^pr' ^*»^^^ ' ^^© i ^/M M ^^^^^:^ wfn Co- > : - • Ne^ ^ »^ .->AL -tSKl VMS. *B^ 7 .Si HTKSAT Mr ' - ;-»*ia THE Constitution and Government OF THE State of New York AN APPRAISAL TRANSMITTED TO THE NEW YORK STATE CONSTITUTIONAL CONVENTION NEW YORK STATE CONSTITUTIONAL CONVENTION COMMISSION BUREAU OF MUNICIPAL RESEARCH " 1915 «.*o .V''^ t^o* ^ To THE Constitutional Convention: This critical review, made by the same Bureau which in co- operation with the State Department of Efficiency and Economy prepared for this Commission the report entitled " Government of the State of New York — a Survey of its Organization and Functions," is transmitted by the Commission without responsi- bility for the opinions expressed, but with appreciation of the disinterested service which the Bureau has given in the study of the machinery of State government and its operation. New York State Constitutional Convention Commission ':?QOQnn EXCHANGE JA.^ 5 1916 LETTER OF TRANSMISSION Hon. Morgan J. O'Brien, Chairman, Constitutional Convention Commission, 2 Rector Street, New York City : Dear Sir — As requested, we are sending an appraisal of the consti- tution and government of the state of New York — based on the detail outline and descriptive report entitled " Government of the State of New York — A Survey of its Organization and Functions," prepared and sub- mitted jointly with the state Department of Efficiency and Economy. The discussion is divided into the following chapters : Standards for Appraisement. Electorate. Official Personnel. Structure of Government. Organization and Procedure of the Legislature. Relations of the Legislature and the Executive. Independent Auditor. Governor and Administration. Administration of Proprietary and General Functions. Administration of Military Functions. Administration of Public Service Functions. Form and Content of the Constitution. Inasmuch as the constitution is here treated primarily from the stand- point of administration, the subject of judicial organization and procedure is omitted. Very sincerely, F. A. Cleveland, Director. OUTLINE OF CONTENTS PAGE Chapter I — Introductory and summary 1 Chapter II — Standards for the Appraisement of the Present Con- stitution AND Government 6 Government established for the governed 6 Requirements of a representative system 6 Expedients adopted to make private management " responsive " and " responsible " 7 The meaning of executive responsibility 7 Relation of executive to administration 8 Relations of the board of " representatives " to administration 8 Means for keeping "representatives" and "members" informed.... 8 An independent auditor 9 The right of interpellation and personal inquiry 10 Access of " representatives " and " members " to records 10 Provisions for publicity and discussion 10 Positive provision for making management effective 10 Adoption of means of obtaining and retaining a faithful and efficient personnel 11 Administrative staff agencies 11 Use of "line" and "staff" advisers 12 Prompt retirement of officers who do not represent a majority 13 Absence of " irresponsible boss " in the administration of private business 13 Conditions under which private management becomes irresponsible.. 13 Expedients adopted to make control over public business effective.... 14 Similar to those employed in private undertakings 14 Responsiveness and responsibility of executive 15 The mechanism of popular control 15 Responsibility for leadership 16 Chapter III — The Electorate 17 Definition of the electorate 17 Composition in England after magna charta 17 Who constituted electorate in 1777 18 Initially, electorate a small fraction of the citizenship 18 Subsequent enlargement of electorate 18 Controversy over present provisions 19 Public charges not disfranchised 19 The question of woman suffrage 20 Provision for the definition and discussion of political issues 21 Conditions governing effectiveness of electorate 21 Necessity for development of a procedure 21 The whole subject left to private initiative 22 The party platform as an attempt to define issues 23 Method not adapted to responsible government 23 Provisions safeguarding the exercise of the franchise 24 Successful development of safeguards in the United States 24 Citizenship and registration 25 The form of the Australian ballot 25 State supervision of elections 26 OUTLINE OF CONTENTS PAGE Chapter IV — The Official Personnel 28 Provisions of law governing the qualifications, methods of selection, tenure, compensation, and welfare of persons employed in the public service 28 Sulxli visions of subject 28 Importance of separate consideration 28 Alethods of selecting public agents — election or appointment 29 Election of members of the legislature and the governor 29 Election of other officers 29 Provisions in constitutions of New York 30 Choice by legislature and " the Albany Regency " 30 Direct election as a cure for " Invisible government " 30 General acceptance of theory as democratic 31 Need for principle consistent with requirements of responsible government 31 Advocates of the present method on the defensive 32 Assuming "Electorate" adapted to choosing, not consistent with administration ?i2 Limitations of electorate 2,2, Requirements of administration 2,2 Appointment of subordinates an essential of executive responsibility 23 Chart 1 34 Key to Chart 1 35 Methods of appointment 36 Present legal provisions governing 26 Purpose — to prevent responsible leadership , 27 Constitutional provisions determining qualifications and fitness 27 Requirements of elective officers fortuitous 38 Requirements of appointed officers and employees inadequate.... 38 Chart II 38a Key to Chart II 381i Prescription of merit system defective 39 Limited to "Examinations" as a test for promotion 39 Gives soldiers and sailors preference without regard to standing.... 39' Makes for official irresponsibility ; 40 Methods of removal 40 Not consistent witli provisions governing appointments 41 Provisions relative to the tenure of public agents 41 Chart III 42 Key to Chart III 43 Frequent elections 44 Longer tenure and provision for reference of issues to electorate.. 