communication, hereto annexed, I am of
opinion the superintendent elected at the general election in 1868
was legally elected, and will hold his office for three years from the
first day of January ensuing such election.1_ The other two incum-
bents of the office are entitled to serve out the unexpired terms of
their respective offices, the one two years, and the other one year,
from the first day ef January aforesaid.

? The inquiry is in reference to the superintendent of the poor.
or THE Sraty or New York. 393

The statute, section 18, page 839, volume 2, Revised Statutes
(fifth edition),! is clear and explicit, that, in case the resolution reci-
ted in your communication is passed by the board of supervisors,
the superintendent elected neat after the passage of the resolution
shall hold his office for three years, as above stated. Section 19,
same page, declares that the other two inpnenbents shall serve
out their respective terms.

The election for this office in your county, if the resolution
remains unrescinded, will hereafter be triannually, as required by
section 18, above cited.

I am not aware of any provision of law requiring this resolution
to be filed in the clerk’s office or office of the Secretary of State, to

give it effect.
M. B. CHAMPLAIN,

Attorney-General.

Iy tom Marrer or rar Demanp ror THE SURRENDER OF CHARLES
CaRRALLAN.
ATTORNEY-GENERAL’s OFFICE,
January 11, 1869. }
In this case, the papers presented consist of what purports to be
the accusation by the ancient common-law form of information,
instead of indictment, which practice, it is understood, prevails in
the State of Connecticut, and an affidavit of the injured party.
The information, sufficiently in form and substance, charges the
offense of burglary and larceny, and is certified to be authentic by
the Governor.
Treating the information as an indictment, within the spirit
of the act of Congress, it is sufficient to authorize the requisition.
The affidavit, however, does not contain any legal evidence of
guilt against the accused.
Respectfully,
' M. B. CHAMPLAIN.
Attorney-General.

1 Chapter 498, Laws of 1847 (4 Edmonds’ Statutes, 9), amended by chapter 298,
Laws of 1862 (4 Edmonds’ Statutes, 14).
3894 OPINIONS OF THE ATTORNEYS-GENERAL

STATE OF NEW YORK:

‘ATTORNEY-GENERAL’S OFFICE,
Axsany, January 11, 1869.
Joun B. Lonatey, District Attorney, Columbia County:

Sm.—Upon my visit to Hudson on Saturday last, to confer with
you upon the case of Josephine Brown, under indictment in your
county, in obedience to a requisition of the late Governor to assist
in her prosecution, you reported to me fully the situation of the
case, and the circumstances that had rendered it impossible for you
to make the necessary preparations to proceed with the trial at the
Oyer and Terminer commencing to-day. I have fully considered the
same, and proceed to give you, as you desire, my advice as to what
should be your future action in the case.

The prisoner stands indicted, as accessory before the fact, for the
murder of Angie Stewart. The principal in the crime, her pre-
tended husband, was tried in April last, convicted and executed in
obedience to the sentence. It would have been unjust to the
accused, and impracticable to all concerned, to have proceded with
her trial at the same session of the court. The trial by common
consent went over to the last October Oyer and Terminer. As I
am informed, an application for the discharge of the prisoner was
resisted by your predecessor, at such October term, upon the ground
of his inability for want of pecuniary means to procure the attend-
ance of important foreign witnesses. The trial of the principal
disclosed that the evidence of two witnesses at least who reside in
the State of Ohio, and two or three physicians who reside in the
State of Connecticut, is indispensable to that preparation of the
case that should be made if the trial of the accessory is to proceed.
It was expected by your predecessor that sufficient means for this
purpose would be placed at his disposal by the board of supervisors
which assembled in November. Toward the middle of December
the board adjourned, as I em informed, without making any appro-
priation. By reason, it would seem, of this failure of the super-
visors to provide the necessary means, your predecessor, who has
prosecuted the cases with zeal and fidelity, was unable to find any
other mode effective to procure the attendance of the witnesses.

You came in office a little over a week ago and find the indict-
oF THE STATE oF New York. 395

ment thrown upon your hands in this embarrassing situation. The
refusal or neglect of the supervisors may have originated in reasons
entirely consistent with an anxious desire on their part to co-operate
with the civil authorities in having the indictment brought to trial,
and justice done in the premises. They may have doubted their
powers. I do not allude to their non-action to criticise it, but as a
part of the history of the case.

Engaged with you in an attempt to uphold the executive power
of the government, enforce the public laws and punish crime, I do
not hesitate as to my own or your duty in the case. The soil of
our State and limits of your county have been made the theatre of
an atrocious crime. I do not transgress the bonds of professional
or official propriety on this occasion to say, that the trial of the
principal disclosed a chain of circumstantial evidence bearing
equally against both, and forcing upon the most reluctant mind the
conviction that both are indissolubly associated in the guilt of the
crime of such overwhelming force as to make it the imperative duty
of all, charged with any duty in reference to the case, to put forth
every exertion for a fair and impartial trial. There are provisions
upon the statute book for reimbursing the expenses of foreign and
indigent witnesses. There are, also, in some proceedings, provi-
sion for the compensation of professional witnesses, who attend
trials to the injury of their business, to be enforced through the
order of the court. However this may be, if upon examination
they are not found ample and effective to insure a suitable prepara-
tion for the trial, the Legislature should be applied to to supply the
defect by prompt action. It is in vain that laws are passed unless
they can be executed. The perpetration of atrocious crimes, dis-
tructive of human life and endangering the safety of society, can
never be deterred unless all charged with the execution of the law
co-operate to make detection and punishment certain.

It would be a blot upon the criminal laws and the jurisprudence
of our State if accusations of this magnitude go untried, and crimi-
nals set at liberty, because of defects rendering the executive arm
of the law powerless.

14 R. 8. p. 753, sec. 18 (2 Edmonds’ Stat., 778, chap. 59, Laws, 1846 ; 5 Edmonds’

Stat., 172), and chap. 155, Laws of 1869. This last act was the result of this
opinion, and of the effort made as therein intimated in the closing paragraph.
396 OPINIONS of THE ATTORNEYS-GENERAL

I advise you to resist any application to discharge the accused,
and I think you may safely assure the court that you can finda
mode to obtain the absent witnesses, so that the trial may proceed
at the next Oyer and Terminer for your county.

Respectfully yours,

M. B. CHAMPLAIN,
Attorney-General.

STATE OF NEW YORK:

ATTORNEY-GENERAL’S OFFICE, |
Aupany, January 12, 1869.

Dantet Bort, Esq., Secretary Schenectady Fire Department :

Dear Sir.—In answer to your communication of the 6th inst.,
inquiring as to the liability of firemen of the city of Schenectady
to the military commutation tax, and the time and mode of exemp-
tion therefrom, I have to reply, that by the existing provisions of
law, firemen are exempt from assessment for such tax. In order,
however, to avail themselves of such exemption, in case their names
are duly entered upon the assessment roll by the assessors, pursuant
to chapter 651, of the Laws of 1868, they must claim such exemp-
tion by delivering to either of said assessors an affidavit, stating
the facts upon which the exemption is claimed, on or before the
day the assessors meet to review their assessment of real and per-
sonal property. Such affidavit cannot be presented after such day.
“Upon it the assessors are to determine whether such person is, or
is not exempt from military duty. This day is understood to have
passed long since.

Respectfully ete.,
M. B. CHAMPLAIN.
Attorney-General.
or TaE STATE or New York. 397

ATTORNEY-GENERAL’s OFFICE,
ABany, January 12, 1869. }
Smr.—In reply to your communication of January, 12th inst.,
inquiring if the superintendent of the poor have the legal power
to appoint one of their number keeper of the county poor-house,
I reply, that chapter 80 of the Laws of 1853, amends certain pro-
visions of the Revised Statutes, so as to enact among other things,
“nor shall any superintendent of the poor be appointed to the
office of keeper of the poor-house, in any county of this State.”
(Session Laws, 1853, p.115.) This enactment renders any superin-
tendent inelligible to such appointment. I am not aware this statute
has ever been repealed, but am of opinion it is still in force as the
law of this State. |
Respectfully yours,

M. B. CHAMPLAIN,
Attorney-General.

STATE OF NEW YORK:
ATTORNEY-GENERAL’s OFFICE,
AxBany, January 14, 1869.
Hon. J. A. Butt, Auditor:

Sm. —I have examined the abstracts of estimates of the several
superintendents of canal repairs handed to me, and considered the
objections noted thereon, to which you informally called my atten-
tion. These objections are generally technical. I do not understand
that an official bond requires a revenue stamp in order to its
validity.

But a conclusive answer to all these objections, in my judgment,
is (ooking to'the history of these appointments), that these officers
forwarded their bonds, and were ready to do all the law required to
invest themselves with the office.

Indeed, if these bonds are “ defective in any respect,” such defects
are probably cured, or the same can be amended at any time, as
398 OPINIONS OF THE ATTORNEYS-GENERAL

provided by sections 35 and 36 of chapter 8, part 3, title 1° (vol. 3,
5th edition, p. 830), of the Revised Statutes, and, when so amended,
“shall be deemed valid from the time of the execution thereof.”

The Auditor refused to recognize the validity of their appoint-
ment, or official character. An appeal was made to the courts to
determine the questions thus raised.” Pending this litigation, it
was useless to attempt to take any further steps, if any were neces-
sary, to qualify themselves under the law; and, as I am informed,
they were, in effect, notified by the Auditor that he could not recog-
nize such appointments until decided to be valid by the courts.
Whenever their official character was recognized, they acted and
discharged their duty, and when it was not, théy retrained from
other employment and held themselves ready to act whenever per-
mitted. In June last, the Supreme Court, at Special Term, and
subsequently at General Term, decided the appointments illegal,
and, finally, in September last, the Court of Appeals decided the
Canal Board had power to appoint such officers, and the validity of
the appointments were in all respects affirmed.

It was not until some weeks after this decision, as I am informed,
they were notified of any irregularities in the bonds, or other steps
necessary to be taken to qualify for the office; and when so noti-
fied, all such irregularities were promptly corrected.

They had rested in the meantime upon the faith that the only
obstacle to their full recognition was the legality of their appoint-
ment, to be determined in the pending suit.

To obey the law in its spirit, as pronounced in the decision of the
Court of Appeals, it seems to me, the officers should have had an
opportunity promptly, after this decision, to correct any technical
irregularities in their bonds, or other steps necessary, and they
should have been approved as of the time they were presented, as
the only ground of refusal made at that time was the want of power
in the Canal Board to make the appointments.

By force of the decision referred to, the laws authorizing these
abstracts of estimate may be held to be in force, and may include
the item of compensation to the superintendents, and being in

13 R.S., p. 556, 8§ 33 and 34 (2 Edmonds’ Statutes, 576).
* People ex rel. Kearney v. Bell, 38 N. Y., 386.
or THE STATE or NEw Yor. 399

form under the statute, may be regarded as a sufficient voucher to
entitle these officers to their pay. In my opinion, there exists no
legal reason why these officers, upon presenting proper vouchers,
are not entitled to compensation for services rendered, or which
they hold themselves at all times ready to render in pursuance of
law and their official duty.

Respectfully,

M. B. CHAMPLAIN,
Attorney-General.

ATTORNEY-GENERAL’s OFFICE,
Auzany, January 15, 1869.

Hon. Homer A. Nutson, Secretary of State:

Srz.—I have considered the question submitted by your commu-
nication of January, 13th inst., as to whether commissioners to take
acknowledgments, etc., in other States and Territories, appointed by
the Governor, under chapter 270 of the Laws of 1850, as amended
by chapter 788 of the Laws of 1857, and chapter 222 of the Laws
of 1859, can act as such after four years from the time of appoint-
ment, or after the term for which they are respectively appointed
has expired.

The general provision of the statutes of the State upon the sub-
ject of officers holding over is found in part 1, chap. 5, title 6,
article 1, sec. 14 of the Revised Statutes, (vol. 1, p. 409, R. S., 5th
edition), and is as follows: “Sec. 14. Every officer duly appointed,
except the justices of the Supreme Court, who shall have duly
entered on the duties of his office, shall continue to discharge the
duties thereof, although his term of office shall have expired, until
a successor in such office shall be duly qualified.” This provision
is found in chap. 5, of the first part of the Revised Statutes, which
is entitled, “of the public officers of this State, other than militia
and town officers, their election or appointment, their qualifications,
and the tenure of their offices.”

There is defined in the chapter the number, location, and classi-

11 B.8., p. 117, sec. 9 (1 Edmonds’ Stat., 107).
400 OPINIONS OF THE ATTORNEYS-GENERAL

fication of the public officers, as legislative, executive, judicial, and
adminstrative officers.

The officers of all classes, however,enumerated, whether of local
or general powers, are all confined in the execution of their duties
within the limits of the State, and are all required to reside therein,
and their duties relate entirely to the administration of the laws
within the State. There is no officer enumerated among’ them to
be appointed outside of the State, or to discharge any duties
beyond its limits.

Indeed, the office of commissioner, to which your communication
refers, was not created until 1850, twenty years after the passage
of the Revised Statutes, in which the provisions quoted were
mainly embodied in 1830.

I am, therefore, of opinion that the fourteenth section of the
Revised Statutes above cited, applies only to the classes of officers
embraced in said chapter fifth, and does not include those created
who are to reside in and discharge all their duties in foreign States
and countries.

If this statute could be held to apply to a class of officers other
than such as are expressly enumerated in the chapter, I should still
have grave doubts as to whether it could be applied to the commis-
sioners created by the act of 1850, and acts amending the same.
By this act so many commissioners (not exceeding ten by chapter
222, of the Laws of 1859) are to be appointed by the Governor, as
“he may deem expedient.” “The said commissioners shall con-
tinue in office four years.” It will be noticed that a permanent
and continuing office is not created by the act, to be filled by
appointment by the Governor. But the Governor, who is made
the appointing power by the exercise of this discretion, creates the
office and fills it; limited, however, in respect to duration, to the
term of four years. If the Governor does not deem it expedient
to make the appointment, there is no such office or officer; and if
he does, the office is created, and an officer appointed to fill it only
for the legal term. When that term has elapsed, the office is at an
end, only to be created and filled by a new exercise of the discre-
tion of the appointing power.

I am, therefore, of opinion such commissioners do not hold over
in office after the expiration of the period for which they are
or THE State or New York. 401

appointed ; and for the reasons last stated, I entertain grave doubts
whether, if they do so hold over, they are officers de facto, when
so acting after their term of office has expired, so as to be within
the principal that their acts were valid, so far as the public and third
persons are concerned.

Respectfully submitted.

M. B. CHAMPLAIN,
Attorney-General.

STATE OF NEW YORK:

ATTORNEY-GENERAL’s OFFICE,
AxBany, January 16th, 1869.

Sm.—I have examined what purports to be charges against
, sheriff of Oneida county, preferred by

 

 

 

Chapter 258 of the Laws of 1835, provides for the infliction of
the death penalty thereafter within the walls of prisons. The
.same is to be witnessed by the sheriff, under sheriff, and such
deputies and constables as the sheriff or under sheriff shall deem
expedient to have present. The sheriff is also to invite the
presence of the judges, district attorney, clerk and surrogate,
physicians and respectable physicians and clergymen if requested
by the criminal. It appears from the papers submitted, that there
was included within the number present, most, if not all, of these
officers, professional men and citizens, by invitation of the sheriff.

A certificate is to be prepared that the execution was in con-
formity to the sentence, and the provisions of the act to be signed
by the officers present, and other persons, not relatives of the
criminal, who witnessed the execution, which is to be filed in the
office of the clerk, and published in the State paper and in one
newspaper in the county.

T have not considered the question, whether the act charged, if the
charges were properly verified so as to demand executive action,
are violations of the law upon the part of the sheriff, because, I am
of the opinion, they are not sufficient to justify the grave investi-
gation authorized by chapter 629, Laws-of 1866.

26
402 OPINIONS OF THE ATTORNEYS-GENERAL

The charges rest solely upon information derived from others
and newspaper articles, which is mere hearsay, and has never been
regarded as proper evidence to justify proceedings quasi criminal.
The presumption of the performance of official duty is so strong,
especially in a proceeding concurred in, in an official character, by
many of the officers of the county and others, under circumstances
so strongly repelling a belief of a deliberate violation of the pub-
lic law, it seems to me, demands more than mere information and
belief, and especially as so many were present whose affidavits could
be obtained to verify the charges if true. Iam of opinion some
specific act of violation of law, or malversation in office, should be
established by legal evidence in order to present a case for executive
action.

Respectfully yours,
M. B. CHAMPLAIN,
Attorney-General.

January 25, 1869.
His Excellency Governor Horrman :+

Srr.—The indictment charges the alleged fugitives with unlaw-
fully conspiring and confederating together to deprive the prosecu-
tor of a large amount of property, the value alleged being over
$100,000, by means of a false suit and proceedings in the courts
of Pennsylvania, which proceedings are set forth with proper aver-
ments to fully describe the crime of conspiracy.

This offense, conspiracy, has always been regarded as one involv-
ing moral turpitude, and generally as one of grave enormity. It
is almost always in all countries the incipient step in treason and
great crimes against the public peace and public order.

It is said, by able commentators upon covenant law, “the offense
of conspiracy is not confined to the prejudicing a particular indivi-
dual. It may be to injure public trade, to affect public health, to
violate public policy, to insult public justice, or to do any act in
itself illegal.”

‘In matters of requisition for Hatfield and others, by the Governor of
Pennsylvania. ;
oF THE State or New York. 403

Tn all countries a conspiracy to do an illegal act though the
courts and officers charged with the administration of the law,
making such courts and officers the agency in the accomplishment
of the illegal purposes of the conspiracy, has always been regarded
as an offense against public justice nearly akin to perjury and other
kindred crimes.

So charged, the conspiracy is aggravated by the design to pre-
vent the course of justice, impose upon its courts and officers and
prostitute them to the illegal purposes of the conspiracy. A solitary
offender may be easily detected and punished, but combinations
against law are always dangerous to the public peace and private
society. Add to the purpose of such combination a design to pre-
vent or obstruct the course of public justice, and the crime is
increased in enormity ; as thus charged it was an offense at com-
' mon-law. In some of the States the crime of conspiracy has been

somewhat restricted and defined by statute. But when charged
.in the aggravated form that it is intended to obstruct or prevent
the course of public justice, by falsely moving and maintaining
suits, it may be regarded as generally indictable and punishable
as an offense of high grade; and I am of opinion it is within the
class of “crimes,” intended in the Constitution, enjoining the duty
to surrender fugitives from justice.

Respectfully submitted,

M. B. CHAMPLAIN,
Attorney-General.

STATE OF NEW YORK:

OFFICE OF THE te
Axsany, January 26th, 1869.
His Excellency Governor Horrman:

Srr.— Yours of a recent date submitting the question as. to the
duration of the term of office of George B. Lincoln, appointed to
fill a vacancy as commissioner under chapter 74 of the Laws of
1866, has been considered.
404 OPINIONS OF THE ATTORNEYS-GENERAL

It is the obvious spirit and intention of the act to provide for
the appointment of four members of the metropolitan sanitary
board of health, whose term of office should be so classified that an
appointment of a new member should be made each year, leaving
three old members upon the board, thereby always securing
experience in the duties of the office, and familiarity with the
existing situation of the public interests involved.

For this purpose the act contains explicit provisions for a classi-
fication of the terms of office of the first four .commissioners
appointed. And, further, that upon the expiration of the term of
office of a commissioner, the successor appointed to fill the vacancy
created by such expiration of the term should be so appointed for
four years, thus preserving the regular order of classification
intended by the act.

Such appointment, it is decided, shall be made “ upon the nomi-
nation of the Governor, by and with the advice and consent of the
Senate,” section 4, chapter 74, Laws of 1866.

Then follows this provision as to vacancies:

“‘ Any vacancies that may occur by reason of death, resignation,
removal from office or otherwise shall be filled in like manner.”

This is a power simply to fill the vacancy. But it is to be done
in the same manner as an appointment to fill the regular and full
term upon its expiration, that is, upon the nomination of the
Governor, and with the advice and consent of the Senate.

The clause of the section that follows, providing for filling vacan-
cies during the recess of the Senate, harmonizes with the other
provisions, although it is declared that the person so appointed
during the recess to fill a vacancy “shall hold office until twenty
days after the next meeting of the Senate.” This paragraph must
be modified in its construction to harmonize with the other pro-
visions, and the obvious spirit of the law.

It could not operate to extend the term of office of the appointee
beyond the expiration of the term, a vacancy in which he was
appointed to fill, and if it should so happen that such term would
expire ‘before twenty days after the next meeting of the Senate
such appointee would be out of office by the expiration of his
term of office, and the right would immediately arise to fill the
or THE Strate or New York. 405.

vacancy created by such expiration of the term for four: years in
the manner prescribed.

Any other construction would destroy the order of the scheme
of classification, and defeat the obvious intention of the Legis-
lature.

I am of opinion that Mr. Lincoln is only entitled to hold the
office for the unexpired term for which Mr. Shults was appointed,
and that upon the expiration of such term a vacancy will occur by
its expiration to be filled for four years in the manner prescribed in
the act. ,

Respectfully,

M. B. CHAMPLAIN,
Attorney-General.

ATTORNEY-GENERAL’s OFFICE,
. Axpany, February 2, 1869.

To Hon. Jamrs A. Bett, Auditor: -

Siz.—I have considered the question submitted by your commu
nication of January 21, 1869.

By reference to my letter to you of the date of January 14th,
instant, you will perceive that I express the opinion that the official
bonds of superintendents of canal repairs do not require a United
States revenue stamp in order to show their validity; and, further,
that any defects in the bonds of such public officers might be
amended by sections 35 and 36 of chapter 8, part 3, title 1, of R.
§..; and when so amended, such bonds are to be deemed valid from
the execution thereof.

You submit now for my consideration other neglects and irregu-
larities, on the part of such officer, in not taking and filing the oath
of office in the manner and within the time prescribed by law, and
call my attention to the statute which declares that an officer guilty
of these neglects forfeits his office, and is guilty of a misdemeanor.

Tt will be borne in mind we are now dealing with the question
between the public and the office, between the State, whom he has
served under color of office and the servant who has so rendered
official service.
406 OPINIONS OF THE ATTORNEYS-GENERAL

It may be conceded, for the purpose of the: decision of these
questions, that omissions and neglects, such as you specify, may
furnish cause for imposing the penalty of a forfeiture of the office,
and that the State, by guo warranto, could proceed to enforce
such forfeiture. But must not such action be taken, and must not
the forfeiture be judicially determined before the penalty can be
imposed ?

In this case I assume these officers, duly appointed, have rendered
service, or held themselves in readiness to serve, and thus earned
their compensation. Because, if they have not served, or held
themselves ready to serve, abstaining from other employments,
payment may be refused upon that ground.

The State having availed itself of such service, can it now justly
refuse payment itself of such service? Has not the State waived
any forfeiture incurred by refraining from instituting proceedings
to enforce it and oust the officer ?

It seems to me the order and harmony of government is best
preserved by. holding the acts of the officer, so long as he acts
within the scope of official duty, valid, so far as the public and the
State is concerned, until he is ousted by a direct proceeding for that
purpose.

I know of no authority in any head of department or State offi-
cer to exercise Judicial powers involving consequences so serious as
the forfeiture of an office and the fees and compensation earned in
execution of its duties.

I believe the proper judicial tribunals only are empowered to
exercise this power, upon suit instituted for that purpose in behalf
of the State, or brought before them in legal and proper form.

It is beneath the dignity of the people of this State, and cer-
tainly a great injustice to the party who has served them, to refuse
payment for such services, upon the ground of forfeiture of the
office, for some technical omission, when no proceedings have been
instituted to enable the officer to try and perhaps refute the charge,
smd when the State has appropriated to itself the fruits of such

’ a

Respectfully,
M. B. CHAMPLAIN.
or THE Srate or New York. 407

STATE OF NEW YORK:

OrricE or THE ATTORNEY-GENERAL,
Axsany, March 11th, 1869.
To the State Engineer and Surveyor, and Canal Commissioner in
charge of the Eastern Diwision :

Gents.—To avoid misapprehension, I take the liberty to reduce

_to writing and forward you the opinion expressed to you during
‘our consultation to-day upon the subject embraced in the bill for
the repair of the Albany basin.

Waiving the question of the constitutionality of the bill, as not
properly before me, because the questions considered in our con-
versation seem to involve only the expediency of its passage, I will
briefly repeat the suggestions made.

The whole scope and object of the bill, as I understand it, is to
provide against damage to the property and canal interests of the
State in and about the Albany basin. Damage has undoubtedly
been done to private property ; but this bill is intended to prevent
future damage to the property of the State. This is apparent from
the safeguards contained in the third section, and the provisions of
the fourth section, which declare that “no proceedings shall be had
under this act, until the canal board shall have filed with the
State Engineer and Surveyor a certificate stating that the expendi-
ture herein provided for is required to protect and render useful
the property and canal interests of the State.” You are required
to consult with the Attorney-General and ascertain from him:

1. That no other party can be compelled, under existing contracts
and laws, to do such work; and,

2. That no other party can be compelled to pay such damages as
may occur by reason of its not being done, as a condition to your
right and duty to proceed and execute the law.

As before intimated, I shall treat the damages mentioned as such
as are likely to occur to State property;and no other.

1. Can any other party, under existing contracts and laws, be
compelled to do this work? I know of no party against whom
there could be the least reason for such a claim, unless it is the repair
contractors upon the section in the city of Albany, under the bonds

executed by them.
408 OPINIONS OF THE ATTORNEYS-GENERAL

The repair contractor cannot be compelled to do the work contem-
plated by you, as indicated in the drafts submitted to me, because
it involves a change of plan, and is not within the power of the
commissioner to order. If the contractor could be compelled to do
the work, this act was unnecessary. It is a legislative determina-
tion that existing laws were inadequate to meet the exigency.

The city of Albany cannot be compelled to do the work, because
whatever may be the extent of its ultimate liability upon the bonds
filed, they are simply bonds of zndemnity, and the State would be
obliged to do the work or incur the expense before any liability
upon the bonds would arise.

The further question is, whether any other party can be compelled
to pay such damage as may occur by reason of the contemplated
work not being done ?

I annex hereto the report of the division and State Engineers,
showing the agencies that caused the damages in the past. We may
safely assume the same agencies will cause future damage, if any
shall occur. By this report it would seem the piers of the Hudson
River Bridge Company’s bridge were the obstruction which raised
the ice dam and threw a large volume of water into the basin, and
was the primary cause of the damage. The old piers of the Colum-
_ bia street bridge are mentioned also as a cause of the damage done.
The State authorized and permitted the construction of the piers
by the Hudson Bridge Company, and thus became a party contribu-
ting to the damage done its own property. It is difficult to see how
any claim could be maintained by the State, under such circum-
stances, against this company for future damage caused by the same
agency.

The damage threatened to the State property and canal interests,
as appears by the annexed report, is to the lock which is far above
the Columbia street bridge. It is, therefore, unnecessary to examine
the liability of such company for any future damage.

I had occasion, in a communication heretofore addressed to the
Assembly, to express doubts as to the construction of the bonds
executed by the city of Albany, whether such bonds could be con-
strued to include remote damages of this character, or only such ag
immediately resulted from the construction of the basin, by the
oF THE Strate or New Yorx. 409

appropriation of property and its immediate injury by means of
such construction.

The bonds do not, in terms, purport to cover any damages except
such as are caused by the construction of the basin.

Basing my opinion upon the report of the engineer before referred
to, that the piers of the Hudson Bridge Company in the river, and
the old piers of the Columbia street bridge left in the basin, were
the causes of the damage which has already occurred, and that we
may safely assume any further damage to the property of the State
which may occur, will arise from the same agencies, it is apparent
the construction of the basin did not, in the legal sense, cause it, so
as to be a breach of the bonds.

Respectfully submitted,
M. B. CHAMPLAIN,
Attorney-General.

  

STATE OF NEW YORK:

ATTORNEY-GENERAL’s OFFICE,
Appany, March 25, 1869.

Hon. Truman G. Younerove, Speaker of the Assembly :

Sm.—In your note of yesterday addressed to me, you submit for
my opinion the following question :

“Whether claim bills require a vote of two-thirds of all the
members elected to pass them, or whether such bills may be passed
by a majority vote, three-fifths being present?” And you add:
“These bills are usually for some claim against the State, caused
by damages resulting from the operation of the canals, and pro-
vide for payment to individuals.”

You invite my attention to section nine of article one, and sec-
tion fourteen of article seven of the Constitution as bearing upon
the question. The first provision cited is as follows:

“The assent of two-thirds of the members elected to each branch
of the Legislature shall be requisite to every bill appropriating
the public moneys or property for local or private purposes.”

The other provision declares that, on the final passage of any
410 OPINIONS OF THE ATTORNEYS-GENERAL

law in either house, which imposes a tax, etc., or appropriates pub-
lic money or property, etc., three-fifths of all the members elected
shall be necessary to constitute a quorum, and that the yeas and
nays shall be entered upon the journal.

The bills referred to in your inquiry are not before me. Some
of these bills heretofore passed, merely’ confer jurisdiction upon
some board of officers to investigate and award upon the justice
and equity of the claim and its amount, but do not appropriate
any money to the payment of the claim, leaving such appropria-
tion to future action of the Legislature upon a review of the sub-
ject. Such bills are not within the provision of the Constitution.
It only applies to such laws as in terms appropriate the public
money.

Section nine of article one of the existing Constitution, was con-
tained substantially in the Constitution of 1822, as section, nine of
article seven, which I have above quoted in full. .

It was early determined by the concurrent action of both branches
of the Legislature, that a law appropriating the public money to
pay a just and equitable debt owing by the State, was not an
appropriation of public money for private purposes in any sense.

At the session of the Legislature in 1828, the subject was
referred to a committee, who made an elaborate report which was,
after full consideration, adopted by the Legislature. And so far as
Iam aware, the principle of such report has since been generally
adopted in practice in regard to this class of legislation.

The report contains this statement of the principle.

“The committee in the first place would remark, that this sec-
tion of the Constitution is to receive a strict construction, because
it is a limitation upon the power of the Legislature, which power
is the supreme power of the State; a power that is absolute and
unlimited, except so far as it is restiained by the provisions of the
Constitution. The aforesaid section cannot, therefore, be applied
to any bill unless said bill is most clearly and beyond all doubt
embraced within its letter and its spirit. Does the bill under con-
sideration come within the letter and spirit of the section of the
Constitution referred to? Is it within the language of that section,
‘an appropriation of the public moneys or property for local or
private purposes?’ It clearly cannot be, for it is the payment of a
or THE Srate or Nuw York. ' 411

demand for services of a public nature rendered for the public by
one of its citizens in a public capacity. It is, therefore, an appro-
priation of the public money for general and public, and not for
local or private purposes. Besides, where a portion of the public
funds are appropriated to pay a debt due by the State, it cannot be
called an appropriation of the ‘ public moneys or property,’ for the
creditors of the State have a claim upon the moneys in the treasury
to the amount of their debts, and only that portion of the moneys in
the treasury which would remain after the debts of the State are paid,
ought to be called public moneys. The aforesaid section never was
intended or contemplated to extend to the payment of a debt due
by the State.

“The mischief: intended to be remedied by this provision of the
Constitution was the squandering of the public moneys upon local.
objects or for private purposes. The disposition of the public funds
to the payment of public debts was never an evil, and public policy
did not require that the exercise of this power by the Legislature
should be restrained by checks and guards. It would be a public
calamity to throw any obstacle in the way of doing justice. Butit
might at times be a public benefit to check the headlong career of
legislative extravagance.”

Care must be taken to distinguish between a claim arising upon
a just and equitable debt owing by the State and a claim not
founded upon such obligation, but addressed to the beneficence or
generosity of the Legislature. ks,

In a case in which the bill appropriates money to pay a just and
equitable claim against the State, arising out of such a state of
facts as would create a debt against an individual, I am of opinion
such bill is not within the provision cited. If the bill, on the other
hand, appropriate money as a charity, gift, or bounty to the indivi-
dual, it would be an appropriation of the public money to private
purposes within the Constitution, and would require the assent of
two-thirds of all the members elected to pass it.

The Constitution forbids the taking of private property for pub-
lic use without compensation to the owner.

A law intended to make this compensation in any case in
obedience to the constitutional mandate, would not. be an appro-
priation of public moneys to private purposes, although the money
A12 OPINIONS OF THE ATTORNEYS-GENERAL

is expressly given to an individual; and so of the salaries of the
public officers, and expenses legitimately incurred in carrying on
the government, whereby a just and equitable debt is created
against the State. Bills of appropriations to discharge these debts
may, in my judgment, be passed by a majority vote, three-fifths
being present.’
Respectfully submitted,
M. B. CHAMPLAIN,
Attorney-General.

STATE OF NEW YORK:

ATTORNEY-GENERAL’S OFFICE, __ }
Axzany, March 26th, 1869.
Joun B. on Esq., Auburn, Superintendent Poor, Cayuga
county :

Sm.—After careful examination of the question, I have come to
the conclusion that upon the facts stated in your communication
of January last, the pauper referred to never gained a legal settle-
ment in the town of Ledyard, to which town she removed from
the town of Springport.

From the whole scope and spirit of the laws relating to the sup-
port of the poor, it must be held that she having been supported
as a pauper in the town of Ledyard, from her removal there down
to the time the distinction between the town and county poor was
revived, she had gained no legal settlement in such town. But her
legal settlement remained in the town of Springport, from whence
she so removed, and her support is, consequently, legally charge-
able to that town.

Respectfully,
M. B. CHAMPLAIN,
Attorney-General.

See Conner v. Mayor, etc., of N. Y.,5N. Y. (1 Seld.), 285, 299.
or THE Sarr or New York. 413

Onema, N. Y., March, 27, 1869.
A. D. Brarr, Esq. :

Srr.—In answer to yours of January, 30th, I have to say:

1. Notaries public do not hald over after the expiration of the
term for which such officer is appointed.

2. The number is declared by law, which in the whole, is not to
exceed one for every 2,000 of population in any county, and one
for each bank; they may be located in any portion of the county
the Governor and Senate designate. (Laws of 1863, p. 880, Laws
of 1864, p. 51.)*

3. A man to be eligible to an elective office, must be a qualified
elector. If convicted of a crime under State laws, such as by the
Constitution and laws of the State disqualifies him-from voting, he
would not be eligible to office, unless restored to citizenship by
pardon by the Governor.

A person convicted under the laws of the United States, of a
felony, could only be pardoned by the President of the United
States. Upon such conviction, I am of opinion he does not forfeit
his citizenship under the laws of this State, and therefore no par-
don is requisite to restore him thereto.

This view must be understood as general, as I cannot advise you
safely in relation to this, until I am informed of the nature of the
crime of which the party was convicted, under the federal laws.
Forfeiture of citizenship under State laws may have been imposed
as a part of the punishment.

Respectfully yours,

M. B. CHAMPLAIN,
Attorney-General.

1 By chap. 420, Laws of 1867, the Governor can appoint 100 notaries in the city
and county of New York, and two additional ones in each Assembly district. By
chap. 479, Laws of 1868, 500 additional ones in the city and county of New York, and
five additional in each Assembly district. By chapter 317, Laws of 1869, 250 addi-
tional in New York, and five additional in each Assembly district. By chap. 660,
Laws of 1870, 250 additional in New York, and three additional in each Assembly
district, and by chap. 167, Laws of 1871, 300 additionalin NewYork. As to term
of office when appointed during recess of Senate, see chap. 3, Laws of 1871.
414 OPINIONS OF THE ATTORNEYS-GENERAL

STATE OF NEW YORK:

ATToRNEY-GENERAL’s OFFICE,
April 27, 1869. }
His Excellency the Governor :

To the inquiry submitted by your aceap “ whether the taking
of the official oath of a notary, appointed for New York city, before
the Secretary of State, and sending a certified copy thereof to the
county clerk, is a sufficient compliance with the law?” I respect-
fully reply, that upon inquiry at the Secretary of State’s office,
I am informed that Alexander Wilder, the person named in the
certificate accompanying the note, and to which I suppose the
inquiry applies, was confirmed by the Senate April 22, 1868; that
he took the oath of office before the Secretary of State on the sixth
of May thereafter; that duplicates of the oath were prepared,
signed and sworn to, one of which was deposited in the secretary’s
office, and the other furnished to the party, to be forwarded to the
county clerk of New York. By law the oath of office is to be
taken and filed with the county clerk within fifteen days from noti-
fication to the party of his appointment. - The Secretary of State
is authorized to administer the oath. The forwarding of a certified
copy of the oath filed in the Secretary of State’s office would not
be a compliance with the law. If duplicates were made, the for-
warding of one would be such compliance. And if it reached the
proper clerk’s office within fifteen days of the notification of the
officer of his appointment, such appointee would be regularly
sworn into office.

I have no information as to the time at which the duplicate oath
was received at or filed in the clerk’s office of the city and county
of New York, in the. case of Mr. Wilder. While the Secretary of
State is authorized to administer the oath of office, the filing of the
oath in his office is not a compliance with the law in that respect.

Respectfully submitted,

M. B. CHAMPLAIN,
Attorney-General.
or THE STATE or Naw York. 415

April 27, 1869.

GentLemen.—In answer to your communication of this date, I
respectfully reply: That I am of opinion that congress has no
power to tax the business transactions and contracts between the
State of New York in her sovereign capacity and her own citizens,
and that in my opinion the acts of Congress concerning the revenue
were not intended to impose any such tax. It follows that in my
opinion no stamp duties can be required upon the documents and
papers referred to in your resolution. As to the question as to
whether the proposals, bond and character of the security are such °
as are required by your regulations, and whether any injury has
been done to other bidders by reason of their not being made in
conformity thereto, these are questions to be determined by the
board in the exercise of an enlightened discretion. Section 6 of
chapter 577 of the Laws of 1867 empowers the contracting board
to disregard certain irregularities and informalities in the proposals
tendered for repairs, contracts not involving matter of substance.
If such informalities and irregularities are of such a nature, they can
be amended by the party immediately and upon the spot. It has
been held that upon all questions of discretion the discussions of
the board cannot be reviewed, and acting within the powers con-
ferred by law, the board is made the judge, and may award the
work to best subserve the interests of the State in the exercise of

a sound discretion.
ee submitted,

M. B. CHAMPLAIN,
Attorney-General.

Arrornry-GEnERAL’s OFFICE,
Auzany, Hay 3, 1869.

A. L. Wuxrtzr, Esq., Rochester, V. Y.:

Sm.—Your communication of the date of April 21st, last,
inclosing report of the committee of the common council of
Rochester upon assessments, and the resolution of the board by
which the question of the liability of the State property, situated
416 OPINIONS OF THE ATTORNEYS-GENERAL

within the city limits, for taxes for local improvements, is referred”
to me for my opinion, has been considered.

The report discusses the propriety of so taxing two kinds of
property.

The first is land included within the “blue line,” which has
been appropriated, and title to which has been acquired by the
State for canal purposes.

The committee states: That if there is no law of the State
which contravenes the provision of the charter quoted by them, then
it would be incumbent on the city assessors to include in their
assessment rolls for local improvements, and tax the State the
estimated expense of improving such approaches to the canal
btidges as are embraced within “ blue line,’ marking the boundary
line of the land claimed by the State.

By the Constitution (article 7, section 6), it is ordained that
“the Legislature shall not sell, lease, or otherwise dispose of any
of the canals of this State; but they shall remain the property of
the State and under its management forever.”

This provision must be held to include all lands appropriated
by the State for this purpose, and clearly all included within the
“blue line.’ Provision is made by which the Canal Board can
declare certain canal lands abandoned, and when so abandoned,
the same may be granted by the Commissioners of the Canal Fund
to the original party from whom they were taken, if taken without
compensation other than benefits, or to the grantee of such party.

Until declared abandoned by the proper authority, there is no
power in the Commissioners of the Land Office, or the Legislature,
to dispose of them in any manner. I am of opinion, such lands
cannot, while they remain a part of the canals, be subject to assess-
ments for local improvements.

The public authorities being solemnly prohibited from disposing
of them, and being devoted to canal purposes only, they cannot
be benefited in any such sense as warrants assessments upon pro-
perty for local improvements.

It is not within the power of the Legislature, by law, to empower
the municipal authorities of your city to acquire any lien by tax
upon such lands, because it would violate the injunction of the
‘Constitution quoted, that the Legislature shall not “ sell, lease, or
or THE Starz or New Yorks. 417

otherwise dispose of such property.” It could not do indirectly .
what it is forbidden to do directly. I do not construe your charter
as conferring any such power.

The other class of property alluded to in the report, is described
to be “lots owned by the State to which title was acquired by
foreclosure of mortgages to the Loan Commissioners and other-
wise.” Tam of opinion, it is within the power of the Legislature
to subject such property to assessment for local improvements.
Upon an examination of all the provisions of your charter, it~
appears it is the true construction, that it was the intention of the
Legislature to so subject them to assessment for such purposes.

By other provisions of the general laws' read in connection
with your charter, when such assessments are regularly made they
are to be paid by the Comptroller of the State. And I am
informed by him, it is the custom of his department to pay them
when so regularly assessed and presented.

Respectfully yours,
M. B. CHAMPLAIN.

ArtorNEY-GENERAL’s OFFIoE,
Axuzany, May 3d, 1869.

L. D. Hitt, Esq., Cairo, Greene Co., N. ¥.:

Sm.—You inquire: “Cana county clerk legally take acknow-
ledgments of deeds and mortgages as notary public, and afterwards
put them upon record in his own office of county clerk?”

Iam of opinion he can. There is ‘no such incompatibility in
the offices as disqualifies him from holding both, and the duties
are distinct and independent.

In the first instance, as notary he certifies to the acknowledgment
of the execution of the instrument. He has no authority to record
it unless it is acknowledged as the law requires. I can see no objec- '
tion to his passing upon the validity of the certificate of acknow-
ledgment as county clerk, although taken before himself in another
official capacity. His further duty would be if required to authen-

1See 1 Revised Statutes, p. 409, sec. 771, 1 Edmonds’ Statutes, 210.
27
418 OPINIONS OF THE ATTORNEYS-GENERAL

ticate a copy of the instrument as a copy of the record. These
duties are all ministerial and independent, and in my judgment
may be properly exercised by the same person.

Respectfully,

M. B. CHAMPLAIN,
Attorney-General.

ATTORNEY-GENERAL’S OFFIOE, t
Aupany, May 3, 1869.

L. P. Envy, Esq., Geneva, WV. Y.:1

Srme.—Your communication of the 27th April last has been
considered. You state in substance that the commissioners of
excise of your county hold, that they are compelled by the terms
of the law to grant licenses to sell intoxicating liquors to a few of
the applicants who present the requisite and proper papers, and
that it would be contrary to the spirit of the statute to refuse to
grant any license in the county, and you submit for my opinion
whether such is a correct interpretation of the law. I do not con-.
cur in the opinion of the commissioners as stated. By the sixth
section of the excise law, the commissioners of excise are empowered
to grant licenses only upon compliance by the applicant with all
the requirements of the statute, “and not then unless in the opinion
of the commissioners such inn, tavern or hotel is necessary or
proper.” And in case the commissioners shall grant any license
contrary to the provisions of the act, it is declared they shall be
deemed guilty of a misdemeanor. The board is vested with discre-
tionary powers. The commissioners are made the judges of what
as necessary or proper in the premises. They have the power in
the exercise of an honest discretion to reject the application and
refuse license in all cases presented to them. There is no principle

* Although the excise laws in force at the time of the giving this opinion and the
one post, p.427,has been virtually repealed by chapter 175, Laws of 1870, yet the
principles laid down are mostly applicable to the present cases. At least in the
constant agitation upon the subject and the frequent changes in the law they may
be serviceable.
or THE State or New York. 419

upon which a standard can be established to govern their own
enlightened judgment if honestly exercised.

Respectfully yours,

M. B. CHAMPLAIN,
Attorney-General.

Atrorney-GEnERAL’s OFFIOB,
Appany, May, 4, 1869. {

Sm.—You submit for my opinion the following inquiries:

“Ts the surplus fund of banks subject to taxation ?”

‘The taxation of the property forming the capital stock of banks,
is regulated by chap. 761, of the Laws of 1866.

The “surplus fund” of banks (other than savings banks), is not
liable to taxation as such.

The law is peremptory that the stockholders in such banks (other
than savings banks), shall be assessed and taxed on the value of
their shares of stock therein, to be included in the valuation of the
personal property of such stockholders of the town or ward where
the bank is situated, and not elsewhere, whether such stockholders
reside at such place or not.. a

In assessing the value of these shares, the assessors may add. the
surpius fund proportionately to each share, if such fund so appor-
tioned really increases the value. But as ‘the surplus belongs to
the shareholders, it can only be assessed as an enhancement of the
value of such shares.

By sec. 7, chap. 761, of the Laws of 1866, savings banks may
be taxed in the town or ward where situated, to an amount not
exceeding the gross sum of their surplus loaned.’

Depositors in savings banks are liable to taxation upon deposits,
the same to be included with and assessed asa part of their personal
property in the town or ward in which they reside.

The holders of railroad bonds are generally liable to taxation
upon the value thereof, as a part of the personal property of such

holder.

e

1 See amendment to this section, chap. 861, Laws of 1867 (7 Edmonds’ Stats., 196).
420 OPINIONS OF THE ATTORNEYS-QENERAL

In several instances railroad bonds are exempted from taxation
by special act ; unless so specially exempted they are liable.

Active and exempt firemen, and honorably discharged soldiers
and sailors from the military and naval service of the United States,
are exempt from the State military commutation tax.*

If included, however, by the assessors in the “military roll,” in
order to obtain exemption they must apply upon affidavit to the
assessors, upon the day known as “appeal day,” upon the assess-
ment roll for such exemption, and the assessors are compelled to
grant such exemption, and strike the name from the military roll.
The proceedings to obtain such exemption, are prescribed in see. 4,
of chap. 651, of the Laws of 1868, amending the military code.

The foregoing substantially answers all your inquiries.

Respectfully yours,

M. B. CHAMPLAIN,
Attorney-General.

AtrorNEY-GENERAL’S Orrion,
Axzany, May 6, 1869.

Tuomas J. Busszy, Esq., Commissioner of Highways, Macedon:

Drar Sm.—You inquire whether chapter 770, Laws of 1866,
requires you to pay back to the overseer of the district within which
the Central railroad is located the share of such district in the
commutation moneys, or whether the commissioner is authorized
to expend it for roads and bridges in the town generally.

In every locality where the disposition of the highway tax has
not been otherwise provided for by special enactment, the highway
tax must be worked out or commuted for in the road district in
which the land or property is situated where the tax is assessed.

If the tax is commuted for it must be paid to the overseer of
the district in which the land or property assessed is-situated, to be
by him expended in such district for the benefit of the roads
and bridges therein.

See sec. 1, chap.-80, Laws of 1870 (7 Edmonds’ Stats. , 592), volunteers honorably
discharged are included in exemption.
or tHE STATE oF Naw York. 421

This is the proper construction of the act, it being the obvious
intention of the Legislature that the money raised for road pur-
poses, by tax upon property situated in a given district, should be
expended in such district in order to more directly benefit the
property from which the money was raised.

Respectfully yours,

M. B. CHAMPLAIN,
Attorney-General.

Arrornry-Genrraw’s OFFicn,
‘ Ausany, May 8, 1869.

JosepH H. RurwErrorp, Esq. :

Dear Sir.—As to assessor in your town I reply. The statute
declares that an omission to take the oath of office within the time
prescribed by law is a refusal to serve, and vacates the office. The
filing of the acceptance does not change it, because the statute
makes the neglect or refusal to take the oath conclusive evidence
of refusal to serve, amd declares the office vacated by such neglect
or refusal.

The town clerk having omitted to call the special town meeting,
so the electors could fill the vacancy, then three justices of the
peace of the town by law have the power toappoint. The supervisor
has no power to act as one of the officers to make the appointment.” If
three justices met and concurred in the appointment, the person so
appointed assessor is duly appointed for your town to fill the vacancy
caused by such neglect to take the oath of office, in case such
appointee has duly taken the oath of office.

Respectfully yours,
M.B.CHAMPLAIN, _
Attorney-General.  ..