44 Present tenures not consistent with requirements of responsive, re- sponsible and efficient governmen": 44 Chart IV 44a Key to Chart IV 441i Conditions of public employment 46 Provisions governing promotion in the public service 46 Provisions relating to standards of compensation 47 Lack of business-like basis for fixing of compensation and work re- quirements 47 OUTLINE OF CONTENTS Chapter I\' — Continued page Conditions of public employment — ■Continued Summary of principal defects in employment conditions 48 Summary of related defects 48 Causes for present conditions 48 Steps taken to improve present conditions ; the senate committee on civil service 49 Chapter V — The Structure of Government and the Powers, Duties and Limitations of Officers 50 Need for preconception of structural plan 50 Common structural essential of a representative system 50 Types of organization for administration 50 . The committee or commission type 51 Revolutionary expedients — English and American 51 American committees of safety 51 The failure of committee systems 52 The commission form of government 52 Administration under a responsible chief executive 53 Distinguishing characteristics of type 53 All responsible, but differing degrees of success in development of efficiency 53 An independently organized administration without leadership 54 The mechanism for making management responsible recent in its de- velopment 55 The English rule limiting the cabinet personnel to responsible officers not adopted till 1801 55 A single responsible head not recognized in England till after the American Revolution 56 The mechanism for carrying issues before the electorate not per- fected until after 1832 56 Means for making control through representatives effective, not generally adopted in Europe till after 1848 56 The isolated development of the American type of representative government 57 All real gains in American government have been in the direction of the second type 58 The fundamental question for the convention 58 Chapter VI — Organization and Procedure of the Legislature 59 Indictments of the present organization and procedure of the legislature 59 The organization and procedure have worked badly 60 Experience in other governments similarly organized 60 Not adapted to the work to be done 60 Present membership represents territory and not constituencies 61 Territorial idea originally justified 61 Significance of geographic subdivisions lost 61 Only one territorial issue remains 61 Evils of present system of representation 61 New adaptations made in other political jurisdictions 62 The bicameral organization originally founded on class interests.... 62 Number of members of the legislature not determined by standards of responsiveness and efficiency 64 The relation of members to constituencies 64 The relation of members to committee work and debate 65 OUTLIKE OF CONTENTS Chapter VI — Continued Legislature not complementary to other working parts 65 Rules governing legislature in session out of harmony with purpose 65 Rules governing not adapted to enforcing responsibility 66 Legislature in conflict with authority and jurisdiction of the executive.. 66 Standing committees not adapted to the proper consideration of measures either of legislation or administration 67 Legislative staff agencies 68 Local legislation 69 Chapter VII — Constitutional Provisions Defining the Relations of Legislature and Executive 72 Responsibility for use of executive power implies leadership 72 Need for executive leadership understood at time of first constitution 72 Two important ways in which governor is recognized as leader 72) His duty to recommend measures 7Z His power to call representatives together in extra session 7i Lacking in means for making leadership effective 74 Right to introduce and defend measures necessary to effective leader- ship 74 Argument opposed to the principle not well founded 75 Executive leadership essential to preservation of separation of powers. 75 Executive leadership essential to safe use of veto power 75 All alternative to invisible government 76 No provision for leadership in matters of economy 76 Executive veto to items in money measures only a palliative 76 Uncertainty of operation of negative power 77 Positive requirements under present system ineffective 77 Constitutional requirement of executive to frame, submit and defend money bills 77 Constitution lacking in means for enforcing executive responsibility 78 No provision for making the " opposition " effective 78 No provision for the prompt retirement of officers who are not supported by a majority 78 No power of executive dissolution 78 Historic reasons for failure to adopt constitutional plan that provides for responsive and responsible government 79 Provision made to prevent a misuse of the powers of government 79 Use of the governor as a negative force against the legislature 79 The use of the courts as a negative force 80 Our system of checks and balances 81 Development of the irresponsible boss 81 Reaction against irresponsibility 81 The adoption of palliatives to little purpose 82 New York practice a perversion of the principle of representative gov- ernment 83 Chapter VIII — The Independent Auditor 84 Defects of the constitution and statute law providing for current review and approval of financial transactions 84 Audit by the legislative body as a whole 84 Audit by legislative committee T 84 Creation o i an independent auditor 84 OUTLINE OF CONTENT. PAGE Chapter VIII — Continued Provisions of constitutional law in New York 85 Defects of the present constitutional provisions 85 Defects in legislation governing the office 86 The present organization of the office 86 Organic changes provided for in recent bill 88 Chapter IX — The Governor and the Administration 89 What is meant by " administration " 89 Problems of management 89 Proprietary functions and problems 89 Public service functions and problems 90 General requirements of organization for administration 90 Executive and departmental organization of the state 90 Principles governing determination as to whether executive control should be centralized 91 Application of general principles to functional groups 92 " Governor " or " chief executive " 94 The present organization for executive direction and control 97 The tenure of the governor 97 Chart V 98 Key to Chart V 99 The power of appointment and removal 100 Defects in departmental organization 104 Chapter X — Organization for the Administration of the State's Pro- prietary and Other General Functions 105 Present agencies of the state included in the proprietary group 105 Need for correlation of official action and responsibility involved in the handling of proprietary activities 106 Technical advantages of grouping 107 Secretary of state 108 The treasurer 109 The comptroller (part) Ill Need for a central accounting and property division Ill A central purchasing division Ill The tax department 112 Department of excise 113 The centralization of financial administration 113 Conservation department 1 14 Commissioners of the land office 115 The attorney general 115 An employment department 117 Chapter XI — Organization for the Administration of Military Functions of the State Government 118 The adjutant general's department 120 The state armory board 120 The armory board of New York City 120 The national guard and the naval militia 120 Relation of state militia to the federal government 120 State constabulary 121 Conditions which make for irresponsibility 121 Questions pertaining to rank 122 ix OUTLINE OF CONTENTS Chapter XI — Continued page The signing of commissions 122 Construction of armories a quartermasters duty 122 New York City performing state functions 123 Chapter XII — Organization for the Administration of Public Service Functions 124 The need for grouping services for purposes of administration 124 Part I — Organization for the administration of activities having to do with the promotion of agriculture and industry 124 Conservation department 125 The state fair commission 126 Experiment station at Geneva 127 Lack of correlation of related functions 127 Need for change in tenure of office of commissioner of agriculture. . 128 Improve co-ordination of functions within the department of agri- culture suggested 128 Staff advisory council suggested 129 Part II — Organization for the administration of public works functions 129 Organizations now carrying on these functions 130 The New York bridge and tunnel commission 130 Commission to investigate port conditions and pier extensions in New York harbor 130 The department of highways 130 Trustees of public buildings 131 Department of pubHc buildings 131 Department of public works 131 Department of the state engineer 131 Canal board 131 The commissioners of the canal fund 132 Department of architecture 132 Palisades interstate park commission 132 Conservation department 132 Bronx parkway commission 133 Constitutional restrictions on executive personnel 133 Legislative restrictions on the selection of executive personnel 134 Constitutional restrictions which prevent the development of efficient organization and management 134 No organization available for constructive planning 135 Continuity of policy in management impossible 136 Defects in organization of the architectural service 137 Department of buildings 138 Engineering service in the conservation commission 138 Part III — Organization for administration of pubHc education 139 Executive functions of department of education 139 Conditions unfavorable to localization and enforcement of responsi- bility 140 Method of selecting the board of regents 140 Multiplicity of lines of control in the department of education ■ 141 Lack of centralization of collateral educational functions '. . 141 Lack of machinery for the development of work and efficiency pro- grams ~. . . . 142 Problems of state educational policy 142 OUTLINE OF CONTENTS PAGE Chapter XII — Continued Part III — Continued The unit for local administration of public education 143 Provisions for free text-books throughout the state 144 The codification of laws for the administration of public education in city' school districts 144 Provisions for a permanent and continuing census 144 Provision for more adequate record and report of school finances.. 144 Part IV — Organization for administration of state institutions for the care of delinquents, defectives and dependents 145 Financial support of state institutions 146 Summary of existing organization and exercise of state authority.. 146 Penal institutions 146 State superintendent of prisons 147 State commission of prisons 147 Commission on new prisons 147 The state board of classification 147 Board of parole of state prisons 148 Board of examiners of feeble-minded criminals and other defectives. 148 Prison association of New York 148 Charitable institutions and reformatories 148 The state board of charities 149 Fiscal supervisor of state charities 149 Building improvement commission 150 Salary classification commission 150 State charities aid association 150 Commission on sites, grounds, and buildings 150 Joint purchasing committee 151 State hospitals for the insane 151 State hospital commission 151 State supervisory control common to all institutions 152 General characterization of existing machinery ." 153 Division of authority 154 Duplication of inspection 155 Inadequate ppwers 157 Part V — Organization for the administration of public health functions. 158 General description of functions 158 Present organizations for carrying on health functions : Department of health 158 State department of agriculture 159 Lack of correlation of health functions 162 Need for closer relation of legislative council to executives 165 Economy through better organization 166 Indeterminate tenure of office desirable 166 Part VI — Organization for the administration of state activities having to do with industrial relations 167 Scope of state function of regulation of industrial relations 167 Existing state organization 168 The industrial board 169 Mercantile establishments 170 Home work 1' 1 xi OUTLINE OF CONTENTS PAGE Chapter XII — Continued Part VI — Continued Workmen's compensation 172 Duplication of inspection and work 174 Inadequate machinery and powers of existing agencies 175 Part VII — Organization for administration of public utilities regulation 176 Functions of the public service commission, first district 176 Functions of public service commission, second district 177 Common powers exercised 1 77 Critical appraisal of the organization and present method of regu- lating public utilities 177 Lack of means for locating and enforcing executive responsibility 177 A question of geographic distribution 178 Two distinct problems of utilities regulation not recognized by the present law 178 The state should not construct city owned subways 179 Two commissions unnecessary 180 No control over inland waterways 180 Part VIII — Organization for the regulation of banking and insurance.. 181 Functions of the banking department 181 Functions of the insurance department 181 Defects in organization for purposes of administration 182 Chapter XIII — The Content and Form of the Constitution 183 The notion that the constitution is fundamental 183 The American notion of the constitution 183 No difference in sanction of early constitutions 184 Difference in sanction later introduced 184 Recent abandonment of difference of sanction for statute and constitu- tional law by some states 185 The idea of the difference in the nature of constitutional and statute law generally abandoned 185 Causes for the change in the content of constitutions 186 Distrust of the legislature and search for responsibility 186 The time for a fundamental change has arrived 187 The constitution should contain only the great underlying principles of the provisions for government 188 Three expedients for simplifying the constitution 188 Application of a more difficult amendment process to the fundamental parts of the constitution 189 The form of the constitution 189 Appendix : The Constitution of 1894 Rearranged and Annot.a.ted 192 CHAPTER I INTRODUCTION AND SUMMARY In co-operation with the state department of efficiency and economy, the Bureau of Municipal Research prepared and pubhshed for the con- stitutional convention a volume entitled " Government of the State of New York — Organization and Functions." This work, with the exception of a brief prefatory note written by the commissioner, was purely descrip- tive in character. The report was designed to present an accurate picture of each department, office and commission of the state government as it existed January 1, 1915. One reason for making this report entirely descriptive was to avoid controversy and misunderstanding as to the facts. Another reason was that each of the agencies co-operating in preparation of the fact-report might draw