19ee 1 R. S., p. 122, sec. 34 (1 Edmonds’ Stats., 112).
28ee 1 BR. S., p. 348, sec, 85 (1 Edmonds’ Stats., 321).
422 OPINIONS oF THE ATTORNEYS-GENERAL

ATroRNEY-GENERAL’s OFFICE,
Axsany, June 16, 1869.

To Franxuin Townsenp, Adjutant-General :

Sm.—The papers referred to me from your office have been
examined.

From the papers presented, it appears the constitutionality of
those provisions of the military code which authorize the imposition
of fines by courts-martial, and imprisonment of delinquents for their
non-payment, have been questioned!

It is suggested that the State laws establishing the summary juris-
diction of these courts to try and punish delinquents, without pre-
sentment of a grand jury or trial before a petit jury, are violations
of the provisions of the Constitution of the United States con-
tained in the several amendments of that instrument proposed at
the first session of Congress after its adoption. These amendments
are not restrictions upon the powers of the States. They are
restrictions upon the powers of the government of the United
States, intended to control the proceedings of the federal courts in
the trial of offenders for crimes committed against the federal laws.?
Each State is at liberty, through the exercise of its legislative pow-
ers, to prescribe for the punishment of all crimes and delinquencies
on the part of its citizens against the laws of the State, subject only
to the restrictions contained in its own Constitution.

The provisions of the military code for the imposition and col-
lection of fines, and imprisonment of delinquents for their non-
payment, are not in conflict with the State Constitution.

It is ordained by section 1 of article 11 of the Constitution, that
“the militia of this State shall, at all times hereafter, be armed and
disciplined, and ready for service.” .

From the provision contained in section 6 of article 1 of the
Constitution, usually denominated the bill of rights, declaring that
no person shall be held to answer for crime, unless on presentment
or indictment of a grand jury, there is expressly excepted cases

1 A case is now pending in the Court of Appeals (People ex rel. Underwood v.
Daniell, Major, etc.), brought for the purpose of testing the constitutionality of the
provisions of the National Guard laws which are discussed in this opinion. The
General Term of the first department decided them constitutional and valid.

2 See 8 Wendell, 100 ; 10 id., 449; 24id., 337. ,
or THE Stat or New Yore. 423

arising in the militia which this State may keep, with the consent
of Congress, in time of peace.

All the powers of legislation, necessary to give full effect to the
requirement that the militia shall, at all times, be.armed and disci-
plined and ready for service, are conferred upon the Legislature.
If there be any department of the government in which this autho-
rity is vitally essential, it is in the organization of our military
force, on which we rest our ultimate dependence for the preserva-
tion of the public order, the enforcement of the laws, and our com-
mon security, whether in peace or war.

The national guard is organized and disciplined with the consent
of Congress.

The further provisions in the bill of rights of the State Consti-
tution, for trial by jury, in all cases in which it has heretofore been

_used, and declaring that no person shall be deprived of life, liberty
and property without due process of law, are inapplicable to the
police regulations and laws passed to give effect to the mandate of
the Constitution, that the militia shall be disciplined, armed, and
ready for service.

The exception of cases arising in the militia is contained in the
same article in which these provisions are found, and in the same
section in which is contained the injunction that no person shall be
deprived of life, liberty or property without due process of law.

A fine for a military delinquency is imposed, and imprisonment
for its non-payment is inflicted by due process of law by the judg-
ment of a court-martial if the laws are constitutional which create
the court, and confer upon it such jurisdiction.

I am of opinion, as before stated, these laws are constitutionally
enacted.

It has been held that when the Constitution speaks of a person
not being held to answer for a capital or otherwise infamous crime,
unless on presentment or indictment of a grand jury, it means to
answer in a course of criminal proceedings to answer eriminaliter
with a view to punishment under the criminal law, and has no
reference whatever to those collateral or accidental proceedings
which are disciplinary in their character, or have exclusive regard
to some special character or relation which belongs to the individual.
(In the matter of Smith, 10 Wendell, p. 449.) ,
424 OPINIONS OF THE ATTORNEYS-GENERAL

The provision in the Constitution of the United States in rela-
tion to the trial by jury, as we have seen, applies only to the
federal courts, and our State Constitution secures the right in all
cases in which it has heretofore been used. It was never in use
before or since the adoption of the Constitution in cases like this.

Courts-martial were in use as a means of enforcing discipline in
the militia by summary punishment of delinquents long before the
adoption of the Constitution. The provision applies only to cases
of trials of issues of fact in civil and criminal proceedings in the
courts of justice.

The general form of the warrant for the collection of fines pro-
mulgated by general order No. 8, is sufficient, and in compliance
with the law. When such warrant recites the facts of the real
accusation with certainty as to the time and place, and the nature
of the delinquency within the law, such warrant is valid for the
execution of the judgment of the court-martial when such court is
regularly and legally held.

Respectfully submitted,

M. B. CHAMPLAIN,
Attorney-General.

Axsany, June 16, 1869.
Rosrrr E. Rina, Esq., Assessor, Cornwall, N. Y.:

Str.—The Constitution of the State, which took effect January
Ist, 1823, provided (section 4, article 7) “that where the ministers of
the gospel are, by their profession, dedicated to thé service of God,
and the care of souls, and ought not to be diverted from the great
duties of their functions.” * * Therefore, they were declared
to be ineligible to any civil or military office or place within this
State.

It is supposed the provision of the Revised Statutes exempting
$1,500 of the real and personal estate of any minister or priest
from taxation, was intended as a recompense, to some extent, for
-such exclusion from office.

Such exemption would apply only to the same class of persons
as were declared incapable of holding office. By the existing Con-
oF Tar Srare or Nuw Yorn. 425

stitution this ineligibility has been removed. But the law of
exemption has not been repealed.

I am of opizion that if the minister or priest claiming the
exemption, has wholly left the great duties of his calling and engaged
in secular pursuits, he is liable to taxation as other citizens,’ although
he holds a license to preach. If he is not dedicated to the service
of God, or the care of souls, but has been diverted from these
functions of his profession to engage in worldly business, he must
bear the burdens of government equally with all other citizens. Of
this exemption, the assessors are the judges and must exercise their
discretion in each particular case as it may arise.*

If the exemption exists in any given case, it applies to taxes
levied for common schools as well as to State and county levies.*

Respectfully yours,

M. B. CHAMPLAIN,
Attorney-General.

ATroRNEY-GENERAL’s OFFICE,
Axpany, June 16, 1869.

8. D. Vaw Varxensuren, Supervisor, etc., Greene, N. Y.:

Sm.—Your letter of the date of June, 10th inst., inquiring as to
your power to assess a Mrs. Anner, has been duly considered.

Your letter states the person to which it refers removed to Bing-
hamton, in Broome county, N. Y., about two years since.

That she has a large amount of ‘person property consisting of
mortgages principally upon lands in your county, and that her
business is managed by an agent who resides in your town.

By sec. 4, of chap. 13, part 1, article 1, title 2, of the Revised
Statutes, every person is to be assessed for personal estate owned by
him in the town or ward in which he resides. If such person,

1 See ante, pp. 110, 147, 148.

2See Barnyte v. Shepherd (35 N. Y., 238), which holds assessors act judicially
and are not liable for errors in arriving at conclusions as to what property is
liable, and what exempt from taxation. The opinions of Judges Leonard and
Hunt reviewing the conflicting decisions are interesting, and the case relieves
assessors from much annoyance and trouble.
~ "See Ohadwick v. Crapsey, 35 N. Y., 196.
426 OPINIONS OF THE ATTORNEYS-GENERAL

during the same year, shall reside in two or more counties, towns, or
wards, he shall be assessed in the town or ward in which his principal
business is transacted.

It is probable that in the year in which Mrs. Anner removed
from your town to Binghamton, she might for that year have been
taxed for personal property in your town, if, as I infer from your
letter, her principal business had been carried on in your town.
But as that year has passed, and her residence in Binghamton has
become established, I am of opinion the assessors of Greene have
no jurisdiction’ to assess her tor personal property, because she is
not a resident of the town.?

These mortgages are not in the possession of or under the con-
trol of the agents, so as to be taxable tohim. (See Lord v. Arnold,
18 Barbour’s Supreme Court Reports, p. 104.) In case of any
omission to impose legal taxes upon a person for personal estate in
any one year, I am not aware of any law that authorizes the asses-
sors to remedy the omission by imposing such neglected taxation,

in a subsequent year.
Respectfully yours,

M. B. CHAMPLAIN.

Ausany, June 16, 1869.
Cuuvron A. Fosrrr, Esq., Zowville, WV. Y.:

Sme.—In reply to your note of the fourteenth instant, inquiring
whether a town meeting is entitled to elect five constables for the
town in case no resolution or vote has been taken to reduce the
num ber,—

I am of opinion that if no formal vote be taken upon a resolu-
tion to reduce the number of constables in a town, the statute con-
fers upon the electors the right to elect five as the highest number
authorized. In such case, the five having the greatest number of
votes of those voted for would be elected. (People v. Adams, 9
Wendell, p. 333.) :

Respectfully yours,

M. B. CHAMPLAIN.

‘See People on the relation of Mygatt v. The Supervisor of Chenango county, 11
New York Reports, p. 563. Mygatt v. Washburn, 15 New York Reports, p. 316.
or THE STATE or New YorzE. 427

Arrorney-GENERAL’s OFFICE,
Axpany, June 17, 1869.

A. A. Demarust, Esq., Clerk Board Excise Commissioners, Clarks-

town, Rockland Oo., N. ¥.:

Sm.—Your letter of a recent date inquiring on behalf of the
commissioners of excise of the county of Rockland, as to the proper
construction of chapter 856, of the Laws of 1869,1 known as the
amendment to the excise law, has been considered. The fourth
section of the act declares: “All the provisions of this act as
amended shall be held to apply to the sale of ale or beer, except so
much thereof as forbids the granting of license to any person
except to such persons as propose to keep an inp, tavern or hotel,
and the commissioners of excise may, in their discretion, grant
license for the sale of ale or beer for a sum not less than ten dollars,
to other than those who propose to keep an inn, tavern or hotel.”

‘* * * The obvious intention of the Legislature in this pro-
vision was, to first enact that ale and beer if sold without license,
should be regarded as within the inhibitions of the general excise
law amended. It had been made in certain cases prior to the pass-

_age of this amendment, a disputed question of fact to be tried
upon evidence, and determined’ by the jury in prosecutions for
infractions of the excise law, whether ale or beer was strong and
spirituous liquors, within the true intention of the exciselaw. The
first part of this amendment was intended to bring ale and beer
within the law, and save future litigation upon the question of
whether it was included as a question of fact before a jury.

Iam of opinion it was the intention of the Legislature in the
remaining portion of the amendment, to empower the. commis-
sioners of excise to license persons other than hotel keepers,
to sell ale and beer to be drank upon their premises without the
compliance by such person, with any other condition as a prerequi-
site to the license, than the payment of a sum not less than ten
dollars therefor. ,

In the excise law as it existed when this amendment was passed,
there was no authority given the commissioners to license any per-
son to sell any spirituous liquors of any kind to be drank on the

1See ante, p: 418, note.
428 OPINIONS OF THE ATTORNEYS-GENERAL

premises, unless such person kept an inn or tavern. To grant such
a hotel license required the petition of twenty freeholders, the
payment of the prescribed fee, and a bond conditioned, among
other things, that such person should keep an orderly inn or tavern.

Power was conferred upon the commissioners to license store-
keepers to sell in quantities less than five gallons, but not to be
drank upon the premises. The person so licensed was required, in
addition to payment of the prescribed fee for the license, to give a
bond conditioned, among other things, that he would not sell to be
drank upon his premises. .

Storekeepers licensed under the law as it existed before this
amendment, were authorized to sell ale and beer under their license
not to be drank upon their premises. The amendment in this
respect, therefore, becomes senseless, unless it is held to create a
power to license a third class of persons who are when thus licensed
authorized to sell ale and beer in quantities less than five gallons,
without on the one hand being obliged to keep a hotel or tavern,
and without, on the other, being under the restriction that they
should sell, not to be drank on the premises.

A person so licensed takes neither a hotel or storekeeper’s license.
The amendment in express terms provides that the license to sell
ale or beer may be granted toa person other than one who pro-
poses to keep an inn or tavern.

It cannot be held to extend a storekeeper’s license, as provided
in the law, because persons so licensed already had power to sell
ale and beer, as included in the term strong and spirituous liquors,
and if not so included no license was necessary to authorize its sale.

It would be absurd to require the bond upon such a license,
because if given it is provided it shall contain a covenant against
selling to be drank upon the premises, which, in my opinion, was
the very privilege it was the intention of the Legislature to grant.

The commissioners are, by the amendment in question, invested
with full discretionary powers to grant or refuse the license in all
cases. If they decide to grant it, I am of opinion the only con-
dition they are authorized to require is the payment of a sum not
less than ten dollars for thesame. That no bond can be required,
and that such license will authorize the person who obtains it to
or THE Srarz or New Yor. 429

sell ale and. beer in quantities less than five gallons to be drank
-upon his premises.

Respectfully submitted.

M. B. CHAMPLAIN,
Attorney-General,

Axzany, June 18, 1869.
Hon. Wm. F. Auten, Comptroller:

Str.—The communication referred by you for my opinion has
been duly considered. From such communication it appears that
certain officers, assuming to act by authority of the United States
government, under the immediate direction of the collector of
customs at the port of Oswego, have been in the habit of obtruding
into the offices of the collectors and weighmasters upon the canals
situated in the vicinity of the frontier, for the purpose of- watching
boats navigating the canal, as the communication states, and of com-
pelling them to take out tonnage papers, with a view to the col-
lection of tonnage duties imposed by authority of the United States
government, and that such officers have been in the practice of
examining the books deposited in such State offices with a view of
learning what boats have passed, in order to facilitate the imposition
and collection of such exaction.

The question submitted is, whether there is any legal authority
for such proceedings upon the part of these officers. I am of opin-
ion they have no such authority.

By an act of Congress, passed July 13, 1866, amending the reve-
nue’ laws of the United States, all enrollment for or tonnage tax
upon canal boats: were repealed, and there was substituted therefor’
a special annual tax, to be graduated according to the tonnage of
the boats, not to exceed ten dollars for any one year.

This tax is to be assessed and collected as other special revenue
taxes are assessed and collected. The party liable to the special tax
is to be registered by the assistant assessor in the assessment district,
the same as any other party liable to tax upon a special business.

The collector of customs for any port, as such, as I understand
the law, has no authority to assess or collect this special tax.
430 OPINIONS OF THE ATTORNEYS-GENERAL

However this may be, it is entirely clear that the placing of these
persons in the canal offices of the State, and subjecting the books
and papers therein deposited to such search and examination, is
entirely unauthorized by law, a trespass upon the property of the
State, and a violation of its sovereignty. The canal officials, in
whose custody this property is placed, are charged with no duty in
regard to the collection of United States revenue, and there is no
authority for the appropriation of the offices provided for them to
the use of officers engaged in collecting the national revenues, or of
spies or informers engaged in detecting alleged evasions of its pay-
ment, if any such are employed.

The overhauling of the State books is a gross invasion upon the
property and sovereignty of the State; and all such intrusions
should be promptly discontinued.

Respectfully submitted.
M. B. CHAMPLAIN.

STATE OF NEW YORK:

OrFicE oF THE ATTORNEY-GENERAL,
Aupany, July 22, 1869.

To His Excellency Joun T. Horrman, Governor:

Smr.—The question submitted by recent communications from
the executive department and Adjutant-General’s office, involving
the inquiry whether certain exemptions from taxation of members
of the National Guard are repealed, has been duly considered.

By section 146, of chapter 334, of the Laws of 1864, these
exemptions were somewhat enlarged from those declared by pre-
vious enactments.

All officers, musicians, and privates of the military forces of the
State, were declared to be exempt from jury duty during the time
they performed military service, and from the payment of highway
taxes, not exceeding six days in any one year. Such persons not
assessed for highway taxes, were entitled to a deduction in the
assessment of real or personal property, to the amount of $500.

Every person who served seven years and was honorably dis-
or THE Srare or Nuw York. 431

charged, was forever after, so long as he remained a citizen of the
State, entitled to an exemption of six days’ highway taxes in each
year, and if a resident of any city (where not liable for highway
taxes), he was forever entitled to a deduction in the assessment of
his real and personal property, of $500.

Section 146, of chapter 612, of the Laws of 1865, repealed ail
these exemptions, except from jury duty, during the time such per-
sons should perform military service.

By section 146, of chapter 502, of the Laws of 1867, these
exemptions were re-enacted, and considerably extended. By this
section, all officers, musicians, and privates, were exempt from jury
duty, during the time they performed military service. They were
entitled to a deduction in the assessment of their real and personal
property, to the amount of $500, except that cavalry-men, artillery-
men, and mounted officers, were entitled to a deduction of $1,000
on all classes of taxes.

It will be noticed that exemption from highway tames, as such,
is omitted in this provision; and that the exemption upon property
is extended from $500, to $1,000 to cavalry-men, artillery-men, and
mounted officers. :

The following is the provision incorporated in the general appro-
priation act of the present year, which it is claimed repeals these
exemptions:

“Section 146, of chapter 334, Laws of 1864, which exempts
members of the National Guard from the payment of highway
tues, and which entitles them to a deduction in the assessment of
real and personal property to the amount of $500, is hereby
repealed.” .

This attempted repeal, it is obvious, is directed at the wrong statute.

At the time of its passage, the members of the National Guard
did not derive the exemptions from section 146, of chapter 334, of
the Laws of 1864, but such exemytions were given by the provi-
sion contained in the law of 1867, above cited.

It has been suggested that, although the wrong statute is named

18 ec. 253, chap. 80, Laws of 1870 (the Military Code), exempts from jury duty
and entitles the soldier to a deduction of $1,000 onall taxes. This settles the ques-
tion here discussed. But as illustrative of hasty legislation, and as giving some
rules in the construction of statutes, it is published.’ ‘
432 OPINIONS oF THE ATTORNEYS-GENERAL

in the repealing clause, there is enough in the reference to the sub-
ject-matter of the provision to effect the repeal.

The subject-matter recited is as variant from the exemption
declared by the law of 1867, as it is-from the description of the
statute.

There is no exemption from highway tawes, as such, provided in
the enactment of 1867. There is a six days’ exemption declared in
the act of 1864.

The provision in the paragraph of the appropriation bill, which
declares that “section 146 of chapter 334 of the Laws of 1864,
which exempts members of the. National Guard from the payment
of highway taxes,” clearly identifies the provision of the section and
chapter specified by the subject-matter referred to as the one intended
to be repealed, as no such exemption is contained in the act of
1867.

Again, this paragraph provides further, “and which entitles them
to a deduction, in the assessment of real and personal property, to
the amount of five hundred dollars, is hereby repealed.”

By the act of 1864, the exemption of property allowed was fixed,
in all cases, at five hundred dollars.

By the act of 1867, such exemption, when allowed, is fixed at five
hundred dollars each to all officers, musicians and privates, except
cavalry-men, artillery-men, and mounted officers, who were each
entitled to an exemption of one thousand dollars.

From this comparison, it is obvious that the subject-matter referred
to is the exemptions contained in the act of 1864, and not those
contained in the act of 1867. It is difficult to conceive of the rea-
sens for repealing the lesser exemption to a portion of the members
of the National Guard, which would not operate equally to influence
the Legislature to repeal the greater exemption of one thousand
dollars given by the act of 1867 to the other members.

It follows, that the above clayge in the appropriation bill of 1869
does not at all touch the exemptions declared by the law of 1867,
but that the provisions of that statute remain in full force, because
its language as to the number of the chapter of the law and its
reference to the subject-matter is expressly confined to the act of
1864.

It is suggested that the paragraph in question shows a clear inten-
f

or THE State or NEw Yorr.: 433

tion in the Legislature to abolish these exemptions. If this had
been their intention, why was not the repeal directed against the
statute under which such exemptions were claimed ? .

Exemptions from highway taxes were given by the act of 1864,
which were not given by the law of 1867. The Legislature may
have thought it prudent to repeal them, and also the exemption of
the five hundred dollars of property expressly, for greater certainty,

-although such exemption had, in effect, been already repealed.

If it is argued it was the intention of the Legislature to repeal

these exemptions, the short answer is, it has not done so. (Zhe
People v. Bell, 38 N. Y., 386.)
F It is a rule, fundamental and universal in the construction of sta-
tutes, that a repeal by implication is not favored, and the earlier
statute remains in force, unless the later is manifestly inconsistent
with it, or unless the latter act take some notice of the former,
plainly indicating an intention to abrogate it, and that a construc-
tion which repeals another statute should be very clear, especially
when the repeal is of a part of a statute, and it seriously mars the
harmony of a system.

I am of opinion that all the exemptions to members of the
National Guard declared by section 146 of chapter 502 of the Laws
of 1867 still exist in full force, and are unrepealed.

Respectfully submitted.

M. B. CHAMPLAIN,
Attorney-General.

Axsany, Vovember 19, 1869.

D. R. Srmuman, Clerk Board Supervisors, Alfred Centre, Alle-
. gany County, N. ¥.:

Sm. — Your letter of the date of November 15, 1869, submitting
to me, in behalf of the board. of supervisors of Allegany county,
the question as to whether there is any law now in force to prohibit
an appropriation for clerk hire in the office of the county judge and

surrogate, was duly received.
28

ATTroRNEY-GENERAL’s OFFICE, |

\
434 ” Oprnrons or THE ATTORNEYS-GENERAL

I am of opinion there is no law in force prohibiting such appro-
priation. ,

The boards of supervisors are charged by law with the care and
preservation of all the public records of the county. It is their
duty to see that they are properly engrossed, recorded and indexed,
and convenient facilities furnished the public for obtaining copies,
subject to the legal rights of the officers using the same. Boards
of supervisors might leave all these duties to be performed by the
officers in charge of the records. But such boards have the power,
in my judgment, to authorize clerks, under the limitations of the
laws, to discharge these duties, whenever, in their judgment, the
public necessities require it.

Chapter 246 of the Laws of 1869, section 2, empowers the board
to authorize the surrogate to appoint a clerk to make and furnish
copies of records, and secure to his own use the fees therefor ; and
chapter 855 of the Laws of 1869, section 7, defines more specifically
their power over the records than the general laws. By the first
paragraph of section 7, it is declared: “Such boards of supervisors
shall have, subject to the legal rights of the officers using the same,
the general charge of the books and records of the county, and
shall provide for theur safe keeping.” This provision enjoins the
duty and empowers the board, if, in their judgment, the public
interest requires it, to authorize the surrogate to appoint.a clerk to
plainly and properly record papers, and thus provide for their safe
keeping, and to make compensation therefor. The subsequent
provisions of the section authorize the making of new copies of
records when the originals, by use or other cause, have become
imperfect, upon the certificate of the county judge, ete., that such
work is necessary, and a further certificate that it has been properly
performed. An appropriation for these purposes cannot be regarded
in any sense as an increase of the salary of the judge and surrogate.

I can see no objection to the board of supervisors authorizing the.
appointment of a clerk to record papers, and appropriating a sum
in gross to pay annually for such service ; and the same clerk might
be authorized to furnish copies and receive the fees allowed by law
as his compensation therefor, in pursuance of the statute above first
cited. These laws originated in a public necessity, arising from the
large increase of business in these offices, and the inability of the
or THE SvatE or New York. 485

officers discharging these mere clerical labors without a serious inter-
ference with: the discharge of other and more important duties.
The blending of the two duties in the same clerk might conduce to
economy, by reducing expense. Instead of there being any law to
prohibit this action, it would seem to be enjoined as a duty, if the
board are of opinion the public exigencies require it.

Respectfully submitted.

M. B. CHAMPLAIN,
Attorney-General.

STATE OF NEW YORE:

OFFicr oF THE ATTORNEY-GENERAL,
Axsany, January 6, 1870.

His Excellency Governor Horrman:

In answer to yours of this date, I am of opinion that the vacancy
in the office of county judge of Greene county is to be filled under
the statute passed to give effect to tne 5th section of article 10 of
the existing Constitution.

‘This statute is chapter 28 of the Laws of 1849, which authorizes
the Governor to fill the vacancy by appointment, to continue until
the commencement of the political year next succeeding the first
annual election, after the happening of the vacancy, at which such
officer could by law be elected. j

If there is in the county a local officer to discharge the duties of
county judge, such officer takes the office and there is no power to
. appoint.

I am informed there is no such officer for Greene county. The
question is not affected by the new judiciary article.

Respectfully yours,

MARSHALL B. CHAMPLAIN,
Attorney-General.
436 OPINIONS OF THE ATTORNEYS-GENERAL

January 7, 1870.

Hon. Wu. Bagnes, Spins Insurance Department :

Sm.—In reply to your communication in relation to certain
questions arising under chapter 902, Laws of 1869, I answer, that I
am of the opinion that life insurance companies organized under the
laws of another State, duly authorized by the laws of this State to
do life insurance business herein, may avail themselves of the pro-
visions of the act of 1859, and register policies in the insurance
department on complying with the requirements of the same. I
am, also, of the opinion that all insurance companies as were, pre-
vious to January 1, 1870, authorized to register life policies may
still issue unregistered as well as registered policies as heretofore,
the daw of 1869 not operating to deprive them of this privilege.?

Respectfully, etc.

M. B. CHAMPLAIN,
Attorney-General.

January 14, 1870.
Smr.—In reply to yours of January, 12th inst., I inform you that any
claim for interest assessed by the Comptroller upon moneys with-
held by your county treasurer, may be collected upon his official
bond. :
It is the intention, unless such arrearages are all paid by the county
treasurer, soon to prosecute his bond for the recovery of the same.

Respectfully yours,

M. B. CHAMPLAIN,

Attorney-General,
Bung: Bioop, Esq., Amsterdam, N. Y.

‘See sec. 11, chap. 902, Laws of 1869.
or THE Stare or-Naw Yorx. 437

Artorney-GEvErau’s OFFion,
Axzany, February 4, 1870.

W. Frrzarratp, and P. O. Farretu: *

Gznts.—I have examine the bill submitted to me to prohibit
the packing of flour, meal, and sugar, in old and filthy barrels, and
am of opinion that such legislation.is constitutional..

It falls within the class of laws intended to preserve the public
health, of which class many now exist upon the statute book.

Perhaps if the phraseology of the act in question was changed to
forbid the packing of flour, sugar, or meal, in barrels containing
any impure, unwholesome, or poisonous substance, it would better
express the intention.

M. B. CHAMPLAIN,
Attorney-General.

STATE OF NEW YORK:

ATTORNEY-GENERAL’s OFFIoE,
Ausany, February 8, 1870.

To His Excellency Joun T. Horrman, Governor:

Sir.—I have considered the question referred to this office as to
whether the offense of obtaining property by false pretenses, arising
upon a requisition from the executive of the State of Iowa, made
upon your excellency for the surrender of a fugitive from justice,
is a crime within the Constitution of the United States, and the
act of Congress passed to give it effect ; and, further, as to the offi-
cial discretion that may be exercised in such a case, in declining a
compliance with the demand of the requisition.

On the 9th of January, 1869, I had the honor to forward to
your excellency an opinion upon the application to you for a requi-
sition upon the executive ot Pennsylvania, for the surrender of
Michael Hennessey an alleged fugitive from justice, charged in the
requisitions and papers submitted with the crime of seduction, an
offense not indictable as a crime, either by the laws of New York
438 OPINIONS oF THE ATTORNEYS-GA&NERAL

or Pennsylvania, at the time of the adoption of the federal Con-
stitution. In such opinion, grave doubts were expressed as to
whether the crime charged was within the Constitution. In that
case, the application being addressed to, your excellency for a requi-
sition, and the question for determination being whether an offense
had been committed under the laws of our own State, and whether
the depositions and papers were in due form under such laws, and
sufticiently charged the offense, I was of opinion that the subject
was fully within the official discretion and judgment of the execu-
tive.

Familiar with the criminal laws of the State, and the practice of
its courts, it would seem to be peculiarly within the province of
the executive, to either grant or withhold the requisition, as in his
judgment would best subserve the public interest, and the due
administration of the laws.

When the question arises, however, upon a requisition made by
the executive of another State upon the executive of this, it would
seem to be settled by the weight of judicial authority that such a
weight of: general official discretion, does not exist. (1840, Senate
Document, vol. 1, report No. 1; 1840, Senate Document, vol. 4,
report No. 110; 1840, Assembly Document, vol. 5, report No.
167; 1840, Assembly Document, vol. 8, report No. 310; 1841,
Senate Document, vol. 3, reports Nos. 71, 88 ; 1841, Assembly Docu-
ment, vol. 3; 1841, Assembly Document, vol. 6, report No. 230;
1842, Senate Document, vol. 2, report No. 41; 1842, Senate Docu-
ment, vol. 4, report No. 102; 1844, Assembly Document, voh 7
reports Nos. 170, 175, 184, 190. 8 Zabriskie, 311; 13 Georgia,

97, 183; 9 Wend., 221; 6 Penn. L. Journal, 412; 24 Howard, 99,
100, 102, 106, 107; 9 Texas, 635; 12 Vermont, 631; 3 McLean,
121; 1 Sandford, S. C., 701; 17 Mass.,.515; 9 Gray (Mass.), 267.)

In the case of the Commonwealth of Kentucky v. Dennison,
Governor of Ohio (24 Howard R. 8. C. U.S., p. 66), Chief Justice
Taney arrived at the following conclusion: that, “ Looking, there-
fore, to the words of the Constitution, to the obvious policy and neces-
sity of this provision to preserve harmony between States, and
order and law within their respective borders, and to its early
adoption by the colonies, then by the confederated States, whose
mutual interest it was to give each other aid and support whenever
or THE Srate or New Yor. 439

it was needed, the conclusion is irresistible, that this compact
engrafted in the Constitution included, and was intended to include,
every offense made punishable by the law of the State in which it
was committed, and that it gives the right to the executive autho-
rity of the State to demand the fugitive from the executive autho-
rity of the State in which he is found; that the right given to
‘demand’ implies that it isan absolute right; and it follows that
there must be a correlative obligation to deliver, without any
reference to the character of the crime charged, or to the policy or
laws of the State to which the fugitive has fled.”

And, further, it was held by the honored chief justice: “It will
be observed, that the judicial acts which are necessary to authorize
the demand are plainly specified in the act of Congress, and the
certificate of the executive authority is made conclusive as to their

verity when presented to the executive of the State where the
fugitive is found. He has no right to look behind them, or to
question them, or to look into the character of the crime specified
in this judicial proceeding. The duty which he is to perform is, as
we have already said, merely ministerial—that is, to cause the
party to be arrested and deliverdl to the agent or authority of the
State where the crime was committed. ‘It is said in the argument,
that the executive officer, upon whom this demand is made, must
have a discretionary executive power, because he must inquire and
decide who is the person demanded. But this certainly is not a
discretionary duty upon which he is to exercise any judgment, but
is a mere ministerial duty; that is, to do the act required to be
done by him, and such as every marshal and sheriff must perform
when process, either criminal or civil, is placed in his hands to be
served on the person named in it. And it never has been supposed
that this duty involved any discretionary power, or made him any-
thing more than a mere ministerial officer; and such is the position
and character of the executive of the State under this law, when
the demand is made upon him and the requisite evidence produced.
The Governor has only to issue his warrant to an agent or officer
to arrest the party named in the demand.”

It was further held in the case, that the duty enjoined by the
Constitution upon the executive was merely a moral duty, and that
no power existed in any department of the federal government to
440 OPINIONS OF THE ATTORNEYS-GENERAL

coerce its performance or punish the executive for his refusal. Per-
formance of the duty is left entirely to a sense of justice and mutual
interest of the executives of the several States, and upon this ground
the motion for a mandamus to compel the executive to obey the
requisition was denied.

In the particular accusation, charged in the papers accompanying
the requisition presented (the obtaining of money by false pre-
tenses), it is notorious that such accusations are often made, and the
machinery of the criminal laws invoked, to compel enforcement of
civil contracts, and the extortion of money in satisfaction of private
claims. Indeed the line of demarkation between civil and criminal
remedies, arising out of the multifarious commercial and business
transactions of the country, is often dimly defined. By the com-
mon-law no private fraud was indictable, but only such as affected
the public at large, as by the use of false weights and measures.
(See People v. Lambert, 9 Cow., 578.)

If the principle enunciated in the several decisions above cited
may be regarded as establishing the true construction to be given
to the constitutional provision under consideration, it would seem
the judicial discretion does not @xist in the executive to refuse a
compliance with the demand of a requisition, if it, and the papers
accompanying it, are made in compliance with the act of Congress.
It would appear that the only point authoritatively adjudicated in
the case against the Governor of Ohio, above cited, was, that the
power did not exist in any department of the federal government
to coerce'a performance of the duty enjoined by the Constitution.

J have not attempted to do more than to invite the attention of
your excellency to the judicial decisions bearing upon the question,
and will add, if the question now presented was disembarrassed by
the judicial decisions and opinions above cited, I should reiterate
the opinion expressed in my communication of the 9th of January,
1869, as the sounder and safer rule of construction applicable to
cases of this character. This consideration would seem to justify
the exercise of a broader discretion by the executive, to whom the
application i is made for the requisition, and much of the mischief
arising from the prostitution of criminal law to the enforcement of
or THE STATE oF New York. 441

mere private rights can be prevented by a careful exercise of such
a judicial discretion.

Respectfully submitted.

M. B. CHAMPLAIN,
Attorney-General.

Apany, February 9, 1870.
Hon. E. O. Perrm, Clerk Court of Appeals:

Sir. — You submit, for my opinion, the question, whether, upon
a bond (secured by mortgage) taken by your predecessor, upon a loan
of funds under his official control, payable at a day certain, with five
per cent as the stipulated rate of interest, you have the right to
charge, after default, for the time payment has been withheld by
the debtor, the legal rate of. interest.

I am of opinion you have such right. The contract is only opera-
tive to regulate the rate of interest until the bond became payable.

During the period of time for which credit was given, it was only
by force of the agreement that interest could be claimed, and such
agreement fixed the rate of it. After default, interest is recovera-
ble as damages for the illegal withholding of the money by the
debtor, and such damages are fixed at seven per cent, the legal rate
of interest. The debtor cannot invoke an agreement which he has
violated, and which, in this respect, has expired by its own limita-
tion, to protect him from paying for the use of the money, for the
time he has wrongfully withheld it, such sum as is ‘fixed by law as
the value of such use.

The agreement extended no farther than the time fixed for the
payment, and cannot be carried beyond that time; after that, the
rate of interest was left to the mere operation of law. This prin-
ciple was expressly adjudged by the Supreme Court of Pennsyl-
vania, in the case of Ludwick v. Hantzinger (5 Watts & Sergeant’s
Reports, Pa., 51).

Penpectially submitted.

M. B. CHAMPLAIN,
Attorney- General.
442 OPINIONS oF THE ATTORNEYS-GENERAL

ATToRNEY-GENERAL’s OFFIOE, :
Aupany, February 17, 1870.

To Hon. Joun T. Horrman, Governor:

Dear Sir.—I have received and considered the letter of your
secretary, of a recent date, enclosing certain indictments against
William Gray, and others, for forgery of the public stock certificates
of this State; upon which I am informed the Governor intends to
apply to the President of the United States for a requisition on
the French government, for Gray’s surrender, under the extradi-
tion treaty. ;

The formal papers proper in the case have not been prepared, ’
because from an examination of the indictments, a grave doubt has
arisen in my mind as to whether the forgeries charged are within
the existing treaty.

Article 1, of the treaty for the surrender of criminals, declares,
“Tt is agreed that the high contracting parties shall, on requisitions
made in their name, through the medium of their respective diplo-
matic agents, deliver up to justice persons who, being accused of
the crimes enumerated in the next following article, committed
within the jurisdiction of the requiring party, shall seek an asylum,
or shall be found within the territories of the other; provided,
That this shall be done only when the fact of the commission of
the crime shall be so established, as that the laws of the country in
which the fugitive or the person so accused shall be found, would
‘justify his or her apprehension and commitment for trial, if the
crime had been there committed.”

The crimes enumerated in the next following article, are thus
defined :

Armicte II.

“Persons shall be so delivered up who shall be charged, accord-
ing to the provisions of this convention, with any of the following
crimes, to wit: murder (comprehending the crimes ‘designated in
the French Penal Code by the terms, assassination, parricide, infan-
ticide, and poisoning), or with an attempt to commit murder, or
with rape, or with forgery, or with arson, or with embezzlement
by public officers, when the same is punishable with infamous pun-
ishment.”
oF THE STATE oF New York. 443

The. following is a certified translation furnished from the State
library, of the provisions of the Penal Code of France, declaring
the crime of forgery, corresponding nearest to such crime, as defined
by the laws of New York.

Extracts from the Penal Code of France:

“ Any person who shall have counterfeited the seal of the State
(government), or shall have made use of the counterfeited seal ;

“ Any person who shall have counterfeited or falsified, either the
obligations of the public treasury stamped with its seal, or bank
bills authorized by the law, or any one who shall have made useof
these counterfeited or falsified obligations and bills, or who shall
have introduced them within the limits of the French territory ;

“Shall be sentenced to hard labor for life.”

Compared with the “Code Penal, Bulletin des lois, Paris, 1838,”

and found to be correctly translated.
H. A. HOMES,

Librarian.

By the 23d section of article 3d, part 4th, chap. 1, of the R. 8.
of the State of New York,’ the counterfeiting any certificate or
other public security issued, or purporting to have been issued
under the authority of this State by virtue of any law thereof, or
any certificate of any share, right or interest in any public stock
created by virtue of any law of this State, issued or purporting to —
have been issued by any public officer, or any other evidence of
any other debt or liability of the people ofthis State, either abso-
lute or contingent, issued or purporting to have been issued by any
public officer, with the intent to defraud the people of this State,
or any public officer thereof, or any other person, is adjudged to be
forgery in the first degree, and by the 24th section of the same
statute, forging or counterfeiting the great or privy ‘seal of this
State, the seal of any public office authorizéd by law, or counterfeit-
ing any impression purporting to be the impression of any such seal,
is adjudged to be forgery in the second degree.

It will-be. observed that the French Penal Code, apparently framed
to denounce the counterfeiting of the seal of the government, as
the principal offense, explicitly requires, in order to constitute for-

12 Edmonds’ Stats., 690.
444 OPINIONS oF THE ATTORNEYS-GENERAL

gery under the provisions cited, the counterfeiting of the seal, or
the counterfeiting the obligations of the public treasury stamped
with its seal, and that both elements are necessary to constitute the
last named crime.

There is no seal of the public treasury, as such, established by
the laws of the State of New York. Assuming, as I think we
may, that the instruments described in the indictments as having
been counterfeited, are clearly within our statutes defining forgery
in the first degree, and sufficiently correspond with the “ obligations
of, the public treasury,” the counterfeiting of which is made crimi-
nal by the Penal Code of France, and assuming that the seal of the
Comptroller, if stamped upon the instruments described in the
indictment, sufficiently corresponds with the seal of the public
treasury, also necessary to be.stamped on such’ obligation by the
Penal Code cited, in order to bring the case within the provisions
of the extradition treaty, the question arises, whether the indict-
ments sufficiently charge that the instruments described are stamped
by what purports to be the lawful seal of the Comptroller’s office
of the State.

Upon examination, it will appear that there are no averments in
the indictments upon that subject, except that in the copy of the
instruments set out, it is recited, that the Comptroller has “ affixed
his seal of office,” and there is printed also upon the margin of the
instrument, the letters “ L. 8.”

If any seal was counterfeited upon the instrument, or impressed,
purporting to be the seal of the Comptroller’s office of the State, it
is not described or set out so as to appear to be the lawful seal of
such office. The recitals in the copy of the instruments in the

-indictments, are insufficient averments for this purpose, according
to long settled and fundamental rules of criminal law.

The essential elements wanting in the indictments, is the omission
of averments that the obligations were stamped with the lawful
seal of the office from which they purport to have emanated;
which averments, in my judgment, are essential to constitute itis
crime of forgery under the provisions of the Penal Code of France,
and the express conditions of the extradition treaty which are
above quoted.

It is proper I should add, that while the several indictments are
or THE State or New Yore. 445

fitly drawn under our statutes, and sufficiently charge the crime of
forgery in the first degree, they were probably not framed to meet
the peculiar provisions of the French code, defining the crime of
forgery. _

All of which is respectfully submitted.

MARSHALL B. CHAMPLAIN,
Aitorney-General.

ATTORNEY-GENERAL’s OFFICE,
Ausany, March 8, 1870. }
Joun Srepewicx, Esq. :

Duar S1r.—I have had the honor of receiving, through the execu-
tive of this State, your communication of the 19th of February,
ult., in relation to the application for the extradition of one Gray,
an alleged fugitive from justice now in France, for the alleged crime
of forgery. In the communication which I had the honor to
address to the Governor, under date of the 17th February last,
which it appears was forwarded to you, and to which yours isa
reply, it may have escaped your attention that I assumed that the
instruments described in the indictments as having been counter-
feited, were obligations of the public treasury within the Penal
Code of France, and that the seal of the Comptroller of the State,
if stamped upon the instruments, sufficiently corresponds with the
seal of the public.treasury within the same code. The point
that I attempted to present was, that the accusation, whatever its
form, in order to give the right to demand and to create the recipro-
cal obligation to surrender, must, under the proviso in the treaty,
clearly define the crime of forgery under the Penal Code of France.
I deem it unnecessary to examine whether the forging of an instru-
ment, private in its character, is within the code, and so within the’
treaty, because the instruments described in the indictments are in
no sense private, but are of a public and official nature. Although
‘official, they are not records within the code. The provision, which
more nearly describes, the crime alleged, is thus defined in the
French code as forging: “Any person who shall have counterfeited
or falsified the obligations of the public treasury stamped with its
446 OPINIONS OF THE ATTORNEYS-GENERAL

seal.” Assuming, as we have, that the stock certificates described
in the indictment are obligations of the public treasury, and assum-
ing that if sealed with the seal of the Comptroller’s office they are
stamped with the seal of the treasury, as required by the French.
code in order to constitute the crime of forgery, I attempted to
suggest the proposition that the indictment must contain averments
constituting both the essential elements of the crime.

That the indictments did contain averments that the stock certifi-
cates were obligations of the public treasury, but did not sufficiently
aver the other element of the crime, that they were stamped with
its seal. You are aware that by our statute the forging of the cer-
tificates described is made forgery in the first degree, and the forg-
ing of the seal is made forgery in the second degree. It would
hardly be claimed, I think, that these indictments sufficiently charge
both offenses even under our statute. To avoid the objection of
duplicity in the indictment, the forging of the seal could be averred
as a material part of the instrument described; thus it would
appear that the instrument was stamped’ with the seal of the
treasury. I mentioned in my former communication, briefly, what
appeared to me defects in the indictment in this respect.

It seems to me that the Penal Code of France plainly requires
averments sufficient to make the crime of forgery in both the first
and second degree, under our statute, in order to make out more
nearly the corresponding crime under the code.

It is suggested by you, that the proviso in the treaty refers to the
necessity of showing by evidence that the crime is within the treaty,
which is a matter of proof, and that it does not necessarily refer to
the form of the accusation. If this be the true construction, it
might follow that the accusation can only be preferred by legal
evidence of the commission of the crime, and, in that view, the
indictment would be insufficient for any such purpose.

The duty of the executive to demand, arises under the same
treaty, and it must have the same construction in both countries as
to the form of the accusation, and proof to support it upon which
the reciprocal duties arise.

If you should be correct in your opinion that the crime is to be
made out by proof, upon familiar principles, it would seem to be
clear that the accusation should be as broad as the proof necessary
or THE STATE or New Vor. 447

to be given; that the accusation should contain all the elements of
the crime which the treaty requires the evidence to support. You
mention the inconvenience of assembling the witnesses in order to
procure new indictments, because the cases and their number are
numerous. The inconvenience might be avoided by selecting some
one case in which the difficulties you suggest do not-exist. As one
indictment (if of any note) is all that is requisite in order to effect
the extradition of the fugitive. I was not aware, until the receipt
of your note, of your professional relations to these prosecutions.
I trust, therefore, you will not consider the freedom of my suggestions
obtrusive as those contained in my former communication, and in
this are made in response to a reference of the subject from the
executive of the State.

. Respectfully,

: M. B. CHAMPLAIN.

OFFIcE oF THE ATTORNEY-GENERAL,
Axzany, March 9, 1870.

Hon. Joun D. Van Burzn, Private Secretary, ete. :

Dear Sir.—I have examined the papers referred, upon which I
was asked to report upon what proof the reward claimed for the,
apprehension of the murderer of Dr. Andrew Mead should be
paid.

The proclamation offers a reward of $500 to be paid to the per-
son who shall cause the arrest and delivery to the proper authorities
of the guilty party.

From the certificate of the district attorney of Cattaraugus
county and the depositions annexed, it appears that D..8. Reynolds,
superintendent of the Niagara frontier police, and William Land-
sittle, a detective of said police organization, arrested Theodore
Nichols upon the charge and brought him to the county of Catta-
raugus and delivered him to the proper authorities for trial. That, °
on the fourth day of February last the prisoner was brought to trial,
convicted of the murder, and sentenced to death. That the said
‘Reynolds and Landsittle produced upon the trial the material evi-
dence upon which the conviction was had.
448 OPINIONS oF THE ATTORNEYS-GENERAL

These facts, undisputed, so far as appears, would, in my judg-
ment, seem to bring. the case clearly within the condition of the
proclamation, and are sufficient proof to entitle the said Reynolds
and Landsittle to the reward.

. Respectfully yours,
MARSHALL B. CHAMPLAIN,
Attorney-General.

 

ArrorNeY-GENERAL’s OFFIOE,
Axsany, March 9, 1870. }
E. Witxarp, Esq., Allegany, V. Y.:

Dzar Sm.—Your letter of a.recent date was duly received. I
am not aware of the existence of any statute vesting in the electors
of towns, when assembled in town meeting, the power to vote
money for a reward. The powers of such bodies are limited and
explicitly defined by statute. The power to vote money for such
an object is not among their defined powers. Neither has the town
board any power to audit a claim for a reward for the reasons above
mentioned. A special act of the Legislature would seem to be
necessary to meet the case referred to in your communication. In
regard to the other matter referred to, you may rely on my cordial
co-operation.

Truly yours,
M. B. CHAMPLAITN, °
Attorney-General.

STATE OF NEW YORK:
ATTORNEY-GENERAL’s OFFICE,
Ausany, March 12, 1870. t
Saerman Wiis, Esq., County Treasurer of Chautauqua Oo. :

Dear Sire. Your communication of the twenty-eighth of Janu-

ary last was duly received, but was accidentally mislaid, which
‘ accounts for the delay in answering the same.

The provisions of the act chapter 907, Laws.of 1869, authorizing
the bonding of towns for railroad purposes are so imperfectly framed
in respect to appropriating the tax collected from railroad corpora-
tions, other than school and road taxes, to a sinking fund to pay
or THE SratTe or New York. 449

the bonds, that it would be very difficult, if not impracticable, ‘to
execute the same.'

To withdraw the portion of the tax assessed upon the railroads
in the towns as mentioned, and vest them in a sinking fund
as contemplated, would, of course, leave the funds now provided
for county, State, and other purposes deficient the amount thus
withdrawn, and must involve inequality of taxation. The amount
by which the funds mentioned are rendered deficient by this appli-
cation, would have to be supplied by an increased tax upon the
property within the town, other than that of railroad corporations,
or by a double tax upon the property of such corporation, either
of which would be unequal.

The supervisors, at present, do not seem to be charged with any
specific duty by the act. There are provisions, that after the appli-
cation of the means arising from sale of bonds, surplus dividends,
etc., provided by the act, other than taxation for the redemption
of the bonds, the sums remaining unpaid, shall be reported to the
board of supervisors by the commissioners, to be provided for by
such board by taxation, as other debts and obligations against
towns are required to be paid.

The act does not seem to contemplate any action by the board of
supervisors, or vest in such board any power until such contingency
shall arise.

However, this may be by a literal construction of the act, the
duty of setting apart the portion of taxes mentioned, would seem
to devolve upon the treasurer. In addition to the difficulties
already mentioned, the impossibility of dividing the money is appa-
rent, as you state the money is collected in gross.

From the situation of the case in your county as reported in your
communication, I do not think a writ of mandamus would be
granted by the court to compel you to execute the law in question.

Respectfully, yours,
M. B. CHAMPLAIN,
Attorney-General.