different critical and constructive con- clusions. On the publication of this volume, the Bureau of Municipal Research was requested to make available to the convention an appraisal of the system of government described in the fact-report. In the chapters which follow are the conclusions reached. Detailed constructive recom- mendations are not included for the reason that the constitutional con- vention commission was of the opinion that such of these as the Bureau might wish to propose should be submitted directly to committees. In preparing this appraisal of the existing constitution and govern- ment the Bureau does not presume to speak merely on its own authority. For this reason it is thought desirable at the beginning to state frankly and fully what standards were used as a basis for judgment. The first chapter following this introduction contains such a statement. The stand- ards given have not been selected from abstract considerations, but are thought to be those generally accepted by managers of enterprises, public and private, on the strength of experience and observation. They represent, so far as can be judged, rules of appraisement founded on common sense in the conduct of business enterprises and the experi- ence of this and other countries in their efforts to develop democratic and efficient government. In so far as they are not to be accepted as a basis for criticism, they are open to attack, and are separately stated for this reason. Briefly characterizing the assumptions which are used as a basis for criticism, it is held : that proper machinery must be set up so that the opinions of the people mav be brought to bear immediately and directly on the agents of government through action at electioiis ; that jnachinery must also be set up for making executive officers responsible and responsive to public opinion ; that the only way which has been 1 CONSTITVT'l&K AND GOVERNMENT OF THE STATE found for doing this as a matter of experience is to provide for respo n- sible lead ershi2^ i. c, to make it the duty of the executive definitely to formu lat e plans an d_proposals tor_iegi slative acd op, an d not to permit him to dodge respo nsibility by submitting a general lecture on pol itical prmciples or public morals; that by requiring the executive to take the imtiative~m matIer"s~ whicirVitally affect administration ^ ^ re fusal to gr^ nt his requ ests, a nd in the form submitted^ will raise a clear-cut issue tha jlbe people can understand ; that s uch leadership is essential to responsi ble gove rnmentr"and r such definition of issues is essential to democr acy rtself — the only alternative being i rresponsible government and domin a- tion by a ^porilical bossT ' Starting from these general assumptions or principles, it is urged that the activities of the legislature should be dire cted primarily tn tJ ie determination of large state-wide policies and scrutinv of administrat ion, rather than to t he initiation nf ev ervthing large and sma^ — d oing, its business largely in committe e rooms behind closed doors , and accom£lish- ingf its ends Lliioupli ilie LBocIs of " log-roll iiig ." Nothing could be more helpless than a democracy with a representative government without any kind of a leader. It has been due to the fact that the " boss " has rendered just this kind of a service that he has been developed. He is the product of the American way of handling public affairs. In application of these standards to a critical appreciation of the government of New York, the following points are developed: 1. That American state government, in its essential principles, was not originally designed for efficient, constructive public work, but was the product of temporary and peculiar conditions growing out of the revolt against Great Britain. In their natural antipathy to leadership by a royal agent, the revolutionists rejected leadership altogether. In their fear of the British crown and the royal governor they came to fear all power, even if exercised by their own agents. Instead of making the executive authority responsible, therefore, they shackled it. Knowing that royal agents could not be entrusted with authority, they came to the conclusion that no one could be entrusted with authority. Their ideal of govern- ment was a negative one and in seeking after a government powerless to do harm they set up one weak in power for good. This principle of negation, of preventing evil by dividing the powers of government into numerous parts is the chief source of the wastefulness, irresponsibility, and inefficiency which characterize the present system of government. 2. In considering the organization of th e electorate, the vi ew is here taken that the effective fmiction of t he e lectorate is th e approval or" rejection of_policies_-4:elative to things done by the government or proposed to be done by the government ; that leadership is essential to t he j onmi^tir'^ pf it;Qiip<^ ; q.nd that such leadership can only be re sponsible INTRODUCTION AND SUMMARY when it is made official and vested in those who are or may be charged with the actual conduct of public business. The provisions relative to an electorate are therefore not complete unless they surround it with conditions favorable to the effective exercise of its natural functions. 3. In the search for responsiveness and a means of locating and en- forcing responsibility in the government, innumerable expedients, checks and counterweights, have been devised, most of which throw upon the electorate an increasing burden and fail to reduce the waste and confusion in the government. They are negative and not positive in their operation. Except in cities, nearly every new device is a plan to prevent some one from doing evil, not an institution for vesting in designated authorities powers for good equal to their responsibility for good, supplemented by the well known methods for enforcing this responsibility. 4. In the establishment of the conditions surrounding the election, appointment, promotion, remuneration, and removal of public officers, the same principle of negation has largely obtained. The so-called merir''Tl-^ system of civil-service reform originated in a laudable effort to abolisJi 1 \ " the spoils system," and the problem of the proper conditions of public \ \ employment from the point of view of efficient service to the state and \ \ justice to the employees has never received the serious consideration of \j-^ any constitution or law making body. "^ 5. In organizing the legislative body the principle of the representa- \J[r tion of geographical districts, which was equitable enough in a time when rural communities and towns were fairly equal in population and pos- j sessed of substantially identical interests, has obtained to-day to vitiate the very essence of representation, namely, the accurate reflection of the will of all important groups of people in a highly complex society. The results are localism in politics — not the representation of state-wide inter- ests whicIToverreap county and city boundaries — and the persistent use j of the gerrymander to destroy accurate representation wherever possible, j Thus it happens that legislators are burdened with petty trading in local favors, the chief negotiator— the state " boss " — receiving the highest rewards. 6. Originally the legislature of two chambers represented divergent class interests. Now it does not. Question is raised as to whether the \ ^ a^ dual arrangement now serves any other than a negative purpose— J whether its chief justification is not the lack of provision for leadership ' and for locating and enforcing responsiveness and responsibility against representative, as well as executive, officers ; whether it does not operate to intensify friction, waste and confusion of responsibility in the government. It is pointedly urged that the two chamber legislature has been abandoned in nearly all of the greatest cities of the country in the name of efficiency and democracy; and that it is destined to disap- CONSTITUTION AND GOVERNMENT OF THE STATE pear from the state governments just so soon as the problem of constitu- tion making has been approached by the people with enough seriousness of purpose to demand that the representative branch be used as a means of establishing and enforcing responsibility instead of confusing it and compelling the people to look to an irresponsible " boss " for protection. 7. The constitutional relations now established between the execu- tive and the legislature have been successful in producing innumerable, fruitless conflicts, with an occasional good result as an accidental by- product. They are not of such a character as to enable either branch of the government to bring any issue to a positive outcome. The execu- tive has large negative responsibilities in finances, but no positive author- ity commensurate with them. The legislature on the other hand can con- stantly interfere with the minutest details of administration without assuming any open responsibility for its success. The two departments may wrangle for months over the highly important question of which one has the support of the people without any chance being given to the voters to decide what only they can decide.. In this tangle of contra- dictions all consistency and harmony would entirely disappear if it were not for the unofficial leader who holds the disjoined machine together by methods all his own. 8. The chaos that characterizes the general structure of the gov- ernment runs through the executive department and all of its ramifica- tions. The governor is given the executive power in name only, for many important executive divisions are entirely out of his control or at best only partly under it. In th e ^rst p lace, there is a number of executive officers who are elected by popular vote and are entirely independent in the exercFse of powers that are not independent in their nature. In deter- mriiitfg what officers should be elected and what appointed, "the constitu- tion shows no consistency or adherence to principle. In the second place> where appointment is the method of selection fixed by law, there are usually such variations in the exercise of the appointive power that it is beyond the ability of anyone to find or define responsibility for adminis- tration in its entirety. The legislature has completed the confusion intro- duce d by th e constitution by the creation of a tangle of boards, com- missions, and hidependent and practically irremovable officers, so that the g'overnor is in fact stripped of real executive control over those who are regarded by popular opinion as his subordinates. In the third place, the administrative system, while depriving the governor of many of the powers essential to genuine leadership and responsibility, heaps upon him innumerable petty duties in relation to minor officers and divisions, which consume in trivialities the time that should be given to supervision of really important matters. In the fourth place, there is no grouping of the activities and functions of government, with a view to bringing under common executive consideration interrelated questions and problems of 4 INTRODUCTION AND SUMMARY management. The result is that the service is made less efficient, and the governor is put to the further disadvantage of dealing separately with 169 different independent units. It is clear that the problem presented here involves more than a mere readjustment of parts — a rearrangement of powers and partments, bureaus, and divisions of the administration. In fact to the very root of the whole system of government. Responsiveness and resp onsibility for economy and efficiency cannot be secured by ad- ministrative alterations alon"e^ i hey can only be ol:)tained TTy a lunda- liTenta l reaTljUS lmeiTE ot the relations between the legislature and the goverlior on t"he one hand and between the governor and tTTe adiiiiiiis- trati ve o fficers on the othe T — by m aking such constitutional changes as wH lassure responsibility and responsiveness in the government as a whole, const ant and informed criticism and scrutiny within and without," official leadership in the formulation of policies, and the COllceiUfation'of public opinion at elections on work of the government already done or omitted and work proposed for the future. Such is the burden of the argument which is supported in the following pages by reference to the concrete facts of New York state government. than a j it goes I VV CHAPTER II STANDARDS FOR THE APPRAISEMENT OF THE PRESENT CONSTITUTION AND GOVERNMENT There is one principle that is fundamental to the political thought and action of every democratic commonwealth, namely, that the public business shall be managed as a trust. Representative government is the institutional form in which this principle is expressed — the representative character being adopted for the purpose of assuring the governed that powers shall be exercised and properties and funds shall be used for the common good. Government Established for the Governed A written constitution is a sovereign prescription or grant in the nature of charter of incorporation — a body of laws which are accepted as the rules that shall govern the government, and which in terms set forth the delegation of authority to persons who thereby are recognised as of- ficial trustees, and describe the conditions or limitations of their steward- ship. Like other institutions and instruments, governments get out of adjustment. It has been for the purpose of providing an orderly method of finding out what changes are desired in organization, in personnel, and in institutional relations that " electorates," " representatives " and " con- stitutional conventions " are provided for. Every consideration involved in the amendment of constitutions has had to do with the better adaptation of institutional means to end — the end being government for the benefit of the governed. Requirements of a Representative System The institutional