Section 4 of the act of 1869 (the one here criticised) has been amended several
times since the writing of this opinion (see chapter 789, Laws of 1870, chapters
283 and 925, Laws of 1871); but the objectionable features, above specified, remain,
the amendments consisting principally in providing methods of enforcing obedi-

ence upon the part of the county treasurer.
29
450 OPINIONS OF THE ATTORNEYS-GENERAL

STATE OF NEW YORK:

ATTORNEY-GENERAL’S OFFICE,
Ausany, Afarch 18, 1870.

Dear Sir.—Your letter of the date of March third was duly
received, but press of other business has prevented an earlier reply.

The question as to place of holding the next annual town meet-
ing should have been taken by motion or resolution put to the
meeting in the usual form upon fair notice to the electors, and the
result declared by the proper officer, and entered in the sainites of
the proceedings of the town meeting.’

That a portion of the electors secretly indorsed on ‘their ballots
for town officers an appointment, that the next annual town meet-
ing be held at another place, did not, in my opinion, effect such
change. It would put it in the power of the few thus to defeat
the will of the majority. It follows, that the town meeting held
at Randolph was regular and legal.

Respectfully yours,
M. B. CHAMPLAIN,
Attorney-General.

 

ATTORNEY-GENERAL’S OFFICE, }
April 16th, 1870. ‘
W. C. Brveuam, Esq. :

Dear Sir.— Yours of Apri 15th inst., inquiring my opinion as
to the new excise law, is received. ,
There is no express provision made in the law for suits pending in
_the Supreme Court, for violations, but the rights of action and lia-
bility for penalties remain unaffected by it. All the provisions of
‘the act of 1857, necessary to the prosecution of such action, are
preserved, and the penalties incurred are not repealed.’ It may be
necessary to substitute the new board of commissioners of excise,
of the town in which the penalty was incurred as plaintiff, which
is a question not embraced in your inquiry.
Respectfully yours,
M. B. CHAMPLAIN.

1 See 1 R.S., page 839, section 1; 5 N. Y., 1 Seld., 22.
1 Chap. 175, Laws of 1870 ; 7 Edmonds’ Stats., 666.

5 See Board of Com. of Hucise v. Willey, 2 Lansing, 427. Held, that old board
could sue and recover penalties.
OF THE STATE oF New York. 451

STATE OF NEW YORK:

Orrice oF THE ATTORNEY-GENERAL, {
Axpany, April 20, 1870.
Rev. Jusse T. Prox:

Dear Sir.—I owe you an apology for the long delay in replying
to your letter of September last, asking my opinion as to the right
of certain ministers of the gospel, to exemption from taxation.

The constant press of public duties has prevented an earlier
answer; yet, I had the subject in my mind, and intended to reply
in time to correct any erroneous impressions entertained by asses-
sors, arising from my previous opinion, to which you allude, in
making the assessment for the present year.

You correctly: interpret the published opinion of June 16th,
1869."

It includes, and was intended only to include that class of minis-
ters and priests who have wholly left the great duties of their call-
ing, to engage in secular pursuits, using their licenses to preach as
a shield from taxation, and instead of being dedicated to the ser-
vice of God, or the cure of souls, are engaged in worldly business.

This class should bear the burdens of government egually, with
all other citizens.

Supernumerary or superannuated priests and ministers not engaged
in worldly business, who, from age or poor health, are unable to do
effective service, “ worn out,” as expressed by you, in the service,
and only able to preach occasionally as their remaining strength
may render expedient, I agree with you, are eminently deserving of
legal exemption from public burdens.

This class of ministers are not included in my former opinions,
and, in my judgment, are entitled to the same legal exemption from
taxation, as of right belongs to regular pastors or ministers in good
health, and fully devoted to the high duties of their calling.

Respectfully yours,
MARSHALL B. CHAMPLAIN,
Attorney-General.

LAnte, p 424.
452 OPINIONS OF THE ATTORNEYS-GENERAL

STATE OF NEW YORK:

OFFIcE oF THE ATroRNEY-GENERAL, |

Ausany, Apral 23, 1870.
Srr.—Your communication asking for a construction of the excise
’ law, recently passed by the Legislature, has been received. The
same question presented for my opinion by you with others have
been referred to this office by officers charged with the execution
of the law from different parts of the State. I shall answer all
these inquiries in this communication.

Construing the statute in question as we must, as a part of the
general system of legislation upon the subject of the sale of strong
and spirituous liquors, and, adhering to the fundamental rules of
construction, that when there is a discrepancy between two statutes
such exposition should be made as that both may stand together,
and reading the statutes according to the most natural obvious
import of the language employed, without resorting to subtle and
forced construction for the purpose of limiting or extending its
operation, and that repeals, by implication, are things disfavored by
the law, and never allowed but when inconsistency and repugnancy
are plain and unavoidable, and especially so when the repeal is of a
part of a statute which seriously mars the harmony of a long estab-
lished system, the questions presented do not seem to me to be of
difficult solution.

By the law existing in this State previous to the 11th day of
April, 1870, the day on which the excise law was passed, and which
was mainly embodied in the act “to suppress intemperance and
regulate the sale of intoxicating liquors,” passed April 16, 1857,
and the act amending the same, passed May 11, 1869, boards of
excise were empowered to grant three kinds of licenses; one was
to keepers of inns and taverns, who were required to have the
qualifications and accommodations necessary for that purpose, and
whose licenses authorized them to sell strong and spirituous liquors
to be drank in their houses, and were to be granted only on the
petition of not less than twenty respectable freeholders, and upon
the execution of a bond conditioned that the applicant would not
suffer such hotel to become disorderly, or suffer gambling therein.
Such boards were, also, empowered to grant to storekeepers license
to sell liquors and wines in quantities less than five gallons, but not

.
or THE STATE or New York. 453

to be drank in their shops, houses, or on their premises. Such
applicant was, also, required to execute a bond that he would not

suffer his place of business to become disorderly, and that'he would
not suffer liquors to be drank in his shop, house, or upon his
premises.

Another license authorized, was for the sale of ale or beer in
quantities less than five gallons, which might be drank upon the
premises, for which the applicant was to pay a license fee of not less
than ten dollars, which was the only prerequisite for the granting
of such license. The recent excise law creates new boards of excise
in the several cities, villages and towns of the State, and vests the
powers before exercised by the county commissioners and other
boards created by the act of 1857, in the town boards and villages,
and city boards created by this act, and this is the only essential and
important change worked by the recent law; all the provisions of
the act of 1857, requiring qualifications and imposing restrictions
upon the applicants for license, are, in my judgment, in full force
and effect.

In towns the board of excise is to consist of the supervisor and
justices of the peace; and in villages the. board consists of three
members of the board of trustees, to be annually designated by the
trustees, one of which board so designated must be the president of
the board of trustees of the village.

In cities, other than New York and Brooklyn, the first commis-
sioners of excise under the act, are to be appointed by the mayor;
and in the cities of New York and Brooklyn, they are to be nomi-
nated by the mayor, and appointed by the board of aldermen, and
in the other cities of the State; all appointments subsequent to the
first made, are to be made in the same manner as in the cities of
New York and Brooklyn.

The powers of the boards of excise in the towns and incorporated
villages, are concurrent. The town commissioners may license
within the incorporated villages, and the board of excise for the vil-
lage may also license within its corporate limits.

It is known that the act in question was first introduced into the
Legislature, as a substitute for an act to repeal the act regulating
the sale of intoxicating liquors in the metropolitan police district,
and the language employed in the fourth section as to the applica-
454 OPINIONS OF THE ATTORNEYS-GENERAL

tion for licenses, is substantially that contained in the fourth and
sixth sections of the last named act, which is expressly repealed by
the sixth section of the recent excise law. Pending the discussion
of the bill in the Legislature, it was so amended as to extend its
provisions over the whole State, without changing the language of
the fourth section, which involves its construction in some obscu-
rity.

It will be observed, however, that by the third section of the
recent act, the boards of excise are required to meet on the first
Monday of May, in each year, and on such other days as a majority
of the commissioners shall appoint, for the purpose of granting
licenses as provided by law ; and by the sixth section of the act it
is declared “that the provisions of the act passed April 16, 1857,
except where the same are inconsistent or in conflict with the pro-
visions of this act, shadl be taken and construed as a part of this
act, and be and remain in full force and effect throughout the whole
of this State.”

No language could be employed which more clearly evinced a
design to incorporate the recent act into the system of the law
established by the act of 1857, regulating the sale of intoxicating
liquors, and that the two acts should be blended and stand together,
so far as they were not in palpable conflict, as the complete system
of the law of the State, regulating the sale of intoxicating
liquors.

The rule of interpretation has long been settled by the courts,
that effect must be given to the intent of the Jaw making power,
and to seek for that intent in every legitimate way; yet it is to be
sought, first of all, in the words and language employed, and if the
words are free from ambiguity, and express clearly the sense of the
framers, there is no occasion to resort to other means of interpre-
tation.

It is not allowable to interpret what has no need of interpreta-
tion; and where the words havea definite and clear meaning,
conjecture cannot be indulged in, in order to restrict or extend the
meaning. Courts cannot correct supposed errors, omissions or
defects; and it is the office of interpretation to bring a sense out
of the words, and not to bring a sense into them.

The only apparent conflict between the recent act and the acts
OF THE State or New York. 455

of 1857, as to the granting of licenses, is found in the fourth sec-
tion, which provides, that “such licenses shall only be granted on
a written application to the said board, signed by the applicant or
applicants, specifying the place for which license is asked and the
name or names'of the applicant or applicants, and of every person
interested or to be interested, to authorize which the license shall
be used.” This provision is not at all in conflict with the require-
ment of the act of 1857, that the applicant for an innkeeper’s
license shall present the freeholders’ certificate, give the requisite
bond, and possess the other qualifications required, but is in har-
mony with such requirements.

The requirement that he shall make his applivation in writing,
specifying the place to be licensed and persons interested, is simply
a superadded restriction upon the applicant in harmony with the
restrictions imposed by the law of 1857; andso of the applicant for a
storekeeper’s license. This provision is a further condition he is to
comply with besides the bond he is required to give.: The appli-
cant for license to sell beer or ale is required to make this written
application in addition to the payment of the fee.

The commissioners of excise must be satisfied that the applicant,
in each case, is of good moral character, as required by the law of
1857 ; and the boards have the same discretionary power as to with-
holding or granting license as was vested in them by such law.

Complaints for infractions of the law are to be made to the com-
missioners of excise created under this law; and prosecutions are
to be instituted by them in all cases where actions were authorized
under the act of 1857.

Justices of the peace of towns have jurisdiction of actions for
penalties incurred, the same as under the provisions of the previous
law.

The selling or giving away of intoxicating liane on Sunday, or ,
on the day when any general, special or town election is held, within
one quarter of a mile of the place where held, is prohibited by the
act of 1857, which is expressly re-enacted and made a part of the
present statute. The sale of spirituous liquors, wines, ale and beer
in quantities not less than five gallons, by any person, is not pro-
hibited by any law of the State and never has been. The only
restriction upon an unlicensed person to sell in quantities of five
456 OPINIONS OF THE ATTORNEYS-GENERAL

gallons and more is, that it shall not be sold to be drank upon his
premises.
Respectfully yours,
MARSHALL B. CHAMPLAIN,
Attorney-General.
To Hon. N. C. Bransrazer, Rochester, V. Y.

AvroRNEY-GENERAL’s OFFICE, \
“Arpany, May 4, 1870.

R. K. Crooxsr, Esq., Cambridge, N.Y¥.:

Sm.—In answer to yours of May, 3d inst., boards of excise in
incorporated villages, are to consist of three of the trustees to be
designated by the board of trustees of the village. One of the
board of excise so designated, is to be the president of the village,
or the president of the board of trustees, as the case may be, in such
village ; (as such officer is described in village charters, sometimes
by one title, and sometimes by the other.)

When the office of trustee who has been designated as one of the
board of excise expires, or becomes vacant, it creates a vacancy also
in the board of excise commissioners, which vacancy is to be filled
by a designation of other commissioners of excise, by the board of
trustees existing, and in office, when such vacancy shall happen.

{f your out-going board of trustees designated a board of excise
commissioners from their number, such offices expired with their
term of office as trustees, and it became the duty of the newly
elected board of trustees for your village, to proceed and designate
anew board of excise commissioners from their number, as pre-
scribed in the recent excise law. Licenses granted by the outgoing
board while they were in office, are valid for the year. The new
board appointed as above, would be vested with all the powers of
the board of excise, for the ensuing year.

The freeholders required by section 6, of chapter 628, of the
Laws of 1857, should be residents of the election district within
which the inn or tavern to be licensed, is situated.

Respectfully,
M. B. CHAMPLAIN.
OF THE State or New York. 457

ATTORNEY-GEVERAL’s Orion,
Arpany, May 4, 1870.

J. C. DeWrrt, Esq., Skaneateles, V. Y.:

Stx.—Boards of excise have discretionary powers in granting

licenses; they may: grant or refuse license, as in their judgment
they shall deem proper. In the case you suggest, it would seem to
be a proper exercise of discretion to grant the license as applied
for, but the board have a legal right to refuse it in such a case, and
there is no authority in the law to compel them to grant a license
against their own judgment, and no legal mode of reviewing their
action, when they have come to a decision in the given case! _

Respectfully yours,
M. B. CHAMPLAIN.

ATTORNEY-GENERAL’s OFFICE,
Ausany, May 4, 1870.

A. ©. Moszs, Esq., Deposit, V. Y.:

Srr.—Inclosed I send you opinion in which the question sugges-
ted by you is substantially answered. There is no doubt but that
your village, although comprising portions of two separate towns
ands counties, being incorporated, constitutes a civil division, within
which the board of excise appointed for such village, has power
to grant licenses under the law, within the village corporation.

Respectfully yours,
M. B. CHAMPLAIN.

Atrornny-GENERAL’s OFFICE,
Axpany, May 5, 1870.

Danrex SpraxeEr, Jr., Spraker’s Basin, N. Y.:

Dear Srr.—The adjournment of your board of excise from the
first Monday of May to the 28th day of the same month was legal.
The meeting on that day will be valid.

By the recent excise laws, boards of excise in towns are autho-

1 This has been lately held by the General Term, Fourth Department.
458 OPINIONS OF THE ATTORNEYS-GENERAL

rized to meet on as many days as a majority may appoint, not
exceeding once in each month, which in effect limits the meetings
to twelve in a year.

It is evidently the intention of the law that but one meeting for
granting licenses shall be held in any one month.

I infer from your letter that your board at the first meeting did

_ not grant any licenses, but adjourned to the 28th of May for that

purpose. If this is so, the board may proceed on that day to grant
or refuse licenses, which session will constitute the meeting autho-
rized for the month.

Licenses, when granted by the express provisions of the law, are
to remain in force one year from the granting thereof,,and cannot,
therefore, be granted by the board for a shorter period.

Respectfully yours,

M. B. CHAMPLAIN,
Attorney-General.

ATToRNEY-GENERAL’s OFFICE, t

Axpany, May 5, 1870.
J.S. Jonnson, Batavia, V. ¥.:

Dear Sir.—The only party applying for a license to sell liquors
who was ever required to procure the certificate of twenty free-
holders, was a party who proposed to keep an inn or tavern, and
the law is not changed in this respect by the recent excise act.
Parties applying for a “storekeeper’s” license, or a license to sell
ale or beer, under the amendment of 1869 to the excise law, were
never required to produce the freeholders’ certificate, and are not
now required to produce it.

Respectfully yours,

M. B. CHAMPLAIN,
Attorney-General.

ArrornEy-GuneRau’s Orrice, |

Azany, May 5, 1870.
C. L. Lixcotn:

Dear Sir.—The board of excise in towns is by law to consist of
the supervisor and justices of the peace. The supervisor and two
oF THE Sratr or New Yorn. 459

justices of the town, when legally convened, will form a competent
board to execute the powers conferred by the excise law. But, in
order that it may be a legal meeting of the board, it must be
appointed by a majority of the whole number, which is three mem-
bers, and all five members must be notified to attend. If all do
not attend, but a quorum of three members are present, such
number is a legal board, competent to grant or refuse licenses.

But one meeting for granting licenses can be appointed in towns
in any one month,

Respectfully yours,

M. B. CHAMPLAIN,
Attorney-General.

ATTORNEY-GENERAL’s OFFICE, |
Arpany, May 25, 1870.

M. Vanvervort, Dannemora, WV. Y.:

Dear S1zr.—I am of the opinion that the statute forbidding the
licensing the sale of intoxicating liquors within three miles of the
Clinton prison, is still in force. It is a police regulation, intended
as a measure, in a system of prison discipline, and is not in conflict
with the general laws regulating the sale of intoxicating liquors.

Yours truly,

M. B. CHAMPLAIN,
Attorney-General.

ATTORNEY-GENERAL’s OFFICE, }
Aupany, May 25, 1870.
Ricuarp Grirriri:

Dear Sir.—Fishing on Sunday is prohibited by the general laws
of the State; the inhibition against fishing is not contained in the
10th section of the act of 1868,’ to which you refer. It was pro-
bably omitted by mistake. Being a penal statute, it must be con-
strued strictly. A person offending, would not incur the penalty

1 See sec. 11, chap. 909, Laws of 1870; also sec. 15, chap. 721, Laws of 1871.
460 OPINIONS OF THE ATTORNEYS-GENERAL

imposed by the 10th section, but would incur the penalty imposed
by the 66th’ section of article 8, chap. 20, part 1, of the Revised
Statutes.

Respectfully yours,

M. B. CHAMPLAIN.

ATTORNEY-GENERAL’s OFFICE,
Auzany, May 25, 1870. }
Sitas SWEET:

Dear Srr.—If the electors of the town have neglected to fill
the vacancy as required by law, the justices of the peace of the town,
would have power to fill vacancy by appointment.

In order, however, to a valid exercise of the power of appoint-
ment, they must all meet, and a majority must act in making it, or
all must be notified of the time and place of meeting, in which
case a majority meeting would forma quorum to exercise the
power of appointment. A written appointment, presented sepa-
rately to such officers for signature, when they were not convened
in joint session for the purpose, would be invalid.

Yours, etc.,

M. B. CHAMPLAIN,
Attorney-General.

Atrornry-GENnERAL’s OFFicr,
Axpany, Day 30, 1870. }
Norman P. Brown:

Dear Sir.—The town board of excise can meet and organize at
any time, on any day a majority of the commissioners shall appoint,
not exceeding one in each month, in any year. The supervisor
and justices of the peace constitute the board of excise in any town.
These members are competent to act as a board, when legally con-
vened.

The town clerk is not authorized to act as a member of the
board, unless the office of supervisor is vacant, or there be not two

1Sec. 70 is probably meant. See 1 Edmonds’ Statutes, 28.
oF THE Stare of New York. 461

justices in the town, then the town clerk shall act in their places,
respectively.
Respectfully, etc.,

M. B. CHAMPLAIN,
Attorney-General.

Arpany, Yay 30, 1870.
Hon. D. A. Oaven, Penn Yan:

Dear Sir.—Your inquiry as to the construction of the act to
regulate the hours of labor of mechanics, workingmen and laborers
in the employ of the State, or otherwise engaged on the public
works, recently passed by the Legislature, was duly received and
has been considered. The act, in effect, declares that eight hours
shall constitute a legal day’s work for all the above mentioned
classes, but over work for an extra compensation, by agreement, is
expressly permitted by the act. The inhibition directed against
agents and others employing laborers, forbids such officer or agent
from exacting from the workman more than eight hours labor for
a day’s work. If by the agreement extra compensation is to be
moade for extra hours of work and above the eight hours, there is no
inhibition in the act upon the officers, agent or contractor for the State
from exacting the additional labor for such additional compensation.

I herewith inclose you a copy of the act.

Respectfully, etc.,
M. B. CHAMPLAIN,
Attorney-General.

ATToRNEY-GENERAL’s OFFICE,
Auzany, June 1, 1870.

Myron Stickney, Esq., Centreville, Allegany Co., N. Y.:
Siz.—The supervisor of your town, who, you state, is also a jus-
tice of the peace, has but one vote as a commissioner of excise of
-the town, and cannot sign a license in more than one official capacity.
It would probably be prudent to serve on such board in the official
capacity of supervisor only.
Respectfully yours,
M. B. CHAMPLAIN,
Attorney-General.
462 OPINIONS OF THE ATTORNEYS-GENERAL

Axsany, June 23, 1870.
E. W. Kryss, Albany, WV. Y.:

Dear Srr.—It is provided by section 12 of article 6, of the
amended judiciary article of the constitution, that the City Court
of Brooklyn (with other courts enumerated), should be continued
with the powers and jurisdiction they now severally have, and such
further civil and criminal jurisdiction as may be conferred by law.
And it is further provided that the City Court of Brooklyn shall
be composed “of such number of judges, not exceeding three, as
may be provided by law.”

The City Court of Brooklyn, at the time of the adoption of the
amended judiciary article, was composed of but one judge. By
chapter 470, of the Laws of 1870, the Legislature provided for the
election of two additional judges, at the same election, to be held
for the choice of judges of the Court of Appeals; and declared that
“ the official terms of the judges elected under this act, shall com-
mence on the first Monday of July next, on or before which day
they shall take the oath of office.” .

The power conferred upon the Legislature to increase the number
of judges of the City Court, not exceeding three, carried with it the
power to fix the time of the commencement of the official term of
the new judges within the limits of the Constitution. It was com-
petent to fix the commencement of such official term on the first
Monday of July.

The provision in the thirteenth section of the article, that “the
official term of the said justices and judges who shall be elected
after the adoption of this article shall be fourteen years from, and
including the first day of January next after their election,” is
intended to prescribe the duration of the official term of such offi-
cers, and ought not to be construed as a restriction upon the right
of the officer to enter upon the duties of his office after his election
before that time. Ordinarily officers are invested with the tenure
of office, and entitled to enter upon its duties immediately upon
election, unless a different time is prescribed.

Seven judges of the Court of Appeals, five commissioners of
appeals and three additional judges of the Court of Common
Pleas, of the city of New York, are expressly created by the arti-
cle, and their election fixed between the first Tuesday of April and
or tHE Stare or New Yorn. 463

June after the adoption of the article, the day of election to be pre-
scribed by law.

The Legislature was empowered by the article to create two addi-
tional judges of the City Court of Brooklyn by law.

The judges created by the article, or created by law in pursuance
of it, would be invested with a tenure of office, and be entitled to
enter upon their duties immediately upon their election unless a
different time was prescribed. The commencement of their duties
is prescribed in the 24th section, which declares that “the Court of
Appeals, the Commissioners of Appeals and the additional judges
of the said Court of Common Pleas, shall, respectively, enter upon
their duties on the first Monday of July thereafter” (after their
election.) It was necessary, to harmonize the system, to prescribe
a time for the commencement of their official duties, as the duration
of the office had already been prescribed. The new judges of the
City Court of Brooklyn are omitted from this provision, probably
because such office was not yet created and might never be created.
It would be incongruous to declare the time of the commencement
of official duties of an officer not in existence, and this was wisely
left to be prescribed in the law creating ‘the officer, and has been so
prescribed. I entertain no doubt of the constitutionality of the
provision of the act in question, fixing the first Monday of J uly as
the time when the official term of the new judges of the City Court
will commence, nor of their legal right to act as judges of such
court from that time.

Respectfully submitted.

MARSHALL B. CHAMPLAIN,
Attorney-General.

 

To —— , Esq.

; June 28, 1870:
F. D. L. Montanve, Marbletown, Ulster Co.. N. Y.:

Dear Srr.—The law imposing penalties for the unlicensed sale
of spirituous liquors remains unchanged, except that complaint is
to be made for such violations to the commissioners of excise of
the town within the limits of which the offense was committed.
464 OPINIONS OF THE ATTORNEYS-GENERAL

If such poard omit to prosecute for the period of ten days after com-
plaint to them that any provision of the excise law has been vio-
lated, accompanied with reasonable proof of the same, any other
person may prosecute therefor in the name of the board of com-
missioners of excise. (See §§ 13, 22-30, of chap. 628, Laws of
1857.)

No change in this respect is wrought by the recent amendment
of the excise law, except to create town boards of excise, and vest
in such town boards the powers and duties heretofore exercised by
the county boards of excise.

Respectfully, etc.,

M. B. CHAMPLAIN,
Attorney-General.

June 28, 1870.
R. Ersrmer, County Treasurer Herkimer Co., Frankfort, NV. Y.:

Dear Srr.—It is provided in section 7 of the recent excise act,
that “the moneys arising from licenses in any town or village shall
be deposited with the county treasurer within thirty days after
receiving the same, to be expended under the direction of the
board of supervisors, at their next annual meeting, for the support
of the poor of such town.” It was provided by section 1 of chap.
381, Laws of 1859, that the treasurer of each county should pay to
the treasurer of the inebriate asylum ten per cent of all the moneys
received from the board of commissioners of excise in and for said
county. The provision of the recent excise law first above quoted
is insuch direct conflict with the provision of the act of 1859, as,
in my opinion, to repeal the same; and, therefore, county treasu-
rers are not now authorized to pay any portion of said moneys to
the treasurer of the inebriate asylum, As to excise moneys col-
lected in the cities of the State, the statutes in question may be
open to a different construction.

Respectfully, ete.,
M. B. CHAMPLAIN,
Attorney-General.
or THE Svare or New York. 465

July 5, 1870.
C. H. Granam, Schenevus, NV. Y.:

The board of excise of the town are only authorized to grant
licenses for the sale of spirituous liquors when duly convened for
that purpose. In order to constitute a legal meeting of the board,
all the members must be notified of the time and place of meeting,
and if a majority of the whole board attend, such majority will form
a quorum competent to execute the powers conferred by the excise
law.

The statute authorizing licenses for the sale of beer is still in

force. The fee, therefore, to be fixed by the board ata sum not
less than ten dollars. The board must be convened, in order to

grant these licenses, in the same manner as any other.
By the law the board is not authorized to meet for the purpose
of granting licenses more often than once in each month.
Respectfully,

M. B. CHAMPLAIN,
Attorney-General.

July 5th, 1870.

Hon. H. A. Nutson, Secretary of State:

Dear S1r.—It appears from your communication that Mr. Arts
was elected to the office of superintendent of the poor of the county
of Rensselaer, at the general election held in November, 1868, for
the full term of three years, from the 1st of January, 1869 ; and that
in January, 1870, he was removed from office by the Governor of
this State, and that thereafter the board of supervisors of the county
appointed Edwin Brownell, of Troy, to fill the vacancy. By law
this office is made elective by the people, and vacancies occurring
therein are to be filled by the board of supervisors of the county.
(See chap. 498, Laws of 1847; chap. 240, Laws 1848; chap. 344,
Laws. 1860, also § 12.)

Chapter 344, Laws 1860, creates a division of the official duties
of the three superintendents of Rensselaer county, devolving upon
the two officers having the shortest terms to serve the duties of
auditing accounts, and upon the officer having the longest term to
serve the duties of acting superintendent in the purchase of sup-
plies.

30
466 OPINIONS OF THE ATTORNEYS-GENERAL

t

The question presented by you is whether the appointee to this
office in the place of Mr. Arts will hold for the full period of his
unexpired term, or only to the expiration of the political year ensu-
ing his appointment.

It is provided by section 2, of article 10, of the Constitution,
that “all county officers whose election or appointment is not pro-
vided for by this Constitution, shall be elected by the electors of
the respective counties, or appointed by the boards of supervisors,
or other county authorities, as the Legislature shall direct.”

And by section 5, it is further ordained that “the Legislature
shall provide for filling vacancies in office ;.and in case of elective
officers no person appointed to fill a vacancy shall hold his office by
virtue of such appointment longer than the commencement of the
political year next succeeding the first annual election after the
happening of the vacancy.”

And it is declared in the sixth section of the same article that
“the political year and legislative term shall begin on the first day
of January.”

If these provisions of the Constitution apply to the office of
superintendent of the poor they are decisive of the question sub-
mitted by you. It is suggested by the incumbent that they only
apply to the class of officers mentioned in or created by the Con-
stitution, and that they do not apply to a class of officers which are
created by statute.

This may or may not be a correct exposition of the Constitution
as to all officers which may be created by law since the adoption
of the Constitution, but I deem it well settled by judicial authority
that the provisions of the Constitution apply tc all offices insti-
tuted before, and in existence at the time of the adoption of the
Constitution.

It was expressly decided by the Court of Appeals in the case of
The People, respondents, v. James M. Raymond, appellant} that
the vesting of the appointment of county or city officers existing
at the time of the adoption of the Constitution, although created
by law, in the Governor, was in direct conflict with section 2, article
10 of the Constitution above duoted, and that such officers could only
be elected by the electors, or appointed by the local authorities in

187 N. Y., 428.
or THE STATE or New York. 467

obedience to this provision of the Constitution. It is too obvious
to require argument that if this class of officers are within the pro-
visions of the Constitution for this purpose, that they are equally
within its provisions for all other purposes. If the Constitution
applies to the manner of their election it equally applies to the |
duration of the term of office of the incumbent appointed to fill a
vacancy.

It was, undoubtedly, the intention of the framers of the Consti-
tution that in case of vacancies occurring in elective offices, the
electors should have the right to fill the vacancy by an election at
the first opportunity occurring after it shall have happened. It is
suggested that the application of this construction of the Constitu-
tion to the superintendents of the county of Rensselaer will break
up and destroy the divisions of the duties prescribed by chapter
344, Laws of 1860, into acting and auditing functions. If the Con-
stitution applies, all legislation in conflict with it is invalid, and
that confusion or inconvenience would be created would not justify
the placing of statutes above the mandate of the Constitution. But
as I understand the provisions of the special act referred to, no
such consequences as are suggested will follow. I interpret it as
providing in spirit and effect that the superintendent of the poor
having the longest term to serve is made the acting superintendent,
and the two superintendents having the shortest terms to serve are
made the auditing superintendents. So long as the offices are all
filled, either by appointment or election, the spirit of this law can
be carried out. The duties of the office may shift from one to the
other dependent upon the duration of the term of office of each;
but so long as there are three superintendents in office in the
county, the act can be given full effect by the two officers having
the shortest term to serve acting under it as auditing superin-
tendents, and the officer having the longest term to serve perform-
ing the duties of acting superintendent.

The declaration in the first section of the statute, as to the time
of election of auditing and acting superintendents, and prescribing
the term of office, may be construed, as but another mode of provi-
ding, in effect, that the two having the shortest time to serve,
are to act as the auditing officers, and that the one having the
longest’ term to serve, is to discharge the duties of acting superin-
468 OPINIONS OF THE ATTORNEYS-GENERAL

tendent, which, it seems, was the real intention of the Legislature,
in framing the enactment.

I am of opinion, therefore, that Mr. Brownell can hold his
office, under such appointment, no longer than the commencement
of the political year next succeeding the first annual election after
the happening of the vacancy, to fill which he was appointed, which
is the first day of January next.

Respectfully, etc.,

M. B. CHAMPLAIN.

 

Cupa, Atiecany County, N. Y., !

July 16, 1870.
Hon. J. Nemson, Brooklyn:

Dear Sizr.—Your communication of the date of July, 13th inst.,
has just reached me here.

You state that Hon. Alex. McCue was elected one of the judges
of the City Court of Brooklyn, at the late judicial election, while he
was traveling in Europe; that illness in his family prevented his
return in June; that he is now on his way home, and that he has
not yet been officially notified of his election.

You bring to my attention the act reorganizing the court of
which he is elected judge (chap. 470, Laws of 1870), which
declares that, “The official terms of the judges elected under this
act shall commence on the first Monday of July next, on or before
which day they shall take the oath of office,’ and you submit the
question for my opinion, whether Mr. McCue can legally take the
oath of office after that day, and whether his omission to take the
oath on, or before that day, will work a forfeiture of his office.

The City Court of Brooklyn is made a constitutional tribunal, by
the recent amendment to the State Constitution reorganizing the
judiciary, and power is granted to the Legislature to increase the
number of judges, not exceeding three. The Legislature having
acted under this grant of power, the judges so elected are within
the provisions of the Constitution, while they exist as judges of
the court.

It is ordained by sec. 1, of article 12, of the existing Constitution,
that “ Members of the Legislature, and all officers, executive and
OF THE STATE or New Yor. 469

judicial, except such inferior officers as may be by law exempted,
shall, before they enter upon the duties of their respective offices,
take and subscribe the following oath or affirmation, *,* and: no
other oath, declaration, or test shall be required, as a qualification
for any office of public trust.” The mandate of this provision of
the Constitution is, that the officer shall take the oath before he
enters upon the duties of his office.

It is expressly applied to judicial officers; and applies with pecu-
liar force to those officers that are within the provision of the Con-
stitution, and not the mere creations of the statute.

My attention is called to section 40, article 4, chapter 5, volume
1, page 413, 5th edition of the Revised Statutes, which declares
that an office shall become vacant upon the happening of either
of the following events, one of which is:

“His refusal or neglect to take the oath of office within the time
prescribed by law.”

It may well be doubted whether this provision (chiefly penal in
its character) applies to an office not then in existence, but created
long since its enactment, and the tenure to which rests in a consti-
tutional provision but just adopted. This provision is found in
chapter 5th, which treats generally of public: officers. By section
24 of article 3, of the same chapter, it is provided, that “every
person who shall be elected or appointed to any civil office or public
trust, ¢mposed in this chapter, before he shall enter on the duties of
such office or trust, shall take the following oath or affirmation, and
following is prescribed the form of the usual oath of office.

The provision declaring the grounds of forfeiting an office being
a part of this same chapter, the two statutes must be read and con-
strued together. The oath of office, the time when it is to be
taken, and the penalty for an omission to take it, are all found in
the same chapter of the statute and must be harmonized.

Section 24, which enjoins the duty upon the officer to take the
oath and prescribe its form, only requires it to be taken before the
officer enters upon the duties of his office. And section 40 declares
the forfeiture of the office if the officer shall refuse or neglect to
take the oath within the time prescribed by law, which time, pre-

11 BR.8., page 122, section 34 (1 Edmonds’ Statutes, 112).
470 OPINIONS oF THE ATTORNEYS~GENERAL |

scribed in the.same chapter, is before he enters upon the duties of
his office. :

If this is the true construction, a forfeiture of the office could
only be worked by the incumbent actually entering upon its duties
without taking the oath.

Such construction harmonizes with the Constitution, which, as
we have seen, only requires the officer, to which it applies, to take
the oath of office before he enters upon the discharge of its duties.
Section 25 of the same chapter is not in conflict with this view, but
harmonizes with it. The incumbent in this case may avail himself
of its provisions if it applies. It is unnecessary to inquire as to
the effect of an omission to comply with section 25, because the offi-
cer elected has, as yet, had no opportunity to comply with its pro-
visions. The officer under that section, when no different time is
prescribed, may take such oath within fifteen days of the com-
mencement of his official term, or within fifteen days after the
official notification of his election or appointment.

Some embarrassment arises from the phraseology of the statute,
chapter 470 of Laws of 1870, reorganizing this court, which is above
cited.

This statute must be harmonized with the constitutional provi-
sion, and with the provisions of the Revised Statutes bearing upon
the subject, and, although somewhat inartificially drawn, I am of
opinion it may be construed as only requiring the officer to take the
oath before he enters upon his official duties. Statutes should be
harmonized with the fundamental law if possible. It is clear the
Constitution only requires that the officer should take the oath
before he enters upon his duties. The provisions of the Revised
Statutes are framed in harmony with this requirement, and the pro-
vision under consideration may be construed in harmony with both.
The first Monday of July is mentioned as the day on which the
officer may enter upon his duties, and he is required to take the
oath on or before that day, which is in effect only declaring he shall
take the oath of office before he enters upon its duties, although, in
a form of language, that but for the constitutional provisions and
statutes upon the same subject we have examined, might require a
different construction. However this may be, I am of opinion that,
under the constitutional statutes, J udge McCue is entitled, under
or THE STATE or New York. ATL

the Constitution, to take the oath of office at any time before he
enters upon the duties of his office, although it may be after the
first Monday of July; and that his omission to have done so will
not work a forfeiture of his office, for the reason that it will be a
substantial compliance with the Constitution and laws upon the
subject.
Respectfully yours,
M. B. CHAMPLAIN,
Attorney-General.

Cusa, ALLEGANY Co., N. Y.,
August 8, 1870.

To His Excellency Jounn T. Horrman:

Sm.—Your communication of the date of July 14th, referring to
the charges presented by the board of supervisors of the county of
Kings against the district attorney of that county, were forwarded
from my office to me here, and received in my absences at court,
which is the reason of the delay in answering. I regret the long
delay, but circumstances have made it unavoidable.

By section 1 of article 10 of the Constitution, the office of dis-

trict attorney, with other offices, is made elective by the people;
and, by the same section, it is ordained that “the Governor may
remove any officer in this section mentioned, within the term for
which he shall have been. elected, giving to such officer a copy of
the charges against him, and an opportunity of being heard in his
defense.” By this provision the executive of the State is made the
constitutional tribunal to judge of the validity of the charges, and
to decide upon the weight of the proof to establish them. He is
_invested with sole power also to judge of the sufficiency of the
grounds of removal. In the case-of Mr , upon appearance
to answer the charges, he interposed, through his counsel, what is
designated in the paper presented, a demurrer. .

The formal answer so interposed commences by “ denying that
he ever at any time appropriated to his own use, or misapplied in
any manner whatever, any moneys belonging to the county of
Kings,” and proceeds to aver that the charges are not sufficient in

 
472 OPINIONS OF THE ATTORNEYS-GENERAL

the law to give the Governor jurisdiction, or to authorize him to
call upon the accused to answer the same.

The gravamen of several of the charges filed against the accused
consists in the appropriation of public money received by him as
district attorney to his own use, and the misapplication of moneys
so received. These allegations being expressly denied in the
answer presented, it would seem an issue was formed by such
denial, under the Constitution, which can only be disposed of by
‘investigation.

Assuming that a demurrer would be appropriate in a case like
this, the exercise of a summary jurisdiction vested by the Constitu-
tion in the executive for the removal of inferior officers, who are
by law mere agencies to aid him in obeying the constitutional man-
date to “‘take care that the laws are faithfully executed ” (of which
I have grave doubts), it is not permitted to a party to deny and
demur to the same allegations.

A demurrer may be interposed to a separate count in an action,
and denial to another in the same action. It isa fundamental rule
that a demurrer admits the facts alleged in the pleadings demurred
to. There is no rule of law which will uphold a pleading that
demurs to and denies to the same allegations. Itisinconsistent with
itself. In this case one part of the answer presented is a denial of
the very facts admitted by the other part.

The charges in this case may be in substance briefly stated, as
follows : ‘s

Ist. Appropriating to his own use $850 provided by the board
of supervisors to pay a clerk in his office.

2d. Illegally compromising forfeited recognizances, without con-
sent of the court, for a less sum than was due thereon, and appro-
priating $2,500 to his own.use received thereon.

3d. Omitting to make returns to the county treasurer of moneys
received by him.

4th. Omitting to pay over $2,800 of public money collected by
him to the county treasurer ; and

5th. Neglect of official duty in omitting to prosecute forfeited
recognizances to the number of nearly 100.

It will be observed that the denial expressly applies to the first,
second and fourth charges, and makes upon them an issue which it
or THE STATE oF New York. 473

seems to me can only be disposed of by investigation under the
Constitution. The demurrer being in form to all the charges, in
its application to the others not denied, is irregular, and might be
disregarded, and the accused required to make further answer
waiving the objection suggested.

The demurrer is general, which only involves their sufficiency in
substance and not in form.

It is the office of a special demurrer to point out defects in form,
and ‘of a general demurrer, those of substance. The dereliction of
official duty charged as now considered must be treated as admitted
in their full scope and extent.

By statute, all willful neglects of duty by public officers are
indictable, and the doing of any act prohibited by law by any per-
son is declared to be a misdemeanor. All neglects and misbehaviors
in public officers are indictable at common-law. The acts and
omissions of duty substantially charged in these accusations, which
we must regard as admitted to be true, are indictable as misde-
meanors. I do not deem it necessary, in order to constitute suffi-
cient cause for removal, that the act of which the officer is charged
should be indictable.

The executive has the power to remove for any cause he deems
sufficient in the exercise of his judgment. By referring to the law
and usage governing impeachments of public officers, it will bo
found that slumbering power has frequently been invoked by the
government in the most solemn form to remove officers for omissions
_and misbehaviors not indictable. It is stated by Judge Story, in
his commentaries upon the Constitution of the United States, that
in the cases of impeachments which have been heretofore tried in
this country, no one of the charges has rested upon any statutable

misdemeanor, and he adds “that many offenses not easily definable
. by law, and many purely of a political character, have been declared
high crimes and misdemeanors worthy of this extraordinary
remedy.” 3

A further inquiry is, whether these accusations are charged with
sufficient particularity as to form. It has been stated that such
objections were not raised by a general demurrer, but could only be
raised by a special demurrer pointing out the particular defect ;
waiving, however, this difficulty, I deem the charges sufficiently
A474 OPINIONS OF THE ATTORNEYS-GENERAL

certain in form. They are all stated with reasonable certainty,
except the charge of neglect to prosecute so large a number of recog-
nizances, which would, at first view, seem to be vague and uncer-
tain. But when it is considered that the accused, as district attor-
ney, must be presumed to be entirely familiar with the public
business in his office, the charge must be judged by the light of
this presumption. It is made his duty by statute to prosecute
estreated recognizances ; he has access to all the criminal records.
He must-have knowledge of all the forfeited recognizances because
they are forfeited on his motion. I deem this, with all the charges,
sufficiently certain to fairly apprize the officer of the dereliction of
public duty complained of.

A more important question than any yet considered was intended
to be presented by the demurrer interposed in this case.

It appears from the papers that Mr. Morris was first elected to
the office of district attorney and entered upon its duties January
ist, 1863, and has held that office continuously ever since, having
been re-elected thereto in the fall of 1865, and in the fall of 1868.
Some of the official delinquencies are charged, under previous terms
of office, than the one under which the incumbent now holds. It
is claimed that there is no constitutional power in the Governor to
remove for any official misconduct not charged to have been com-
mitted during the unexpired term of office of the accused. Several
of the charges contain accusations of continuous misconduct and
official neglect under previous terms, and the same misconduct and
‘ neglect under his present term of office. The second charge for
compromising a forfeited recognizance fora sum less than specified,
without the direction of the court, is charged to have been done
under a previous term, as is also the charge of having appropriated
to his own use the sum of $2,500 paid to him for forfeited recog-
nizances. The fourth, fifth and sixth charges allege failure, during
all the time he has held the office, in making returns, under oath,
to the county treasurer for money received by him by virtue of his
office, and of having failed to pay over to the county treasurer the
money so received by him, amounting, at least, to the sum of
$2,800; and the omission to prosecute forfeited recognizances
exceeding ninety in number. Upon an examination of the several
statutes cited in the charges, and to which the attention of the
or THE SvateE or New York. 475

accused was thereby called, it will appear that such charges con-
tain substantially allegations of neglect of official duty within the
existing term of the incumbent.

The duty is enjoined by statute upon every district attorney, on
or before the first Tuesday in October of each year, to file in the
office of the county treasurer an account in writing, verified by the
oath of such district attorney, of all moneys received by him by
virtue of his office during the preceding year, and that he shall
at the same time pay over such money to the county treasurer.
Reading the statute and charges together, it plainly alleges an
omission to make return on oath in October, 1869; and if moneys
were then in his hands, received by virtue of his office, although in
a former term, it would be his duty, under the statute, to pay them
over at the time of making his return on oath. The omission to
prosecute forfeited recognizances is also charged as a continuous
neglect. It has been said that such charge may be construed by
the light of the law governing his duties, and the records of the
court where the forfeitures are made, upon motion. He is plainly
chargeable with that neglect down to the time of exhibiting the
charges. From the analization of the charges and the application
of the law to them, it appears that the first, and part of the delin-
quencies charged in the fourth, fifth and sixth charges, are brought
within the term of office under the tenure of which the accused
now holds, while the delinquencies alleged in the second charge
and parts of those alleged in the fourth, fifth and sixth charges,
arose in former terms of office. The question is whether there is
constitutional power in the Governor to investigate and remove
under these last charges.

It has been already stated that the executive is the constitutional
tribunal to judge of the sufficiency of the ground of removal. A
construction of his powers in this respect which would deny the
right to remove an officer deemed unfit to hold his office, although
the evidence of such unfitness should arise from mal conduct in a
former term of the same office, would be a dangerous restriction upon
the constitutional power of the executive to remove subordinates

1 See 1 Rev. Stats., 383, § 94 (1 Edmonds’ Stats., 356). But see § 6 of chap. 304,
Laws of 1852 (8 Edmonds’ Stats., 386). This requires him to pay over “ within
thirty days after receipt, all moneys received on judgments, costs, etc.”
476 OPINIONS OF THE ATTORNEYS-GENERAL

upon whom he is compelled to depend for faithful co-operation in the
discharge of his own high duties. It is claimed the re-election of
the officer wipes out former delinquences. Such re-election, as an
expression of confidence by the people, might have its full weight
with the executive in determining the sufficiency of the grounds of
removal, or the policy or the expediency of it, without giving to
such re-election the dangerous effect of an absolute restriction upon
the right to exercise the power of removal.
Respectfully submitted.

M. B. CHAMPLAIN,
Attorney-General.

Cuna, Attecany County, N. Y., }
September 28, 1870.
Hon. J. T. Horrman:

Sm.—In reply to the communication addressed to your excellency,
under date of September 23d inst. (referred to this office), from a
citizen of Genesee county, stating that a vacancy had occurred in
the office of county judge by the death of the Hon. Charles Hen-
shaw, on the 18th inst., and submitting the following inquiries:

“1st. Can a special election be held this fall to fill the vacancy ?

“2d. Can acandidate be voted for at the annual election of Novem-
ber 1, 18692” (Must mean 1870.)

“3d. If an appointment is made, how long would it last? Would
it expire on December 31, 1870, or be for the balance of Judge
Henshaw’s term; i. e., December 31, 1871 ?”

I have the honor to state that I am of thé opinion the case is
controlled by section 5th of article 10 of the existing Constitution,
and such laws as have been passed to give it effect.

Under the judiciary article, which has been superseded by the
new one recently adopted, it was held by the Court of Appeals that
when the office of a justice of the Supreme Court becomes vacant
before the expiration of his term of office, the vacancy is to be sup-
plied by the electors of the judicial district in which it exists, at
the next general: election of judges, although the vacancy occur at
so late a day that no notice is or can be given by the Secretary of
State, or other officer, pursuant to the statute, that a justice is to be
oF THE SraTH or New York. 477

elected at such election to fill the vacancy. (Zhe People on the
relation of Davies v. Cowles, 13 N. Y. R., 350.)

To obviate what was supposed to be a defect in the former Con-
stitution, under the construction given it by the court by authoriz-
ing an election to so important an office without the requisite
notice, it provided in section 9 of the new judiciary article, that
“when a vacancy shall occur, otherwise than by expiration of term,
in the office of justice of the Supreme Court, the same shall be
filled-for a full term at the next general election happening not less
than three months after such vacancy occurs.” (There is a similar
provision applicable to judges of the Court of Appeals.)

This provision has, however, no application to county judges. A
county judge is a county officer, and falls within section 5 of article
10, which declares that “the Legislature shall provide for filling
vacancies in office, and, in case of elective officers, no person
appointed to fill a vacancy shall hold his office by virtue of such
appointment longer than the commencement of the political year
next succeeding the first annual election after the happening of the
vacancy.”

The case above cited is an authority in principal that this provi-
sion of the Constitution must control the election, although the
vacancy happens at so late a day that it cannot be included in the
election notice.

In 1847 the Legislature enacted, in order to give effect to this
provision of the Constitution, that all vacancies in the office of
county judge shall be supplied at the general election next succeed-
ing the happening thereof. (See sections 1 and 8 of part 1st, chap-
ter 6, title 2 of the Revised Statutes, volume Ist, page 419, 5th
edition.)

It is competent for the electors of the county of Genesee to fill
the vacancy, created by the death of Judge Henshaw, by an elec-
tion at the general election in November next. If they should
omit to do so, it would present a case for a special election, under
sections 9, 10 and 11 of the statutes above cited.