requirements to be conserved by the constitution may be simply stated. With a view to carrying out the principle that " a public office is a public trust," it is commonly accepted (both as a basis for critical review of what is and as a basis for considering the advantage of constructive proposals) that the government must be " responsive " to the will of the governed, and that officers as agents or managers of the public trust shall be held " responsible " for their acts. Nor is the citizenship, to whom proposals for constitutional amendments must be submitted, without ample experience for intelligent judgment as to what expedients are adapted to making government " responsive " and '' responsible.'' Citizens have become familiar with these expedients in their contact with everyday affairs. STANDARDS FOR APPRAISEMENT Expedients Adopted to Make Private Management " Responsive " and " Responsible " Like representative government, an ordinary joint stock company is an incorporated trusteeship in which many are interested. The demand made of officers is that the management shall be " responsive " and " responsible." The essentials among all the expedients that have been adopted to make the administration of corporate trusteeships responsive and responsible to the beneficiaries or members are these : 1. The selection of a person or persons as executor of the trust, usually called the " executive" whb is charged with the duty of carrying on the business authorized. 2. The selection of " representatives" usually called trustees, who are charged with the duty of meeting as a body or board to review^ the acts and proposals of the " execu- tive " and approv e or disapproye of them. 3. Provision for obtaining reliable information needed to keep the representatives and members advised about what is being done by the " executive." 4. Provision for developing a faithful and efficient personnel with which to carry on the business and for retaining it in the enterprise. 5. Provision for the prompt dismissal of the personnel that is unfaithful and unfit, and for the prompt retirement of the " executive " officers who do not retain the confi- dence and support of a majority of members as ex- pressed by an " electorate " or through " representatives." These may be regarded as underlying principles governing all the personal and organic relations of institutions with which citizens are familiar — the results of experience gained in efforts to make management of trusts responsible. The Meaning of Executive Responsibility The meaning of " executive " responsibility is quite as generally understood as are the requirements of trusteeship. In the common affairs of life, and in private corporate practice, executive responsibility means : 1. Responsibility for leadership, i. e., for initiativ e in, the prepara- tion and submission of plans for approval by the board and for direc ti on and cqntml -QYex,.the..execution of plans, after they "fiave^been approved. 3. Responsibility for results^ i. e.j ior efficiency in management and for economy in the use of mere material and funds. CONSTITUTION AND GOVERNMENT OF THE STATE Relation of Executive to Administration This means that the " executive " is looked to as the one to come before the board or body of " representatives " at stated times, and tell them what has been done since the last meeting, and what is proposed for the fut ure^and, in order that this requirement may be enforced, authority to proceed beyond a fixed date is withheld from the " executive," i. e., action by him is made contingent on approval or affirmative action by the board or " representatives " of the members. The_methods of financing are subject to board control, though the execution of authorizations to raise and spend money js left to the " executiye. " Conditions~governing management and~empIoyment, such as the organization of departments and divisions of work, salaries to be paid, etc., are made the subject of board action, though responsibility for directing the execution of plans and for the honesty and qualifications of the personnel is left with the executive. To fix responsibility for management and to make it enforceable, the exec- utive is to decide what devices shall be used, who shall be appointed or employed, subject to these conditions. The one who must be held ac- countable for getting things done— the one who must determine fitness and merit — the one who must devise and install methods for bringing acts of disloyalty and personal disqualification to official atten- tion, is the executive. The executive must administer discipline ; he must .issue orders and provide the means for knowing how orders are carried out ; he is the one who is held responsible for results. Relations of the Board of "Representatives" to Administration Responsibility for honesty, efiiciency and economy is definitely located by holding the " executive " to account for devising and install- ing tests which will enable him promptly to discover and correct infidelity, inefficiency, and waste, so far as this may be done by the executive alone, and for bringing to the attention of " representatives " and " members " conditions unfavorable to good management over which he has no con- trol. By making the executive responsible for leadership, for the honesty and qualifications of the personnel of administration, and for efficiency and economy as measured by results, each official " representative " in turn is held accountable by members for supporting the executive when he is deemed to be right, or for opposing him when he is deemed to be wrong. In fact, supporting or opposing the executive in all matters that may be proposed by him is the chief function and purpose of " repre- sentatives." Means for Keeping "Representatives" and "Members" Informed It is essential to responsible^ administration that some means be devised for keeping " representatives " and beneficiaries informed a_bout STANDARDS FOR APPRAISEMENT what is p roposed, jan^- ^h^L -js being done. The practice of withholding authority until proposals have been explained by the " executive " and past acts have been reviewed, has already been noted. In aid of this method, definite reporting dates may be prescribed and even the form in which proposals and accounts shall be submitted may be laid down in the charter or otherwise. Other expedients are also provided for supple- menting these requirements, such as, the appointment of an independent of " solidarity " i n executive responsibility or agreement between adm in- i strative heads before any plan or proposal is submitted as a governmen t measure.