If a vacancy occurs in the office of county judge in a county
where provision has been made by law for the election of local
officers to discharge the duties of county judge and of surrogate, in
cases of their inability or vacancy, there is no power of appointment
478 OPINIONS OF THE ATTORNEYS-GENERAL

vested in the Governor, because the duties must be discharged by
such local officer. (Section 16, article 6 of the Constitution; sec-
tion 61, part 1st, chapter 5th, article 4th of the Revised Statutes,
volume Ist, page 416, 5th edition.)

If no such local officer exists in the county of Genesee, the
Governor has the power to fill the vacancy by an appointment, but
the appointee will hold only until the commencement of the politi-
cal year ensuing the next general election.

To answer the inquiries more specifically :

First. I am of the opinion that a special election could be held
to fill the vacancy this fall, only, in case the electors should fail to
fill such vacancy by an election at the next November election.

Second. That a candidate can be voted for at the annual election
to be held November 1, 1870.

Third. If it is competent for the Governor to fill this vacancy
by appointment, such appointment would expire on the 31st
December, 1870, which, I believe, substantially answers all the
inquiries, submitted.

This vacancy having occurred prior to the 15th day of October,
it would seem to be proper for the Secretary of State to notify the
vacancy to the proper authorities of the county, under section 3,
chapter 6, part 1, title 3, article 1 of the Revised Statutes; section
3, volume 1, page 421, and thus obviate all embarrassments that
might arise for want of notice.

In the case cited in the Court of Appeals, the vacancy occurred
after that date.

My attention has been called to sections 8 and 9 of chapter 86
of the Laws of 1870.

I do not understand the provisions of the statute to apply to
couuty judges, except so far as relates to the limitation of the term
of office by age; county judges being included in the Pps of
the new judiciary article declaring such limitation.

The provision in section 9, that “vacancies otherwise occurring
in the said office shall be filled in the manner prescribed in the 9th
section of said 6th article of the Constitution,” I construe as apply-
ing only to such officers as are mentioned in the 9th section, which
are justices of the Supreme Court.

If the provision quoted was intended to embrace county judges,
or THE Srarn or New York. 479

it would be in conflict with section 5 of article 10 of the Constitu-
tion already quoted.

Respectfully, ete.,

MARSHALL B. CHAMPLAIN,
Attorney-General, S. NV. Y.

ATTORNEY-GENERAL’s OFFICE,
Apany, October 12, 1870.

W. J. Weaver, Esq., Chairman, eto., Albany :

Drax Six.—Indisposition has prevented an earlier answer to the
inquiries contained in your communication of the 22d ult., in rela-
tion to the action of the board of equalization.

By the provisions of section 8 of chapter 312 of the Laws of
1859, it is made the duty of the board of equalization to meet at
‘Albany on the first Tuesday of September in each year, for the
purpose of examining and revising the valuations of the real and
personal estate of the several counties as returned to the office of
the Comptroller, and fixing the aggregate amount of assessment
for each county, on which the Comptroller shall compute the State
tax.

“A statement of the amount of assessment for each county, as
fied by the board of equalization, shall be certified by the said
board and deposited in the office of the Comptroller as soon as com-
pleted, and before the 10th day of October in each year.” The
Comptroller is required to ascertain from this statement the amount
of State tax each county shall pay, and send a statement of such
amount by mail to the county clerk, and chairman and clerk of the
board of supervisors of each county.

The certificate made by the board of equalization for the year
1870 was filed September 6th.

I deem it unnecessary to examine and give an opinion upon the
question whether the official powers of the board are so far spent,
by the action taken in making and filing the certificate of equaliza- °
tion, as to place it beyond their power to review it, because it seems
impracticable to attempt such revision if the board has the power.

It might be held that power to make the equalization clearly
480 OPINIONS OF THE ATTORNEYS-GENERAL

implied power to revise and correct it if found to be erroneous,
if done within such time as would lead to no embarrassment of other
officers charged with duties in regard to such action or public
inconvenience.

The impracticability of reassembling the officers composing the
board, the assessors and Commissioners of the Land office, their
joint session having been declined Gf power to reassemble such
boards exists), and the fact the statute requires the Comptroller to
immediately transmit by mail the statement required to the proper
authorities of the county, would seem to be conclusive reasons
against the attempt to exercise the power of revision in this case,
if it exists. Indeed, it may be doubted whether there is any pro-
vision for the reassembling of the two boards of State officers for
such purpose, they having met on the day specified in the statute
above, the act required, and dissolved the joint session.

Respectfully,

M. B. CHAMPLAIN.
Attorney-General.

ATToRNEY-GENERAL’s OFFICE,
Axzany, October 13th, 1870.

To His Excellency Jounn T. Horrman:

Sm.—I have examined the record of conviction and bill of
exceptions referred to this office, in the case of The People v. Hat-
tie Francis, and am of opinion the conviction is erroneous, for the
reason that it appears the court neglected to demand of the defend-
ant what she had to say why sentence should not be pronounced
against her upon the verdict. In a case in which, upon conviction,
corporeal punishment is to be inflicted, the prisoner must be present
in court, and in such case must be given an opportunity to urge
any reason in arrest of judgment or in mitigation of punishment
that may exist. The practice has its foundation in good sense and
common justice, and is one of those fundamental requisites in the
. trial of criminals that ought not to be dispensed with.

Respectfully submitted.
M. B. CHAMPLAIN,
Attorney-General.
or THE SvAte or New York. A81

AxBany, October 31, 1870.
“To His Excellency Joun T. Horrman, Governor :

Str.—I have considered the question referred to this office, as to
the duration of the term of office of the acting county clerk of
Richmond county. It seems that a vacancy occurred in the office
by the death of the then incumbent in the first year of the term
for which he was elected. Your predecessor appointed a person to
fill the vacancy, and at the ensuing general election the present
incumbent was chosen by the electors of the county to fill the office.

The question presented is, whether the present incumbent so
elected holds for the full term of three years, or only for the unex-
pired term of his predecessor.

By section 1 of article 10 of the existing Constitution, it is
declared : “Sheriffs, clerks of counties, including the register and
clerk of the city and county of New York, coroners and district
attorneys, shall be chosen by the electors of the respective counties
once in every three years, and as often as vacancies shall happen,”
which provision is substantially contained in section 8 of article 4
of the Constitution, adopted in 1822.

The Constitution of 1822 did not contain any provision directing
the Legislature to provide for filling vacancies in office. The Legis-
lature, however, assumed that power in respect to certain offices,
including county clerks, and the Supreme Court upheld the legis-
dation as a legitimate exercise of the law-making power. (1 RB. S.,
124, § 49; Laws 1830, chap. 58, § 2; People v. Fisher, 24 Wend.,
215.)

By another statutory provision, all vacancies in certain offices,
including that of county clerk, were to be supplied at the next
general election after the happening thereof, except in cases where
the term of office expires at the end of the same year, in which
case an officer was to be chosen for the full legal term. (Laws
of 1842, p. 111, § 8.)

By section 17 of article 1 of the Constitution, adopted in 1846,
all the acts of the Legislature then in force, except such as are
repugnant to the Constitution, are to be and continue the law of
the State, subject to such alterations as the Legislature shall make
concerning the same.

31
482 OPINIONS OF THE ATTORNEYS-GENERAL

If the question rested upon these enactments, it would be clear
that, under the act of 1842, the election of the officer at the next
election after the happening of the vacancy would only be for the
unexpired term of his predecessor, except in cases where the term
of office expires at the end of the same year, in which case the
officer would be chosen for the full legal term.

Article 10 of the existing Constitution, however, contains the
following further provisions :

“Section 4. The time of electing all officers named in this article
shall be prescribed by law.

“ Section 5. The Legislature shall provide for filling vacancies in
office, and in case of elective officers, no person appointed to fill a
vacancy shall hold his office by virtue of such appointment longer
than the commencement of the political year next succeeding the
first annua! election after the happening of the vacancy.”

And it is declared that the political year and legislative term
shall begin on the first day of January.

To give full effect to these provisions, the Legislature of 1847
expressly amended the eighth section of the law of 1842, above
cited, so as to read as follows: “Section 8. All vacancies in any
of the offices named in the first and second sections of this title,
except Governor, Lieutenant-Governor, electors of President and
Vice-President, Senators and Members of Assembly, shall be sup-
plied at the general election next succeeding the happening
thereof.” (See § 6, chap. 240, Laws of 1847.) Thereby expressly
repealing the exception contained in section 8, Laws of 1842, chap-
ter 130, that when the term of service of any such officer will
expire at the end of the year during which the vacancy in his office
shall occur, no person shall be chosen to supply such vacancy, but
the usual election shall be held for a new officer, to hold during the
constitutional term. (Part 1, chap. 6, title 2 of the R.S., vol. 1, p-
419, 5th ed.; see, also, §§ 56, 57 and 61, part 1, chap. 5, art. 4 of
the R. &., vol. 1, p. 415, 5th ed.)

This amendment evinces a clear design in the Legislature to
conform the statute to the spirit of the existing Constitution, which
vests in the electors the right to choose an officer for the full con-
stitutional term at the first general election occurring after the
happening of the vacancy. Certain officers named in the Constitu-
oF THE Srate or New Yor. 483

tion are by its provisions to be classified; such as Canal Commis-
sioners, Inspectors of State Prisons, etc. Elections for such
officers to fill vacancies, in order to preserve the harmony of the
classification required by the spirit of the Constitution, are elected
tor a shorter than the full constitutional term. It is believed that
where a single elective officer only is to be chosen to fill a single
office, it was the obvious intention of the framers of the Constitu-
tion to give the electors the: right to choose for the full constitu-
tional term at the first general election after the happening of the
vacancy.

I am of opinion, therefore, that the present incumbent of the
office of county clerk of the county of Richmond is entitled to hold
his office, by virtue of his election, for the full term of three years.

Respectfully,
M. B. CHAMPLAIN.

October 31, 1870.
To His Excellency J. T. Horrman, Governor:

The complaints and depositions accompanying the requisition
made by the executive of the State of Massachusetts upon the
executive of the State of New York, for the surrender of one
Frank Brazee, as a fugitive from justice, and referred to me for my
opinion thereon, have been examined. No indictment has been
found in this case. The claim rests upon the affidavits accompany-
ing the requisition. Theact of Congress prescribing the proofs in
such case requires an aflidavit, made before a magistrate of the State
from which it is alleged the fugitive has fled, charging “the person
so demanded with having committed treason, felony or other
crime, certified as authentic by the Governor or chief magistrate
of such State.” :

The affidavits in this case, in my opinion, fail to charge sufficient
facts to constitute an indictable crime. The accusation attempted
to be charged is larceny of certain property. It appears from the
affidavits presented, that the property was intrusted to the accused
as bailee by the owners, and that they voluntarily parted with the
possession to him.
484 OPINIONS OF THE ATTORNEYS-GENERAL

There is not sufficient evidence in the case to establish that when
the accused so obtained the possession of the property, he had the
felonious intent to steal it, or that he used any fraud or artifice to
obtain such possession.

The subsequent conversion of the property by the accused is
evidence which might be submitted to a jury, tending to show such
intent; but it is a circumstance which exists in all cases of appro-
priation of property by bailees; and alone, under the circumstances
of this case, in my opinion, is insufficient to establish the intent,
especially as such intent, existing at the time the accused acquired
the possession, is not even charged in the affidavits.

Unless, at the time the possession was obtained, it was so
obtained with the felonious intention to steal, a subsequent con-
version of the property by him to his own use would not constitute
the crime of larceny.

Respectfully submitted.

MARSHALL B. CHAMPLAIN,
Attorney-General.

Tue Propie ex rel. Satmon Suaw, Ex-Police Commissioner, v.
Joun T. Horrman, Governor of the State of New York.

Application for a common-law certiorart to review the decision
of the Governor in removing relator from his office of commissioner
of the Niagara frontier police.

The question presented to the court is not only very important
as affecting the harmonious exercise of the powers conferred upon
the several departments of the State government, butis extraordi-
nary from its novelty.

Although the federal government and the different State gov-
ernments have existed for nearly one hundred years, each of these
governments having an executive who has constantly exercised
powers similar to those questioned in this case, not a single prece-
dent can be found in the jurisprudence of the country where an
attempt has been made to review in this manner the action of the
executive department, either of the State or of the general
government.
‘ or THE Stare or New Yor. 485

I will present to the court, briefly, some reasons, more in the
form of a protest than of extended argument, against this attempt,
first made now and here.

By the act establishing the Niagara frontier police district, chap-
ter 484, Laws of 1866, the Governor is empowered to remove the
‘commissioners, or either of them, under the provisions of the statute
relating to the removal of sheriffs, giving to the commissioner an
opportunity to present evidence in his own behalf.

The provisions of the Constitution relating to the removal of
sheriffs applied by the act to commissioners, empowered the Gov-
ernor to remove such officer within the term for which he shall
have been elected, giving to such oflicer a copy of the charges
against him, and an opportunity of being heard in his defense.
(Constitution, article 10, section 1.)

The statute also applied. Section 51, part 1, chapter 5 of the
Revised Statutes, volume 1, page 414, 5th edition, is a substantial
re-enactment of the constitutional provision above quoted.

There are no allegations in the papers that these provisions were
not fully obeyed in the removal of the commissioner.

The Supreme Court has no power to award a writ of certiorari
to review the action of the Governor of this State.

The executive is a co-ordinate department of the government,
and, in the execution of the powers sought to be reviewed here,
entirely independent of the judiciary. If the power of removal
existed in this court at the pleasure or will of the executive, it
would hardly be claimed that its exercise was subject to review ;
yet the power of the executive was as full and plenary in this
case, subject only to the restriction that the officer have a copy of
the charges and an opportunity of being heard in his defense.

It is ordained by article 4, section 1 of the Constitution, that “the
executive power shall be vested in a Governor, who shall hold his
office for two years;” and further, by the same article, among
other duties, it is declared that “he shall expedite all such mea-
sures as may be resolved upon by the Legislature, and shall take
care that the laws are faithfully executed.”

The commissioners, sheriffs, and various other officers, are the
agencies placed by the law in the hands of the executive to enable
him to obey the mandate of the Constitution, to preserve the pub-
486 OPINIONS OF THE ATTORNEYS-GENERAL

lic order, and see that the laws are faithfully executed. His pow-
ers in this respect are similar to and equally broad with those of
the executive of the nation.

[t was said by Mr. Justice Tuompson, in the opinion of the court
delivered by him in the case of Kendall v. The United States (12
Peters’ Reports, 524): “The theory of the Constitution undoubt-
edly is, that the great powers of the government are divided into
separate departments, and, so far as these powers are derived from
the Constitution, the departments may be regarded as independent
of each other. The executive power is vested in a President,
and, as far as his powers are derived from the Constitution, is
beyond the reach of any other department, except in the mode pre-
scribed by the Constitution through the impeaching power.” It is
not necessary in this case to deny that the executive is subject to
the regulations of law touching the discharge of the duties required
to be performeds because there is no pretense but that full power
and jurisdiction to act are obtained by a compliance with the law
in all the preliminary steps to give such jurisdiction. The execu-
tive, therefore, upon whom the responsibility of seeing the law
faithfully executed plainly rests, has, under the Constitution, full
power to fulfill the duty cast upon him, without encroachment
upon the powers of any other department. The following authori-
ties are cited to show not only that it is competent for the execu-
tive department to resist, but that it is its duty to resist, any
encroachment by the judiciary: Fose v. Himely (4 Cranch, 209);
1 Wilson, 409-411 ; Federalist, 51, No. 234; 2 Story on the Con-
stitution, 22-24; 3 Story, 458, 459; Elliott’s Debates, Mr. Madi-
son’s Speech, 378; Speech of Mr. Ames, 397; 2 Dallas, 410; 5
Wheaton App., 10; Patterson v. United States (2 Wheaton, 226).

It was expressly adjudged, in the case of Zhe Commonwealth v.
Bussier (5 Sargent & Rawle, 451), that similar words ina State
Constitution vest in a Governor as broad executive powers as are
vested in the national executive ; and a main reason given for this
opinion was, that the Covemion being vested with the supreme
executive power, was bound to carry the laws into operation, which
can only be done through the intervention of officers ; and, if these
officers were not removable when in his judgment, sufficient cause
existed, he is relieved from that responsibility to which it is for the
OF THE SvaTe or Nuw York. 487

public good to hold him; that an officer is not appointed for his
own sake, but for that of the public, and that if he misbehaves, the
sooner he is removed the better, because the country suffers every
moment he continues in office.

In the case of Marbury v. Madison (vols. 1 and 2 of Cranch, p.
49), Chief Justice Marsuart, in the able and elaborate opinion
delivered in that case, declares, by the Constitution of the United
States, the President of the United States is invested with certain
important political powers, in the exercise of which he is to use his
own discretion, and is accountable only to his country in his politi-
cal character, and to his own conscience. And whatever opinion
may be entertained of the manner in which executive discretion
may be used, still there exists and can exist no power to control
that discretion. “The subjects are political; they respect the
nation, not individual rights; being intrusted to the executive, the
decision of the executive is conclusive.”

In the case under consideration, the provisions of the State Con-
stitution and statutes applied, and which are above quoted, the
power to remove is vested exclusively in the executive. It is
not vested conjointly in the judiciary and the executive. The
executive alone, by the Constitution, is made the judge of the cause
for removal. The exercise of the power of review and reversal by
the court would be a usurpation of a constitutional prerogative of
the executive, and an invasion of the solemn rights of the people,
fraught with danger to the order and harmony of the government.
Its exercise would paralyze the arm of the executive, and would
thrust back upon him agencies and officers in the administration of
the government unworthy of his confidence, aid whom he had
condemned as guilty of the betrayal of the highest and holiest pub-
lic trusts. If this doctrine can be maintained, the executive would
be utterly powerless to expel from official position an unworthy
officer, or to dissolve his connection with him. The policy of the
State may have been disgraced, the sensibilities of her citizens
wounded by her dishonor. You are called upon to declare that a
power exists in the judiciary to decide that the executive and the
people cannot divorce themselves from the unworthy agent who
has betrayed them ; that the executive, although struggling to avert
488 OPINIONS OF THE ATTORNEYS-GENERAL

the catastrophy, must be an accomplice in the crime, by continuing
a coerced official relation with the criminal.

M. B. CHAMPLAIN,
Attorney-General.

ATTORNEY-GENERAL’S OFFICE, \
AxzBany, October 31, 1870.

To His Excellency Governor Horrman :

The communication referred to this office presenting the ques-
tion whether the executive has the power to pardon juvenile delin-
quents committed under the law to the Western House of Refuge,
Rochester, N. Y., has been considered.

The statute makes it the duty of the courts of criminal jurisdic-
tion within several of the judicial districts of the State, to sentence
to such house of refuge every male under the age of sixteen years,
who shall be convicted before such court of any felony, and the
said courts are further empowered in the exercise of their discretion,
to sentence to said house of refuge any such male who may be
convicted before them of any petit larceny.

The discipline prescribed by the regulations of such house of
refuge is mild and reformatory in its character.

It is declared that the institution is not designed to be a prison
or place of punishment, but rather a reform school where the
inmates may receive that instruction and discipline calculated to
form and perpetuate a virtuous character.

The right, however, to imprison the convict, and exact obedience
to such regulations operates as a legal disability of the convict flow-
ing from the conviction.

The conviction is for crime. Many consequences of a serious
character follow as a result of such conviction. In addition to the
infamy of character involved, the party may be disqualified as a
witness, and divested of other civil rights and relations. His
parents or guardians are deprived of the legal right to his custody
and service. The convict may be subjected to labor, and such con-

‘Chap. 143, § 16, Laws 1846 (5 Edmonds’ Stats. 217); chap. 24, Laws 1850 (5
Edmonds’ Stats., 218).
oF THE State or New York. 489

trol as the regulations of the prison may enjoin, and he is restrained,
against his will, of his personal liberty.

Section 5 of article 5 of the Constitution declares “that the
Governor shall have the power to grant reprieves, commutations
and pardons, after conviction for all offenses except treason and
cases of impeachment, upon such conditions, and with such restric-
tions and limitations as he may think proper, subject to such regu-
lations as may be provided by law relative to the manner of apply-
ing for pardons.”

By this provision the executive of the State is vested with full
power to pardon for all offenses except treason and cases of
impeachment.

The statutes authorize the commitment to the house of refuge,
as has been seen, of delinquents convicted of the crimes of felony
and larceny, which are recognized in the law as offenses of grave
character.

Section 2 of article 2 of the Constitution further provides that
“laws may be passed excluding from the right of suffrage all per-
sons who have been, or may be convicted of bribery, larceny, or
of any infamous crime.”

Laws have been passed declaring that “no person who shall have
been convicted of an infamous crime, deemed by the laws of this
State a felony, at any time previous to an election, shall be per-
mitted to vote thereat, unless he shall have been pardoned before
or after his term of imprisonment shall have expired, and restored
by pardon to all the rights of a citizen.”

Without considering the effect of a conviction, followed by com-
mitment to the house of refuge, upon the right of the convict to
exercise the right of suffrage without pardon, it is apparent that
questions of a serious character might arise affecting such right as
a consequence of such conviction. .

The Revised Statutes have provided that the terms crime or
offense, when used in any statute shall be construed to mean any
offense for which any criminal punishment may by law be inflicted."

It has been decided by the court of appeals that a party con-
victed of a felony is thereby rendered incompetent as a witness,

12 B. S., p. 702, § 2 (2 Edmonds’ Stats., 726).
490 OPINIONS oF THE ATTORNEYS-GENERAL

although at the time of such conviction and sentence he was under
sixteen years of age, and under the statute was sent to the house
of refuge, and not to the State prison.

And, further, that the definition of felony, as contained in the
various statutes, must be construed as relating to the punishment
for the crime, without reference to any personal exemption of the
criminal. (People v. Parke, 2 Hand, 41 N. Y., p. 21.)

In principle this case is an authority under which the convict, so
far as this question is involved, may be deprived of the right to
vote, upon conviction and commitment to a house of refuge, unless
restored by pardon.

That the spirit of the age has originated laws ameliorating the
degree of punishment of criminals, does not detract from the
infamy of the crime, nor the legal disabilities which flow from a
conviction.

Treating the question as one of power solely, I am of opinion
the executive has the constitutional right to pardon persons con-
victed of crime and committed to the Western House of Refuge.

Respectfully submitted.

M. B. CHAMPLAIN,
Attorney-General.

ATTORNEY-GENERAL’s OFFICE,
Axpany, ov. 1, 1870.

ALEXANDER Burtt, Utica, V. ¥.:

Srz.—Your communication of October 15th, 1870, was forwarded
to me at the place of my residence and reached there during my
absence in attendance upon court in a distant county, which is the
cause of the delay in not sooner answering the same. You submit
the following inquiries: 1st. Are the commissioners of excise
under the act of 1857, where boards have been appointed under
the recent act of 1870, still in existence? 2d. If so, are they still
authorized to bring suits for the recovery of penalties? 3d. Are
not the boards appointed under the act of 1870 empowered and
have they not the authority to sue for penalties? And you call my
attention to section 2 of the act of 1870, and bring to my notice a
or tua Scare op New York. 491

Special Term decision in Cattaraugus county by Marvin, J., found
in the Albany Law Journal of September 3, 1870, at page 175.1
You state that, as attorney for the board appointed for the city of
Utica under the recent act, you have hitherto followed the opinion
of the Attorney-General of April 23, last. That opinion contained
a single paragraph upon this subject, which was as follows:

“Complaints for infractions of the law are to be made to the
commissioners of excise created under this law, and prosecutions
are to be instituted by them in all cases where actions were autho-
rized under the act of 1857.”

Of course this paragraph must be construed as applying only to
prosecutions for violations of the law which boards of excise were
authorized to bring under the act of 1857, and not to prosecutions
which other officers and persons were authorized to institute under
such act.

Judge Marvin, in the opinion to which you refer, which is pub-
lished in full in the New York Daily Transcript of the date of
September 12, last, arrives at the conclusion that the board of com-
utissioners of excise for the counties continue to exist, and that they
have power and it is their duty to sue for and recover the penalties
imposed by the act of 1857, which are not inconsistent with the
provisions of the act of 1870; that it was not the object of the act
of 1870 to interfere with the powers and duties of these county
commissioners as to prosecutions for penalties, but the object was
to take from them the power of licensing and place such power in
other hands, and also to enlarge the power.

The case in which this decision was made arose on demurrer.
It was commenced January 1, 1870, by the board of county com-
missioners of excise against the defendant, to recover a penalty
before incurred. The defendant, by his answer, set up the statute
of April 11, 1870, claiming that such act abolished the official
character of the plaintiffs, to which answer plaintiffs interposed a
demurrer.

With great deference for the learning and ability of the distin-
guished judge who gave this opinion, Iam compelled to dissent
from its conclusion. I do so with the more freedom, because I

1 Board of Commissioners of Groine v. Willey, 2 Lans., 427.
492 OPINIONS OF THE ATTORNEYS-GENERAL

regard what was said bearing upon the question you present as
obiter dictum.

It is provided by section 14 of chapter 7 of part 3 of title 1 of the
R. S., that “when an action is authorized or directed by law to be
brought by or in the name of a public officer, or by any trustee
appointed by virtue of any statute, his death or removal shall not
ahate the suit; but the same shall be continued by his successor,
who shall be substituted for that purpose by the court, and a sug-
gestion of such substitution shall be entered upon the record.”

It was decided by the Court of Appeals, in the case of Manches-
ter & Hull v. Herrington (10 N. Y. R., 164), in construing a
similar statute, that it was optional with the parties authorized to
apply for a substitution whether they will make such application
or not, and that until the successor in office or the adverse party
apply for a substitution, the suit shall proceed in the name of the
original parties. (See also Colegrove v. Breed, 2 Den., 125.)

The action in the case decided by Judge Marvin was com-
menced in January, long before the passage of the subsequent
statute, when the power of the county commissioners to institute
it was undoubted.

If the effect of the act of 1870 was a repeal of their official
powers, still the plaintiff should have had judgment upon the
demurrer, because the Court of Appeals has settled that, although
the plaintiff is out of office and his successor duly appointed, that
until the appropriate party applies for and obtains substitution the
action is not to abate, but to proceed in the name of the original
party.

The learned judge in his opinion, after considering the several
provisions of the two statutes bearing upon the point, arrives at
the conclusion that “the commissioners of excise appointed for the
counties can no longer grant licenses to sell strong and spirituous
liquors. The authority to grant licenses is, by the act of 1870,
vested in other boards created or authorized by the act.” He pro-
ceeds, that it was not intended by the act to abolish all penalties
for the sale of intoxicating liquors in quantities less than five gal-
lons without a license, in both of which conclusions I fully concur.

In order to reach this conclusion, he holds that the fourth ‘section
of the act of 1870, which declares that “the board of excise in
oF Tan ScvaTz or New Yor. 493

cities, towns and villages shall have power to grant licenses to any
person or persons of good moral character who shall be approved
by them, permitting him and them to sell and dispose of, at any
one named place within such city, town or village, strong and
spirituous liqnors, wines, ale and beer, in quantities less than five
gallons at a time, upon receiving a license fee to be fixed in their
discretion, and which shall not be less than thirty, nor more than
$150,” is in effect a repeal of the provisions of the act of 1857,
which substantially devolved the same powers and duties upon the
county boards, which were the main and essential duties for the
. performance of which such boards were created by such act. The
judge quotes, but it seems to me does not give full effect to the
following provision found in section 6 of the act of 1870. That the
provisions of the act passed April 16th, 1857, “except where the
same are inconsistent, or in conflict with the provisions of this act,
shall be taken and construed as a part of this act, and be and
remain in full force and effect throughout the whole of this State.”

Having arrived at the conclusion that the provisions of the last
act above quoted are in conflict with those parts of the act of
1857 creating the county boards of excise as licensing boards, by
virtue of the provision in section 6 last quoted, he very properly
regards such provisions of the former act as repealed, and the
county commissioners divested of all power to grant licenses, and
their official character in that respect abolished.

It has been mentioned that the powers to license the sale of
intoxicating liquors were the great essential powers with which
they were invested. We must read, then, the sections of
the act of 1870, which are so in conflict with the act of
1857 as to repeal the right to exercise these powers, in
place of those sections so repealed, and treat the provisions
of the act of 1857 not in conflict under the sixth section above
quoted as re-enacted and declared to be a part of such subse-
quent statute; blending then, the two statutes together as the
system of laws now in force regulating the sale of intoxicating
liquors. The only boards of excise known in the law as thus blended
are the city, town and village boards, created by the recent law.
Section 22 of act of 1857, which the learned judge correctly holds
is not repealed, reads as follows: “The penalties imposed. by this
494 OPINIONS OF THE ATTORNEYS-GENERAL

act, except the penalties provided for by sections 8, 15 and 19, shall
be sued for and recovered in the name of the board of commis-
sioners of excise and paid over to the. treasurer of the county for
the support of the poor of the county.”

Keeping in view that all the repealed portions of the act of 1857,
authorizing the licensing of the sale of intoxicating drinks by the
county boards of commissioners, are to be struck from the statute
book, and the sections of the last statute creating the city, town and
village boards for the purpose of licensing such sale substituted in
the place of such repealed sections, we are prepared to consider
what board of commissioners of excise is referred to in the unre-
pealed twenty-second section of the act of 1857, just quoted.

It appears to me, upon fundamental and familiar rules for the
construction of statutes, it can only mean the new city, town and
village boards created by the act of 1870, which are the only
licensing boards, as we have seen, now in existence. It would be
absurd to hold that the board intended was the county board,
whose principal duties, it is conceded, were repealed, and who
were empowered to prosecute as incidental to the power to license.

The county boards had no distinct official character in the statute
as prosecuting boards, but were characterized in the statute and
known to the public as boards to grant license. It was the policy
of the act of 1857 to give to the board empowered to license, a
supervisory power over infractions of the law. The Legislature, in
their wisdom, provided that one should be concomitant with the.
other.

It is apparent that it was the intention of the Legislature, in the
act of 1870, that these two duties should not be separated; and
having repealed the former boards as licensing boards, they intended
to take away also the lesser and incidental power to see to it that
licenses granted were not violated, and that the law was obeyed,
and especially when they have in effect re-enacted the twenty-second
section of the act of 1857, and made it a part of the latest statute
now under consideration.

The city, town and village boards are only empowered to license
within the corporate limits for which they act, and must be held
by the exercise of proper official vigilance to have knowledge of
all infractions of the law within such limits, or the facility to inves-
or THE State or New York. 495

tigate such violations if. complaints are made; while on the other
hand a single board of county commissioners for the whole county,
stripped of all power except the naked power to prosecute, would
not have such knowledge, and would not possess the facilities for
investigation of complaints for such violations, which are considera-
tions bearing upon the construction of the statute. That statutes
in part materia are to be construed as if they formed parts of the
same statute, and were enacted at the same time and read together,
see 1 Doug., 30; 1 Kent Com., 463; 7 Conn., 469; 9 Barb., 161.

It is apparent to any one acquainted with the history of the
recent law, that it originated from a public feeling of opposition to
the central influence of the old boards, which, by abuse of power
in many counties, had done by color of office petty acts of
tyranny offensive to the people, and that public opinion demanded
the diffusion of this power back to the localities where, under
former laws, it had been, for a long series of years, safely lodged.
It would be a reproach upon the Legislature to hold that in reme-
dying this evil, they had so legislated as to leave to the county
boards a mere fragment of their original powers, and that the one,
under which the abuses most complained of had originated.

I am of opinion the county boards of excise are not in existence
where new boards have been appointed under the act of 1870, and
that they are not authorized to bring suits for the recovery of
penalties ; but that the new boards, appointed under such act, have
power to bring suits for penalties incurred within the limits of the
corporations for which they respectively act.

Respectfully submitted.

M. B. CHAMPLAIN,
Attorney-General.

Arrornry-Gunerat’s OFFIcE, \
Auzany, Vovember 15, 1870.
GrntTLEMEN.—I have considered the question submitted to me,
as to what board of officers is authorized by law to canvass the
votes cast at the recent general election in the city and county of
496 OPINIONS OF THE ATTORNEYS-GENERAL

Albany, for the several candidates for police commissioners in such
city.

It is claimed on the one hand that they are to be canvassed by
the common council of the city, and on the other hand that the
board of supervisors of the county is the appropriate board to can-
vass such votes.

The Revised Statutes of the State of New York prescribe that
the supervisors or assessors of the several towns or wards to whom
the original statements of canvass of votes cast at any general elec-
tion shall have been delivered, shall form the county board of can-
vassers; and full directions as to the manner of conducting such
canvass are contained in the statute.

By section 3, title 12, chapter 77, Laws of 1870, it is provided
that the police board of the city of Albany shall consist of five
commissioners, the mayor of said city for the time being, and four
commissioners who shall be elected at the general election in 1870.

The chapter of the Laws of 1870 cited, is silent as to the officers
who are to make the canvass of the votes cast for such commission-
ers at such election, but does provide that vacancies in such office
hereafter occurring shall be filled by the electors at the spring
charter election in the city of Albany, and the common council of
Albany are made the appropriate board of officers to canvass all
votes cast at a charter election.

It seems to have been the intention of the Legislature to provide
for the first election of the commissioners at a day earlier than the
annually recurring charter election. Their election at the recent
general election was therefore provided for.

It is apparent that the Legislature judged that the public interests
would be promoted by having the new police system put in opera-
tion at an early day, and for that purpose provided for their selection
at the first election thereafter. It would be incongruous to hold
that a portion of the votes should be canvassed by one board, and
a portion by another, when both such portions are included in but
one return, which return embodies the votes cast for all the candi-
dates upon the several tickets, including police commissioners.

It would be absurd, and lead to great embarrassment to so con-
strue the statute as to require that,a canvass should proceed before
two different and independent boards of officers, predicated upon
or Tam Stara or New York. 497

the same return, and at the same time, and especially so when the
general election law requires such returns to be made to but one of
the boards, which is the county board.

Iam of opinion that by force of the enactment above quoted,
declaring that the four police commissioners shall be elected at the
general election in November, 1870, brings such election, for all
purposes, within the general election law of the State, and that the
board of supervisors, having been made by law the appropriate
board of officers to canvass all votes cast at any general election, are
the only body authorized by law to canvass the votes cast for such
police commissioners at. such’ general election.

Respectfully submitted.

MARSHAL B. CHAMPLAIN,
Attorney-General.

Messrs. T. H. Craven, Esq., and others, Committee Board of
Supervisors, Albany, N. Y.

—_——_

ATTORNEY-GENERAL’s OFFICE,
Axzany, Vovember 16, 1870.

To His Excellency Governor Horrman:

In compliance with your suggestion I have examined the
evidence in the case of Daniel Burdick, convicted, at a recent term
of the Oyer and Terminer for Cattaraugus county, of murder in
the first degree for the killing of one Baker, and sentenced to
death.

The facts of the case as proved upon the trial, briefly stated, are,
that the deceased and wife and her cousin, Mrs. Palmer, all colored
persons, were returning home from a neighbor’s, and proceeding
along State street in Olean, at between three and four o’clock in
the morning of October 2d, 1869, when they met the prisoner com-
ing along such street from an opposite direction, near the corner of
Barry street, drawing a small cart. The deceased and prisoner
were acquainted ; had formerly had some difficulty, and had pre-
viously uttered threats against each other. It may be considered
as undisputed in the case that the prisoner turned on to Barry
street, and was followed by the deceased, who stated as he started

32
498 OPINIONS oF THE ATTORNEYS-GENERAL

in pursuit that he would see if it was really the prisoner, and see
what he had in his cart.

The parties proceeded along Barry street about forty rods, then
turned around, returned to State street, and were coming along in
the direction of where the wife of deceased and Mrs. Palmer stood
on State street, when angry werds were heard spoken by deceased,
such as “where did you get those things?” No reply was heard
from the prisoner. Deceased then said “you thief, where did you get
those things ?”’ and shortly after a pistol shot was fired, and then two
others, and deceased fell, and was afterwards found in a dying condi-
tion in the road, carried to his house, and died in about half an hour.

It. was claimed on the trial, the principal witness to these occur-
rences, Mrs. Palmer, had testified on the coroner’s inquest that the
two were close together, apparently in an altercation and quarrel.
Evidence was given that she did so testify, and by other witnesses
that she did not. It appears the deceased was a strong, muscular
man, physically.superior to the prisoner. The prisoner was sworn
in his own behalf, and testified in substance he was pursued by
deceased and assailed with opprobrious epithets; that he tried to ,
avoid him; that he was clenched by the throat, and fired the shots
in self-defense, and to frighten deceased, and without an intent to
kill. His evidence was contradicted in several particulars, and
evidence was given tending to impeach his general character for
credibility as a witness.

From all the evidence, it appears undisputed that the prisoner
was pursued by the deceased. That he assailed him with offensive
epithets, and that the altercation which resulted in the killing of
Baker, whether more or less violent, was thus engendered. If the
killing was in the heat of passion caused by provocation, it would
not be murder but manslaughter.

The revisers of the statutes in their notes state, as a reason for
classifying and defining the different degrees of homicide, that
there is nothing so much wanted in the criminal law as a settled
line of distinction between murder and manslaughter, “ which are
now so nearly connected, and run into each other so much, that
courts and juries often mistake, and a lamentable uncertainty pre-

vails, which operates as well to screen the guilty as to expose the
innocent.”
or rHE Stare or New York. 499

They attempted to remedy the evil by a careful classification so
perfect that, upon an ascertained state of facts, every homicide can
be reduced to its appropriate degree, and while it falls within one
class cannot be brought within any other; each degree standing
by itself and occupying its own peculiar ground. It is a mistake
to suppose, that a case upon a certain state of facts. may fall indif-
ferently within two or more degrees of homicide. If the facts of
a case bring it within any degree of manslaughter, it cannot also
fall within any definition of murder; and it has been said by an
eminent jurist, in construing these statutes, that if a case should
arise which should seem to run into the two offenses, the true rule
of construction requires us to place it under the head of man-
slaughter.

If the homicide in this case was committed with a clearly formed
intention by the prisoner to take the life of Baker, it would be
murder in the first degree. If, on the other hand, it was commit-
ted in the heat of passion upon sufficient provocation, without such
design it would be manslaughter. The law in such case has
respect for the infirmity of human nature and mitigates the crime.

It appears to me that the evidence of this previously formed
intention is not so strong and conclusive as to preclude a doubt as
to whether the killing might not have been in the heat of passion,
arising upon sufficient provocation to excite such passion. Two
circumstances undisputed in the case strengthen this doubt. It
was urged, that if the prisoner had formed an intention to kill
deceased, he would have so killed him while the parties were. on
Barry street, away from the witnesses, and. would not have waited
until he returned to within view of Mrs. Palmer and deceased’s
wife; and the fact that he fired two ineffectual shots, although con-
ceded to be in close proximity to deceased, is at least a corrobora-
tion of the theory of the prisoner’s case, that he had no intent to
kill, but fired the first shots to frighten deceased away. The
pressure of this doubt upon the minds of the jury (who, it appears
by the affidavit submitted, deliberated some length of time, and a
majority of whom for many hours were for a verdict of man-
slaughter), undoubtedly induced the recommendation to mercy
which accompanied the verdict.

The public prosecutor, it appears, felt constrained to resort to
500 OPINIONS OF THE ATTORNEYS-GENERAL

general evidence impeaching the credibility of the prisoner, evi-
dently fearing that there was a probability that without such
evidence the jury might act upon his evidence that he had not such
felonious intent.

If the intrinsic evidence in the case did not so completely refute
the prisoner’s theory as to justify the verdict of murder in the
first degree, and it was necessary to get riq of the effect of his
evidence by impeachment, such fact to my mind would at least
strengthen, if it did not create a doubt upon the existence of this
great essential element of murder in the case. ~

Upon a review of the whole case, I am of opinion, that although
the verdict rendered may be justified by the evidence, yet that
from the doubt which attends the case, as to whether the killing
might not have been done in the heat of passion, and upon provo-
cation, the ends of public justice would be as well subserved if the
conviction had been for a less degree of homicide than murder in
the first degree. |

Respectfully submitted.

MARSHALL B. CHAMPLAIN,
Attorney-General.

!
STATE OF NEW YORK:

Orricr or THE ATTtorNEY-GENERAL, |
Axpany, Dec. 10, 1870.

Srr.—The question submitted to me by you for my opinion is as
to the true construction of chapter 215 of the Laws of 1870, enti-
_ tled “An act to amend an act for the publication of the Session
Laws in two newspapers in each county of this State,” passed May
4th, 1845, and of the recent designation under it by the board of
supervisors of Cayuga county.

It was the clear intention of the Legislature in passing this act
to secure the publication of the Session Laws in the two newspapers,
if such there be, in the county, of opposite politics, and in such
two papers as should fairly represent the two principal political
parties into which the people of the county are divided. The rea-
son of this intention is too obvious to require to be stated. If the
or THE State or New Yorks. 501

law should. be published in only one paper representing one of the
political parties, or two papers representing the same party, such
laws would only be brought to the notice of the people, members
of such political party, as were patrons of such paper or papers.
The people comprised within the opposing political party, who, it
is fair to presume, would only be patrons generally of their own
party organ, would thereby be excluded from the privilege of read-
ing the laws and thus becoming familiar with their provisions.

In the selection recently made in your county, it is represented
to me that the Auburn Journal, voted for, is an acknowledged
organ of the republican party, and fairly represents the principles
of such party.

That the paper which you represent, the Auburn Democrat, is a
democratic paper which has been established over two years, and is
a conceded exponent of democratic principles, and fairly represents
that political party. .

That the Port Byron Times, also voted for, had been a neutral
paper until shortly prior to the recent. State election, when it put
up the democratic ticket and advocated its election.

I am of the opinion; from the statement made, that within the
spirit of the law the Port Byron Times was ineligible to election
or designation to the exclusion of the Auburn Democrat. It may
now be an able and earnest advocate of democratic principles. Its
subscribers, from its neutral character heretofore, it may fairly be
presumed, comprised about equally members of the two opposing
political parties; while, on the other hand, the Auburn Democrat
being an older and longer established paper, would more fairly
represent the democratic party and organization of the county of
Cayuga than the Times.

This principle is of the very essence of the law, that the paper
shall fairly represent its political partyin the county. If this were
otherwise, a republican paper or a democratic paper could change
its polities shortly before an election, and, although with no sub-
scribers in the other party it should so espouse, become a candi-
date for such party, and thus entirely defeat the intention of the
law.

The designation by the supervisors must, by the express provi-
sions of the law, be confined to such papers as are thus eligible; all
502 OPINIONS of THE ATTORNEYS-GENERAL

others are excluded by the law from, or candidacy for, sueh election.

The law provides that the balloting shall continue until two
papers are chosen that meet its requirements.

In looking over the proceedings of the supervisors, as published
in the Auburn Democrat of the date of December 8th, it appears
to me a legal designation was reached on the second ballot, taken
on the third of December. On such ballot the Auburn Journal
received seventeen (17) votes, the Port Byron Times five (5), the
Auburn Democrat ten (10). There was an excess of two votes cast
on this ballot. It is claimed that there was, in fact, an excess of
four (4) cast over the actual number of supervisors voting on such
ballot; that two supervisors were outside of the bar; that the
whole number of supervisors was thirty (80), and the actual number
voting was twenty-eight (28), which would make the excess of votes
cast on this ballot four (4). The papers on this ballot receiving the
highest number of votes were the Auburn Journal, as a represen-
tative of the republican party, which received seventeen (17) votes,
and the Auburn Democrat, as a representative of the democratic
party, which received ten (10) votes. Itis conceded that twenty-
eight (28) supervisors, at least, participated in this ballot. If the
four (4) votes which are claimed as being invalid, as cast in excess,
were deducted from the vote which the Journal received, seventeen
(17), it would still have thirteen (13) legal ballots; and if the four
(4) were deducted from the ten (10) which were received by the
Auburn Democrat, it would still have six (6) unquestioned legal
ballots, and the Journal would still have the highest number of
votes, and the Democrat the next highest number of votes, which
would be a legal designation, under the statute, of both such papers
for printing the laws.

There are provisions in the general and town election laws, that
when the number of ballots overruns the number of names on the
poll list, the inspectors are to mix the ballots and draw indiscrimi-
nately from the whole. I am not aware that these provisions have
any application to this designation by the supervisors, and if they
did, such provisions would not, nor do I know of any general par-
liamentary rules or principles that should vitiate such an election
as this one, unless the ballots in excess changed, in some respect,
the result. As the legal quorum of the body was regularly con-
or THE SvaTH or New York. 503°

vened in this case, as required by law, and two papers of the politi-
cal character also required by the law receives, the one the highest.
and the other the next highest number of legal ballots, I believe
they are properly designated under the law.

I am of the opinion such papers are legally designated, although
votes which were invalid were cast, if such illegal votes could not
change the result.

Applying these principles to such second ballot, deducting the
spurious votes from the number received by the Journal, the result
would stand as follows:

The Auburn Journal would have thirteen (13); Port Byron
Times, five (5); Auburn Democrat, ten (10).

Deducting the four (4) disputed votes received from the Demo-
crat, and the result would stand ;

The Auburn Journal would have seventeen (17%); Port Byron.
Times, five (5); Auburn Democrat, six (6).

Or, deducting the four (4) disputed ballots from the Times, and
it would have but one (1), and the other papers, respectively, seven-
teen (17) and ten (10).

So, by no possibility could the result be changed or affected in
any manner by the four (4) disputed ballots.

I am of the opinion, therefore, that the Journal and Democrat
are the legally designated papers for your county for the’ publica-
tion of the laws, and that the action of the supervisors on the Mon-
day following works no legal change of such designation.

Respectfully submitted.

MARSHALL B. CHAMPLAIN,
Attorney-General.
J. M. Bamzy, Esq., Auburn, NV. Y.

ATToRNEY-GENERAL’S OFFICE,
Axzany, Dec. 12, 1870.

H. H. Harrison, Esq., Supervisor, Hague, V. Y.:

Duar Sir.—A hotel license to sell strong and spirituous liquors
and wines is a personal trust and not assignable. If the board of
excise commissioners of a town are lawfully convened, such board
can grant a hotel license in November or in any other month when
504 OPINIONS OF THE ATTORNEYS-GENERAL

so lawfully convened, which license when so granted will, by the
express provisions of the statute, only expire in one year from the
granting of the same.

Respectfully yours,

MARSHALL B. CHAMPLAIN,
Attorney-General.

ATTORNEY-GENERAL’s OFFICE,
Ausany, Dec. 12, 1870.

Aaron Roaasn, Esq., Tannersville, Greene County, N. Y.:

Sm.—It is provided in section 15 of article 6 of the Constitution
that county judges shall be chosen by the electors of the counties
for the term of six years, and further, that “the county judge shall
also be surrogate of his county.’ The county judge acts as surro-
gate by virtue of his election as county judge. It is not necessary
or proper to designate the office of “surrogate” upon the ballot.
Provision is made in the Constitution authorizing the Legislature
to provide for the election of a separate officer to act as surrogate
in certain counties, upon the application of the board of supervisors,
which legislation, as I understand, has not been applied for in your
county.

Respectfully yours,
MARSHALL B. CHAMPLAIN,
Attorney-General.

Aupany, Dec. 12, 1870.
8. Hzpeus Hoyz, Esq., Worth Barton, Tioga County, N. 'Y.:

Str.—The law has not been changed so far as relates to the time
necessary to constitute a day’s labor by town officers. Chapter 385
of the Laws of 1870 applies only to “mechanics, workingmen and
laborers, excepting those engaged in farm and domestic labor.” It
has no application to the discharge of official duties by public
officers.

Respectfully yours,
MARSHALL B. CHAMPLAIN,
Attorney-General.
or THE STATE or» Nuw York. 505

ATYORNEY-GENERAL’S OFFICE,
Axbany, December 12, 1870.
Capt. Epwin L. Huntineton (48th Regt. V. G., 8S. WV. ¥., Co.“ 1”),
Mexico, N. ¥.:

Sir.—Absence from the city has prevented an earlier reply to
your communication of the date of November twenty-sixth, last.

I am of opinion that the right of the members of the national
guard to the exemption declared in section 253 of article 15 of the’
military code, does not depend upon such members being uniformed.
If the company was in other respects legally enrolled and organized
undér the law, and its members in the performance of military
duty in pursuance of law, such members are entitled to the exemp-
tion, although not uniformed.