^ In each case provision is made f or prompt reference to the electorate of irreconcilable issues arising between the executive and a majority of the official representative body , t hereby making both branche s responsive to pnb hV npininn All Responsible, but Differing Degrees of Success in Development of Efficiency The degree to which the dift'erent governments of this type have become responsive and responsible has varied according to the expedients used. In England, for example, there can be no doubt as to the responsiveness of the government to popular demand, except in so 53 CONSTITUTION AND GOVERNMENT OF THE STATE far as the permanent tenure of the members of the House of Lords and the long tenure of members of the House of Commons have interfered. But in case of continued controversy the Lords may be overruled by the liouse of Commons, and the life of the House of Commons may be brought to an end at any moment by dissolution. In England there can be no doubt as to responsibility for leadership ; on the other hand, there has been a certain indifference to the need for adopting expedients that are essential to efficiency and economy, a fact perhaps explicable by taking into account the contentment of the British with long established customs and their regard for the conventions that have grown up around a heredi- tary ruling class in a highly stratified society. In Fra^ ice the governmen t is also responsiv e. Responsible executive leadership has also been e stab- lished both in the election of the president and the prompt retirement o f the cabinet in case of failure to retain the support of a majoritv of reprje - sentatives. There the ancient social stratification has in a measure given v;ay to expedients for making the administration more efficient and economical. In Germany adaptations for responsiveness to public opinion have not been as completely developed as in France and England. Leader- ship there is also made responsible ; but in last analysis this does not rest so directly on a vote in the representative branch, but depends on the ability of the Kaiser and the Chancellor to sense the public opinion. There the best known expedients which make for efificiency and economy have been developed and applied to a degree unknown outside of privately organized establishments, with the possible exception of Japan. Without suggestion of invidious comparison, these references to experience are made to call attention to the fact that the second general type of organiza- tion for management has proved adjustable to the most varying poHtical conditions, and that this type is adapted to securing efTective popular con- trol, responsible leadership, and honest, efificient and economical transac- tion of public business. An Independently Organized Administr.-vtion Without Leadership The third type of government in which separate executive and legis- lative branches appear without any provision being made for responsible leadership or for submitting irreconcilable differences to the electorate is to be found in all of the American states, and is, in a somewhat modified form, the basis of the federal system. It may "be said with safety that of all the countries of the world in which democracy has made any consider- able advances, the United States is the only one that retains this type. It is true that the governments of the South American repubhcs are modelled on this form, but at times they have not been representative, that is, have not always succeeded in preventing executive usurpation. In the United States the essential advantages of a strong executive held to responsible leadership have been destroyed, whereas in countries pos- 54 GENERAL DISCUSSION OF STRUCTURE sessing the second type the executive department has been conquered, not destroyed, and it has been made both responsible and efficient. The Mechanism for Making Management Responsible Recent in Its Development The predominance of this third type of representative government in the United States may be ascribed to historical accident rather than to any reasoned consideration and rejection of the second type. At the time of the establishment of American independence, when statesmen were forming state governments and creating a union, the principle of popular representation was accepted in the United States and in England but the technique for the enforcement of executive responsibility had not been worked out and applied. While the Revolutionary War was a part of the struggle for the general principle of popular control, it occurred before a mechanism for making" the executive responsible had been devised and installed. At this very time George III was resisting and resenting popular interference with his executive prerogatives — he was trying to defeat the efiforts of politically organized constituencies to determine what the executive should do. He did not openly attack the representative system, but sought to destroy all sense of solidarity among the members of his own cabinet as the responsible heads of the administration, and destroy their leadership as popular representatives. When George III came to the throne this policy was relatively easy to carry out, because the idea of responsible leadership was only hazily grasped. A considerable luimber of the members of the cabinet were not regarded as having any responsibility. " In the Grenville Ministry, which lasted from the spring of 1763 to the summer of 1765," says Anson, " the business of the govern- ment was settled at weekly dinners, at which only five or six ministers were present * * *. The cabinet of Lord Buckingham in 1782 would seem to be the first in which there were no non-official members. It consisted of 11 persons, each holding high political office." Lord Buck- ingham himself is reported to have said of his fellow members, when discussing the ability of the cabinet : " I could chase the hare with a |)ack of hounds but not with a lot of lobsters." The English Rule Limiting the Cabinet Personnel to Responsible Officers Not Adopted till 1801 It was not till 1801 that the rule was established in England which limited members of the cabinet to persons holding responsible offices, and England at that time was the most advanced of all nations in the develop- ment of methods for making the executive responsible. Responsibility then came to mean also liability of executive heads to lose their official positions in case they as a cabinet could not join in every administration proposal submitted. If a minister differed from his colleagues he was 55 CONSTITUTION AND GOVERNMENT OF THE STATE f.xpected to resign or to be held responsible for what the cabinet did as a group. Responsibility was made collective and leadership was made responsible by providing that the cabinet should present a solid front in dealing with the legislature. A Single Responsible Head Not Recognized in England till after the American Revolution The necessity for a prime minister or head of the administration was not recognized until after the American Revolution, and it was not until after 1832 that the prime minister came in fact to be the choice of a body acting as an electoral college — persons chosen by the electorate who had delegated to them the power to select a chief executive.