Respectfully,

MARSHALL B. CHAMPLAIN,
Attorney-General.

Axgany, Dee. 12, 1870.
R. A. Pervaten, Esq., Haverstraw, Rockland Co., N. ¥.:

Sim.—Penalties collected for violations of the ordinances duly
made in pursuance of chapter 291, of the Laws of 1870,’ which
you stated have been legally adopted by your village, belong to
the village, and should be paid over to the proper village authori-
ties. Iam of opinion the village authorities are entitled to all
fines, they are charged with the duty of prosecuting or collecting.

Respectfully yours,

MARSHALL B. CHAMPLAIN,
_ Attorney-General.

ATTroRNEY-GENERAL’s OFFICE,
Axsany, Dec., 12, 1870.

Buu 8. Sixt, Esq., Bainbridge, V. Y.:

Dear Sir.—I understand from the statement submitted by you,
that the village of Bainbridge already being an incorporated village

1The general act for the incorporation of villages.
506 OPINIONS OF THE ATTORNEYS-GENERAL

by law, proceeded to take the steps necessary to be incorporated
under chapter 291, of the Laws of 1870.

By section 32 of title 8, it is declared that in such event all acts,
general or special, under which your village was formerly incor-
porated “shall cease to be operative, except as controlled by the
provisions of this act.”

This provision would seem to abolish all officers under the origi-
nal act of incorporation. However this may be, I am of opinion
an election can be called under section 18, title 1, of the act, for the
election of village officers.

The mandate of the statute is to call such election within twenty
days after the day such territory shall be incorporated under the
new act. But this is directory to the officers merely, and does not
imply a limitation of power to call it afterward. _An election will
be valid if regularly called after the expiration of the twenty days.

This provision applies to all villages becoming incorporated under
the act, whether such village is newly incorporated, or an old vil-
lage legally adopting the new act of incorporation.

By section 15, of title 2, the next election after the’ first will
occur on the third Tuesday of March, which is the time fixed for
the recurring annual election.

The terms of office of officers elected before that time will expire
then, although elected in December, January, or at any time before
the third Tuesday of March; and it will be necessary to elect at
such election a new set of officers for such village.

Respectfully yours,

MARSHALL B. CHAMPLAIN,
Attorney-General.

 

Arrornry-Grnrra’s Orricr,
Axsany, December 12, 1870. \

©. B. Brnsgptct, Esq., Attica, WV. Y.:

Dear Str.—I have considered the inquiries contained in your
communication of the date of November twenty-second last, and
reply thereto.

Ist. That, upon the statement submitted, if the board of super-
visors of your county had taken no action in regard to the salary
or THE SvAtTeE or Nuw York. 507

of the county judge, it would have remained the same as before,
fixed by the supervisors’ order, under the authority of the then
existing law.
2d and 3d. The constitutional restriction upon the power of the
Legislature and supervisors to increase the salary having been
removed by the amendment to the judiciary article, the Legislature,
after the amendment took effect, had power to increase such salary
for services thereafter rendered, or for services rendered after the
restriction was removed and before the passage of the law. It
would be the simple exercise of the power to increase the pay of a
public officer for services already rendered.
' The act of April last, chapter 467, Laws of 1870, grants all legis-
lative power over the subject to the supervisors of the county,
thereby investing such board with the same power as was constitu-
tionally possessed by the Legislature.

Respectfully yours,

MARSHALL B. CHAMPLAIN,
Attorney-General.

Aupany, Dee. 12, 1870.
J. T. M. Davin, Esq., Auburn. WV. Y¥.: A

Dear Sir.—You submit for my opinion the following statement:
“ Having been elected as special surrogate of Cayuga county, I desire
to know whether such an office does exist in this county.” The
Constitution of 1846, article 6, section 15, provides that the Legisla-
ture may, upon application of the board of supervisors, provide for the
election, etc. Under that provision a law was passed applicable to
Cayuga county. (Laws 1849, chap. 306, and Laws 1851, chap.
108.) By the amendment to Constitution, adopted 1870, article 6,
section 16, re-enacts section 15 of article 6 of Constitution of 1846.
By section 25, article 6, of amended Constitution, the term of
office of the special surrogate now acting, expires January 1st, 1871.

Since the adoption of the amendment of the Constitution, the
supervisors of Cayuga county have not made any application as
specified in section 16, article 6, amended Constitution.

Quere. Does the office of special surrogate continue in Cayuga
county longer than January 1st, 1871, the supervisors not having
508 OPINIONS OF THE ATTORNEYS-GENERAL

made application, and no act having been passed by the Legisla-
ture under the Constitution as amended ?'

By section 17 of article 1 of the existing Constitution, it is
ordained that such acts of the Legislature of this State as were in
force at the time of its adoption, and not repugnant to the Consti-
tution, “shall be and continue the law of this State, subject to such
alterations as the Legislature shall make concerning the same.”

Upon the adoption of the recent amendments to the Constitu-
tion, its effect upon existing laws was controlled and modified by
this existing provision, and there being no repugnancy between
the laws to which you refer and the newly adopted article of the
Constitution in this respect, I am of opinion such laws remain in
force. ,

The new article contains substantially the same provision:
“ That in counties having a population exceeding 40,000, the Legis-
lature may provide for the election of a separate officer to be sur-
rogate.”

Laws by which the Legislature had already provided, at its
adoption, for such election under this grant, are in entire harmony
with this provision, and, in my opinion, are in full force.

. Respectfully yours,

MARSHALL B. CHAMPLAIN,
Attorney-General.

ArrornEY GENERAL’s Orricz,
Axsany, Dec. 17, 1870.

To His Excellency Jonn T. Horrman, Governor:

I have considered the following questions submitted for my
opinion: ‘

1st. Whether the executive of the State has power to fill the
vacancy created in the office of senator of the fifteenth district, by
the recent death of the Hon. Isaiah Blood ?

2d. Whether the Governor has power to order a special election
to fill such vacancy ?

It was the boast of the English Constitution, at the time of the
separation of the American colonies, that it was not among the
or THE S7raTE oF New Yor. 509.

royal prerogatives to fill a vacancy in parliament by appointment,
‘but that the lord chancellor, if the vacancy happened in recess, or
the speaker, if it happened during the sitting of parliament, sent
his warrant to the clerk of the crown in chancery, who thereupon
issued out writs to the sheriffs of every county for the election ; and
it was declared, as it is essential to the very bejng of parliament
that an election should be absolutely free, therefore, all undue ,
influences upon the electors are illegal and strongly prohibited.
And it was ranked among those breaches of trust in the executive
magistrate, which, according to the notions of eminent statesmen
and jurists of that country, amounted to a dissolution of the gov-
ernment, if such executive magistrate should employ his influence,
force, treasure, or offices of the society to corrupt the representa-
tives, or openly to pre-engage the electors and prescribe what manner
of person should be chosen. For thus to regulate candidates, and
attempt to control elections, it was said would cut up the govern-
ment by the roots, and poison the very fountain of public security.
As a further safeguard, it was provided, as soon ‘as the time and
place of an election either in counties or boroughs was fixed, all
soldiers quartered in the place were removed, at least one day before
thé election, to the distance of two miles or more, and not to return
until one day after the poll is ended. By a vote also of the house
_ of commons, to whom alone belonged the power of determining
contested elections, no lord of parliament, or lord lieutenant of a
county, had any right to interfere in the election of commoners, and,
by statute, the lord‘warden of the Cinque ports could not recom-
mend any members. And if any officer of the excise, customs,
stamps, or certain other branches of the revenue, presumed to inter-
meddle in elections by persuading any voter, or dissuading him, he
forfeited a heavy penalty and was disabled from holding any office.

The spirit of these enactments was to deprive the executive
magistrates of all opportunity to fill the legislative departments of
the government with the minions of royal power, and to leave
such election to the free choice of the people.

It is hardly necessary to suggest that, by the provisions of. the:
first Constitution of the State, and of each succeeding one, the
common law and statutes of Great Britain and England, existing at
the time of the separation of the colonies, is declared to be the law
510 OPINIONS oF THE ATTORNEYS-QENERAL

of the State, where not repugnant to such Constitutions, subject to
the power of the Legislature to alter the same.

In the first Constitution of the State of New York, adopted in
a convention of the representatives of the State convened at
Kingston, on the 20th of April, 1777, there was embodied the
declaration of independence, and the convention adopted it as a
part thereof. It is familiar to all, that among the grievances
enumerated in that instrument was the refusal of the king to pass
laws unless the people would relinquish the right of representation
in the Legislature, which it was declared was “a right inestimable
to them, and formidable to tyrants only ; and that he had dissolved
representative houses repeatedly, for opposing, with manly firmness,
his invasions on the rights of the people, and that he had refused,
for a long time after such dissolutions, to cause others to be elected,
whereby the legislative powers, incapable of annihilation, had
returned to the people at large for their exercise.”

By this Constitution senators were to -be chosen by certain of
the electors comprised within the Senate districts. By the Constitu-
tion which took effect January 1st, 1823, senators were also to be
chosen bythe electors of the Senate districts. By the existing
Constitution, the elective body for the choice of senators is made
oy the electors of the several single Senate districts of the State.

By title 1st, chapter 5th, part Ist, of the Revised Statutes, the
slassification of the civil officers of the State is declared and
lenominated as follows: Legislative, executive, judicial, and admin-
Strative ; senators are included within the classification of legisla-
‘ive officers. In the class of executive officers is Governor, Lieu-
enant-Governor, Secretary of State, Comptroller, Treasurer,
Attorney-General, State Engineer and Surveyor. There are
ncluded in the class of judicial officers, the judges of the various
courts.

And in the class of administrative officers, which is the most
1umerous class, are found Canal Commissioners and numerous other
State and local officers charged with important duties in the
idministration of the laws.

The power of appointment vested in the Governor is found in
itle 6 of this part of the Revised Statutes, which treats mainly of
the appointment, duration of office, vacancies and removals, and
or THn Srare or New Yor. 511

the means of supplying the same; and which provisions apply, in
terms, to the several classes of officers other than legislative officers.
And it is expressly declared in title 2 of the same part of the
Revised Statutes, that senators and assemblymen are to be chosen
by the people of the Senate and Assembly districts.

The Governor is forbidden to confer any civil appointment upon
any member of the Legislature, by the same title. By section 7 of
article 3 of the existing Constitution, it is ordained that “no mem-
ber of the Legislature shall receive any civil appointment within
this State from the Governor.”

My attention has been called to a certain statute passed in 1849,
and amended and somewhat enlarged and re-enacted in 1867, which
act authorizes the Governor to appoint to fill certain vacancies in
office, in the first section, as follows: “ Whenever vacancies shall
exist, or shall occur in any of the offices of this State, where no pro-
vision is now made by law for filling the same, the Governor shall
appoint some suitable person, who may be eligible to the office so
vacant or to become vacant, to execute the duties thereof, until the
commencement of the political year next succeeding the first annual
election after the happening of the vacancy at which such officer
could be by law elected; and the person so appointed to fill such
vacancy shall possess all the rights and powers, and be subject to all
the liabilities, duties and obligations of such officer, as they are
now or may hereafter be prescribed by law; provided, however,
that when a vacancy exists in the office of Secretary of State, Comp-
troller, Treasurer, Attorney-General, State Engineer and Surveyor,
Clerk of the Court of Appeals or Canal Commissioner, or a resig-
nation has actually been sent in and accepted, to take effect at a
future day, while the Legislature is in session, the two Houses
thereof, by joint ballot, shall appoint a person to fill such vacancy,
actual or prospective; and any person appointed by the Governor,
by and with the advice and consent of the Senate, whether in case
of vacancy or otherwise (except State Prison Inspectors), may be
removed from such office by concurrent resolution of both Houses
of the Legislature. On such removal, both Houses shall, by joint
ballot, appoint a person to the office made vacant thereby.”

Granting that this statute is passed in pursuance of section 5 of
article 10 of the existing Constitution, which declares that the
512 OPINIONS OF THE ATTORNEYS-GENERAL

Legislature shall provide for filling vacancies in office, I am of
opinion that this statute has no application to the class of legis-
lative officers, but applies to vacancies occurring in the executive
and administrative and judicial classes of officers, upon whom the
Governor must mainly rely in carrying on the executive depart-
ment of the government, and in obeying the constitutional man-
date that the laws shall be faithfully executed.

We have seen that the Constitution as well as the statute forbids
the executive to appoint any member of the Legislature to any
civil office, which provisions obviously originated in the principle
(the history of which I have attempted to trace) that the members
of the Legislature should be entirely independent from any influ-
ence of the executive, to be exerted over them by the bestowment
of office.

It would be utterly absurd to hold that, although he could not
confer any other office upon a senator, by reason of the danger
apprehended of: impairing his independence as a member of the Leg-
islature thereby, and yet that he could appoint him to be a member
of that legislative body with which he is thus forbidden to interfere.

Iam of opinion that the exercise of appointrnent, by the execu-
tive, of a member of the legislative body is contrary to the spirit
and genius of our institutions, and without any warrant or authority
in the Constitution or laws of the State.

The remaining question is as to the power of the Governor to
order an election to fill such vacancy.

Provision is made by statute for elections in the case of three
certain vacancies only in the office of members-of the Legislature,
which, for convenience, I have arranged as follows:

1st. When an extra session of the Legislature is called, and a
vacancy shall occur between the first day of April and ten days
before the time appointed for such extra session.

2d. When the right of office of a person elected as a member of
the Legislature shall cease before the commencement of the term
of service for which such officer shall have been elected.

3d. For the next class of vacancies is the following provision:
“When a vacancy occurs in the office of senator or member of
Assembly after the last day of December in any seat and before
the first day of March following.”
or THE STATE or New York. 513

Special elections for filling these three classes of vacancies, it is
declared, “shall be ordered by the Governor, who shall issue his
proclamation therefor.” Sections 6 to 10 of title 2, chapter 6, part
1, of B.S.

The first provision cited is intended to provide representation of
the people of a legislative district, in an extra session of the Legis-
lature, in case one should be called.

The next provision is intended to secure such representation at
the regular session or at an extra session, if one should be called,
by providing for filling a vacancy occurring in the office of senator
or assemblyman before the term of office, for which such officer
was elected, shall commence.

The case of a vacancy happening in an office of a member of the
Legislature, whose term of office, for which he was elected, has
already commenced, would seem to be unprovided for, unless it is
embraced in the statute quoted above under the third classification.

It is clear, that if the vacancy should happen, by death or other-
wise, after the last day of December and before the first day of
March, within the express words of the statute, it could be filled by
special election.

It is obvious, construing the statute literally, that if the vacancy
should so happen, outside of that period of time, such vacancy
would not be within the statute, and could not be filled by special
election. It is remarkable that the Legislature should have made
provision for securing representation to the people in every other
conceivable case, but should have left this, apparently the more
important of all, unprovided for.

It is possible that, by a forced construction of the statute, a con-
clusion might be reached that would bring the vacancy under con-
sideration, within it. But, construing it according to the ordinary
acceptation of the language employed, the vacancy must occur
within the prescribed period to be within the statute.

It is probable that the Legislature was influenced to specify
such period, because the time for the election of United States
senator, and some other important appointments, as established by
law, are to be made within the prescribed period.

However this may be, remembering that those charged with the
administration of the laws are bound to obey them as they are, and

33
514 Oprintdns or THE ATTORNEYS-GENERAL

have no power to alter or change them, it is safest to follow the
plain language of the law, which it is apparent does not, in terms,
include this vacancy; and especially so, as the Legislature assem-
bles at so early a day, and is the appropriate body to supply any
defects in the existing law.
Respectfully submitted.
MARSHALL B. CHAMPLAIN,
Attorney-General.

ArrorneY-GENERAL’s OFFICE, |
Atzany, December 19, 1870.

D. P. Corry, Esq., Trustee, etc., Prattsville, Greene Co., Vie
Srr.—The exemption of $1,000 extended to members of the
national guard applies to school taxes, as well as all other assess-
ments for taxes upon property.
Respectfully, etc.,

MARSHALL B. CHAMPLAIN,
Attorney-General.

ATTORNEY-GENERAL’s OFFICE,
Ausany, December 19, 1870.

Henry Garzer, Esq., Cleveland, V. Y.:

Sm.—The vacancy in the office of trustee for your village is to
be filled under section 8 of the charter, chapter 505, Laws of 1857,
by special election.

By the first section of chapter 175, Laws of 1870, the board of
trustees is designated as the body invested with power to appoint
the commissioners of excise for the village for which it acts.

Three members of the board of trustees, one of whom shall be
the president of the board of trustees, are to be designated as such
commissioners.

I am of opinion that it is competent for the board of trustees of
your village, consisting now ot four members, the office of one
member being vacant, to fill the vacancy in the office of excise

commissioner, caused by the removal of one of its members from
said village.
or THE Srate or New Your. 515

I am also of opinion that the two remaining commissioners of
excise, both concurring; have power to grant license in such village
until such vacancy is filled.

Respectfully, etc.,

MARSHALL B. CHAMPLAIN,
Attorney-General.

ATTORNEY-GENERAL’s OFFICE,
Axzany, December 19, 1870.

Go. V. Taacurr, Esq., Deputy County Clerk, Albany, N. Y.:

Sm.—I am of the opinion that sessions justices, jurors and con-
stables, or other officers attending upon the courts in their official —
capacity, ‘are only entitled to compensation for the days upon
which they actually attend. If the court should adjourn for a
longer period of time than from day to day, so that such persons so
in attendance were enabled to go about their ordinary business,
they would not be entitled to a per diem allowance for the days
intervening between the adjournment and reassembling of the
court. If, however, the period of time was so short between the
adjournment and reconvening of the court as that you could see
that persons residing at such a distance from the place at which the
court was held would not have time reasonably more than to go
home, and return at the opening of the court on the adjourned
day, without any opportunity to attend to their own business, such
person would be entitled to compensation during the adjournment.

The language of the statute providing compensation to sessions
justices, jurors and constables only authorize a per diem compensa-
tion for attendance upon the court.

I am of opinion that payment for such attendance may be made
upon the principle hereinbefore indicated under a fair and equi-
table construction of the statute.

Respectfully, etc.,

MARSHALL B. CHAMPLAIN,
Attorney-General.
516 OPINIONS OF THE ATTORNEYS-GENERAL

December 23d, 1870.

Samuxzt 8. Srarrorp, Esq., Oxford, Chenango Co., NV. Y.:

Sm.—By the excise law, chapter 628, Laws of 1857, section 5,
excise moneys were to be paid over to the county treasurers for the
use of the poor in the several counties, and the commissioners of
excise were each to receive the sum of three dollars per day for
services actually performed, to be allowed and paid in like manner
as other county charges.

By the recent excise law, chapter 175, Laws of 1870, section 7,
it is provided that the money arising from licenses in any town or
village shall be deposited with. the county treasurer, to be expended
under the direction of the board of supervisors for the support of
the poor of such town. The section further provides, that the
expenses of procuring necessary books for minutes, and necessary
blanks in any town or village when actually incurred, shall be
_ audited and paid in like manner as other town or village charges.
Further than this the act is silent, as to reimbursement for expenses
incurred, or compensation for the commissioners for services ren-
dered.

The provision last cited, it will be observed, applies in terms
only to expense incurred for books and blanks, making such
expense chargeable to the town when incurred for the town board,
and to the village when incurred by the village board. Looking,
however, at the spirit of the former law, and guided as near as we
can be by the intention of the Legislature in framing this, it is
apparent that it was intended that the compensation should be
made from the same fund for the benefit of which the excise
moneys were applied. That to the extent of the moneys received,
the system should be self supporting. Under the system of county
commissioners, money was paid into the treasury for the benefit of
the county, and the compensation of the commissioners was made
a county charge. Under the town and village systems of excise,
the money is to be paid into the treasury for the benefit of the
town in which it is received, and I am of opinion that the compensa-
tion of the commissioners for such town and village is properly a town
charge against the town so receiving the benefit of such moneys.

Respectfully, etc.,
M. B. CHAMPLAIN.
oF THE SvaTE or New York. 517

ATTORNEY-GENERAL’S OFFIcE,
Axpany, January 3d, 1871. }

Cuas. F. Durston, Esq., Auburn, N. Y.:

Drax Sir.—From the statement you submit, I see no objection.
to Mr. Wycoff’s qualifying and entering upon the duties of the
office of justice of the peace.

‘It is stated he received 109 votes by the name of Peter C.
Wycoff, and three votes by the name of P. C. Wycoff, giving him
112. That his opponent received only 110 votes, which elects Mr.
Wycoff by two majority. The omission of the board to declare
him elected cannot deprive. him of his office. The omission of
Mr. Wycoff to qualify (he being duly elected) will create a vacancy.
The omission of his opponent to do so (he not being elected) will
not create a vacancy.

Respectfully yours,
MARSHALL B. CHAMPLAIN,
Attorney-General.

ATTORNEY-GENERAL’s OFFIog,
AxBany, January 16, 1871.

C. Wueaton, Esq., Poughkeepsie, N. Y.:

Dear S1r.—You state that Walter Odell, then an acting super-
visor, received a majority in number of the votes for superin-
tendent of the poor in your county at the last election; that he
acted as a member of the board of supervisors at the annual ses-
sion, at which his bond as such superintendent was ' approved, and
you inquire if being such supervisor he could be legally elected to
the office of such ‘superintendent. Chapter 80 of the Laws of
1858, declares a person holding the office of supervisor of a town
. ineligible to the appointment’ or election to the office of a superin-
tendent of the poor for his county. All votes, therefore, cast for such
person for such office are void. The votes cast for a person or per-
sons at the same election, who were eligible by law to the office,
would be the only legal votes cast, and the person receiving the
highest number would be duly elected and entitled to the office, for
which he should qualify according to law. In the case stated by
you, if Mr. W. Odell should attempt to execute the duties of the
518 OPINIONS OF THE AVTORNEYS-GEN®RAL

office of superintendent, he would be liable tu be ousted by guo
warranto. In case the other party had duly qualified, he would
be entitled to be placed in possession of the office by the same pro-
ceeding. If the office has become vacant by the omission of the
party duly elected to qualify, the vacancy may be filled by appoint-
ment under the statute.

Respectfully, etc.,

MARSHALL B. CHAMPLAIN,
Attorney-General.

ATroRNEY-GENERAL’s OFFICE,
Aupany, January 19, 1871.

To His Excellency Governor Horrman:

Persons committed or detained by virtue of the final judgment
or decree of any competent tribunal of civil or criminal jurisdiction,
or by virtue of any execution issued upon such judgment or decree,
are not entitled to prosecute the writ of habeas corpus to obtain a
discharge from such commitment or imprisonment. (3 R. &., § 36,
p. 883, 5th ed.)

There is, therefore, no power in any officer to discharge a person
imprisoned by virtue of any such final judgment, when it appears
by the return to a writ of habeas corpus that the prisoner in whose
behalf it was sued out is so detained, but it is the duty of the offi-
cer before whom the writ is returned forthwith to remand the
prisoner. (People v. Mary Shea, 3 Parker Cr. R., 562; People v.
Mayer, 16 Barb., Sup. Ct. R., 362.)

It appears, by the papers submitted in the case of Henry B.
Livingston, that the prisoner was sentenced, February 11, 1868, to
hard Jabor at the State prison at’Sing Sing for the term of three
years, and to pay a fine of $2,500, and that he stand committed
until said fine be paid. The term of imprisonment has not yet
expired, unless it has been reduced by commutation for good
behavior.

Although the information as to the character of the proceedings
before the county judge of Westchester county, and as to the grounds
upon which he granted Livingston’s discharge, contained in the papers

12 R.5., p. 563, § 22 (2 Edmonds’ Stats., 584.)
oF THE STATE or New York. 519

submitted, is quite meagre, yet it is probable that, by reason of
commutations for good behavior earned, the term of three years’
imprisonment has already expired; and it may be inferred that
the judge granted the discharge because, in his opinion, the por-
tion of the judgment which sentenced the prisoner to imprison-
ment until the fine was paid was illegal and void, because it was
indefinite as to the time of imprisonment.

I am of opinion that the validity of the sentence cannot be deter-
mined upon habeas corpus, but only .by review upon writ of error
in an appellate court, or by reconsideration in the court in which
it was prononnced.! .

The claim to hold the prisoner by virtue of this portion of the
judgment, whether valid or invalid, brings the case expressly
within the exception contained in the statute above cited, and for-
bids the issuing of the writ for the discharge of the prisoner by
any: officer upon such ground.

Respectfully yours,

M. B. CHAMPLAIN,
Attorney-General.

January 23, 1871.
Srney Scorteip, Mishkill-on-Hudson :

The amendment to the militia law of 1870, applied the exemp-
tion to such persons only as are in active service, and excluded
those who had been honorably discharged after seven years service.
A bill is, however, now pending in the Legislature to restore the
exemption to the persons so excluded.”

Respectfully,
_ M. B. CHAMPLAIN.

January 23, 1871,
Asram Dava—p, Parish, Oswego Co., VN. Y.:
I understand from your communication that, acting as a court
of special sessions, you convicted a prisoner brought before you of

1 See People v. Keeper of Penitentiary of N. Y., 3% How., 494.
2 The pill referred to was passed April Ist, 1871. See chapter 245, Laws of 1871.
520 OPINIONS OF THE ATTORNEYS-GENERAL

the crime of petit larceny, for which offense you imposed a fine of
fifteen dollars, which was paid. The question’is, whether the costs
of the prosecution can be deducted from the fine ?

Section 61, article 3d, part 4, chapter 2, title 3d, of the Revised
Statutes, page 1010, third volume, fifth edition,’ provides that all
fines shall be applied “to the payment of the charges of appre-
hending and prosecuting the offender; and after deducting the
sums allowed therefor, the remainder, if any, shall be paid by such
magistrate, within thirty days after the receipt thereof, to the
county treasurer for the use of such county.”

The act which you enclose does not apply to the case you sug-
gest, but applies mainly to county officers, and officers who receive
an annual salary as a compensation for all their services.

Respectfully,
M. B. CHAMPLAIN.

January 23, 1871.
George P. Moorr, President, Fort Ann, WV. Y.:

By compliance with section 30 of title 8, of chapter 291, of the
Laws of 1870, your village may become incorporated under such
act, whereby it will become invested with all the powers thereby
conferred.

Under the 33d section,” the board of supervisors have power to
enlarge the boundaries of your village, upon compliance with its
provisions. The Legislature have power to amend your charter
without requiring the six weeks’ notice, as such requirement is
not a constitutional restriction upon its power, but a mere legis-
lative enactment, which may be waived in a given case.

Respectfully,

M. B. CHAMPLAIN.
12 Revised Statutes, page 716. See section 32 (8 Edmonds’ Stats.,'741.) See also

section 15, chapter 180, Laws of 1845 (3 Edmonds’ Stats., 306).
*See amended section 83, chapter 870, page 1975, Laws of 1871.
or THE STATE or New York. 521

ArtoRNEY-GENERAL’s OFFICE,
Axzany, January 23, 1871.

H. M. Wovets, Esq., Mexico, Oswego County, N. ¥.:

By former statutes forbidding the sale of strong and spirituous
liquors and wines, the sale of metheglin, currant wine, cherry wine
and cider was expressly excepted from, the statute, and the sale of
such liquors permitted without license. They are not so excepted
from the present statute, and consequently their sale is prohibited.

> Respectfully,
M. B. CHAMPLAIN.

January 24, 1871.
F. M. Munem, Esq., Bergen, Genesee County, N. Y.:

Yours of the 20th instant, inquiring in relation to manner of col-
lecting dog tax, is received.

By chapter 20, title 17, part 1, section 5, volume 2, page 974,
5th edition Revised Statutes,’ as amended by section 3, chapter
244, Laws of 1862, it is provided, “the collector to whom such list
shall be delivered, shall proceed and collect the sums of money
therein specified, within the time now required by law for the col-
lection of taxes laid by said supervisors, in the same manner and
with the like authority in all respects as in the collection of taxes
imposed by the supervisors of the county, and shall pay the same
to the county treasurer, after deducting the commissions allowed
by law ;” and in section 6, on the same page, as amended by sec-
tion 2, chapter 244, Laws 1862, it is provided, “If any person duly
assessed shall refuse or neglect to pay the tax so assessed within
five days of the demand thereof, it shall be lawful for any person,
and it shall be the duty of the collector, to kill the dog so taxed.”

You will perceive that you are empowered to collect the tax on
dogs in the same manner as on other property, by levy and sale of
the property of the person to whom the dog is taxed.

It is made your duty to kill the dog, but permission is given to
any person to do so after five days default in its payment.

11 BR. 8. 704 (1 Edmonds’ Stats., 656).
522 OPINIONS OF THE ATTORNEYS-GENERAL

This outlawry of the dog is intended to quicken the owner in the

payment of the tax. .
M. B. CHAMPLAIN.

January 25, 1871.

Lyman C. Comstoox, Esq., County Clerk, Auburn, Cayuga County,
NV. Y., and Davm A. Baxur, Esq., Zown Clerk, Fleming,
IVs Pont

Upon an investigation of the case of the election of Peter C.
Wyckoff to the office of justice of the peace of the town of Fleming,
in your county, it has come to my knowledge that at the town
election held in March last, at which election the relator, Wyckoff,
claims to have been elected, a vacancy existed in that town in the
office of justice of the peace, by the omission of one Andrew I.
Corning, previously elected justice, to qualify.

It appears that, at the town election, three persons were voted
for for the office of justice, to-wit: Peter C. Wyckoff, who received
in his full name 109 votes, and three votes in form for P. OC.
Wyckoff; Ovid A. Baker received 110 votes, and J. Smith Bowen
received about twenty-one votes.

There were two justices to be elected in the town, one for the
fall term of four years, and one to fill the vacancy caused by the
neglect of Corning to qualify.

By section 30, volume 1, 5th edition Revised Statutes, page 824,
it is provided: “ Where one person shall have been elected for the
regular term, in pursuance of the foregoing provisions, the other
person or persons elected justices of the peace shall be deemed
elected to fill the existing vacancy or vacancies.”

The duty imposed upon the town clerk of certifying the result
of the town election to the county clerk is a continuing duty,
resting upon him until it is performed.

Mr. Wyckoff should have been declared elected for the full
term and Mr. Baker to fill the vacancy.

I can see no objection to the town clerk now making and filing
such certificate. The statute is directory ; and while he may be
liable for neglect of duty in not making the proper return before,
he probably has the power to make it now.
or tHE Stare or New York. 523

This seems to be a legal solution of the difficulty, and it seems to
me that both persons should be sworn into the office of justice, as
above indicated, whether the clerk makes a proper return or not, ©
as his omission cannot deprive either party of his office.

Respectfully,
M. B. CHAMPLAIN.

ATToRNEY-GENERAL’s OFFICE, ’
Apany, January 31, 1871. f

Hon. A. W. Barrett, In Assembly:

Deaz Srr.—It appears from your last communication, and also |
a note from Robert F. White, Esq., on the same subject, that your
village, by a regular vote of its electors, adopted the provisions of
chapter 291, being “An act for the incorporation of villages,”
passed April 20th, 1870, on the ninth of December last as its new
charter; that within twenty days thereafter notice was duly given,
under the eighteenth section, title 1, of such charter, for the elec-
tion of village officers, which was held on the 9th of January
thereafter, at which election the requisite village officers were duly
elected. The question presented is, as to how long the village offi-
cers so elected hold their respective offices, and as to when an

election should be properly held to elect their successors. Section
' B of title 2, declares “all officers elected or appointed under this act
shall hold their respective offices one year, and until their successors
shall be elected or appointed.” .The language of this provision is
so explicit, that it must be held to fix the term of office of village
officers elected under the charter, either at the first election or any
subsequent annual election, at one year, and “ until their successors
shall be elected or appointed and qualified.” The terms of office
of your village officers will expire .on the 9th of January, 1872.
The time for holding the annual election is fixed by section 15,
title 2, for the third Tuesday of March in each year. This pro-
vision empowers the electors to elect on that day in the present
year, as well as in each year thereafter. The officers, however,
elected in March, 1871, would not be entitled to enter upon the
duties of their offices until the 9th day January, 1872. If, how-
ever, the electors should omit to hold an election in March, 1870,
524 OPINIONS OF THE ATTORNEYS-GENERAL

then, by virtue of section 5, title 2, the village officers now ‘in office
would be entitled to hold until March, 1872. This construction of
the statute becomes somewhat inconvenient of application, but the
provisions are all so clear and explicit they cannot be changed by
construction. The only remedy is for the Legislature to amend the

act.
Respectfully yours,

MARSHALL B. CHAMPLAIN,
Attorney-General.

—_—_ *

Artorney-GENERAL’s OFFicn, )
Auzany, February 11th, 1871. {

Hon. G. W. Mitizr, Superintendent Insurance Department :
Drax Sm.—I have duly considered the question submitted by
your favor the first instant, and in reply would state, that in my
opinion section 23 of chapter 466, of the Laws of 1853, contem-
plates and provides for the transaction of business if this State by
any companies of other States of a character similiar to any com-
panies authorized to be organized under said act. Section 6 of
said act provides for the organization of mutual fire insurance
companies in this State. My opinion, therefore, is that mutual as
well as joint-stock companies of other States, possessed to the
amount of actual capital required of similar companies formed
under the act of this State referred to, are entitled to be admitted
to transact business in this State.

_ M. B. CHAMPLAIN,
' Attorney-General.

AtTToRNEY-GENERAL’s OFFICE,
Apany, February 13th, 1871.

Cuantzs 8. Brarpstey, Jr.:

Dear Sm.—Yonr note in relation to the disqualification of J.
E, M. is duly received. Iam of the opinion that a conviction for
crime, in order to disqualify an elector, must be had under the
jurisdiction of and in the courts of this State, and that a convic-
or THE STATE or NEw York. 525
tion under the federal laws, and in the federal courts, does not
work such disqualification.

Respectfully yours, .

M. B. CHAMPLAIN,
Attorney-General.

 

ATTIORNEY-GENERAL’s OFFIcx,
‘ Axpany, February 13th, 1871.

Joun Survarimr, Messengerville, Cortland County :

Dear Sir.—Formerly three assessors were required by the law,
to be elected and held office for one year. As the law now stands,
one assessor-is to be elected annually, but holds his office for three
years, unless he is elected to fill a'vacancy, in which case he holds
for the unexpired term:

Respectfully, etc.,
M. B. CHAMPLAIN,
Attorney-General.

Arrornry-GEneRa’s Orriox, }
Axsany, February 18th, 1871.
Grorce W. Satissury, Esq., Awrora, Cayuga Co., N. Y.:
Smr.—The tax was assessed to Mrs, Thompson, and became a lien
on her property before she deeded it away, by the completion and
certification of the assessment roll in August, by the assessors.
Her liability for the same was complete, and she is the person to
pay it.
Respectfully, etc.,
M. B. CHAMPLAIN,
Attorney-General.

1In this case the land was deeded after the assessment roll was completed, and
before warrant for collection was issued.
526 OPINIONS OF THE ATTORNEYS-GENERAL

Arrornry-GENnERAL’s Orricr,
Axsany, February 18, 1871. \
Hon. James Troy, Brooklyn, NV. Y.:

Dear Sm.—Your communication of January 25th was duly
received, and has been considered by me. A press of other public
duties has prevented an earlier answer.

I am of opinion that there is no inhibition in the Constitution
precluding county judges from practicing as attorneys and coun-
selors in the Supreme and Superior Courtg.

Section 21 of article 6 (known as the new judiciary article),
which declares that no judge of a court of record én the cities of
New York, Brooklyn or Buffalo shall practice as an attorney or
counsel in any court of record of this State, applies, so far as judges
in the city of Brooklyn are concerned, to judges of the city court
of Brooklyn, which is mentioned in the twelfth section of the same
article, and power granted to the Legislature to increase the num-
ber of judges, not exceeding three, as may be provided by law.
County judges are not included in the class of officers therein
designated, but are mentioned in section 15, in the same article,
providing that the existing county courts are continued, and
further declaring the mode of election; the tenure of office of
county judges, in which section, and also in section 16, this class of
judicial officers have affixed to them the constitutional designation
of county judge and judges of county courts.

I am aware of no rule of construction by which this class of
judges can be brought within the provisions of section 21, above
cited. There are strong reasons which might be suggested against
such a construction. At the time of the adoption of the amend-
ment county judges were authorized to practice in other courts. If
it had been intended to change this practice, language would have
been employed clearly indicating such intent; besides it is difficult
to see any reason for prohibiting such practice in the cities named
not applicable to every other county in the State. I do not elabo-
rate these reasons, as they will readily occur to you, and as my
opinion is sought only for reasons personal to yourself.

Respectfully yours,
M. B. CHAMPLAIN,
Attorney-General.
OF THE STATE oF New York. 527

ATTORNEY-GENERAL’s OFFICE,
Axzany, February 18, 1871.

H. H. Harrison, Esq., Supervisor, Hague, N. Y.:

Dear Sir.—If license is duly granted by the town board to a
party applying therefor, such license is of no validity until it is
delivered to the party. It may be so delivered after the expiration
of the thirty days. The party is liable for the penalties imposed
for any sales of spirituous liquors before such license is delivered
and accepted by him.

Respectfully yours.
M. B. CHAMPLAIN,

Attorney-General.

ATTORNEY GENERAL’ Orrcz, t
Ausany, March 1st, 1871.

8. O. Guzason, Esq., Treasurer:

Drax Sm.—From the statement that you submit, I am of opinion
that the rolling stock owned by Mr. Duncan, and in his actual pos-
session, cannot be taken for a tax assessed against the Lebanon
Springs Railroad Company. We have so advised the authorities
in Columbia county where similar questions exist. If the tax is
legally levied against the company, there-is a mode pointed out by
statute for its ultimate collection from the company by a return to

the Comptroller, etc.
Respectfully, etc.,.

M. B. CHAMPLAIN.

 

ATTORNEY GENERAL’s OFFICE, }
Ausany, March 2d, 1871.
Hon. Van R. Ricumonn, State Engineer and Surveyor :

Srr.—I have considered the question submitted to me arising
under the provisions of chapter 864 of the Laws of 1868, entitled
“An act to authorize the drainage of marsh land.”

The preamble to the act declares that certain lands, described as
tide-water marshes and overflowed lands on Staten Island and
Long Island, cannot be profitably and practicably drained by the
numerous individual owners, and that the revenue of the State
528 OPINIONS OF THE ATTORNEYS-GENERAL

would be largely increased by the taxes on the same when properly
reclaimed, and will add to the wealth and population of the State ;
that the overflowing of such marshes materially interferes with the
construction of highways thereon for the accommodation of the
people, and that the work of reclaiming such lands will require the
expenditure of a large sum of money, and require continuous and
constant care to protect the same when so reclaimed; and finally
that said marshes, in their present condition, are detrimental to
the public welfare of the populous communities in their vicinity.

These recitals may be used as a key for the interpretation of
the law and for ascertaining the intent of the Legislature in enact-
ing it.

Interpreting the law by the light of this preamble, I have
arrived at the following conclusion.

1st. That it is the duty of the corporators to file, in the office of
the Secretary of State, maps showing the survey and location of
the routes of such dikes, dams, ditches, drains and other works
and structures, determined upon by the company, together with the
quantity of lands belonging to the State which they intend to
reclaim before the commissioners are required to make the
appraisal.

2d. That upon any map being so filed, showing any distinct or
separate quantity of State lands, the commissioners are empowered
to appraise such lands so described in said map, and such appraisal
of course will only apply to the lands described and actually
appraised.

3d. That by the spirit and intention of the act, the commission-
ers are not authorized to appraise said lands at their prospective
value when reclaimed, but aré to appraise them at such sum as, in
their judgment and discretion, is their fair valuation in the condi-
tion in which they are before they are so reclaimed, in view of the
provisions of the law under which the appraisal is made.

Respectfully,
M. B. CHAMPLAIN.
or tHE Stare or New Yor, 529

Scuvuyter Farzs, Ciinron County,
March 3d, 1871.

A. Torwsr, Esq. :

Dear Sir.—By section 7, chapter 197, Laws of 1864, it is pro-
vided that ‘ whenever the board of supervisors of any county shall,
by resolution, declare. that the provisions of this act shall be
extended and made applicable to said county, the provisions of this
act shall thereafter be applicable to such county.”

The resolution of the board of supervisors of your county, making
the act of 1864 applicable thereto, can have no retroactive effect,
as, by-the terms of the act above quoted, the supervisors are
oniy empowered to make its provisions applicable after its adop-
tion. The supervisors of your county have not attempted to do
more than they are authorized to do by the act, as the resolution
declares that its power shall be only applicable to the county of
Clinton from the date of the resolution, which is November 15,.
1870. Parties to whom certificates have been duly issued, upon
claims presented for sheep killed prior to the passage of the resolu-
tion by the board of supervisors, are entitled to be paid out of the
fund existing, and under the law in force before the adoption of

such resolution.
‘ Respectfully, ete.,

M. B. CHAMPLAIN,
Attorney-General.

Saramanoa, Carr. Co., N. oy)
March Ath, 1871.

Joun Hu, Esq., Superintendent, ete. :

Dear Sm.—By the adoption of the resolution reducing the
number of highway commissioners in your town to one, no such
officer could be elected at the town meeting at which it was
adopted, but the commissioners then in office are empowered to
discharge the duties of the office until, by expiration of term, the
number of commissioners for such town is reduced to one, whose
place it will be competent to fill by the election of a single com-
missioner when his term shall expire. The person claiming to

1This act is the act amending “the several acts relating to taxes on dogs.” See
6 Edmonds’ Stats., 241.
34
530 OPINIONS OF THE ATTORNEYS-GENERAL

have been elected at your recent towm meeting is not entitled to
enter upon or discharge the duties of the office.
Respectfully,

M. B. CHAMPLAIN,
Attorney-General.

ATroRNEY-GENERAL’s OFFICE, |
Aupany, March 6th, 1871.

A. P. Suerritt, Town Clerk, etc., Pike, N. Y.:

Dear Sir.—By the excise law of 1870, moneys received for
licenses by town boards are to be paid into the county treasury for
the benefit of the poor of the town from which the same are
received. J infer from your letter that a distinction exists in your
county between town and county poor, and that your town takes
care of its own. LT infer from your letter that the sum of excise
money mentioned by you as in the hands of the overseer of the

poor is properly there by apportionment by the board of supervi-
sors. This money must be applied for the support of the poor; the
unexpended balance raised. for defraying the costs and expenses of
the suit, it was competent for your town board to apply to any
other legitimate expense of the town. I also understand from your
letter that it was, by a vote of your town board, applied to the
building or repair of roads and bridges of the town. I can see no
legal objection to such a disposition of the money. Iam of the
opinion that it is the duty of the overseer to pay it over accord-
ingly. The town board is invested with such general supervisory
power over the contingent expenses of the town, and expendi-
ture for roads and bridges therein, and the- receipt and disburse-
ment of the moneys belonging to the town, as, in my opinion, fully
empowers them to make the disposition of the money as was made

in the case you present.
Respectfully,

M. B. CHAMPLAIN.
or THE SratTE or New York. 5381

Atrornty-GENERAL's Orricr,
Axsany, March 6, 1871.

To Hon. Henry ©. Murpuy, Chairman of the Judiciary Com-
mittee :1

Sm.—My attention has been called by several district attorneys
to what seems to have been an omission in the law for the prompt
and satisfactory investigation of the sanity or insanity of certain
prisoners accused and convicted of capital offenses.

A provision of the Revised Statutes, as well as the common law,
forbids the trial or sentence of a person who is insane. The reason
of the rule was declared to be “that if the prisoner became mad
before arraignment he ought not to be arraigned because he is not
able to plead to the charge with that advice and caution that he
ought, and if, after he has pleaded, the prisoner becomes mad, he
shall not be tried because he is disabled by an act of God to make
a just defense, if he has one.” If, after he be tried and found guilty
he loses his senses before judgment, judgment shall not be pro-
nounced, and if, after judgment, he becomes of non-sane memory,
execution shall be stayed, for peradventure, says the humanity of the
law, had the prisoner been of sound memory he might have alleged
something in stay of judgment or execution. These principles are
familiar to every lawyer. Although our statute is explicit that no
insane person can be tried, it does not state in what manner the
fact of insanity shall be ascertained. That is left as at common law.

In the case of The People v. Freeman (4th of Denio, page 9)
the Supreme Court decided that “although, in the discretion of the
court, other modes than that of a trial by jury may be resorted to,
still, in important cases, that is regarded as the most discreet and
proper course to be adopted.”

This mode of trial is tedious and expensive, and frequently
attended with unsatisfactory results. A deaf and dumb colored per-
son is now under indictment in Ulster county, the question of
whose insanity has been tried by two successive juries resulting in
a disagreement at each trial, after lengthy and expensive trials. A
female is confined in Steuben county, a man in Monroe county, and

1This communication accompanied draft of bill to accomplish the object referred
to herein, which was reported by the committee, and passed. (See chap. 666,

Laws 1871.)

“
532 OPINIONS OF THE ATTORNEYS-GENERAL

a youth in Rensselaer county, blind from birth, whose mental con-
dition and capacity to make a rational defense, in each case, is
denied. It seems necessary to the prompt and due administration
of justice that some more simple, summary and satisfactory mode
for the trial of these questions should be provided than the cum-
brous proceeding of a trial by jury under the common law, to be
used by the court in place of such trial in its discretion. In other
countries this system of investigation by medical commissions .
appointed by the court has long been in practice and attended with
most satisfactory results. (See Casper’s Forensic Medicine, vol.’1,
page)

By the statute referred to in the bill, section 49, and also chapter
895, Laws of 1869, the county judge, with the aid of two physi-
cians, is empowered under certain restrictions to send persons under
indictment or conviction to the lunatic asylum. It is safer to vest
this power in the court where the indictment is pending. The
bill, however, is not in conflict with this provision, but in harmony
with it, and perfects the system. In capital cases the power might
be lodged exclusively in the court, leaving the county judge to
exercise the power in other and inferior cases.

The statute and common Jaw would seem to apply only to per-
sons who are afflicted with insanity. It would seem just to extend
the provision to another class of persons who from original defect
of mind, or other cause, are incapacitated from making a rational
defense.

I enclose you a draft of a brief bill intended for this purpose. It
contains a section conferring upon the Governor similar powers in
the case of such convicts brought to his attention.

With this hasty note I submit the bill to your consideration.

Respectfully,
M. B. CHAMPLAIN.

i
March 14, 1871.
Hon. J. T. Horrman, Governor:

I have hastily considered “ An act to incorporate the Little Valley
Water-works Company.” (Being engaged in the preparation ot a
case for argument in the Court of Appeals in the morning, I have
not much time to devote to it.)
or THE Stare or New York. 533

Some sections of the bill seem loose and unguarded. It author-
izes the company to enter upon the lands of ‘private individuals,
and make surveys of the springs, streams and property needed
before making compensation.

The thirteenth section, in view of this provision, might be open
to a construction injurious to the owners.

Again, the fourteenth section confers very general power on the
company for the seizure and condemnation of property, authorizing
the taking of soil under any railroad, canal, street or highways,
which might very injuriously affect the rights of railroad and
municipal corporations and the public.

But it seems to me there is a difficulty with the bill deeper than
all this; that it is open to grave doubts as to its constitutionality. It
confers the right to take private property, and assumes to exercise
aright of eminent domain, upon the part of the State, under the
provision of the Constitution “ that private property may be taken
for public use.” ,

Care must be taken to discriminate between powers conferred
upon municipal corporations, by which local political communities

‘are organized and endowed with powers of self-government, dele-
gated by the Legislature in the way of assessment taxation, street
and other improvements under other provisions of the Constitution,
and-the creation of other corporations which stand upon . different
principles. I am not aware that in this State the doctrine of the
exercise of the right of eminent domain, under the Constitution,
has been carried farther than to authorize the creation of corpora-
tions, build railroads, plank, macadamized and turnpike roads,
bridges, ferries, etc., which are confessedly for public use.

It has never been held that the property of one man could be
taken, under this provision of the Constitution, and given to another
or to an association for a purpose not strictly of a public use,
although full compensation should be made. (See Varich v. Smith,
5 Paige Ch. R., 187, opinion of Chancellor; also, Bloodgood v.
Mohawk and Hudson River Railroad Co.,18 Wendell, p. 9.) *

As to what is regarded as public as contra-distinguished from
private or local use, see opinions of Court of Appeals in appendix
“ A” to the Comptroller’s last report.

The spirit and intention of this bill seem to be to authorize this
534 OPINIONS OF THE ATTORNEYS-GENERAL

corporation to possess itself, by compulsory proceedings, of all
the water, streams and springs in the locality named, and hold
them for sale to the inhabitants for the private profit and specula-
tion of the corporators, dictating their own terms as to prices.

It is difficult to distinguish such an enterprise as this from those
entered upon by corporations formed under general laws, or by
private parties for developing mines, quarries, or engaging in any
other manufacturing or mechanical pursuit, none of which general
laws arm the corporation with the compulsory power to take pri-
vate property for such purpose.

I have only attempted to suggest this objection, without arguing
it. A late opinion has been delivered by the Court of Appeals,
which I am informed somewhat restricts the exercise of the right of
eminent domain, even to railroad corporations.!

Respectfully,

M. B. CHAMPLAIN,
Attorney-General.

ATTORNEY GENERAL’s OFFICE,
Axzany, March 20th, 1871.

To Hon. Joun T. Horrman, Governor:

Sir.—I have briefly examined the question submitted as to the
validity of “An act amending chapter 311 of Laws of 1859, relating
to the inspection of gas meters.”

You state that the amendment provides, that any manufacturer
of a meter, shall pay five cents to the inspector for the stamp which
he is by law required to put thereon.

The question arises under section 8 of article 5 of the Constitu-
tion, which abolishes al] offices for the weighing, measuring, culling
or inspecting of any merchandise, produce, manufacture or com-
modity whatever. Upon an examination of the act of 1859,
compared with a brief statement of the report of the amendment,
it would seem that the scheme and purpose of the enactment and
its amendment is to subject gas meters to an inspection, and an
imposition of a tax of five cents for the official stamp against the

' Rens, and Sar. R. R. Co. v. Davis, 43 N. Y., 187.
or THE STATE or New York. 5385

. manufacturer, and, in certain cases, a further tax of expenses of
inspection against the consumer.

The Court of Appeals, in giving an exposition to this provision
‘of the Constitution, in the case of Tinkwm and others v. Tapscot
and another (17 N. Y. R. 141), decided:

“This restraint upon legislative power was, without doubt,
suggested by and was primarily aimed at a system of laws which
had grown up in this State, which required a very large class of the
productions of the soil and of manufacture and mechanical industry
to undergo an inspection, or the determination by weighing,
measuring or gauging of the quantity contained in the parcels in
which they are usually sold, by public ‘officers, preliminary to their
being sold for the purpose of exportation, and in regard to some
articles as a condition to being sold and trafticked in im the State.
Almost every species of property which was extensively dealt in had
been subjected to these regulations.

“ The main features of the system were those which required the
commodity to be submitted to the officers appointed for that pur-
pose, for inspection as to its quality, or for their determination as
to the quantity contained in the several parcels which were to be
indicated by certain marks or brands, and which affixed penalties,
and sometimes forfeitures, for the violation of the regulations pre-
scribed. The officers were compensated by fees, to be paid by the.
owners of the property, and all private persons were forbidden to
perform the duties prescribed to the inspectors. The counterfeiting
the official brands was punished criminally (see 3d ed., 1 R.S.,
page $52 to 707), where the provisions will be found at large, and
applied to the following miechanical and agricultural productions :
Flour and meal, beef arid’ pork, pot and pearl ashes, fish or liver oil,
lumber, staves and heading, flax-seed, sole leather, hops, distilled
spirits, leaf tobacco, wood, timber, bark, lime, green hides and skins.”

The court further declares, that “in this condition the subject
came under the consideration of the constitutional convention of
1846, and as we have seen was totally abrogated and forbidden to
be renewed. The system itself is condemned as originating in a
false and pernicious,.or at least a mistaken theory of political
economy.” And the court concludes on this point that, “among —
the mass of governmental powers, there is not remaining any
536 OPINIONS OF THE ATTORNEYS-GENERAL

authority to continue or reproduce a system in substance like this .
in its distinguishing characteristics.in any form whatever.”

It would seem that a law providing for the inspection of gas-
meters, a production of manufacturing and mechanical industry,
and the imposition of a tax upon the manufacturer, and the
appointment of officers to enforce the scheme, would fall directly
within the inhibition of the Constitution, unless it could be brought
within the exception contained in the same section, which is as
follows : :

“ But nothing in this section contained shall abrogate any office
created for the purpose of protecting the public health, or in the
interests of the State in its property, revenue, tolls or purchases,
or of supplying the people with correct standards of weights and
measures, or shall prevent the creation of any office for such pur-
poses hereafter.”

For myself, Iam not able to bring the enactment in question
within the constitutional exception. It cannot be said to be
intended for the protection of the public health, but is intended
rather to adjust certain pecuniary interests between the company
manufacturing the gas and the consumer, and incidentally the
manufacturer of the meter, by compelling the. consumer to pur-
chase and use it, as an agency for the measurement of the quantity
of gas used.

The enactment is not intended in any manner to protect the
interests of the State in its property, revenue, tolls or purchases.
An attempt to bring the principle of the enactment within the
constitutional exception, as applicable to either of these subjects,
would justify the revival of the whole system of inspection, which
was abrogated by the Constitution upon precisely the same argu-
ments. .

The provision as to revenue and tolls has reference to the pro-
tection of revenues derived from some other source than the act
creating the office and authorizing the inspection, such as inspec-
tors of boats and measurers of timber, to protect canal tolls. And
the purchases alluded to are purchases of property by the State,
whose interest in such purchase may be protected by officers.
appointed for that purpose.

It may be within the constitutional power of the Legislature
or THe Srate ov New York. 537

to establish by law a general State standard for the measurement
of gas, and require all meters to be conformed thereto, as is now
provided as to the standard of other weights and measures, under
that portion of the exception which authorizes the supplying of
the people with correct standards of weights and measures, and
authorizes the creation of any office for such purpose, which is
probably the provision under which this enactment is supposed to
be authorized. However that may. be, I'am of opinion that, in so
far as these provisions subject the gas-meters, which are a mechani-
cal production, to inspection’ and tax against the manufacturer
thereof, they are in conflict with the provision of the Constitution
which has been quoted. Any further consideration of the other
general provisions of the bill amended are not involved in the
* inquiry submitted to me,

Respectfully, etc.,

M. B. CHAMPLAIN,
Attorney-General.

Arrornrey-GENERAL’s OFFICE,
Apany, March 23, 1871.

W. S. Horcuxmy, Esq., Schenevus, W. Y.:

Yours of twenty-second inst. is received. Where the inn or tavern
to be licensed is within an incorporated village, and the excise
commissioners are selected from the trustees, and the corporate
limits of such village comprise an election district, the freeholders
must reside therein, who petition for the license.

Where the application is to a board of town commissioners, and
there is no other political division of the town into election districts,
as such, the freeholders, residents of the town within which the
tavern is situated, are competent to petition for such license. If,
by reason of the number of votes polled in any town, the town has

‘been divided into election districts for convenience of voters, the
frecholders must reside within the election district within which
the tavern is situated, for the license for which they petition.

Respectfully,

M. B. CHAMPLAIN,
Attorney-General.
538 OPINIONS OF THE ATTORNEYS-QENERAL

March 24, 1871.
Perse Tuomas, Jr., Esq.. Town Clerk, etc., Sheldon, N.Y:

Dear Sr1r.—There are no specific fees allowed by statute for
filing papers in the town clerk’s office, except chattel mortgages
and renewals of the same, unless some recent statutes, imposing new
duties, specifically provided for the same.

The supervisor’s bond should be approved by the town board.

The bond referred to is the one required by chapter 534, Laws
of 1866 (6 Edmonds’ Stats., 771), amended by chap. 721, Laws 1869
(7 Edmonds’ Stats., 330).

The town clerk being empowered to approve of the sureties of’ a
constable, would seem to create an incompatability in the two offices.
But if the people duly elect the same person to both offices, I think ,
he may lawfully hold both.

Boards of town auditors have not the right to audit their own
accounts. (See chap. 855, Laws of 1869.)

If a person owns real estate in two or more different districts, and
is assessed for highway labor in each, he has the option to work it
all in the district in which he resides. (See 1 R.S., p. 508, § 32
(1 Edmond’s Stats., 468.)

Respectfully,

M. B. CHAMPLAIN,
Attorney-Generatl.

ATTORNEY-GENERAL’s OFFICE,
Ausany, March 25, 1871.

8. H. Brevins, Esq., Bolton, NV. Y.:

Dear Sir.—Intoxication in a public place is made a criminal
offense, by the Excise Law of 1857 and acts amending the saine,
upon complaint duly made to a magistrate, as other offenses are
prosecuted. The party complained of may be arrested at any time
after the commission of the offense, as in other criminal cases.

Respectfully, etc.,
M. B. CHAMPLAIN.
oF THE State or New York. 539

March 2%, 1871.
J. J. L. Baer, Esq., Chittenango, N. Y.:

Sir.— Yours of 23d inst. is received. I think that the police
constable has power to execute process outside of your village
limits, and anywhere within the county in which said village is
situated.

The following paragraph of section 4 of chapter 291, Laws of
1870: “Said police constable shall have power to execute any
warrant or process issued by justices of the peace of the county in
which such village is situated,” seems to confer such authority to
act anywhere within the limits of the county, fully upon the police
constable.

Respectfully yours,
' M. B. CHAMPLAIN,
Attorney-General.

‘ March 27, 1871.
Hon. Joun T. Horrman, Governor: :

The act passed May 12th, 1869, for the drainage of swamp lands,
to which the section referred for my opinion is an amendment, was
passed to obviate a constitutional defect in the provisions of the
Revised Statutes for the same object.

The courts decided that as those provisions authorized the taking
of private property without providing for compensation to the
owner, they were unconstitutional and void. (Seé opinion by
Mason, J., at page 483, 5th Barbour’s Supreme Court Reports.)

The act of 1869 obviates this objection by providing a compulsory
proceeding to take the lands and a mode of compensation for the
owner.

The public interest to be promoted is declared in the act to be
the preservation of the public health.

This proceeding having, by the decision of the court and the
action of the Legislature, been brought within those provisions of
the Constitution authorizing the taking of private property for
public use, the legislation in regard to it must be controlled by its
provisions, so far as its provisions apply.

If the preliminary and other jurisdiction vested in the county
540 OPINIONS OF THE ATTORNEYS-GENERAL

judge, in execution of this act, is not so vested in obedience to the
Constitution, but is the mere cveution of law, it is competent for
the Legislature to chauge the law and vest the same jurisdiction in
any other oflicer or officers.

The county judge is empowered to appoint the commissioners.
The commissioners are to determine whether it is necessary to take
the lands for the public health ; an appeal lies trom their determina-
tion to the county judge, who is authorized to reinvestigate the
case by the examination of witnesses.

The commissioners are to make assessments. An appeal from
such assessment lies tu the county judge, who is empowered to hear
and finally determine the appeal. He may, in his discretion,
associate with him, on this hearing, the sessions justices of the
county, and may award costs on the appeal to the successful party.

The commissioners are authorized to deduct damages appraised
from the amount of assessments, and are required to file, with the
county clerk, a full statement of their proceedings, and the amount
of moneys collected ‘and disbirsed, which statement the county
judge is empowered to investigate and decide upon, and may
associate the justices of sessions with him in such investigation,
And the court may dissolve said commission, or give any directions
that the rights of parties or the public interests shall require.

Provision is made for the sale of lands for assessments. And in
certain cases the county court is empowered to cause the improve-
ments authorized by special acts to be kept in repair by the water
commissioners of the town or towns under the provisions of ,this
act.

The ninth section of the act of 1869 vests the commissioners
with all the powers conferred apon railroad corporations, for the
purpose of acquiring title to the easement on such lands.

The Constitution, section’ 7, article 1, provides that “when pri-
vite property shall be takeu for any public use, the compensation
to be made therefor, when such compensation is not made by the
State, shall be ascertained by a jury, or by not less than three
commissioners appointed by a court of record, as shall be prescribed
by law.”

While the 9th section of the act which adopts the statutes regu-
lating the acquiring of lands by railroad corporations may be a
or THE STATE or New York. 541

compliance with the Constitution, as those statutes require an
‘application to the Supreme Court for the appointment of commis-
sioners to appraise the damage for the lands taken, yet there
would seem to be great propriety in requiring all judicial proceed-
ings necessary to carry out the scheme to be taken in a court of
record. ;

I have briefly cited the different proceedings necessary to be
taken before the county judge, or in the court of sessions, both
preliminary and final, in order to execute this law, and finally
deprive the owner of his property by sale upon the assessment, in
order to show not only their continuous character and the great impor-
tance of each successive step to be taken, but to make apparent the
propriety and necessity of keeping the proceédings, from the begin-
ning to the termination, in the same court in which they were first
commenced. The amendment submitted vests all these powers, in
certain contingencies, in the district attorney of the county. In
case of inability of the county judge to act, any one step in the’
proceedings authorized may be taken before the district attorney,
although the proceeding was commenced before the county judge.

It may well be doubted whether the authority given’ to the com-
missioners first appointed to make the assessment upon the lands
benefited, or to deduct thé. damages sustained by the owner there-
from, does not so affect the compensation to be made to the owner
as to require the appointment of such commissioners to be made by
a court of record, as prescribed in the Constitution.’ If so, the
power could not be vested in the district attorney.

Respectfully yours,

M. B. CHAMPLAIN,
Attorney-General.

ATTORNEY-GENERAL’S OFFICE, \
Axzany, March 27, 1871.
To the Canal Board :

In answer to a resolution of your body hereto annexed, referring
to me the question of the rights of the State in certain certificates

1By section 21 of chapter 303, Laws of 1871, the powers, etc., vested in the
county judge are transferred to and vested in the county court, thus avoiding the

objection here suggested.
542 OPINIONS oF THE ATTORNEYS-GENERAL

deposited as security for the performance of contracts for construc-
tion work, I respectfully submit the following abstract of laws and
brief statement of my conclusions thereon:

MEMORANDA.

By chapter 105, section 1, Laws of 1857, the contracting board
were empowered, “ under sccli regulations as said board shall pre-
scribe,”’ to let the repairs of the canals by contract.

In pursuance of this provision, in January, 1863, the board
adopted the following permanent regulation: ‘“ All proposals for
each and every section must be accompanied by a certificate of
deposit in some banking institution in good credit within this State,
certifying that the sum of $4,000 in cash has been deposited in
said institution to the credit of the auditor; and all such certifi-
cates, except the one received from the party or parties to whom a
contract may be awarded, will be returned to the proposers imme-
diately after the award.”

The regulation further provides, that the certificate i is to be held as
security for the performance of the contract. (See Canal Laws,
page 49.) .

Chapter 177, Laws of 1861, requires the auditor to pay all money
held by him in trust for the State and the several contractors for
repairs, as security for the performance of a repair contract, into the
treasury, where it shall be known as the repair trust fund, which
money is to be invested by the commissioners of the Canal Fund.

In case of performance of contract, the sums so deposited, with
accumulations, are to be returned to the contractor on the warrant
of the anditor and draft of Canal Commissioner.

By section 2, chapter 577, Laws of 1867, the proposer to whom
a contract for repairs was thereafter awarded, was to deposit United
States bonds for $6,000, bearing not less than five per cent interest,
in lieu of the certificates, which, if the contract was faithfully per-
formed, with the accumulations were to be returned:

By section 1, chapter 55, Laws of 1870, all these provisions were
repealed by the act abolishing the contracting board and the system
of repairing the canals by contract, and are of no application now
except tv uncanceled contracts for repairs upon the canals.
or THE STATE of NEw York. 543

As To Consrruction Work.

It is provided by section 41, Canal Laws, page 63, that every
person who shall enter into any contract for the supply of materi-
als or the performance of labor on any canal, shall give satisfactory
security to the Canal Commissioners for the faithful performance of
his contract, according to its terms.

Laws authorizing construction work have generally provided for
the manner of letting, and contain ea the provisions regula-
ting the same.

See extraordinary repair bills, Laws of 1866, chapter 219; chap-
715, Laws of 1868; chapter 877, Laws of 1869; Laws of 1870,
chapter 767. None of these laws in terms authorize the require-
ment of bank certificates as a security. The practice of requiring
the deposit of certificates as a security for construction work seems
to have grown up in analogy to that adopted by the contracting
board in making contracts for repairs, arid without the authority of
any statute.

I have arrived at the following * conclusions :

1. The Canal Commissioners under the general power with which
they are invested to require security from a person entering into
contract for materials or construction work for its faithful per-
formance, have legal authority to require the deposit or bond, or
both, as a security for the farthful performance of the contract ;
and in case of breach of contract, and forfeiture, such securities
may be applied in liquidation of the damages sustained by the
State, and absolutely forfeited to the State, if provided for expressly
in the contract. If not so provided, the remedy is the same as
between other parties, that either or all securities may be prosecu-
ted until actual satisfaction is obtained.

2. That there is no authority to exact such deposit as a security
that the proposer will enter into contract, and to forfeit the same,
if for any cause he refuses to so enter into the contract.

Respectfully yours,

M. B. CHAMPLAIN,
Attorney-General.
544 OPINIONS oF THE ATTORNEYS-GENERAL

ATTORNEY-GENERAL’s OFFICE, \
Axpany, March, 27, 1871.
Axsert CoamBertatn, Croton Falls, N. Y.:

Sm.—Yours of the 22d inst. was handed me by the Hon. Mr.
Husted. The lot of land upon which you reside being partly in
Westchester and partly in Putnam counties, is all taxable to you in
the town and county of your residence. The other lot of land
being partly in Putnam and partly in Weschester counties, on which
you do not reside, if unoccupied by any one, is to be taxed in each
county. That is, the part in Westchester county is to be taxed
there, and the part in Putnam county, in that county. If any per-
son resides on the said land, all the lot may be taxed to the occu-
pant, in the town and county of his residence."

,

Respectfully, ete.,
M. B. CHAMPLAIN,
Attorney-General.

ATTORNEY-GENERAL’s OFFICE,
Axpany, Aarch 28, 1871.

Rozert Neen, Esq., Livonia Station, V. Y.:

Srr.—In answer to yours of 23d instant, I would say that actions
for penalties for violations of the excise law are to be prosecuted in-
the name of the board of commissioners of excise of the town in
which the penalty was incurred.

It would be incongruous if such action should be brought before
a justice who is a member of the board, and necessarily a plaintiff
upon the record.

I am of opinion that such justice has not jurisdiction of such an
action.

A prosecution purely criminal for a violation of the excise law,
in the name of the people, upon complaint made, as in other
criminal cases for offenses, may be entertained before a justice of
the peace who is a member of the town board.

Respectfully, ete.,
M. B. CHAMPLAIN,
Attorney-General.

"1 R.8,, 389 Sec. 4 (1 Edmonds’ Stats., 362).
or THE Srate or New Yor. 545

Artornry-GENERAL’s OFFIcE,
Apany, March 28, 1871.

James McCtosxey, Esq., 261 South Pearl street, Albany, NV. Y.:

Str.—I understand from your letter of 14th instant, that at the
time the tax was assessed, your farm was in the actual occupation
of Hugh McCloskey, as your tenant. You being the owner of the
land, although a non-resident of the county, it was legal for the
assessors to have assessed the farm either to you, as owner, or to
Hugh McCloskey, as occupant, or as non-resident lands. Having
assessed the land to you, as owner, the tax, if collection were
attempted by levy and sale of the property, could only be collected
from you by levy upon personal property owned by you, or by levy
upon personal property owned by others, in your actual possession
at the time of such levy.

It was an illegal proceeding to levy upon and sell the chattel
property of Hugh McCloskey for this tax, the same not being in
your actual possession at the time of the levy.

Respectfully, etc.,

M. B. CHAMPLAIN,
Attorney-General.

March 30, 1871.
H. J. Warrte, Esq., Canaan Four Corners, NV. ¥.:

Srr.—In answer to yours of the 4th instant I reply.

The following provision is found in section 13 of article 6 of the
Constitution, known as the new judiciary article:

“But no person shall hold the office of justice or judge of any
court longer than until and including the last day of December
next after he shall be seventy years of age.”

The election of justices of the peace is provided for in section 18
of the same article, in which section provision is also made for
their removal, with other judges and justices of inferior courts.

This article confers the judicial power upon the several courts
and judges of the State, yet the judges and justices therein men-

35
546 OPINIONS OF THE ATTORNEYS-GENERAL

tioned, are the judges and justices other than justices of the peace.
The justices of the peace are not known as judges or justices, in the
sense of the article in question. It is an ancient office, and for-
merly exercised no power of final adjudication, but such officers
officiated as counselors of the peace. They exercise an inferior
jurisdiction now in the decision of causes, but were not intended
to be included in the paragraph quoted.

I am of opinion that the limitation of age does not apply to jus-
tices of the peace the same as other judges.

‘

Respectfully, etc.,
M. B. CHAMPLAIN.

AtrorNEY-GENERAL’s OFFIOE, }
Ausany, March 31, 1871.

Hon. J. T. Horrman, Governor :

T have briefly considered “An act to incorporate the Fish Creek
Improvement Land and Lumber Company.”

The act in question purports to blend certain corporate powers
for the manufacture of lumber with the power to improve and
make navigable a portion of the Fish creek by the corporators, and
for that purpose declares the said creek, from a certain point in
Lewis county to a certain point in Oneida county, a public high-
way ; and the corporators are empowered to build chutes and open
a passage in the middle part of the creek, not less than twenty-five
feet in width, for the purpose of floating and running logs and
timber over mill dams now existing or to be hereafter erected, and
across the ponds of said dams, and the right to connect slides with
said dams whenever they deem it necessary. And they are
empowered to collect tolls upon lumber floated, at a rate not exceed-
ing six cents per mile per thousand feet, board measure ; and the
corporation are to have a lien on the lumber until the tolls are paid.
The blending of the two powers, the one entirely private, and the
other, which it is claimed is of a public character, in the same cor-
poration, is unusual. The bill contains provisions authorizing the
compulsory taking of property for the corporation, which pro-
vision might be upheld for the declared public purposes of the
or Tun Stare or New Yorn. 547

corporation, but which could not be for the private purposes for
which the compny is incorporated. There is no warrant in the
Constitution for authorizing an incorporated company for the manu-
facture of lumber, a mere private enterprise, to take the property
of another, even upon making compensation.

The improvement of the Fish Creek feeder into a navigable water
way for the transportation of property, assuming it to be a public
purpose within the spirit of the Constitution, might justify such
compulsory taking of private property. It is obvious that cases
may arise, if the two powers are permitted to be blended, in which
the private interest to be subserved would be the great and para-
mount interest, while the public object declared might be second-
‘ ary and unimportant.

There would be danger, if this consolidation of public and pri-
vate enterprises were permitted under acts of. incorporation, that
the power to take private property for public use under the Consti-
tution would be invoked for purposes mainly private in their
nature, and the guarantees of private property thus broken down
and destroyed. .

I assume that the Fish creek, between the two points designated
in the bill, is not a navigable stream, because it is the declared
object of the bill to improve and make it navigable for logs and
‘lumber. The bed of the stream and the water in such case belong
to the riparian owners, and they cannot be deprived of either,
even for public use, without compensation. The bill, if it does not
entirely omit any provision for such compensation, is so obscurely
framed as to involve the right to it in great doubt.

The seventh section provides: “The damages sustained by any
parties, by reason of damming said creek and setting water back
upon their lands, or damages arising froma any cause,” may be
assessed by commissioners to be appointed by the county court.
While this provision might justify compensation for flowing the
lands of the owners above high water mark by means of dams
erected, or any other damage arising from the construction of such
dams, it may be claimed that it does not authorize compensation
for the appropriation of the bed of the stream, and water and lands
along the’ margin for this highway, as there is no restriction as to
the width, except that it shall not be less than twenty-five eet
548 OPINIONS OF THE ATTORNEYS-GENERAL

Such appropriation may involve the destruction of valuable mill
privileges, and the use of the water by the riparian owners for
agricultural purposes. Compensation, in such cases, should be
provided for by language in the statute free from all ambiguity
and doubt.

It was easy, if compensation for this property to the full extent
of the rights of the riparian owners was intended to be made, to
provide for it by plainly declaring that compensation should be
made for all the land and water taken for the purposes of the cor-
poration, and not left it to depend upon the construction of the
somewhat vague provision which has been quoted.

Respectfully,

M. B. CHAMPLAIN,
Attorney-General.

ATroRNEY-GENERAL’s OFFICE,
Axpany, April 14, 1871.

Hon. Joun T. Horrman, Governor, ete.

‘The objections to “ An act to improve certain water powers upon
the Wappinger’s creek,” are as follows:

First. It authorizes the owners or lessees of the Pleasant Valley
mill powers, and the Clinton mill powers, merely private parties,
to proceed by compulsory process to take private property, for the
purpose of increasing their present water power, and for this pur-
pose the provisions of the railroad act are applied.

The bill involves a simple proposition, to take the property of
one man and give it to another.

It is true the bill declares the purpose to be public. That decla-
ration is not biading upon the executive, who is a part of the law-
making power, and must decide for himself upon the character of
the improvement. Neither is it binding upon the judiciary, the
highest court in the State having held that the Legislature cannot
enlarge its powers by construction, or any decision it may make, or
any usage it may adopt. (he People v. Adsit, 3d Hand’s [42 N.
Y.] R., pages 378-381.)

Second. If the appropriation of this property was for a public

oe
or rHE State or New York. 549

use, the bill makes no adequate provisions for compensation to the
riparian owner for the lands taken, or rights of which he is deprived.

Respectfully submitted.

M. B. CHAMPLAIN,
Attorney-General.

Atrorney-GENERAL’s OFFICE,
Axsany, April 19, 1871. }

Hon. Joun T. Horrman, Governor:

By chap. 333, Laws of 1867, entitled “An act to provide fora
supply of water in the city of Poughkeepsie, and for sewers therein”:
(which act the bill submitted purports to amend), appoints certain
water commissioners, and regulates their term of office by classifi-
cation; and provides: “And upon the expiration of their several
terms of office, their places shall be filled by persons duly elected
at the annual city election for city officers, held in the city of
Poughkeepsie for the year in which such terms of office shall
expire.”

These commissioners are ‘authorized to take private property by
compulsory process, upon application to the Supreme Court for
appraisal of damages in the usual constitutional form.

They are also authorized to assess benefits upon the lands border-
ing upon the improvements they shall make. Indeed, the act seems
to vest in the proper authorities full power to supply the city with
water, and construct sewers therein.

The original act provides a board of officers, to be elected by the
electors of the city, entirely competent to exercise the new powers
conferred by the amended act (if, indeed, they are not already
authorized to exercise the same powers under the original act).

The amendment proposés to create a new board of commissioners,
to make the further improvements authorized by legislative appoint-
ment. It may be questioned whether such appointment is not in
violation of section 2, of article 9, of the Constitution, which requires
all city officers to be elected by the electors of such cities, or
appointed by such authorities thereof, as the Legislature shall désig-
nate for that purpose.
550 OPINIONS OF THE ATTORNEYS-GENERAL

A competent board of officers having been created for this pur-
pose as an agency in carrying on the city government, to be elected
by the electors, it would seem to be unwise, if it is not unconstitu-
tional, to vest the same powers in another board of officers, not so
elected. The duplication of officers of this character may lead to
inconvenience and confusion in municipal affairs, and derangement
in the administration of the city government.

Aside from this objection, it is competent for the Legislature, in
execution of the power of taxation, to appoint the agencies to
execute such power. (People v. Mayor of Brooklyn, 4 Comst.,
419.)

This is a power distinct from the exercise of the right of eminent
domain in the taking of private property for public use, in which
case the compensation must be assessed by a jury, or commissioners
appointed by a court of record. (Sec. 7, article 1, of the Constitu-
tion.) ,

Respectfully submitted.
M. B. CHAMPLAIN,
Attorney-General.

ATTORNEY GENERAL’s OFFICE,
Axzany, April 20, 1870.

F. OC. Fisxs, Esq., Village Clerk, Canastota, N. Y.:

Dear Srr.—Your communication of April 19th inst. is received.
If the electors of your village have duly adopted the general
charter in place of the old, the old charter is abrogated, and all
the village officers holding office under it at the time of such
adoption of the new charter are out of office. It is necessary that
the electors of your village proceed to the election of new officers
under the provisions of the new charter. The old officers do not
hold over. .
; Respectfully, etc.,

M. B. CHAMPLAIN,
Attorney-General.
or THE STATE oF New Yor. 551

Apany, April 20th 1871.

Upon consideration of the bill to erect the new county of Canisteo
from territory comprised within the county of Steuben, it appears
after a careful examination and computation of the number of

- inhabitants, as returned by the census of 1865, the creation of such.
new county will reduce the population remaining in Steubén county
below the legal ratio, as predicated upon such census entitled to a
member of Assemby, and upon investigation of the number of
inhabitants as returned under the national census of last year, the
population will be below such apportionment by over 3,000.

The question is presented whether there is constitutional power
in the Legislature to create this new county when such effect will
follow.

The provision of the Constitution is as follows, section 5, article
3: “Every county heretofore established and separately organ-
ized, except the county of Hamilton, shall always be entitled to one
member of Asssembly; and no new county shall be hereafter
erected, unless its population shall ‘entitle it to a member.”

This is a restriction upon the power of the Legislature, and forbids
the reduction of the population of any existing county by detaching
territory therefrom below the requisite number of inhabitants, to
entitle such county to a member of Assembly under the” last
apportionment.

It is obvious, that if any existing county can be reduced below:
the ratio, the constitutional prohibition that no new county shall
be formed unless its population shall entitle it to a member may
be perfectly nullified by the formation of new counties. The next
session after a new county is formed, or, indeed, the same session,
the very population that the Constitution requires in the new
county to authorize its formation, may, by the formation of another
county, be reduced any given amount, and the apportionment of

representation to this population may thus be wholly changed.

It seems to the undersigned that this prohibition can only be
made effectual by holding that it not only forbids the Legislature
from erecting a new county with less than the ratio of population
entitling it to a member of Assembly, but that it also forbids them
afterward to reduce this population below the ratio by the forma-
552 OPINIONS OF THE ATTORNEYS-GENERAL

tion of a new county. Indeed, every county, the territory and
population of which are reduced by a legislative act, becomes to that
extent a new county, and to the same extent the legislative act of
reduction forms a new county. In this view, such an act would
directly conflict with the constitutional prohibition against the
erection of new counties without the requisite population. (See
opinion of Hon. J. Van Buren, Attorney-General, Assembly Docu-
ments, 1846, vol. 4, No. 89& 139.1) For these reasons the bill to
create the new county of Canisteo, in our opinion, is unconstitu-
tional.
Respectfully submitted.

The undersigned concurred in the foregoing report.

MARSHALL B. CHAMPLAIN,
Attorney-General.

AtrornEY-GENERAL’s OFFICE,
Ausany, April 24, 1871.

Joun R. Rosertson, Esq., County Clerk, etc., Mayville, N. Y.:

Yours of the 21st inst. is received. It would appear when Mr.
Mitchell left home, he so left with the intention of returning in
the spring, and not with any intention of permanently changing
his residence. By his letter, however, of the date of February
‘9th, it appears he had made up his mind to reside in Nevada for
an indefinite time.

If this intention was formed, it would work a change of his legal
residence. It is not necessary that his family or effects be
removed to work such a change. Residence is determined by
intention ; and if, at the time of the town meeting, Mitchell had
abandoned all idea of returning, and had concluded to remain in
Nevada for an indefinite time, it would be such a change of resi-
dence as would vacate his office.

Judging of his intention from the statements in his letter, it

‘See ante p.119,also pp. 11, 67, 82, 156, 180, 247.
oF THE STATE oF NEw York. 553

would seem he understood that his residence was changed and his
office vacated, as he advises an election to fill his place.

Alonzo C. Prikard, having been elected and taken the oath as
justice, is duly éleetod to fill the vacancy, if it exists.

If it should turn out that no legal vacancy existed, Prikard:
being thus elected and qualified, and acting as a justice of the
peace, he would be an officer de facto, and his acts would be valid,
so. far as the public and third persons are concerned, until he was
removed upon a guo warranto at the suit of the people. So far
as he is individually concerned by so acting, he might incur
liabilities.

Respectfully, etc.,
M. B. CHAMPLAIN,
Attorney-General.

 

ATTORNEY-GENERAL’s OFFICE,
Aupany, April 24, 1871.

W. B. Warpron, Amsterdam, WV. Y.:

Srr.—The police justice appointed for your village can exercise
no jurisdiction for offenses committed outside of the limits of the
village, or cause of action arising outside of such limits. His
jurisdiction must be confined to the corporate limits.

Respectfully, etc.,
M. B. CHAMPLAIN,
. Attorney-General.

ATTORNEY-GENERAL’S OFFICE, }
Apany, April 24, 1871.

A. L. Huneurrorp, Mewico, Oswego County, NV. Kes
Sm.—The board of excise have no power to grant a license for
a shorter time than one year from the granting thereof.
Respectfully, etc.,

5 M. B. CHAMPLAIN,
Attorney-General.
554 OPINIONS OF THE ATTORNEYS-GENERAL

ATTORNEY-GENERAL’s OFFICE,
Auzany, May 17, 1871.

Hon. Joun T. Horrman, Governor:

Your communication of the eleventh instant, submitting the
inquiry whether women are eligible to appointment to the office
of notaries public, is received.

The Constitution of this State, declaring the rights of suffrage,
includes only “every male citizen of the age of twenty-one years,”
under certain restrictions as to residences, in the body of electors in
the State.

It seems to be the theory of our Constitution and laws, that all
officers to be elected or appointed should be selected from the body
of the electors.

It is provided, in section 31, part 1, title 3, chapter 11, article 2,
R. 8., volume 1, 5th edition, page 825,' that “no person shall be eli-
gible to any town office unless he shall be an elector of the town
for which he shall be chosen.”

And by section 1, of part 1, chapter 5, title 6, article 1, of the
R. 8., volume 1, 5th edition, page 407,’ “no person shall be capable
of holding a civil office, who, at the time of his election or appoint-
ment, shall not have attained the age of twenty-one years, and who
shall not then be a citizen of this State.”

The first provision in terms applies, it is true, only to town officers.
But the reasons that should require a selection for such inferior
offices to be made from the body of the electors, applies with
greater force to more important offices. :

The last provision quoted, itis believed, is more sweeping, and
is the provision under which aliens are excluded from office.

The term citizen, as used in the provision, must be held to import,
that the appointee, in order to be eligible té hold civil affice,
must be invested with the general fundamental, rights of citizen-
ship, among which must be included the right to exercise the
elective franchise as regulated and established by the Constitution
and laws of the State. (See 3 Story Commentaries, 674; 2 Kent’s

11R.8., p. 345, sec. 11 (1 Edmonds’ Stats., 318).
°1'R. §,, p. 116, sec. 11 (1 Edmonds’ Stats., 106).
oF THE SvatTe or New York. 555

Commentaries, 36; Federalist, volume 2, page 306; opinion of
Judge Washington, 4 Washington’s R., 380.)
I am of opinion that under the existing laws women are ineligi-
ble to election or appointment to any civil office within this State.
Respectfully, etc.,

M. B. CHAMPLAIN,
Attorney-General.

s

May 18, 1871.
Hon. Joun T. Horrman, Governor :

Your communication of May 1st, instant, is received.

The question is submitted as to the constitutionality of certain
claim bills before you for approval, which you state require thé
Canal Board, and in some cases the board of Canal Commissioners to
examine the prices payable under existing and unfinished canal
contracts; and in, case it shall appear that the cost of the work is
enhanced by causes unforeseen at the time of the letting of the
contract, there shall be allowed to the contractors sufficient to cover
the cost, which sum, so allowed, shall be paid in the monthly esti-
mates as the work progresses.

The provision of the Constitution which the bills in question
are supposed to violate, is found in section 8, of article 7, and is as
follows: “All contracts for work or materals on any canal shall
be made with the person who shall offer to do or provide the same
at the lowest price, with adequate security for their performance.”

This provision was not contained in the Constitution as origi-
nally adopted in 1846; but was a part of an amendment proposed by
the Legislature of 1853, submitted to the people and approved by
them in 1854, and finally adopted by the succeeding Legislature.

The amendment sprung from a public exigency created by the
overthrow, by the Court of Appeals, of a law providing for the
enlargement and completion of certain canals of the State, and the
issue of certain revenue certificates for that purpose, familiarly
known as the nine million bill, as unconstitutional and void. The,
bill authorized a debt of nine or ten millions, and a letting of the
work was had under it in December, 1851, which caused great
556 OPINIONS | or THE ATTORNEYS-GENERAL

public excitement, as pon frauds were charged, and it was asserted
that a combination had been formed by which the work authorized
was let to the highest instead of the lowest bidders, and resulted
in the impeachment and trial of one of the Canal Commissioners
for complicity in such letting.

The case in which such decision was announced in May, 1852,
and a copy of the law in question, will be found in the 7th N. Y.
Reports, page 9.

At the session of the Legislature in 1853, a constitutional
amendment was proposed to provide for such enlargement and to
create a debt therefor, based upon the revenues of the canals. The
amendment was first reported in the Senate (see Senate Docu-
ment No. 42, vol. 2d, 1853), having been reported by a majority
of a select committee of that body.

The amendment, as thus reported, did not contain the provision
above quoted. There was a report of a minority of the select
committee adverse to the amendment. (See Document No. 46,
above volume.)

One of the objections stated by the minority of the eommittee
to the proposition was, that it might justify a revival of the con-
tracts let under the nine million bill, and should contain a provision
that the work of such enlargement should be let to the lowest bid-
der, in order to obviate such oHeck which objection was stated in
these words:

“And if its friends do not desire a repetition of the frands of
December, 1851, nor contemplate the revival of the contracts
entered into in pursuance of those frauds, why not render assurance
doubly sure, and guarantee the people against any such contingency,
by requiring the work to be done under this project to be let to
the lowest bidder, giving proper security for the faithful perform-
ance.” (See last document quoted, page 33.)

In the amendment as finally adopted ‘by the Senate, this pro-
vision was in the following form: “Every contract for work and
materials for the completion and enlargement of the said canals
shall be awarded to the lowest bidder, after due public notice, who
shall give adequate security for the performance of his contract.
The Legislature shall prescribe the time and manner of such notice,
or THE State or New York. 557

and the form and amount of such security.” (See Assembly Docu-
ments 1853, vol. 6, Document No. 116, page 4.)

The amendment was submitted to the Assembly, and by that
body. amended in several important particulars.

._The Senate adhered to their amendment, whereupon a conference
committee of the two Houses was appointed. The proceedings
before the committee, which resulted in a unanimous agreement,
will be found in the document above citéd. The.several proposi-
tions were considered and discussed at great length before the con-
ference committee, and the form and language simplified, and the
provision under consideration was adopted, substantially, in the
form it is now found in the Constitution.

It has been claimed, from the history of this provision, that it
was not the purpose or intention of the framers of these amend-
ments to apply this provision to any work or contract other than
the enlargement and completion of the canals for which such amend-
ments were specially intended to provide.

By chapter 169 of Laws of 1862, section 1, it is provided that “all
contracts for the enlargement and completion of the canals of this
State, as contemplated by section 3 of article 7 of the Con-
stitution, and not hereinafter provided for, shall be executed
and performed in accordance with the plans, maps and specifications
heretofore prescribed and adopted, on or before the Ist day of
September next after the passage of this act.”

Provision is also made in such act for closing the final accounts
for such work.

The other provisions of the amendment, for the enlargement and
completion of the several canals mentioned therein, have been fully
executed and their power spent.

This provision was intended to apply only to the work thus
authorized ; it is also fully executed and its power is spent.

Construing this provision without a resort to the history of its
origin, by the light of the other amendments, it has also been
claimed to be temporary, like such other amendments, in its effect.

The provision appropriating the revenues to this work is as
follows:

“ The remainder shall in each fiscal year be applied to meet the
appropriations for the enlargement and completion of the canals
558 OPINIONS OF THE ATTORNEYS-GENERAL

mentioned in this section, until the said canals shall be com-
pleted.” * * * #

The provision authorizing the Legislature to proceed with the
work is in the following language: “The Legislature shall annu-

‘ally, during the next four years, appropriate to the enlargement of
the Erie, the Oswego, the Cayuga and Seneca canals, and to the
completion of the Black River and Genesee Valley canal, and for
the enlargement of the locks of the Champlain canal whenever
from dilapidation or decay it shall be necessary to rebuild them, a
sum not exceeding $2,250,000.”

The provision of the Constitution under consideration being
found in the same section, it is claimed must be read and construed
in connection with the other provisions quoted, and that “ all con-
tracts for work or materials on any canal” may be construed to
mean the work and materials authorized by the other amendments
concurrently adopted, and not as a general fundamental restriction
upon the powers of the Legislature, applicable to all future work

-which might be projected, but such newly projected works could be
done, or contracted to be done, in any manner the Legislature might,
by law, provide.

Ihave given the history of the provision under consideration,
and the principal grounds upon which it has been claimed that it
should be construed as a restriction upon the power of the Legisla-
ture, in providing only for the construction of the work contempla-
ted by the amendments to the Constitution, of which this forms a ‘
part.

I am not aware that its effect has been judicially determined.
Iam of opinion, that although in the start it was the intention of
the framers of this article, that it should apply only to the work
embraced within the project they were considering, yet that, in the
form in which it was ultimately adopted, it must be held as appli-
cable to all future work, whether then projected or not; and that
the principle was fully incorporated into the organic law, that all
contracts for future work or material on any canals of the’ State
should be let to the lowest bidder.

_ Assuming that it is applicable to all future work after its adoption,

the question remains whether the several claim bills are violations
of its provisions.
oF THE SraTe or Nuw Yor. 559
a¥

It will be observed the provision does not require all work to be
done by contract, but simply provided that, éf done by contract, it
shall be let to the lowest bidder giving adequate security. The
bills under consideration are not before me, but it appears the work
embraced in the contracts to which they relate was duly let to the
lowest bidder. The bills purport to give additional compensation
for additional work or increased expenses in doing the work.

From your communication, it appears there is no power to
increase the compensation, unless it shall appear “that the cost of
the work is enhanced by causes unforeseen at the time of the letting
of the contracts.” If the bills are open to such construction that
they may be held to apply to work and to expense incurred in its
‘ construction not embraced in the terms and stipulations of the
contracts for which it is just and equitable the State should pay,
they are not in conflict with this provision of the Constitution.

There is no mandate in the Constitution that all work done upon
the canals, or all expenses incurred, shall be so done or so incurred
by contract. As has been stated, it is that such work, and such only,
as the Legislature shall direct to be done by contract, shall be let
to the lowest bidder. The Legislature have full authority to pro-
vide that a portion of any given piece of work or improvement
may be done by contract, in which case it must be let to the lowest .
bidder; and that another portion of the same piece of work or
improvement may be done in any other manner without contract,
in which case it need not be let to the lowest bidder. I can see no
objection to a law authorizing the State authorities to avail them-
selves of the services of the contractor, his hands, teams and tools
being upon the spot, as the agencies to construct such additional
work, or incur such enhanced and unforeseen expense, and making
him compensation by an addition to his contract prices for other
parts of the same work embraced in the terms of his contract. If
it is fair to assume that the work for which this enhanced price is
to be paid, from causes “ unforeseen at the time of the letting of the
contracts,” is not embraced within them, although it may be
intimately and almost inseparably connected with the work that is
so embraced, yet, if it-can be held, from the terms of the bills, not
to be either equitably or legally embraced within the terms and
spirit of the contracts, it would logically follow that all the portions
560 OPINIONS OF THE ATTORNEYS-GENERAL

of the work which were within the contracts were let to the lowest
bidder, and in.this respect the Constitution was obeyed. And as
to the other additional work necessary to be done, the Legislature
is empowered to construct and pay for it in any other manner than
by contract as in their wisdom they shall deem for the best interest
of the State; and to so provide is not a violation of the Constitu-
tion. It may not be the wisest mode to adopt in the construction
of public works. But I am examining the question only as a ques-
tion of power under the Constitution.

The work that should be found upon examination not to be
embraced within the contract, the Legislature could authorize to be
done by the Canal Commissioner, or any other appropriate officer ;
or it might, as has been stated, make the contractor the agency
through which it should be executed.

If the bills must receive the construction, that in effect they
simply recast and increase the price to be paid the contractor, by
the contract, for the doing of the work clearly embraced within its
terms, they would fall within the mischief intended to be obviated
by the constitutional amendment in question. If, on the other
hand, they are open to such construction as will apply such
enhanced price to a character and class of work not legally or
equitably embraced within the provisions of the contract, they are
not a violation of the Constitution.

This is a question that can hardly be correctly determined from
a mere reading of the bills, if they were before me for examination.
The exact terms and stipulations of the several contracts, the char-
acter and nature of the work embraced within them, the character
and nature of the work which it is claimed is not so embraced, the
nature of the unforeseen causes which it is claimed has enhanced its
cost, are all elements entering into the consideration of the con-
struction of the bills, and are the very questions which it seems to
be the purpose of the bills to submit to the body of officers autho-
rized to make the investigation under them.

All which is respectfully submitted.

MARSHALL B. CHAMPLAIN,
Attorney-General.
OF THE STaTre or New Yorn. 561

Atrorney-GENERAL’s Orricg,
Axsany, June 12th, 1871.

Hon. Jonny T. Horruan, Governor:

T have considered the bill referred by your communication of
the date of June first, incorporating a company for the construc-
tion of gas-works, and the manufacture and sale of gas for the pur-
pose of lighting a certain portion of the city of New York, and
also the questions presented in the remonstrance of the Harlem
Gas Company against the bill. The power of the Legislature to
create corporations is conferred by section 1 of article 8 of the
existing Constitution, in these words:

‘“‘ Corporations may be formed under general laws; but shall not
be created by special act, except for municipal purposes, and in
cases where, in the judgment of the Legislature, the objects of the
corporation cannot be attained under general laws. -All general
laws and special acts passed pursuant to this section, may be
altered from time to time, or repealed.”

Full power is reserved in the Legislature to alter from time to
time, or entirely to repeal, all charters authorized by general laws
or granted by special laws after the adoption of this provision of
the Constitution. Such authority reserved in the organic law is a
part of the charter, and is of the essence of the contract between
the government and the corporators. The adjudications that have
held charters of incorporations to be unalterable, have been made
in cases where the power to alter or repeal was not specially
reserved either in the organic law or in the charter.

I entertain no doubt but that it is within the constitutional power
of the Legislature, by an alteration of the charter of the Harlem Gas
Company, to abridge the franchise thereby granted, by restricting
the territory over which it is to be enjoyed, or to repeal it alto-
gether. The Harlem Gas Company is incorporated under the general
law, passed in 1848, to carry into effect the section of the Con-
stitution quoted, and is in all respects subject to the reservation of
power in the Legislature to alter or repeal such charter contained
in such section.

The Legislature has equal power to alter or repeal the special
charter referred for my consideration. This power must be under-

36
562 OPINIONS OF THE ATTORNEYS-GENERAL

stood as applying only to the franchise granted, and not as to any
property acquired or vested in the corporators. It is the franchise
only that the government grants. That may be altered, abridged
or entirely recalled. The property of the corporators, its gas pipes,
fixtures, machinery and lands are subject to all the other sacred
guarantees of the Constitution for the protection of private property,
and, upon the repeal of the charter, is to be divided or disposed of
by the corporators, in such manner as they may adopt.

By no rule of construction can the provisions of the act pending
before you be held to touch or affect the property, of any character,
vested in the corporators of the Harlem Company.

I do not understand such to be its purpose or object. If the right
to exercise the franchise granted to the Harlem Company over the
territory north of Seventy-ninth street is not sufficiently protected
by the bill before you, creating the new company, and the franchise
granted to the new company is exclusive over such territory, it
would work a repeal of the charter of the Harlem Company over
such territory, which repeal, as I have shown, is fully within the
power of the Legislature to enact. It would be recalling the fran-
chise over such territory, granted to the Harlem Company, and con-
ferring it upon the new company, created by the special act pending
before you, but it would leave the property of the corporators of
the Harlem Company in such territory untouched. The bill con-
tains the following provisions:

“The rights and privileges hereby granted, are exclusive, but
shall not be construed to affect or impair any exclusive rights or
privileges, if any, vested in any incorporated company in said city.”

The franchise granted to the Harlem Gas Company, I understand
from the papers presented, extends over the territory covered by
the pending bill. The above provision must be construed in con-
nection with the existing legislation, and the rights existing in the
Harlem Company, upon the same territory under their charter.

No exclusive privileges can be granted beyond the power of the
Legislature to repeal. Another company may be formed at any
time, under the general law, to exercise such franchise upon the
same territory covered by the charter of the Harlem Company.
The charter of the Harlem Company does not purport to make its

aed ke, ie Denes 2 ©
oF THE STATE oF New Yorke. © 563

the new company, that it shall not be construed to affect or impair
any exclusive rights or privileges, if any, vested in any incorporated
company in said city, “becomes senseless and unmeaning, unless
we apply it to a reservation of and protection of the franchise and
privileges vested in the Harlem Company by their charter. So long
as no other company is incorporated to exercise the franchise over the
territory in question, it may be said to be exclusive in the Harlem
Company ; and construing the reservation by the light of the existing
state of things, upon the fundamental rules of the construction of
statutes, the reservation must be construed to fully protect the
Harlem Company’s rights to the exercise of their franchise over the
territory in question, and as not working a partial repeal of their
charter.”
The exercise of the franchise over such territéry is clearly an
existing vested right, and is exclusive until another right to the
exercise of such franchise is established over such territory. Such
new right it is proposed to create by the bill referred, and although
‘it declares that “the right and privileges hereby granted are exclu-
sive,” the effect of this language is qualified by the reservation
of the rights of other corporations above quoted which immediately
follows : ;
Upon a careful consideration of the bill referred to me, I am
of the opinion that its provisions do not in the least affect the rights
or privileges of the Harlem Gas-light Company.

Respectfully, etc.,

MARSHALL B. CHAMPLAIN,
Attorney-General.

’ Batavia, May 11, 1871.

Hon. M. B. Cxameratn, Attorney-General :

Duar Sm.—I beg leave to call your attention to section 6, article
7 of the Constitution of this State, and subdivision 5 of section 28
of the general railroad law, and section 17 of the act to incorporate
the Medina and Darien Railroad Company, passed May 5, 1834.

Section 6 of article 7 of the Constitution is as follows: “ The
Legislature shall not sell, lease or otherwise dispose of any of the.
564 OPINIONS OF THE ATTORNEYS-GENERAL

canals of this State, but they shall apie the property of the
State and under its management for ever.’

Subdivision 5 of section 28, above referred to, so far as it is
material to the question, reads as follows: “To construct their road
across, along or upon any stream of water, water-course, street,
highway, plank-road, turnpike or canal, which the route of its road
shall intersect or touch, but the company shall restore the stream
or water-course, street, highway, plank-road and turnpike, thus
intersected or touched, to its former state, or to such state as not
unnecessarily to have injured its usefulness. Every company
formed under this section shall be subject to the power vested in
the Canal Commissioners by the seventeenth section of chapter two
hundred and seventy-six of the Session Laws of 1834.” (See vol.
3 Edmonds’ ed. of statutes, page 627; subdivision 5 of section 28,
Laws of 1850, page 224.)

Section 17 of the Medina and Darien Railroad Company reads
as follows: “The Canal Commissioners are hereby invested with a
general and supervisory power over so much of any railroad as
passes over any canal or feeder belonging to this State, or approaches
within ten rods of such canal or feeder, so far as such power may
be necessary to preserve the free and perfect use of the canals or
feeders of this State, and necessary for making any repairs,
improvements or alterations in the same, and said company shall
not construct their railroad over or at any place within ten rods of
any canal or feeder belonging to this State, unless said company
shall lay before the commissioners aforesaid a map, or plan and pro-
file, as well of the canal or feeder as of the route designated for
their railroad, exhibiting distinctly and accurately the relation of
each to the other at all the places within the limits of ten rods, as
aforesaid, and shall thereupon obtain the written permission of
said Canal Commissioners with such conditions, instructions and
limitations, as in the judgment of said Canal Commissioners the free
and perfect use of any such canal or feeder may require.” (Vol.
3 Edmonds’ ed. of statutes, page 150; and Laws of 1834, page 505,
section 17.)

A survey and diagram of the Buffalo and Belmont Railroad
Company has been made from near Wiscoy to Oramel, partly upon
the berme bank of the canal. and dowhts have heen exnrosead aa ta
oF THE Srare or New York. 565

the constitutionality of the law ot 1850, authorizing such location
of it in accordance with the provisions of section 17 of above act.

Before applying to the Canal Commissioners on the subject we
wish your opinion whether the above provisions of the Constitution
prohibit the granting the permission authorized by the Laws of
1850.

Is it in other words a sale, lease or other disposition of the canal
to authorize a railroad company to make its road upon the berme
bank of the canal, and use it for railroad purposes ? ,

Please to reply to this as soon as convenient.

Yours very respectfully,

MOSES TAGGART,
President Belmont and Buffalo Railroad Company.

ATTORNEY-GENERAL’s OFFICE,
AxBany, June 15, 1871.

Mosts Tacearr, Bq. .. President, etc., Batavia, VN. Y.:

The provisions of the Constitution and of the statutes bearing
upon the question presented in your communication of the date of
May 11th are sufficiently stated in the same.

The question is, whether the sale or lease of the canals inhibited
by section 6 of article 7 means only a disposition of them to other
parties as canals, including the property and revenues of the same ;
or whether it prohibits the Legislature from any disposition of the
same or any part thereof which shall divest the State of title to
property in them or impair their revenues.

The language of the provision is, that “the Legislature shall not
sell, lease, or otherwise dispose of any of the canals of this State,
but they shall remain the pee of the State and under its
management forever.”

It is settled that all the lands and water appropriated by the
State and embraced within the “blue lines,” are canals within this
provision of the Constitution.

: While authority may exist in the Legislature to authorize a rail-
road corporation to construct its road across the canal, under the
restrictions and limitations contained in the statute, I am of opinion
566 OPINIONS OF THE ATTORNEYS-GENERAL

that it is not within their power to authorize the construction of
any such road along the berme bank or tow-path, or within the
prism of the canal.

If such a power were conceded, the Legislature might indirectly
do what they are clearly forbidden to do directly. They could
grant to corporations powers and privileges over the lands and
waters embraced within the “blue lines,’ which would entirely
destroy the practical navigation of the canals and their revenues,
and deprive the State of that exclusive management which is
expressly reserved. A competing freight railroad might be
authorized to be constructed upon the berme bank or tow-path of
the Erie canal between Albany and Buffalo, and thereby the canal
and its revenues be destroyed or greatly impaired, and the consti-
tutional inhibition quoted entirely defeated.

Respectfully yours,

M. B. CHAMPLAIN,
Attorney-General.

ATToRNEY-GENERAL’s OFFICE,
Appany, June 15, 1871.

H. B. Watpron, Esq., Amsterdam, WV. ¥.:

Your letter of May 31st ult., inclosing statement and submit-
ting inquiries, was duly received.

Section 18 of article 6, known as the old judiciary article, pro-
vided that “all judicial officers of cities and villages, and all such
judicial officers as'may be created therein by law, shall be elected
at such times and in such manner as the Legislature may direct.”

Section 3 of title 2 of the charter of the village of Amsterdam,
chapter 388, Laws 1854, empowers the trustees of the village to
appoint a police justice, to exercise civil and criminal jurisdiction
in certain cases.

This statute was in direct conflict with the provision of the Con-
stitution above quoted, and null and void, because the Legislature
was only authorized to provide for the election of such officer by
the electors of the village. I do not perceive that chapter 418, Laws

of 1RAK. changer the nravisian tn anw raanant Tha anaatian ta
oF THE STATE or New Yorn. 567

whether the adoption of the new judiciary article revives the
former act, and gives it constitutional validity as a valid law.

By section 17, article 1, it is declared, all such acts of the Legis-
lature of this State as are now in force shall be and continue the
law of this State, subject to such alterations as the Legislature
shall make concerning the same; but such of the said acts or parts
thereof as are repugnant to this Constitution are hereby abrogated.

The amended judiciary article (article 6) and existing statutes
of the State not repugnant thereto, must be read in connection
with the other provisions of the Constitution. Section 19 of such
article declares that ‘‘inferior local courts of civil and criminal
jurisdiction may be established by the Legislature, and, except as
herein otherwise provided, all judicial officers shall be elected or
appointed at such times and in such manner as the Legislature
may direct.”

The Legislature is empowered under this provision to authorize
an appointment of a police justice by the local authorities of the
village.

The provision of article 1, above quoted, however, does not
have the effect to revive or continue any act of the Legislature not
repugnant thereto, except such as are in force as valid laws.
Such provision cannot have the effect, in my opinion, to revive
and put in force an act of the Legislature clearly in conflict with
the old judiciary article of the Constitution, although its provisions .
may be in harmony with the new. Such act cannot be said to
have ever been in force, and is not therefore revived by the express
terms of section 17, article 1, above quoted.

This conclusion renders the answer to your second question

unnecessary.
= Respectfully, etc.,

M. B. CHAMPLAIN,
Attorney-General.
568 OPINIONS OF THE ATTORNEYS-GENERAL

ATTORNEY-GENERAL’s OFFICE,
Aupany, June 15, 1871.

Jacos Ope 1, Esq., Tarrytown, V. ¥.:

Yours of 10th instant is received.

Section 2 of title 3 of chapter 291, Laws of 1870, entitled “An
act for the incorporation of villages,” is as follows :

“$2. The president, when present, shall preside at meetings of
the board, and have a vote on all questions. In his absence any
trustee may be appointed president for the time. A majority of
the board shall constitute a quorum for the transaction of business.”

This section in effect makes the president of the village a mem-
ber of the board of trustees. The board mentioned in the con-
cluding paragraph of the section means the board as constituted,
with the president as a member thereof, entitled to vote on all
questions, and competent, in the language of such concluding para-
graph, “for the trancaction of business,” which includes all official
business for the village to be done by the board of trustees, of
which board the president is thus made a member. Other pro-
visions of the act strengthen and fortify this construction.

Respectfully, etc.,

M. B. CHAMPLAIN,
Attorney-General.

ATTORNEY-GENERAL’s OFFICE,
Axpany, June 15, 1871. }
Gro. W. Busu, Esq., Parksville, Sullivan County, NV. Y.:
Yours of 8th is received.

A temporary absence of the supervisor or justice of the peace
of the town, in case their offices are not vacant, does not authorize
the association of the town clerk with the officers remaining in the
town as a member of the excise board. It is only where the office
of supervisor is vacant, or the office of such of the justices is also
vacant, so that three members of the board cannot be convened,
that the town clerk is authorized to act. as a member of the board.

Respectfully, ete.,
M. B. CHAMPLAIN,
Attorney-General.
oF THE STATE or New York. 569

ATTORNEY-GENERAL’s OFFICE, }
AxBany, June 15, 1871. {

Aaron F. Bunyert, Esq., Supervisor, Gowanda, WV. ¥.:

Yours of the 9th instant is received.

Iam of opinion that the power to grant licenses, vested by the
recent excise law in the board of excise for towns, is coextensive
with the limits of the towns. The power vested in the village
boards of excise is coextensive with the limits of the village.
Such territory, however, embraced within the limits of an incor-
porated village, is a part of the territory of the town, over which
the jurisdiction of the town board extends to grant licenses.

The village board having power to license within the village
limits, the power of the town board over such territory is concur-
rent with the village board. That the village board have refused
to license in the given case within the corporate limits, does not
change the power of the town board, but the town board is autho-
rized to license within the village limits a person whose application
for license may have been rejected by the village board.

Respectfully, etc.,

M. B. CHAMPLAIN,
Attorney-General.

ATTORNEY-GENERAL’s OFFICE, }
Ausany, June 15, 1871.

Sanrorp Brown, Esq., Assessor, etc., Schenevus, V. Y.:

Yours of 10th instant is received. From your statement it
appears that the bank to which you refer is not a legally organized
or incorporated bank under the laws of this State, but is a mere
private enterprise, participated in by the parties as copartners, the
same as a partnership in the sale of merchandise or any other pri-
vate business.

The laws regulating the taxing of banks, bank stock, or the cor-
porators or stockholders in a bank, do not apply to such a case.
The persons engaged in the business to which you refer are to be
taxed for their shares in the town of their residence for the same,
570 OPINIONS OF THE ATTORNEYS-GENERAL

as personal property. If such persons are not residents of your
town, you have no jurisdiction to assess them for any personal pro-
perty. If residents, and assessed for personal property, they are
entitled to claim before the assessors the same deduction for debts
owing by them as any other person so assessed is entitled to claim
under the provisions of the statute.

Respectfully, etc.,
M. B. CHAMPLAIN,
Attorney-General.

ATTORNEY-GENEERAL’s OFFICE,
Axsany, June 15, 1871. \
Franx Anmerust, Esq., Highway Commissioner, Sheldon, IV. Y.:

Yours of 6th instant is received. In answer to your first ques-
tion, I would say that “ every person owning or occupying land in
the town in which he or she resides, and every male inhabitant
above the age of twenty-one years residing in the town, when the
assessment is made, shall be assessed to work on the public high-
ways in such town.” You will perceive that the statute applies to
all inhabitants of the district, whether citizens or not. Therefore,
aliens are liable to be assessed for highway labor. (See second
volume Revised Statutes, fifth edition, page 385, section 22.)

In relation to your second inquiry, the statute provides that the
assessment for highway labor, if not worked or commuted, must be
collected by levy upon the goods and chattels of the person so
assessed, the same as all other assessments are collected. If the
delinquent has no property out of which the penalty can be col-
lected, it is a public misfortune, and the debt must be lost the same
as other debts of irresponsible debtors.

Respectfully, etc.,

M. B. CHAMPLAIN,
Attorney-General.
or THz SvaTe# or Naw York. 571

ATTORNEY-GENERAL’s OFFICE,
Arsany, June 16, 1871.

Amos G. Hux, Assessor, etc., Binghamton, N. Y.:

Smr.—Your letter of 12th instant is received. Persons assessed
for personal property appearing before the assessors to claim a
reduction on account of debts owing by them, may be compelled
to be sworn, and are bound to answer all pertinent questions touch-
ing the existence of such debts, and the nature, amount and
validity of the same.

If the assessors should be of opinion that any pretended debt
was colorable merely, not existing in good faith but trumped up to
evade the law, they would be authorized to disregard it, and deny
the party any reduction on account thereof.

After all,it is always within the discretion of the assessors to
deny any reduction on account of debts. After investigation, if
they should refuse to make any reduction in a given case,
acting in good faith, their action could not be questioned or they
subjected to liability on account thereof. I know of no other
mode to reach the class of cases described in your communication
than an application to them of the principles above stated. It
must depend upon the good sense, sagacity, and firmness of the
assessors to correct all such abuses.

Respectfully, etc.,

M. B. CHAMPLAIN,
Attorney-General,

Arrorney-GENERAL’s OFFICE,
Axpany, June 16, 1871.

Hon. Jonny T. Horrmuan, Governor:

Upon an examination of the question referred, as to the disposi-
tion of certain convicts alleged to be insane, confined in the State
prison, I am of opinion that such disposition is regulated by the
provisions of the statutes, found at chapter 20, part 1st, article

18ee Barhyte v. Shepard, 35 N. Y., 238.
572 OPINIONS OF THE ATTORNEYS-GENERAL

3d, title 3, of the R. S., vol. 2, 5th edition, page 897," which is enti-
tled “The State Lunatic Asylum for Insane Convicts.”

Section 77 provides that whenever the physicians of either of
the State prisons of this State shall certify to the inspectors that
any convict is insane, they shall make, immediately, a full examina-
tion into the condition of such convict, and shall cause such convict
to be examined by one of the physicians of the State Lunatic Asy-
lum at Utica, and if satisfied that the said convict is insane, or that
there is probable cause to believe such convict to be insane, they
shall order the agent and warden of the prison where such convict
is confined forthwith to convey such convict to the State Lunatic
Asylum for Insane Convicts, and to deliver the said convict to the
superintendent thereof, who is hereby required to receive said con-
vict into the said asylum, and retain him there so long as he shall
continue to be insane. Such convict, after the expiration of the
term of his imprisonment, is not to be discharged unless his rela-
tives are of sufficient ability to maintain him.

The cases provided for in section 49 of the same statute, page
893,” are the cases of persons under sentence or conviction, imprisoned
in county jails, in which cases the county judge, with the aid of a
jury, is empowered to make the investigation as to the sanity of
the convict, and order his removal to the State asylum.

The power of the executive, in such cases, seems to be confined
to the general power to pardon, in the Constitution, and that con-
ferred by chapter 666 of Laws of 1871. This statute empowers
the court of Oyer and Terminer to appoint a commission to inquire
into the sanity of any person under indictment in such court, for
any offense the punishment of which is death. And if such per-
son is found to be insane, such court, with the concurrence of the
presiding judge, may order such person to such lunatic or other
asylum, as in their judgment shall seem meet.

Section 2 is as follows: “ The Governor shall possess the same
powers conferred upon courts of Oyer and Terminer, in the case of
persons confined under conviction for offenses, for which the pun-
ishment is death.”

1 See section 8, chapter 130, Laws of 1858, as amended by chapter 139, Laws of
1863 (5 Edmonds’ Stats. 244).
*Section 32, chapter 135, Laws of 1842 (4 Edmonds’ Stats. 25).
or THE SraTE or New York. 573

The court is only empowered, under this statute, to deal with the
criminal before trial, and in cases only where the indictment charges
an offense the punishment of which is death.

The executive, under it, is only empowered to deal with the
criminal after trial and conviction, and the conviction must be for
an offense for which the punishment is death.

The power of the executive under this statute, it appears, does
not extend to a case where the conviction is for an offense of a less
degree than capital, although the indictment may have charged a
capital crime. It is expressly confined to the cases “of persons
confined under conviction for offenses for which the punishment is
death.”

Under the general mandate of the Constitution, that the execu-
tive shall see that the laws are faithfully executed, he is empowered
to compel obedience to the several statutes upon the subject by the
several officers and persons charged with duties under them.

Respectfully submitted.

M. B. CHAMPLAIN,
Attorney-General.

ATTORNEY-GENERAL’s OFFICE,
Apany, June 26, 1871.

ALEXANDER Dunc, Esq., Cuyler, Cortland County, V. Y.:

Yours of the 19th inst. is received. The $4,000 mentioned is
taxable to B. as personal property. The bond, conditioned for the
faithful maintenance of A., secured by mortgage on real estate, not
being for the payment of money, but simply for the performance
of covenant, I am of opinion is not taxable. The “debts” due
from solvent debtors, declared in the statute to be personal pro-
perty and taxable as such, are moneyed debts, specific in amount,
and not mere executory covenants of the character for which this
mortgage is intended to secure.

Your communication does not state the precise character of the
contract between the owner and the railroad company. Assuming
that it is intended to vest in the company presently or ultimately
the land for a roadway, the company having taken possession and
574 OPINIONS OF THE ATTORNEYS-GENERAL

graded the road, I am of opinion that it is not taxable to the
former owner as real estate.

The Legislature has passed an act (last winter) providing that
farms divided by county lines are to be assessed each part in-the
county where situated. (Chap. 287, Laws of 1871.)

Respectfully, ete.,

M. B. CHAMPLAIN,
Attorney-General.

ATToRNEY-GENERAL’s OFFICE,
Axsany, June 26, 1871.

R. C. Rozrrtson, Esq., Parish, Oswego County, NV. ¥.:

Yours of the 20th inst. received. If the physician referred to
is duly appointed or commissioned as regimental surgeon and in
actual service as an officer of the N. G., he is entitled
to the exemption provided in the Military Code of 1870. The
service meant is the discharge of such duties'‘as are incumbent upon
him by such Military Code.

Respectfully, etc.,

M. B. CHAMPLAIN,
Attorney-General.

ATTORNEY-GENERAL’s OFFICE,
Apany, June 26, 1871.

J. O. McoCrurs, Esq., Village Clerk, Warsaw, N. Y.:

Your letter of 20th instant is received.

It appears, from your statement, that there was a failure on the
part of the electors of your village, at the last election, to elect a
trustee by reason of a tie vote,,and that Mr. Miller, the then
incumbent of the office, claimg to hold over, Mr. Garritsee and
Fisher, opposing candidates, as his successor, having each received
an equal number of votes.

The language of your charter is explicit, that the officers of your
village shall hold their offices, respectively, “as hereinafter men-
tioned, and until their successors shall be duly qualified.”
or THE STATE or New York. 575

The term of office of trustee is classified, and after the first elec-
tion, such term for three years. The term of office, however, is
not restricted to three years, only in case, upon expiration, a suc-
cessor is duly elected and qualified. If no successor is so elected
and qualified, upon the expiration of the term of three years, the
term of office is enlarged until such successor is elected in the
manner provided in the charter.

It is probably not within the power of the remaining trustees to
appoint a trustee in the place of Mr. Miller in this case.

The power to so appoint is only given if any vacancy shall hap-
pen. In this case there is, in fact, no vacancy, because the trustee
of the preceding year holds his office until a successor is elected
and qualified. It has been held that an office cannot be said to be
vacant while any person is authorized to act in it, and does so act.
(See People v. Van Horne, 18 Wend. R., 515, 518.)

The vacancy which the board of trustees are authorized to fill
must be held to include cases only where trustees have been duly
elected or appointed, and the offices have subsequently been vacated
either by refusal to serve, death, resignation, removal or incapacity.

Under the circumstances Mr. Miller is entitled to hold the office
until a successor is elected at some subsequent legally recurring
election.

The president of the village has the right to vote in the board of
trustees upon the designation of excise commissioners from their
number. ,

Such designation of excise commisssoners is to be annually made.
The language of the statute is, chapter 175, Laws of 1870, that
“in incorporated villages they shall consist of three members. of
the board of trustees, one of whom shall be president, to be
annually designated by such board of trustees.” This provision
fixes the term of office of an excise commissioner, in an incor-
porated village, at one year from the time of his designation or
appointment. Upon the expiration of such year the office becomes
vacant, and-a new designation of excise commissioners must be
made by the board of trustees. After the expiration of a year the
old commissioners have no power to grant license unless they are
576 OPINIONS oF THE ATTORNEYS-GENERAL

newly designated as commissioners of excise for the ensuing year.
I believe I have substantially answered all your inquiries.

Respectfully,

M. B. CHAMPLAIN,
Attorney-General.

ATroRNEY-GENERAL’s OFFICE, |
Ausany, June 16, 1871.

A. McVuan, Esq., Hast Virgil, Cortland Co., N. Y.:

Yours of the 15th inst. is received. In case a vacancy exists in
the office of justice of the peace of a town, the power of appoint-
ment to fill such vacancy is vested in the supervisor, town clerk,
and remaining justices of the peace in the town.' In order, how-
ever, toa valid exercise of the power of appointment, they must all
meet, and a majority must act in making it; or all must be notified
of the time and place of meeting, in which case a majority meeting
would form a quorum to exercise the power of appointment.

A written appointment presented separately to such officers for
signature, when they were not convened in joint session for the pur-
pose, would be invalid.

Respectfully, ete.,

M. B. CHAMPLAIN,
Attorney-General.

ArrorNEY-GENERAL’s OFFICE, |
Axpany, July 14, 1871.

Ws. F. Lurz, Esq., 241 Front Street, VN. Y.:

Your letter of 5th inst. is received. The only persons autho-
rized by the statutes of the State of New York to solemnize mar-
riages, for the purpose of being registered and authenticated, are,
Ist. Ministers of the gospel, and priests of every denomination ;
2d. Mayors, recorders, and aldermen of cities; 3d. Judges of the
county courts and justices of the peace.

1 Chapter 456, Laws of 1859 (8 Edmonds’ Stats., 322)
or THE SraTE or New York. 577

Notaries public are not authorized by virtue of their office to

solemnize marriages.
Respectfully, etc.,

M. B. CHAMPLAIN,
Attorney-General.

 

AtToRNEY-GENERAL’s OFFICE,
Axsany, July 15, 1871. }
Joun E. Surra, Esq., Morrisville, VN. Y.:

Sr.—In order to entitle any person to the exemption declared
in chapter 245, Laws of 1871, such person must have enlisted, or-
accepted office during the time from April 17, 1854, to April 29,
1865, and have been honorably discharged, after serving seven
years under such enlistment. Previous service in the militia, under
this act, cannot be taken into the account to make up the seven
years’ service required.

Respectfully, etc.,
M. B. CHAMPLAIN,

Attorney-General.

 

ATYorNEY-GENERAL’s OFFICE, l
Axzany, July 17, 1871. §
Watrnr H. Sreicxranp, Esq., Assessor, etc., Otto, Cattaraugus

County, N. Y.:

Srz.— Your letter of 12th inst. is at hand. It is the duty of the
assessors, under the law and their oaths of office, to assess the pro-
perty of the taxable inhabitants of the town “at its full and true
value, as they would appraise the same in payment of a just debt
due from a solvent creditor.” ‘

When such value is assessed, the sum to which any party may be
entitled to as an exemption, should be deducted therefrom. Ifthe
assessors assess the property less than its actual value, nevertheless
the exemption must be deducted from such assessed valuation.

Your communication does not involve the inquiry as to what
persons are or are not entitled to such exemptions.

Respectfully yours,
M. B. CHAMPLAIN,
Attorney-General.
36!
578 OPINIONS oF THE ATTORNEYS-GENERAL

AtTToRNEY-GENERAL’s OFFICE,
Axpany, July 17, 1871.

Dante CO. Parxes, Esq., Minerville, Montgomery Co., N. Y.:

Sm.—Yonur letter July 5th is received. I answer your inquiries
in the order in which they are submitted :

ist. If a person is duly enlisted and enrolled in the national
guard at any time before the assessment rolls are fully completed,
so as to be liable to military duty, he is entitled to the exemption
of $1,000, secured by section 253 of the military code.

2d. A person otherwise entitled to’the exemption, if he occu-
pies a farm, may be assessed upon the same as occupant, and if so
assessed is entitled to the deduction of the exemption, the same as
though he were the owner.

3d. The language of the act, chapter 245, is explicit, that all
persons who enlisted or accepted office in the militia during any
of the time from April 17th, 1854, to April 29th, 1865, and were
honorably discharged after serving seven years, are exempt from
the payment of highway taxes, not exceeding six days in any one
year, “and every such person now assessed for highway taxes shall
be entitled to a deduction in the assessment of his real and personal
property to the amount of $500 each year.”

Whatever may have been the intention of the Legislature in
framing this enactment, its language is so plain that it must
receive a literal construction, and entitles the persons who fall
within its provisions to both exemptions. In localities where per-
sons are not assessed under existing laws for highway labor, as such,
but are assessed for highway taxes in another form, such persons
are entitled to the exemption from the assessment of their real
and personal property to the amount of $500 each year. The
foregoing substantially answers your inquiries.

Yours respectfully, etc.,

M. B. CHAMPLAIN,
Attorney-General.
or THE State or New Yoru. 579

Artorney-GEnerav’s Orrice,
Axzpany, August 30, 1871.

To His Excellency Governor Horrman :

In compliance with your request, I have made a careful examina-
tion of the Constitution and the laws applicable to the health officer
for the port of New York, and the powers and duties of the Governor
in cases where charges are made against such officer, and have
arrived at the following conclusions:

1st. The Governor has no power to remove the health officer for
the port of New York, on charges or otherwise. His power in this
regard is limited to a recommendation to the Senate for such
removal, if for reasons satisfactory to himself he deems it his duty
to do so. (See page 414, section 48, volume 1 fifth edition of the
Revised Statutes. Also section 25, chapter 358, Laws of 1863.)

2d. The Governor is not authorized to institute proceedings,
subpena witnesses, etc., to determine the truth of charges that
may be preferred against such officer, as in the cases of sheriffs,
district attorneys, etc., of counties, such action being expressly
restricted to the offices named in the section, providing in detail
for such examination. (See article 10, section 1 of the Constitution,
also sections 51 and 52, and pages 414 and 415 of the volume above
quoted.) The statute authorized the Senate to remove such officer
on the recommendation of the Governor, but it nowhere indicates
the grounds for such recommendation. It may be said, that an
implication is conveyed in the statutes applicable te other offices
named, that the Governor should institute like proceedings to
investigate the charges made against the health officer, who is not
named in the statute. All the rules of implied authority exclude
this case. The officers are expressly named to whom the machinery
of the statute in relation to an inquiry is applied. “The well settled
rule expressio unius exclusio alterius has its fullest application
here. The statutes are also in their nature pena, and must be
strictly construed. They cannot be enlarged by implication 80 as
to confer constructive jurisdiction. It is a simple question ‘of
power that is considered under the laws as they are. Of course,
any information which the Governor deems essential to elicit,
with a view of informing himself as to the truth of the charges
580 OPINIONS OF THE ATTORNEYS-GENERAL

preferred, and to determine his duty in regard to a recommenda-
tion for removal, would be legitimate and proper; but it could not
be enforced as in the case of charges against sheriffs, coroners, etc.,
provided for by law.
Respectfully yours,
MARSHALL B. CHAMPLAIN,
Attorney-General.

ATroRNEY-GENERAL’s OFFIOE, }
Axzany, September 6, 1871.

Hon. Van R. Ricumonn, Chairman, ete. :

Dear Sre.—In answer to a resolution adopted by your honorable
board, of the date of August 14, ultimo, which has been submitted
to me as follows:

Resolved, That the Attorney-General be requested to favor this
commission with his opinion on the following points, viz. :

1st. Would it be within the intent of the law (chapter 868, of
the Laws of 1871),1 to allow competition by boats that do not
carry, “in addition to the weight of the machinery and fuel neces-
sary for the propulsion of said boats,” two hundred tons of cargo,
that is in part or wholly carried on boats towed by the one on which
is placed the machinery ; or in other words, can tug boats drawing.
one or more freight boats, or boats in sections, compete under the
law? The second requirement of the first section, in plain words,
cuts off such tug boats drawing freight boats, but the point has
been raised that another clause of the same section alters this second
provision. The clause referred to is: ‘“ Any means of propulsion .
or towage, other than by a direct application of power upon the
boat, which does not interfere in any manner with the present
method of towage on the canals, and complying in all other respects
with the provisions of this act, may be entitled to the benefits
thereof.”

_ 2d. Does the word “new,” in the third section of the law, recur-
ring in the connection hereinafter given, require that the device

‘The act offering a reward of $100,000 for the practical introduction, for pro.
pulsion of boats upon the State canals, by steam or other motive power other than
animal.
oF THE SraTE or New Yorn. 581

should be something not before known or tried, or may it be sufficient
to make some old or known‘ device. successful ?

Ҥ 3. If the commissioners herein appointed shall, upon such
examination and test as is provided for in the first section of
this act, conclude and determine at any time that one or more
inventions or devices as aforesaid, but not to exceed three in number,
shall be in all respects a, full and satisfactory, practicable and profit-
able adaptation to the wants of the canals, by reason of a new, use-
ful and economical means of propulsion for boats within the mean-
ing of this act.”

I respectfully report that, after a careful examination of the act;
and a comparison of its several provisions, I am of opinion that the
motive power contemplated by it, to be applied to the propulsion of
boats, may be applied upon a boat other than the one which carries
the cargo; and that tug boats propelled by steam, or other motive
power specified in the act, may be made competitors for the prize
under the act.

The universal and fundamental rule for the construction of all
statutes is that the several provisions must be harmonized and given
their full effect, so as effectually to carry out the scheme or purpose
intended. :

The concluding paragraph of section one is as follows: “ Any
means of propulsion or towage, other than by a direct application
of power upon the boat, which does not interfere in any manner
with the present method of towage on the canals, and complying in
all other respects with the provisions of this act, may be entitled to
the benefits thereof; but this shall not be construed to apply to the
system known as the Belgian system, or to any mode of propulsion
by steam engines or otherwise, upon either bank of the canals.”

This provision expressly authorizes your commission to accept
any means of propulsion or towage, other than by a direct applica-
tion of power upon the boat, provided such means of propulsion
do not interfere with the present method of towage upon the canals ;
and must be held to modify the other provisions of the act, by which
such means of propulsion or towage are excluded. This construc-
tion is very much strengthened by the concluding paragraph of the
portion of the section quoted, which excludes the system known as
582 OPINIONS OF THE ATTORNEYS-GENERAL

the Belgian system, and any mode of propulsion by steam engines
or otherwise, upon either bank of the canals.

The exclusion, by the express terms of the section in its last
paragraph, of these two modes of propulsion from your eonsidera-
tion furnishes strong evidence that it was the intention of the Legis-
lature to include all other modés of propulsion by steam, caloric,
electricity or any other motor than animal power.

The word “new” in the third section, in my opinion, is satis-
fied by the application of the power intended by the act to a use-
ful and economical means of propulsion of boats upon the canals,
although such power was before applied to other uses. In its appli-
cation to this purpose, within the provisions of the act, if success-
ful and useful, it would be new in the sense intended by the scope
and spirit of the act.

Respectfully, ete.,

M. B. CHAMPLAIN.
Attorney-General.

ATTORNEY-GENERAL’s OFFICE, |
Axzany, Vovember 20, 1871.
Dear Smr.—Absence from the city on important official busi-
ness has prevented an earlier reply to your letter of October 10th,
ult. Intoxication in a public place is declared by the excise law to
be an offense or crime punishable by fine or imprisonment. While
a party guilty of such offense may be arrested while intoxicated,
and committed until he gets sober before he can be tried, this is not
the only remedy. A party so guilty of the offense of intoxication
in a public place, and not so arrested, may be complained of before
a magistrate for such offense, and a warrant obtained after he has
become sober, and may be arraigned and tried for the offense so
committed.

Respectfully, etc.,

M. B. CHAMPLAIN,
Attorney-General.
or THE State or New Yor. 583

AtTTORNEY-GENERAL’s OFFICE,
Apsany, Wovember 21, 1871.

Conant Sawrzr, Esq., Ausable Forks, N. Y.:

Your letter of 17th instant received.

An elector if twenty-one years old is qualified, in respect to age,
to vote. The provision in the Constitution, specifying as a qualifi-
cation ten days’ citizenship, has no reference to age or any class of
voters except naturalized citizens, the intention being that such
persons should be naturalized ten days before election.

As to the person who left home to go to Nebraska, if he did not
intend to change his residence by so doing, such residence remains
unchanged, and his absence was merely temporary. Residence
rests ‘entirely upon intention, and can best be determined by the

i is vote.
ie eee Respectfully, etc.,
M. B. CHAMPLAIN,
Attorney-General.

ATTORNEY-GENERAL’S OFFICE,
Axzany, Vovember 21, 1871.

Jno. H. Buox, Esq., Lockport, V. Y.:

Your letter of 16th instant is received.

By chapter 13, title 1, section 5, subdivision 3,’ it is provided
that “every building erected for the use of a college, incorporated
academy, or other seminary of learning, every building for public
worship, every school-house, court-house and jail, and the several

.lots whereon such buildings are situated, and the furniture belong-
ing to each of them shall be exempt from taxation.” (1 R.S., 5th
ed., p. 906.) Laws authorizing an assessment upon property beue-
fited for local improvements are an exercise of the power of taxa-

tion vested in the State government.’ Churches and furniture,
together with the lots upon which they are located, being declared
by law to be exempt from taxation, are so exempt from both ordin-

11 RB. S.,, p. 388, § 4 (1 Edmonds’ Stats., 300).
2See 4 Com. (4.N. Y.), 419; 19°N. Y¥., 116; 36 Barb., 177.
584 OPINIONS OF THE ATTORNEYS-GENERAL

ary and extraordinary taxes under the provision of the statute
quoted.

Tf, however, the special act of the Legislature authorizing the
improvement or the charter of the city and village, under which
such improvement is being made, contains provisions which clearly
show an intention to change the law, and subject the church pro-
perty in the given case to assessment for benefits, the latter law
would, of course, prevail, and it would not be exempt. Each case
will have to be decided by comparing the provisions of the special
act or charter with the provision quoted to see if ‘the law has been
changed. If not changed, of course, the property is exempt.

Respectfully, ete.,

M. B. CHAMPLAIN,
Attorney-General.

ATTORNEY-GENERAL’s OFFICE,
Axsany, WVov., 21, 1871.

Joun Snow, Esq., Oneida, NV. Y.:

Your letter of Nov. 18th inst. is received. The harmony of the
excise system will be best preserved, and the execution of the law
best maintained, by the several boards who grant the licenses enter-
taining and prosecuting complaints for the violation of the same.
It would seem to be the intention of the Legislature that the board,
whether town or village, granting the license in the given case,
should exercise the supervisory power of prosecuting for its
violation.

Respectfully,
M. B. CHAMPLAIN,
Attorney-General.

—$——

Atrorniy-GENERAL’s OFFIog,
Axsany, Vov. 21, 1871.

Epwarp A. Grirritu, Sheriff, Delhi, NV. Y.:

Your letter of Nov. 18th inst., is received. In my opinion, the
service of a subpoena issued by the district attorney, in a criminal
oF THE STaTE oF New Yorg. 585

proceeding, is not included in the first section of chapter 415, Laws
of 1871, to which you refer, and that therefore you are not entitled
to the fee of one dollar each, for such service.
Respectfully,
M..B. CHAMPLAIN,
Attorney-General.

Arrornry-GENERAL’s OFFICE, l
Axsany, ov. 22, 1871.

Hon. H. A. Raves, Greenport, L. L.:

Absence from the city on important public business has prevented
an earlier reply to yours of Sept. 11th., last.

It is provided in article 3, section 2, of the State Constitution,
that “for the purpose of voting, no person shall be deemed to have
gained or lost.a residence by reason of his presence or absence while
engaged in the navigation of the waters of this State, or of the
United States, or of the high seas.”

The navigation of the “ high seas,” intendéd by this provision,
is sailing from port to port upon the “high seas,” and does not
include the case of the fishermen mentioned in your letter. The
right of such persons to vote depends upon where they fix their
residence, as residence is determined solely by the intention of the
party. If these fishermen have fixed, in their own minds, their
residence at the place from which they carry on their business, such
place becomes their legal residence, and they are entitled to vote
there.

Respectfully,
M. B. CHAMPLAIN,
Attorney-General.

. November 22, 1871.
J. La*‘Duz, Esq., Westfield, NV. ¥.:

Absence from the city on important public business has prevented
an earlier examination of your inquiry of Sept. 26th last.

By virtue of chapter 3, Laws of 1871, I am of opinion you are

1 An act fixing the term of office of notaries public appointed during the recess
of the Senate.
586 OPINIONS OF THE ATTORNEYS-GENERAL

legally in office until the 1st of March, 1872, and that one qualifi-
cation within the time prescribed by law was a sufficient compli-

ance with the statute.
Respectfully, etc.,

M. B. CHAMPLAIN,
Attorney-General.

ATTORNEY-GENERAL’s OFFICE,
Aupany, Vovember 23, 1871.

W.H. NEARPASS, Esq., Port Jervis, N. Y.:

Dear Sm.— Your letter of September 27th last was duly
received, but absence from here on important official business has
prevented an earlier consideration of the same.

‘The boundaries of this State, as found in the Revised Statutes,
(vol. 1, 4th ed., page 71),' are the only ones to be guided by in deter-
mining the question you submit. From the description therein con-
tained, I am of opinion that the middle or center of the Delaware river
is the dividing line between the State of Pennsylvania and New York
at the point indicated in your letter. It follows, the jursidiction
to hold the inquest upon the body found was vested in the coroner
of the county within which it was found, if found on either side
of the middle thread of the stream. If the body was found float-
ing in the center of the stream, the inquest would fall under the
jurisdiction of the coroner on either side to whose attention it was

first called.
Respectfully,

M. B. CHAMPLAIN.

ATTORNEY-GENERAL’s Orrion,
Axpany, Vovember 23, 1871.

Henry Stowe t, Esq., Seneca Falls, V. ¥.:

Yours of the 20th instant is received. .

By chapter 184, Laws of 1871, it is enacted that the publisher
of the newspaper designated to publish the laws shall be entitled
to receive for such publication the sum of fifty cents for each folio.

11 R. S. 62-66 (1 Edmonds’ Stats., 76).
or THe Srarn or New Yorx. 587

The resolution fixing the rate of compensation at thirty-five cents
per folio, passed by the board of supervisors of 1870, is repealed
by the statute above quoted, and the publishers are entitled to fifty
cents per folio for all laws-published since the enactment of the
statute.

Respectfully, ete.,
M. B. CHAMPLAIN,
Attorney-General,

>

ATTORNEY-GENERAL’s OFFICE,.
Axzany, December 16, 1871.

R. §. Armstrone, Esq., President, etc., Cuba, NV. Y.:

Dear Sir.—I have considered the statement: inclosed in your
letter of the 12th instant, and have come to the following conclu-
sions :

ist. That an assessment roll must be made by the assessors, under
title 6 of the act under which Cuba village is incorporated,! within
sixty days after the annual meeting, and that in order to legally
perfect it, ten days’ notice must be given of the time and place
when the assessors will hear complaints and correct the assessment.
The assessment roll thus perfected, in the manner prescribed, is
the basis for all assessments thereafter to be made for expenditures
in the village. The provisions relating to town and county taxes
do not apply. This is obvious, for the reason that there is a clear
power to make assessments prior to the time at which the town
tax roll is to be completed. The time of the annual election is
fixed for March, and within sixty days from that time the roll is
to be made, and may be perfected upon ten days’ notice, as before stated.
As soon as perfected, there is a clear power to apportion a tax upon it.
Under the laws regulating town assessments, the tax roll is perfected
upon the appeal day, the second Tuesday in August. The power
to impose assessments for expenditures before this time evinces an
intent in the Legislature to create a law for such assessments spe-
cial to the villages incorporated under the act. Consequently, the
provisions of such act must be followed in making the roll and

The general act for the incorporation of villages (chap. 291, Laws of 1870).
588 OPINIONS OF THE ATTORNEYS-GENERAL
‘ e

imposing the taxes. It was intended by the provision that the roll
should be made within sixty days, to prescribe the time at which
the valuation and ownership of the property should be fixed, to
remain for the year as the basis for all assessments.

2d. It further appears from the statement that the roll was made
by copying, from the uncompleted assessment roll of the town, the
assessment of the property within the village.

This is in no sense a compliance with the provisions of the act.
The taxable inhabitants within the corporate limits can only be
subjected to payment of taxes upon a valuation and assessment
made upon the judgment of the assessors, upon proper examination
and under the sanctions of their official duty.

It would seem from the whole spirit of the act, which has
become the charter of your village, that, in order to a legal assess-
ment of taxes beyond the sum authorized for contingent expenses,
a statement should be submitted to a meeting, and the taxes legally
voted, as a preliminary step to the right of their imposition.

It may be that the proper way out of the difficulty in which the
village seems to be involved would be to have an election called,
proper statements submitted, and the taxes voted, and then for the
assessors to proceed, and in strict compliance with the law make
and perfect a new assessment roll, upon which such taxes could be
legally apportioned. This is, however, a mere suggestion, and not
called for by the inquiries submitted.

Respectfully,

M. B. CHAMPLAIN,
Attorney-General.

December 18, 1871.

Jacop Roruscuttp, Esq., Secretary, etc., Institution for the
Improved Instruction of Deaf Mutes, No. 642 Seventh avenue,
New York:

By section 9, chapter 555, Laws of 1864, provision is made for
the support and instruction of indigent deaf and dumb children in
the New York Institution for the Deaf and Dumb.
or THE STATE oF NEW York. 589

By chapter 180, Laws of 1870, the previous act is amended by
inserting in certain sections thereof, after “the New York Institu-
tion for the Deaf and Dumb,” wherever the same occurred, “or in
the Institution for the Improved Instruction of Deaf-mutes.” And
it is declared that all the provisions of law now existing fixing the
expense of the board, tuition and clothing of children placed in the
New York Institution for the Instruction of the Deaf and Dumb
shall apply to children who may be placed in the said institution
for the improved instruction’ of deaf-mutes, in the same manner
and with the like effect as if said last mentioned institution had
also been originally named in the acts fixing such compensation.

By virtue of these provisions the two institutions are blended as
one for the purpose of maintenance and support, and are to be
treated as though both were contained in chapter 555, Laws of
1864.

The charity bill appropriates $105,000 for the instruction and
maintenance of 350 State pupils for one year, pursuant to chapter
555, Laws of 1864.

Both institutions are, therefore, entitled to share in this munifi-
cence upon a compliance with the other provisions of the law.

Respectfully, etc.,

M. B. CHAMPLAIN,
Attorney-General.

 

ATTroRNEY-GENERAL’s OFFICE,
Ausany, December 18, 1871.

A. W. Guzason, Esq., 84 Broadway, WV. ¥.:

Yours of November 25th ult. is received. Iam of opinion that,
by the true construction of chapter 321, Laws of 1864, a prisoner
who has been sentenced for one year can earn a commutation of
one month during such imprisonment.

This is apparent by tracing the history of the law providing for
such commutation.

The clause in section 1, that “an allowance for good conduct
shall be made of one month on each of the first two years,” was
intended merely to limit the commutation to a month in each or
590 OPINIONS OF THE ATTORNEYS-GENERAL

either of the first two years. Where the term of imprisonment is

but one year, the one month’s commutation may be earned by the

convict the same as though the imprisonment was for two years.
Respectfully,

M. B. CHAMPLAIN,
Attorney-General.

 

To the Hon. the Assembly of the State of New York:

I have received and considered the inquiry embraced in the fol-

lowing resolution :
State or New York, 1n AssEMBLY,
Axpany, April 21, 1871.

Resolved, That the Attorney-General be, and he is hereby,
requested to prepare an opinion, to be submitted to the next Leg-
islature, as to their power to repeal the charter granted to the so-
called Elevated Railway in the city of New York.

By order.

Cc. W. ARMSTRONG,
Clerk.

By section 1, of article 8, of the existing Constitution, power is
vested in the Legislature to create corporations by general laws and
by special act, when the objects of the corporation cannot be
attained under general laws. And it is expressly ordained that,
“all general laws and special acts, passed pursuant to this section,
may be altered from time to time or repealed.”

The act to provide for the construction of the so-called Elevated
Railway in the city of New York, was passed on April 22, 1867,
and is subject in all respects to the provision of the Constitution
above recited.

Besides, the following section is contained in the act, section 12:
“This act may be altered, amended or repealed at the pleasure of
the Legislature.”

It will be observed that full power is reserved in the Legislature
to alter from time to time, or entirely to repeal all charters autho-

rized by general laws, or granted by special laws after the adoption
of this provision of the Constitution.
oF THE STaTe or New Yor. 591

Such power of alteration or repeal is also expressly reserved in
the act, and becomes a part of the charter, and is of the essence
of the contract between the government and the corporators.

The adjudications that have held charters of incorporations to
be unalterable have been made in cases where the power to alter
or repeal was not reserved either in the organic law or in the
charter.

I entertain no doubt but that it is within the constitutional
power of the Legislature to alter or repeal the special charter
referred for my consideration. This power must be understood as
applying only to the franchise granted, and not as to any property
acquired or vested in the corporators. It is the. franchise only that
the government grants.. That may be altered, abridged or entirely
recalled. The property of the corporators, its track, fixtures,
machinery and lands are subject to all the other sacred guarantees
of the Constitution for the protection of private property, and,
upon the repeal of the charter, is to be divided or disposed of by
the corporators in such manner as they may adopt.

All of which is respectfully submitted.

MARSHALL B. CHAMPLAIN,
Attorney-General.
INDEX.

. A.
PAGE.
Abandoned canal lands........ Sod@enwateus se ceaeecme Tans ndueesoesetees 278
Adjournment of courts over election day .........ccccseccsccsscccececeees 165
“ DLegislatures-ciiscseescaxscts sis esacetees a waleersasrets oie sieaiclars 252
Agents of State prisons, payment of jadenans against ...... saneserwajbiaied sie 240
Albany basin act, authorizing construction, repairs, etc ............. 17, 188, 407
Sf. elty; Teturnl OF LAKES). ao sd. oeve wisn sare acctmsrsssintnsns wale e eale Gemwasiniee’e ais 170
‘* city and county, canvass of votes for police commissioners.......... 495
Albion, vertical wall at 6... ..csccccccevescccsccceccassnssecesocsececsoes 373
Allegiance, effect of naturalization abroad upon ...........+5- seleinisiviolsiawisve'té 380
Aliens, liable to assessment for highway labor ......... ied store: eisiniteve dabvecaiace- oie 570
Amsterdam, police justice in... 0... ..cc cece ce ceesecesecceenceeneeseeenes 566
Appointments to fill vacancy in elective office ............. Gersiniwiamatee ese 465
“ of judges to hold special terms in New York................ 358
e by justices of the peace, how made........cseeseeeee ayeratwinieis 460
s of loan commissioners by Governor .......... aes sixes isha 245, 257
i of canal appraisers.......... ddas eae kale amon nemauoemanes 167
Apportionment of members of Assembly ........-.0.see0e aemieiaielee's 68, 82, 247
Appraiser, canal, power to appoint..... Bialeae” ae bia ene aare btyate drevaiorehaverscdvexs - 167
Appropriation for State liDTary ......... cece e cece ccc cn cece cecececceseee 167
“ power of Comptroller in paying...... side ia Sins: $ Gia elateinielelatecaays 240
Arsenal, State, in New York city .........ccceeeeeveee Piaisatteaen vetoes 184
Assembly, apportionment of members Of. ......0..ceccececcecesceces 68, 82, 247
ee district, change Of........seeeeeee Meanvierna cis nae Seca 67, 82, 180, 268
“residence of members Of .......ceseeees fe niiels Slee vo a'e ies e'ale wae 261
Assessment of banking Capital........ccceeecceecceeees Sota e sues aiaverese - 201
se of State property. ......0..000- slew dwiaeate sieve fF iawewie danas bees’ 415
property liable to. ......0. cece e cee cees ene eeeenceeeeeenns 419, 573
ie of personal property, where ste eRe tees ase ea dbs aves eslae Sa0s 425
ge of real estate.......... ibis gis diet coumierers Bina sig le sigensaeisere Bere 544, 545
for highway labor .........+. wees DeeseRaNS avaweewe walea’s 570
% for local improvements....... i aieieawewisinis Stieias ols is sibsete eareeve soe. 583
oft in villages ...........2- dnd geomet vnace meets hanmentews 587
Assessors, vacancy in office Of.........seeeeceees ade Oveeemecwece 117, 421
“ act judicially..........eeeseeeee slasher aletstece/ota wlelajecsrbad wiesererara 424, 571
ss election and term Of........+..06 sie dela nw ahamimeate wabewet soeee 525
HO Uty’ Of cisiedaccscar ness s60 6 oes aes Hesieieis create bdgisia Sheena OLE
Attorney-General, duty | in foredtosing manne ome diaditaaaewenmesire 109

38
594 INDEX.

PAGH.

Attorney-General, duty to bring Suits.........0.ececceeeeeecceeecceeeenees 387

Auditor, authority to pay certificates of Canal Commissioners .............. 301

drafts of Commissioners for vertical wall.......... 373
“power to withhold salary of superintendents.............+..+. 397, 405
B.

Ballot for county judge and surrogate....... senda hee os ve SBA GE a eT 504

Bail, power to surrender principal............+- la Sitadeielaern’s ori alaveisliddetel, d's eee 234

Bank, relinquishing business..........sececessccccccereees Sivas aeiaanaie, ayers 175
© taxation of SUrplus......ccccccccescsccccoceecccecesceneseacseesne 419

BaD Rig osr:siseio eur lerenneeesiteausont igri ose: eliguateres aya anib 9 ibre ieee eres ois 6 Salata ae a9 S's torelane tore 177

“* capital, assessment Of ......... ccc e eee e ecco eens semibeeteee o sees 201

Barker, George, P., opinions Of ...... cess ceeeceesceccereecceeecees 89 to 116

Beardsley, Samuel, opinions Of........ccceescccesceccenccecetseeeess 67 to 82

Binghamton Bridge Company ..............08 oc ceesseceeseees oeesecees 209

Board of equalization, power Of .......... cece eee c cece cece nee enetecene 479

Board of supervisors, power in fixing place for holding courts ............+. 243

sf “« in auditing claims for publishing Session Laws.. 385

" «to make appropriation for clerk to county judge, 433

“ “in designating papers to publish Session Laws .. 500

f of in fixing salary of county judge........... wee. 506

as “in enlarging boundaries of villages............. 520

Board of trustees in villages .........cccsscerecsceccceseesene dre orsia' ecareiaavede 568

Bond; official: fling Of sawieecsiicis ceiseakis sWiete ews Si0a.ae's ses 5. odete sae aee - 130

“ of agents of State prisonS..........ccccceesee connec seeeceeeernes 222

Bonding of towns for railroad purposes .............6- esate caw a arora eee sie 448

Boundary line between New York and New Jersey.......scececcccsceseee 299

se ss se “ Pennsylvania.......... eriersigiaie seee- 586

Bradstreet, Martin, petition of .......... cc cece cece cen eeecceececence tase 3

s John, Major-General, patent to heirs of ..........cceeceecccsece 2

Bronson, Greene C., opinions of ............ «. e186 Syaiwlereies aareversiaw sre 42 to 67

Brooklyn city court, organization under new judiciary act ..........ecceees 462

a oath of office of judge...... is 's's dies Has sear Res eee 468

Bulkhead lines in city of New York........... eiaeins Sa a eles sieisnpieeaered een, 208

Burdick, Daniel, conviction of............+ baie. wiayars wares: Sub aie Nis era iave lave 497
C.

Canal, abandoned, who entitled to lands. ........2 secccescscescvcccscrees QUB
“allowing railroad company to build track on berme bank............ 563
“appraiser, power of Governor to appoint. ........ccssccceccccecccece 167
“ boats, tonnage duties upon ...... ccc cece cence ese ceeecceccucencnse 429
“Commissioners, certificates..........ccsccesececs wate sis eras, oe sape-ecs BOL
“ s power to purchase tools of contractors ......... eee 388
“ . to require certificate of department with proposals.... 641

“ contracts, when canceled.......... as wisi aavavavicans a sigieecre teresa sae oe. 369
PAGE.
Canal contracts, including tools......... Boa Sa ERS e See Baie nane 9 saibaiwietartee 388
“ officers, after adoption of Constitution of 1846 ........... weenatiioastac, 174
“superintendents, bonds Of .......c.scccescceessceceeeeucee vee. 897, 405
“power of auditor to withhold pay... ......... sia sles nelaranaiaaaen ae « 405
Cascadilla Place, loan of Cornell endowment fund upon mortgage of........ 371
Cayuga county, designating papers to publish Session Laws in.............- 500
te special surrogate in.. 2... .cscesceccececececeeeee sagaune DLT
Certificates of Canal Commissioners............00+ shea ncaiees aatiaew bie wiclare 301.
: of deposit accompanying proposals...... siseiecegies victors wares] 364, 541
: of election, effect of..... sadesie/aibietat oe, ¥roetqie oars ie dus oud Gray arava eratarer » 146
Certiorari to review action of Governor inremovals..........c.ssceseeeccee 484
Champlain, Marshali B., opinions of....... oasacaaataoa pated tel oy0'e siesabbevereerese 364 to 591
Charges against public officers ...........+eeceen seveees arScaneligisnavaiehisseineiei aie A771
Charity bill, appropriations for N. Y. institutions for deaf and dumb........ 588
Chatfield, Levi 8., opinions of........ -..... vahaden o Gidigiarats Gore Saree 208, 204
Chenango Bridge Company .......... cc cccccceeseccecsccntseveeressceces 209
Citizenship on naturalization abroad ...........cccecceeeeescee seeeeenece 380
forfeiture Of.........066 cecceeeaee 4 siasl acelin esa 6.njate‘clotaversie'e aviv 419
Clainn billsidetined vicccsicaieness aid sialdce's sreeudie a diaody Ja aiaie aajery name woaw'eeorecae 409
Clerk, Court of Appeals, mortgage tO........cccceccccccnetccscesceees oe. 441°
“to county judge, salary Of..........cccceeeeseccrencees a aioe bia xatesayatoneys 433
*« county, swearing in justices of the peace............. esata ea oraieaiees 146
“ ee filling vacancy in office of.......... sisisias eat Sewereine wuswin’ as 240
ss fe removal: Ofss sc s4s.s4s0s)ee) asinadaceseneew ts OTe 248
s = acts, as motary PUDLIC........ ccc cee e cece e eee n eee eceee 417
Clinton prison, licenses to sell liquor near .... .....5 seecccececessccccees 459
Cochrane, John, opinions Of..........sseiecccceceesecees acarastoccasse 340 to 345
Collectors: of taXe8) i iis wavsiconseedeisvnis eae 64 be ¥ os Fda cierde aerae sername solar 170
Comunissioners of deeds, power to act after expiration of term ............. 399
of of excise, powers of ....... i Mess Ge VEN LS erie EES 418, 427, 457
“ OL HIGHWAYS 6 6.c0%.cs0ied Wiese ed Gag tii cieieccle Overs me wersiors 157, 529
i Of JOANS ieee sas oes a ees8 4s seen aS 164, 194, 235, 245, 257
of land office, grants of land under water by..........- « 46, 205
ae of metropolitan board of health ............. sttetdesre ea ees 403
ee of Niagara frontier police, removals Of..........esseseeeees 484
Commissions of county treasurers... ......ce ee eeceeeeeeeeees eae Mess WSS 361
Committee, investigating powers Of ........6.ssceueeeceeees fGereaers see. 164
Common Pleas, Court of, adjournment........... sin a ile Biecarasas dea nee oree ares 165
Commutation for highway labor .......+.s+eesseees Sel ddeeeudewaseaeses 420
“ Of CONVICIS.......cceeeeeeeeeeees ied eas oes ares danereis ad eets 589
Comptroller, State, powers Of....... ss cee cece sees seen encrncnerene ain ats 167
fs in reference to tax returns from Albany county...... iovaskees 170
. power to convey public lands...........-.+e00 aN URES eas viet 230
Congress, acts of, forfeiting citizenship for avoiding draft ...........+.++ «ee B75
& power to tax State contracts......csscsessseeecoes Uvevactaeen ses G10:

Conspiracy, requisition for crime of......... vacate’ ols dieredaean’ dadecae ewes 402
596 INDEX.

PAGE,

Constables, number to be elected.... ..+...+-4 Hod Loetnieeseasieees eee vee. 426
Constitution of U. §., article 1, section 10............ eyla'slieie ogtousiepainiae sistas 209
* State, of 1822, article 1, section 5.......0.eeeeeeees sp eareresteacarslone 11

ce s article 1, section 6........ecccecececeeee 69, 82, 119

rs et article 1, section 7.. ........ cc cecereees 67, 82, 119

se as article 1, section 10..............+00 Ws Wielew aie’ 51

“ ae article 7, section 9....14, 17, 57, 71, 78, 110, 125, 132

ae article 7, section 10.........-..00. geacea warms av

es of 1846, article 1, section 6... ......2ceeeseecceeee 209, 422

a ss article 1, section 9...........c.ceeeeeeceee 331, 409

a sf article 1, section 17..........-..ceeeeeecee 174, 566

es at article 2, section 1... .... cece ccc e cece eee eeee ~ 377

“ se article 2, section 8.......cseeeseseceeerces 379, 381

se ss article 3, section 4.......0.eceeseceees 180, 247, 268

a - article 8, section 5........:.cceceeeeeee 180, 268, 551

s at article 3, section 16..........cceeeeeee 282, 241, 341

sy sf article 5, section 8.......e.eeeeeeees aneyare:aXeis! efor 534

7 st article 6, section 7.1... .. cc cece e cece nceceeees 251

ee cf article 6, section 13 ......... ccc e cece ee ee eee 545

7 ee article 6, section 16 .......... 0. cece eee eeeeeee 247

e i article 7, sections 1, 2,3 ........ceeeeeeeee 275, 312

es ee article 7, section 3..........ecceee csccccceeeee 555

ss < article 7, section 6....... diieveeinde ners 415, 563

st a article 7, section 8.......-..ee.eeeeee «see 207, 240

“s ee article 7, section 11..........ceeeeseeeeeee 329, 344

- e article 7, section 14...... Wawded stan tee cae 331, 409

as ay article 8, section 1...........0.eeeceee 176, 255, 561

s at article 8, section 2........... sana iiidsd bro Gcaimieiaieiale 237

s article 8, section 4 aii secssse eds cessvews sens ces 208

a article 10, section 1..........ccceeceeeeees 471, 481

ee article 10, section 2 .............- 194, 235, 245, 257

s se article 10, section 5.............. wistetsts eie/aieia wis 476

ss s article 11, section 1..............-ceeceeee oneness 422
Constitution, interpretation Of.............. coeceeneeeeccenee sie siemuatans 63, 84
Construction of statutes........ cece cece ence ence cece cece ceeeecesescnaes 188
Contracts, repair, what included in .............eeeeee ea ee eal eee wierecaiors 886
Contracting board, powers of............ iehwed dees oF ialisietelayays -.-..364, 388, 391
Contractors, prison, release of claims against............cseesecsesecevenes 110
Convict, escaping and recaptured ...........cceceeecoes cise iloa ioe etetatee se 384
«“ insane, disposition Of. .........eceeecsccavenence Sia jafecayotas stesare meters 571
Mabor; priming iosaicnurse deren sasereenendiwenawsie > beiselee see hess 367
Conviction, error in ..........cceeeeeeee bes ieveloia Sibse6° sige o:0 G's: state Siaielatans secs 480
Cornell endowment fund, loan of ........... eer ee aa 8608 saa Se 371
Corporations, legislative control over............ # ip ipsiniataiaistecete oee- 42, 561, 590

a taxation of lands of ........... Seaadeds tame ts eresstece seseee 48
INDEX, 597

PAGE,

Corporations, creation of, under Constitution of 1822..... -...57, 71, 78, 125, 132

. i se TB4G 6 sic sieec sieisercate 176, 204, 255

a PeGNed sotsiwiietepies ess des srew carne sanaaiessitewens e+ Z1, 78, 201

i limitation of powers Of.......cccccccceencccesee covsesceces 355

Coroners, jurisdiction Of ...........cceecseecseueucs Su Bssaeca oe mea wclae Sete 586

Counties, erection and division of ............ 11, 67, 82, 119, 156, 180, 247, 551

County clerk, filling vacancy in office of ......... oP arbbaiesauiersoan na emteve 240, 481

ss swearing in justices of the peace...........cecccsseenreceres 146

ee TEMOVAl OF oi. ss salsaaisi dese cmewuloeawajamene see sede aes sane's's 243

“ acts of, when notary public ......... cc cece cece nese eseeeeees 417

County judge, power in fixing place for holding court............sceceesses 243

* Clerk hire in office Of ..... 2... cece cece eee c cere en eccecnnnace 433

as increase of salary of ..........0eeeeee saci Silas a sees eS 507

s right to practice as attorney ......... Meuse eeeEweks Dia wastse 526

x filling vacancy in office of ............. eele¥ Rode VWESER Soha 435

County officers, WhO aF€...... see cece cee ence cence eneneee 194, 235, 245, 257

County treasurer, compensation Of...... 0... ccc cee ec ee ee rec cece cece eeees 361

a liability of county for default of................ pietie 6 dae 886

ss «s bail for interests........ ccc cece cece cece cece 436

Court, compensation of officers Of ........ cece cece eect eect e seen eeceeeeces 515

“ of General Sessions, adjournment Of.........0ceceeecececececeseees 165

Courts in Schuyler county, place of holding.............ccceeceecceeee 243, 285

“martial, constitutionality Of .........ccccccecveceeececee eseeee eevee 422
D.

Damages, liability of State for .........60 ceeseeeeseenes Liuhislelg sola uisielewis 310

Day, town of, act in reference to bridge in..........scceeceececscseceenses 187

Deaf and dumb, institutions for, in city of New York...........0eceeeeoes 588

Death penalty, duty of sheriff in inflicting ........ eget abe eieibd eWow siayan. ns) 401

Dickinson, Daniel §., opinions of .......... cc cccenccccnccerscenees 334 to 340

District attorney, power of Governor to remoye .......... Sra avayavata‘e-o:bis) a kraxe 471

Dog tax, collection Of .......sccseeceeeceees eocesesseeceees Ri mneiens es 521

© application Of .......0cccccccnceccescesscearsceseesnee sonenees 529

Draft, disfranchisement of those evading ........ssseeececcesceceee ereeee 375

Drainage of swamp lands..........sececeeseeeeeceee cre seeecenensnces 527, 539

Drunkenness in a public place ........scceesceccescccecee sere tavala elec 538, 582
E.

Bight-hour law.......ceceseceeeesccececrerensen tees Sora euee eRe S Saas He 461

«“ not applicable to town Officers.......csceesceeeee Saye erseiatalets 504

Elective franchise, power of Legislature OVer.........6 seesceereeceeeerere 375

Electors, power of Legislature to disfranchise............+eseceeeseeererees 375

“rights of naturalized Citizens 49 .........seeee cere eeeeeeenensoes . 376

“ disqualification by conviction ......... aes epee weet dese eee eau 524

(Qualifications Of «1... . ccc eee c cece ccc er cere ec eceececceeeee 377, 583
598 INDEX,

PAGE.

Election in villages incorporated under general act....... eGreteeniet e+e-- 505, 522

“ special, to fill vacancy in office of State senator ........ceeeeeesees 508

Eminent domain, taking land for railroads. ..........0.0ceeeeeeceneeeenees 182

es #s “private corporations ............ 582, $46, 548

ss “draining swamp lands ................005 539

Equalization, board of, powers and duties...........c cece seen ceeeeee ene 479

Escaped convicts, to serve Out sentence... ...seeecceceeeeeeeesece A Sdpnavarale 884

Excise, effect of law of 1870 upon suits brought..........cc. cece sence enone 450

“construction of law of 1870............4. ss 452, 468, 464, 465, 490, 544

“ boards of, power to refuse license .......... cece eee e cece eeeee 418, 457

ef “to grant license for sale of beer, etc...........ceeee ee seeee 427

ss $0 My VAN OBO ove rorsic ears sieangiea.e acaconinisiateaiaaieiaie’ wivias 456, 514

“ MC AN TOWNS ives. scce se ce ie sses eee eee sees; Si vane mene 458

es “concurrent jurisdiction of village and town .............. 569

e “How organized. ........... cece ee eeee wees 460, 461, 465, 568

es “when to grant license .........-c ce ececeeeeeccccnncenees 503

a 8° SPOR HOW LONG ci aussie wiordidine diaseuwietieidieviok oo eee esace we aan 553

what board tO Se: 0:06 suse warnwwewes ovedese ease os 584

“ commissioners, compensation Of .........ccceee es cccenscceeneccees 516

“ “ term of office ........ dies s Cav eed ws sale aw laches <Sea 575

“moneys, how disposed of ...........+.00. Soles vonoreitialavniaiete giaeace 516, 530
F.

False pretenses, requisition for one charged with ............ aigelilon deems 437

Ferries between Canada and New York ............cceccececceeeececceees 227

Firemen, exemption from military tax........ ccccceesccece cence esce eee 396

Wishing’on' Sunday siic.cses ec aevsee sane Gee 8 Veet cielo cea see sion neidcaatancte coe 459

Foreign witnesses, pay for attendance in criminal cases..............000005 394

Forgery, under extradition treaty with France ...........e.sceceeeeeeacees 442

Fort Stanwix, treaty Of .. 0... 0c. sce csc eee cece eccecens wasee es U aratandee exactions 357

France, extradition with.......... Toieiai she (ela) oi asin he wins ga ce/oie'eiolsle watelo'aiel 442, 445

Francis, Hattie, error in conviction............. asia ah ae aia Mia ed nen favo die eddie swiss 480
G.

Gasitieters, ‘inspection Of, ccc 4 ise cseie soak vereiidsmes an aadeire nde een nee 534

General sessions, court of, adjournment over election ...........ceesceeeces 165

Gospel. and SCHOO! LOtS is 6...) a sgieisved's Seu sgiee Golem. ammo dase deen weRan ese 163

Governor, power to appoint canal appraisers............ccccececcccecceccs 167

a be * commissioners of loans ............... 194, 245, 257

ee ae fill vacancy in office of county clerk..............0% 239, 242

e s ss county judge.............06 oe 435

sf « State senator .........cseeesees 508

se ss remove county Clerk ....... 0... ccece cece cece eteeeeees 243

ss ‘ Se gherifl oi ca vn oe oe vse awison ssi ccepaie wianuels gAsse 314

* * © district attorney..........cceseececsccescceses 471
INDEX. 599

PAGE.
Governor, power to remove health officer .........ssceeceseee iesaeweases «. 579
a sign bills after adjournment ............. daoeiseiaige oe 835
“ e pardon delinquents sent to house of refuge ............- 488
$ TOEQUISLELONS DY ccc susie ceweeeaeeceveccceersccieesans’s 234, 449, 484
“ : 1Owsbawinnene beanies ees teesaxecees.s 298, 402, 437, 484
# certiorari, to review action of, in removals ............eseeeseees 484.
H.
Habeas corpus, what questions can be determined of ........ Foie Weide oiemiaverata 518
Hall, Willis, opinions of..... helene slgeis sis a eae calle ee lee ed see aed 82 to 89
Hawkers, actions for penalties against. ..........00ccecee cescceececceeece 111
Health officer in port of New York, power of Governor to remove.......... 579
Highways, commissioners of, length of term ........+.++ssseeeee Solos 157, 529
ef streams of water declared SUCH. .......eceeseccccececes 268, 294, 307
‘Highway labor, who to be assessed for... ...cecceeeceeeeceevescecees eee 570
« tax, commutation for, how disposed Of .......ccescseveeeeceeeeee 420
Hoffman, J. Ogden, opinion Of ........... ce ecceesceenee seeeccteceecuces 1
Hoffman, Ogden, opinions Of ........---ecceeeeecee PRESTR SASS 205 to 243
House of refuge, power of Governor to pardon delinquents committed to... 488
Hudson battery, grant of, to the United States ........ccceceeeceeeceereces 89
I,
Indians, title to lands .......ceeeeeceseses Sibideais site ieiee eS wleie dee aisiealelae 345, 351
Inn-keeper, justices of the peace becoming..........005 cjauassiececcisie se cise ncn, 180
Injunctions against State officers...........s.sseeee sereisisin teen eens eeeene 391
Insanity of prisoners... 1.0... seeee eee cence eeeneees see cece eens eneseeeeees 581
Insane convicts, disposition of ..........ssseeeeee We ee Raee tees vagteaesde 571
Inspectors of election, election and appointment of..........-..+++. soveeee 117
a acceptance Of.........+4- eee hls: WaWunNinee ee aéave, 147,
“ compensation Of .. 2.0.2. seeeeeee ceeeeeneeeenes 149
ee power of, in reference to naturalization of citizens.... 376
Inspectors of State prisons, power to release contracts............ eeseeeeee 110
_ Insurance, life, registering policies.........sseeseeseeeeeeeseceeeees eee eee 486
fk mutual, of other States.......scseee ceeccenneenencenerencnces 524
Interest on mortgage, to clerk Court of Appeals.....ss.ssesesessseesecnees 441
Intoxication in a public place.......-.seee-ees eee e eee ean ence nnenes 538, 582
Investigating committee, power Of .....++.+ siaisvarsls olbteieetierpietbiavew sp ishaiavere sie oe. 154
J.
Jordon, Ambrose L., opinions Of .......seeeeeeeoee: re Ha wares era 170 to 203
Judges, increase of salary Of ......++ ceesseceeeeeeneeeecesereeeceneenees 250
Judge of city court in Brooklyn, oath of office of..... siiseieie.oroiewarce Seine: iets 468
Justices of the peace, being or becoming an innkeeper........++ aiaielera gabe . 180
“ qualifications Of .....-eeseseereeeeeeereees seseeseeceeeesees 181, 149
 yesignation Of .......seeseeteeeeee eee eeeeenees sore Ga wwtewe we eee 146
600 INDEX,

PAGE.

Justices, number elected new toWNS ........ssseeeees 0 ate Sie ejteinla ercccoeees 150

“are they town officers .........02.06- Saisie SUR Pelee IEG 149, 152

ss powers to fill vacancy im ASSESSOTS ..... ese ees ee ee scenes eesceeees 421

“ powers to make appointments............:- nde tasattewseeen es 460

“jurisdiction in action for excise pemalties..............eseeeeeeeee 544

“ — Timitation of age 00... ec eeee cece ceca nee ee ee ecens eocesces saeaee 545

“& —-vacancies in office Of. ..... 6. es cee eee e cence ener ee eenees 152, 552, 576

Justice of sessions, eligibility to office Of .......ceseeseeeees wale estas ain 272
K.

Keeper of poor-house, ineligibility of superintendents as............. seeeee B97
L.

Laborers, eight-hour law ..........seeee cece ener ene ceneeene nec eesaneoses 461

Land, donated by United States to the States ...........eeeeee secre enone 337

“ grants of, under Water...... sce cece cece eee eee c reese eteeees 46, 205

Sof Stockbridge Indians ......... ccc eeee eee e cence cece eee eerenneeee 345

Legislature, adjournment Of .....-.. sess eee ee eee e eee e eee e eee n teen renee 252

es eligibility of members of Assembly as United States senator..... 51

‘S power to incorporate by special act .......... cee ee ee eeeeeeeee 176

e power to establish fences........e.sseescenccccsenceccccenrees 227

ie interference with vested rights..........cceseseceeeecncee 1, 2, 209

Licenses to sell liquors.......06 cc ccee eens ee ceeeetereee 418, 427, 457, 458, 503

. near Clinton prison ......... cece eee cece ners ences 459

License, what liquors. cannot be sold Without. .........ccccsccescesecseeecs 521

6 - epbrenn Valid yiic:5stes 55.5 nisie wie n'a ae'e wise ee! siaje Valsie Sealmisleiereisiers seaairoryela 527

(Cwho to petition for... ... cece eee cence cece eee eee e teen eseeee 637

Life insurance, registering policies ..........ccseeececseceeccesceeeecucecs 436

Liquors, what, cannot be sold without license........... cece ese e eens ences 521

Loan commissioners ...........++e0008 eaaaaieaaivs serewtrecaites 164, 235, 245, 257

Local bills, what are ......... cece cee ce cece eeceesees pes Sarewts 14, 182, 202, 331

Lotteries, acts in reference tO ......cscecccecccsceccsscccescssvecsssscuces 35
M.

Manhattan Gas-light Company ..........cccceer cence cen seceeeesseeeesees 237

Marriages, who authorized to solemnize........ rererere isang eonae reeves 576

Marsh lands, drainage Of .........cccee eens ceceeeeenes $i gsrelpieveievipiece dates 527

Martindale, John H., opinions of ............... seaatbieeieie ease es ox x 845 to 364

Mechanics’ eight-hour law..........csccseceeseccsceecs bie Solera ae ciate 461

Military code, constitutionality of............. Dewees ecas oat Stovoistorav avatar busracarsts 422

«duty, exemption from...............- ie ost big wis iota eia ate araraundiaiayetons 342

“tax; how Collected sir cissiec dices owe vous éenstens hoe whee see owe Belee 387

‘“ tax, exemption of firemen................- aie Sie siele seisiatares eileen sleuere 396

Militia, additional pay Of. ........ cscs eee e cece een cence ceaeeeeeaeeeees 207

“exemption from Service......... 2. senses cscceseenscensecacnsenses 519
INDEX, 601

PAGE,

Minister of the gospel, exemption from taxation ........ -110, 147, 148, 424, 451

Mortgage, foreclosure by Attorney-General.............64 spslneleigecastqeeneee 159

ss to loan commissioners........ ecesse ore Se aansle Siamannaenaae ans -. 164

< to clerk Court of Appeals......... ebigralaeea gis Slee tier a Bek wewple eis . 441

Morton battery, grant of to the United States ..........cccscecseccnscerace 89

Motive power on canals, act in relation 0 .......0-eceee- sgiiietansee ea wiewes 580

Murder, case of conviction for ...... Leased, oars sVsvakeravataie aia eielareuvaeu ase sPiaisreieiess 497

Mutual insurance companies of other States.......cccesceecerccccccccvceve 524

Myers, Charles H., opinions of...........eeseeees eta oie wars aeegae a 304 to 334
N.

National guard, exemption from tax ............ eeaeiet 430, 505, 514, 577, 578

SUIGEON in, CXEMPt.....eeeeeeeecreeceeacees cevecerececes OL4

Naturalized citizens, requirements of, when offering to Vote .......22eeeeee+ 376

New Jersey, boundary line..........+.+--seee- Wsanagiavesi ties ee tdeeas « 298

New York, boundary line...........seececceseeeeee sheeeeeeees seaee 298, 586

a city, corporation of, power to contract with State oe nitete wate’ seeee 184

a “  prants of land under water in ......c..eeeeseeseeeneecees 215

ee “appointment of justices to hold special terms in....... eeeee 308

Niagara frontier police, certiorari to review action of Governor in removing.. 484

Notary public, term Of .......eeeeeeere se soleweRa Swiss Nae 6 date ale ne sas eisis'e 413

#6 qualification Of.........0e:seeeee eens i alccaba-Sveges lavaiaxe eaasers 414, 585

es acts of county Clerk aS ......ccseceeeceseeeeseneeceeee ovave ALT

“ - eligibility of women to office ...........+. dene eaerees seveee 554

Notice of redemption of bank circulation.........+.+e+eeeeee Sorgecsovcecs: AUG

O.

Oath of office, neglect of assessor to file ........ Seneen wae eee cceeececeenee » 421

“c “of judge of city court in Brooklyn ............ $ donee Sane eso 0. 468

Office, vacancies in .........seeeeeerseereoeees eevee ee eeveesesesces 200, 380

“ appointments to fill vacancies .......eeeeeseeceee cree en eeeeees 465, 481

pesignation Of.....+.+ecereeceeseeeeenereeneees Seaesuee hence 146, 334

“ eligibility to...... Aeeenineses gia cia ealne Amica tee ets alae sole bo Gas See e's we wes 413

Officers, increase of salaries........+++eseeerereeceee Bdioead cs sets even Gases 250

© yemoval Of.......cccen cree rer ceseeeeeees asweisie sea seveeeeee 248, 804

“ Charges against.......seceecseereeeeeecees sacie ed OG Bea a Owes Meee - ATA

“ folding OVEr ... .eeeeeereceescenseees aaa austere bcnawae awe ecesurs 574

Official bonds, of State prison agents ......-.e+seeeeee ihcdca biuleleneibiavasaioneiese ieee s 222

ee of county treasurer ......++.e00+ oes eensoececersenes coseee 486

ef requisites Of .....ssseeeeeeree i secea reine eeieistete wixdetitiaie aiele’s 389?

Oneida Indians, treaties with....... sieiewiaale lease iseinaisais icaieaeesaveueie COL

Overseers of highways, election Of.......+.++e+- Seadib ewe Sarewt ee veceees -. 118
P.

Packing of meal and vegetables in old barrels..........-- saiela arses a iaes «. 437

Pardon, power of Governor to grant ......+++.+++ 5 ate Na Ee ewes baemsiese ASO
602 InpEx.

PAGE.
Pauper, settlement of ..... ...... Sisishaitda eearomiaieleers seaiseiais Beassioia sintetoierstalos +. 412
Peddlers, actions for penalties against.......... ainine(eisinra Dis e Wietwie eine Rieieie rey 111
Penalties under village ordinances..........cssseceecceeencccens seawiwwns 505
Pier liens in New York City..........ccceeecccceseececrscneeeceresecners 298
Police commissioners in Albany, canvass of votes for ...... ..ccceereeeeeee 495
Police constables of Villages ..... cc ccccceccee cece vere cece censcensestees 539
Police justices of villages, jurisdiction.............. seed ane aaa weea eas 553
Poor-houses, keepers Of, 1.0... cece cece ccs ce cence cece creer eeneeteeeseeee 397
Poughkeepsie, water supply in.........cccceevccccnsencecencescees vs ave O49
Priest, exemption from taxation ....... siegieaeie's sgetgee «+. 110, 147, 148, 424, 451
Printing by State prison convicts...........eseeeees eecseOascciaede Mase Re 367, 382
Prison, State, bonds of agents. .......cccceccecccccsccscvasceereccecsesece 222
contracts, release Of... .... ce cece ee ec ce en eer e nese ececetees 110
" “for printing........ wen einte ores Seema mee » 367, 382
Prisoners, insanity Of .......0..cccecccccccesscereeecencsceeeusserne eae 531
Private bills, what are ..........eeseeeeeeues faxes 17, 182, 232, 241, 331, 409
Private use, what is... .......csceseeeeres Boisreuneil clear ie verte ise ceees 532, 546
Private property, taking, by right of eminent domain........ 182, 582, 546, 548
Public health, packing in old barrels............ ccc ccecceen eee eccccceees 437
Public lands, appropriation Of ......... ccc ce cece cece cece renceees seceeces 27
Public moneys, what are.........ceecendseecsvccscees silage eie'ae sis's sia's weveg 14
Q.
Quarantine laws, tax on foreign vessels ........ccceeccsccccecsccsccsnsscs . 158
R.
Railroad corporations, right to engage in manufacturing....... sterahon <eidaideass 855
Railroads; tolls Ons scics oeiss cna ee bbe so ch0s aes esse sees ese sad ens coves 275, 812
“ town bonding for... .scscccecveccccnscccursenseveescesvenecees 448
" building track on canal lands ........ ccc cceseevecceccceccesees 563
Removal of officers by the Governor .........e+eeeeseee 248, 304, 305, 470, 484
Rensselaer county, superintendent of poor ..........eeeeeeueee Bhar sieigieletecereioie 465
Repair contracts, what included in.........cccccceccecrevcccenecececseses 386
Repeal power of Legislature ......... 0. ss ceceee cece ecccenceesceuceceeece 187
Requisition, granting of, by Governor...... RR ERC Trae 234, 442, 484
st SUTTON CER UPON ese tered sie evs a's Sew bee ales bide ee'e 393, 402, 487, 484
Residence of members of Assembly ...........cccsesersccscecceeeceeesees 261
REBIGENE, “WHOIS! 5 5:0.6 6-4 a0e 5c syd Sdeein4's 'W Wisie sein g'28 V8 wien aia aleeenreos 881, 552
Resignation to take effect in future ...........506 eee aC niorauatasornie isriasete 146, 334
Revised Statutes, sections considered :
Part 1, chap. 5, title 6, art. 4, § 42, filling vacancies ..........eeseeeeees 167
“1, “© 6, “ 2, art. 4, 8§ 6 to 10, vacancies...........- sss beaeses 508

“1, “ 9, “ 6,art.4, § 9, Attorney-General’s sales.............4- 118
INDEX. 603

PAGE.
Revised Statutes, sections considered :
part 1, ad 11, title 3, art. 3, § 84, vacancies ...... sieaeedad date eae dle:
qd, 13, “ 1, art. 3, 88 4, 5, taxation.......... ... wees 147, 148
“1, “ 18, “ 38, art. 1,§ 10, collection of taxes...... seams 170
“1, “ 4%, “ 4, art. 1,§ 6, peddlerg....... ....ccceeeeeeeeee 111
“1, “ 18, “ 8, art. 1, § 8, corporations ...........eseeeeeee 42
Revenue stamps, on State contracts .........ccccccccceceees cove 397, 405, 455
Reward, upon what proof paid............eceeeee ial ajacorerdle £ dale Kieldslawarsiers 447
ef power of town board: to vote....... Seie-besiavatte aid staid wiarhua ajevara-ayatsraraces 448
Richmond, Fort, grant of to the United States........... seeds eads ee wore. 89
8.
Sackett’s Harbor and Saratoga Railroad Company, sale of public lands to.... 230
Sailors, act securing right to Vote....... ccc cece ecw c cence cece nececectenene 338
Salaries, increase Of..........ceesececceeees avaiciaiurd Gokcalelassuslaagiersing cisrancromnaerere 250
School commissioners, election to fill vacancy.. ........ Iason al ieee Aa 825
Hs Ry ah ated deena aan daaaiGads sibs eee 163
Schuyler county, county seat.......ecceceeeeceeencececceeccseeeeees 248, 285
Senator, United States, eligibility of members of Legislature to office of..... 51
es State, power of Governor to fill vacancy in ..........seeeseceeees 508
Senate districts, division of, in forming new counties ......... . 11, 119, 156, 180
Session Laws, publication of..............6. diWiginofeseiesgerecceie% sme halelaras aie 500
Sessions justices, compensation Of .... .....ccecceccccececescescereeasceens 514
Sheriff, vacancy in Offfce 60... cc cee ce cere cece ence n crew eneeeeeseeeesees 233
“© removal of Dy GoVerMoOr ....... ccc cc ce cnce reece ccencceseereceeens 314
“duty in inflicting death penalty...........csceeeecnee vee eaaasels 401
“fees for serving criminal subpoena.........ccccccscecnecseveccceees 584
Soldiers, act securing right to vote...... sara gob SdebinS Sard ka Sioa a De B teglera 335
« West Point, right to vote..... oe bE E SES Wale ehere'5 8 Sajloisrarwniess 379
Special terms in New York City .......cceceeeseececceeeescteceteeavesees 358
to HOW MeCN GS wnsce see ias scenes aa a eee saree oeleT aes wales cece. aime 158
“Sessions, deducting costs from fines........ cc ccc cece nce eeeseceneee 519
Stanwix, Fort, treaty Of.......06 cee. e cece eset eveeeeeeesecreseesecenees 351
Staten Island, land granted to United States ...............08 sale edielepinde 89
oh drainage of swamp lands ...... pdaeiere oegawene avec cing a ahele avers 527
State, liability for damages by enlarged canal ...... errr eerie ek eo 310
“ power to contract debts.........ccceeeecesscncececeeseceseeees 328, 344
“ ee assign land scrips donated by the United States ............ 837
“claims of Stockbridge Indians upon .............eceeeeceseeeeeees .. 345
“ treaties with Oneida Indians.... ...ccccceccce crosses veccceccesace 351
“property liable to assessment. . « Leeeu ae oon a sk ded as Bh ONG Mees Gat older 415

“library, appropriations for .........ccceccessesecceecscenseesenseces 167
604 Inpex.

PAGE.
State prisons, bonds of agents...........esseseere SireaweeseeeeRE Rs Sees 222
ss “convict labor... we eee e cece ee cess os Suerealers arataveiocatcatees 867, 382
« “payment of judgments against agents.........+..eeeeeeeeeee 240
States sovereign, powers Of ........:ec eee nce ee eee eee e eee een eens eenses 37
Statutes considered (see R. S.), act May 5, 1786, heirs of Maj.-Gen. Bradstreet, 2
“ April 5, 1823, Albany pier............ 17, 188
s . April 18, 1819, lotteries ........... seeeee 85
« sf in reference to lands under water .......- 46
« rf 1839, chap. 389, town meetings .......... 116
% « 1842, chap. 130, inspectors of election .... 117
« * 1839, chap. 881, mortgage foreclosure by
Attorney-General .........ce cc ceeeeee 159
“ 1837, chap. 150, U. 8. deposit act......... 164
“ 1842, chap. 130, adjourning court......... 165
ss sf 1838, chap. 260, banking ...,............ 177
a sf 1850, chap. 283, grants of lands under water, 205
« 1814, chap. 8, additional pay militia ...... 207
« ss 1818, chap. 270, relief of volunteers ...... 207
« st 1847, chap. 460, State prisons ....... .... 222
“ 1857, chap. 166, change of counties....... 247
= ss 1847, chap. 470, justices of sessions....... 271
& s 1857, chap. 257, abandoned canal lands ... 278
- “ 1847, chap. 253, passage of bills .......... 275
“ st 1857, chap. 497, tolls on railroads ... 275, 312
«. ee 1854, chap. 386, Schuyler county ......... 285
a us 1857, chap. 345, Schuyler county......... 285
“ «6 1849, chap. 194, boards of supervisors..... 285
“ es 1859, chap. 271, State loans.............. 303
ae Bs 1856, chap. 159, school commissioners.... 325
& se 1867, chap. 105, contracting board........ 364
ss es 1866, chap. 761, taxation of banks........ 419
& ss 1849, chap. 28, vacancies...........0.008 415
" 1869, chap. 902, registering life policies.... 436
“ s 1870, chap. 175, excise. .450, 452, 463, 464, 465
490, 544
* ss 1870, chap. 470, city court in Brooklyn, 462
468
se ss 1866, chap. 484, Niagara frontier police... 484
“ _ 1870, chap. 215, publication of Sess. Laws, 500
s & 1870, chap. 385, eight-hour law....... 461, 504
ne ig 1870, chap. 291, incorporation of villages.. 505
1868, chap. 864, marsh Jands............. 527

1871, chap. 868, motive power on canals.. 580
1864, chap. 821, commutation of prisoners, 589
Statutes, approved after adjournment ...........0..ccccee cccecceeecencce 335
INDEX. 605

PAGE.
Statutes, construction Of.......ccccccccccssccsenssceceecesccseses Svaiecere .. 188
Streams of water as public highways.......s.sseseseccececeesees 263, 294, 307
Stockbridge Indians ....... Galtieversieiasiass Seema bi geah sential weiggareasie 345
Subpcena, criminal fees, for service Of.......ccceeseecceccececeuccesecneee 584
Siind ay shin Ong se soi ese vistas etc hisrwnaray e diaivie al eiediavers Wa ee wamuie ne eueeiaweer s 459
Superintendents, canal........... 000. ceeeeceeee Gao ayia ayavecavaqate aiaroke erator acases 405
3 of the poor, election Of ........ccsccececercececces ieee ovate 392
: = - “supervisor aS........0000+ savers eivereee 517
= # “ power in appointing keeper of poor-house...... 397
“in Rensselaer county........ ediemulcasoaimtte 465
Supervisor, election of as superintendent of the poor ........-ee.eeeeee wee O17
Surgeon of national guard, exemption from taxation ............ await uies 574
Surrogate, designation upon ballot ............06+ Pee core 504
“ special, in Cayuga county......c...eeeseees aia slants eiate ates c's a's OOF

T.
Talcott, Samuel L., opinions of.......... ile’ Rais aide ad etaseaumewesas 2to 42
Taxation, of lands of corporations..........ee05 Gas sie eCaee soe ewewe ere 48, 147
ae of rents upon durable leases........ seseseees wisinetioe Sonesta 237
ee of surplus of banks... 2.2... 0. cece cee en cece cece eneeeccestetess 419
e of incorporated banking associations. .......... ..+... Soilusyaie as 569
es exemption of ministers and priests ........ «s. 110, 147, 148, 424, 451
ee = national guard........ .. eGaarhaee 4380, 505, 514, 577, 578
se “ churches and schoools .........ccceceseccsceenece 583
Taxes, collection Of .......-..seeeecreeeeees see ee eeeeeee seveee 525, 527, 545
a return of-unpaid, in ‘Albany county ...... aise iru <repeseuarbis-sanhis.Scatsteaiees 170
“ on foreign vessels...........-.+ see en eeeeene team ene e eee neeeneeees 153
- military, how collected..........esseeseeceenees ooececrace saanaanng 387
“ appropriation of, to pay town bonds....... deeb evikks Salevia saneaes 448
e dog, collection and appropriation of ............+.+- a acsie'a' swiss Bl, 529
Title Of Dilld......c cee cee c cee eccccercncsrecscnes eke secsass thes -. 241, 841
Tolls on railroads...........seeseeceeeseencseeecens ésialehklaldiauleeie est 275, 812
Tompkins, Fort, grant of to the United States ......... saeaeesees wasn’. .. 89
Tonnage duties, imposed by United States government on canal boats....... 429
Towing oncanals...... ae RaE RE eh eV eae Vee age Hoan nes seces oenesenecees 580
Town auditor, authority as to their own accounts ...... 5sYeie'o ayale Havehe sapere 588
Town board, power to audit claim for Tewald.....sssecceees srataig sivteeigaiecsisiens: 448
‘*: ponding, for railroad purposes........+.+0- ae atmiareverna ese Biavelavele aetearniete 448
“© clerk, certificate of town elections............+00. ata epee aise arelenistsys: OMe
“ “fees for filing papers .....-++..+- dt eseseeaneuers smcareiee O90 it 588
meetings, effect of change of time for ............ stones ene 116
ce i how and when changed ........e.ee00- Tied cease w/a ave Stor avr 247
oe ce special, ........eeeceeees Sasa sieanianes eee eee . 158
ie voting at ....-eesseeeee SE SRE ay. 8 ae Selma Sies ceceseee 286, 450

“ ae voting money for reward... ..cceseee coerce ceteeessenees 448
606 INDEX.

PAGE,
Town officers, term when day of town meeting changed..... nisin Sinteigieiewieyers 116
ae sf eight-hour law not applicable to..... ........ eR RRAK sess 504
‘« superintendents of common schools, filing bond.......... disisietagen Ha 180
Towns, formation Of ..........ccsceeececceneeee coeenes siiaideanlavimameiers 157
Treaty, extradition, with France .............65 natn taatn aloes seeee 442, 445
“ of Fort Stanwix ...........-..6. aisteeataye sialon shui af Siao tw raed iacouaoars 351
Tremain, Lyman, opinions Of............eceeeeee asisteraaieieiecaipre seseee 247 to 304
U.
United States assessors, powers of,...... scghasjardntas icteric aratiaits waeeinsisiae: 429)
# Congress, act forfeiting citizenship for avoiding draft.......... 875
“ taxing State contracts............ ote Bahai samlareiwesarer aiaieeste tte 415
V.
Vacancy in office of county judge............. eisspiemaeae apinainiate erainaieraie ordi 476
ss a justice of the peace............. Sieiieteteiniessianaiersaure ao eem 576
a me ANCL nics er sioareerte sinieuisee vee swe sowie Gus SaaS sees 283
“ ae Btate senator ses sascceciceeciswesic swe odkieedeaws CARD 508
ss s VLR MTU CCS a5 eesais ica dis ssareiaiaue va sie eierereeiaioielaly siateierets 514
ss i. when and how filled ......... ccc sececeseeceecee 248, 476
s term of one elected to fill... ... ccc ccs cece eee eenees 325
“ “ “ appointed to fill ........ cee ce cece eaves 481
Van Buren, John, opinions of ..............cececeeeere deeinaede -- 116 to 170
Validity of laws approved after adjournment............seeeeeeees seveeees 300
Vertical wall, authority of auditor to pay for.......... 206 sees eisisiiceiawits . 873
Wessels, tax Oni sxesaes: sieves escdseeiaiesweais Sidhe cacaidia idea cus aidpaco acess -. 158
Villages, incorporation under general act ........esececeeaces 502, 520, 522, 550
“vacancy in office of trustees............ siacaigyas a siels uiaioluielaioielaleraisteieiore 614
“ police constables Of ..........6 csecseccscsces ad nie iaromisia sie Sass 539
a justices’ jurisdiction ....... Gi avay re erty Nelatergtars alas wGisracete slevaistele 553
“presidents Of ........66 weeeee sw Weld arenes sea wereeaeG «+. 568
S ssessmvent VOUS IN. sos065 cass coe eve neiagre seis e eines deeu sewn alate 587
Void laws under old Constitution, not made effectual by new..........ee.00 566
Voting, naturalized citizens, requirements of..... dial dist viar sie ie eemreeerore wile: fjeee 376
“qualifications Of Voters........cccsecscecveee eer eeccceseee OFT, 583
EO ABOLGIOTH sere 'ssesa:svorsie'G ‘spars ersraie saceleleiete ersiegieieisieie secceceveceereees dG, 379
“scholars at school..........605 ealajareiiian arate atous ehig Salbeins vieisawiwiewisin’: OOL
“fishermen ............ seen menecccesecccccccevecccesessercccscces OOO
WwW

Walton, Gerald, memorial of .........ccsccscccccssccscccsctecccesssce os 2B
‘Warsaw, trustees in........sceeeeseaee Bits Siereeve eeirameas iS blacaln 325 aibrbilase’s tedvo OG
PAGE
Warrant of court-martial............... waiceteacs Pe BOSE Ue CARAS Ree ae 422
Watercourses, power of Legislature to make public highways...... 268, 294, 807
West Point, soldiers at, right to vote .......0cc cece sees ceeeneeees ccrapurennara cee 379
Witnesses, foreign, expenses attending in criminal cases.............c000005 394
Women, eligibility to office ......... cece cece ence eee eee en ee en sense eeeeee 554

Wycoff, Peter C., election as justice...... rer sae seseeaow oa tee aR 517, 522