* That is, it was not until after the passage of the Reform Bill that the Com- mons came to be fairly representative, and the cabinet was made wholly dependent on retaining the support of a majority of the representatives of the people. t The Mechanism for Carrying Issues before the Electorate A'ot Perfected until after 1832 After responsible and collective leadership was firmh- established in the cabinet, the final step in the development of the system was the adop- tion of the expedient of submitting irreconcilable differences between the executive and the legislature to the decision of the electorate. This step was not firmly taken until about the middle of the nineteenth cen- tury. Speaking on this point, Anson says : " There was no instance before 1830 of a ministry retiring because it was beaten on any question of legislation or even of taxation. So late as 1841 Macaulay maintained in the House of Commons, speaking as a cabinet minister, that the gov- ernment were not bound to resign because they could not carry legislative changes, except in particular cases where they were convinced that with- out such and such a law they could not carry on the public service." Means for Making Control through Representatives Effective, Not Gen- erally Adopted in Europe till after 1848 It is also a matter of peculiar interest that the Revolution of 1848 and other political disturbances in Europe which occurred in the middle of the last century had very largely to do with the establishment of the principle of executive responsibility in the continental governments of *In establishing our federal constitution, a separate electoral college was pro- vided for. In some countries, the regular representative body is used for this purpose. Our electoral college meets once, casts a vote and that is the end of it ; the parliamentary electoral college is a continuing body, always available to perform the electoral function. fBefore the passage of the Reform Bill the Commons w^as largely under the domination of the executive, through his ability to control the " rotten boroughs " and the use of other questionable means. 56 GENERAL DISCUSSION OF STRUCTURE Western Europe. Each of these has a representative body. To this body is given the power to determine poHcies and settle what the execu- tive may do. But in each the executive must lay before representatives what is proposed by the administration. Each of them holds the executive to account for working out details and for doing things for which ap- proval has been given, but withholds the power to proceed without con- sent of a majority of representatives. In developing methods for mak- ing the executive responsible, each has resorted to the expedients that were commonly known by the people to have been effective in manage- ment of affairs, both public and private. For the purpose of making a government responsive, all the countries, with one or two exceptions, insisted on the establishment of a political system that would provide — 1. For the election of representatives. 2. For giving to these representatives the means for knowing what was being done. 3. For enforcing the prompt retirement from the executive serv- ice of the heads of administration who do not retain the confidence and support of a majority. And in order to definitize responsibility, each provided for a prime min- ister who was held to account for formulating and submitting the plans or proposals of the administration and who could be held responsible for the honesty and qualifications of the personnel of the administration, for the efficiency and economy of management. The Isolated Development of the American Type of Representative Government The American system of government was not only established before the development of those institutions for making executive leadership efl:'ective and at the same time thoroughly responsible, but it was estab- lished under circumstances which were wholly abnormal, namely, during a revolutionary condition of affairs produced by a popular struggle against irresponsible executive authority exercised through agents of the British crown. The executive branch of the government in all of the American colonies, except Rhode Island and Connecticut, was vested in authorities entirely beyond the control of the electorate, that is, in royal governors in the provincial colonies and in proprietaries in the others. It was on the executive branch essentially that the colonists waged their war for independence. For them it was not then a question of controlling but of destroying the executive arm. Accordingly when they came to framing state constitutions, they usually provided that the governor should be a mere minion of the legisla- ture (Massachusetts and New York being the two marked exceptions), elected by that body for a short term and stripped of all powers for 57 CONSTITUTION AND GOVERNMENT OF THE STATE leadership and responsibility. In some of the states even the term " gov- ernor " was regarded as odious and insulting to democracy and the milder term of president was used. Nowhere except in Massachusetts was the executive given the straight veto power. Everywhere he was regarded with suspicion and distrust. All Real Gains in American Government Have Been in the Direction of the Second Type Although the ideas of the Revolutionary period have on the whole dominated our state constitution makers, there have been some depar- tures, and as far as these have been real gains in responsible and efficient government, they have been in the direction of the second type of repre- sentative government. The governor has been made independent of the legislature and given larger powers and responsibilities. These have been substantial gains, bvit it now remains for the convention of 1915 to apply to the solution of the problem presented the experience of other countries and of the practical business world. The Fundamental Question for Hie Convention Inasmuch as the whole course of political evolution in other advanced democracies has been in the direction of responsible and efficient execu- tive leadership, and inasmuch as substantial gains in American govern- ment have come from halting steps in that direction, the constitutional convention is called upon to answer this fundamental question : " Is it desirable to retain a system of government that secures only irresponsible and invisible leadership or should cognizance be taken of the expedients which have been developed during the last hundred years for making leadership effective and responsible." The discontent with and organ- ized opposition to the present system are obvious. From the point of view of democracy it is unsuccessful and from the point of view of busi- ness management it stands universally condemned. 58 CHAPTER VI ORGANIZATION AND PROCEDURE OF THE LEGISLATURE. There are many variations in organization — as many as there are constitutions. It is not to be assumed, therefore, that there is only one best form, or that the organization and. procedure in any particular details are best suited to the work to be done by a state, because the social, economic, physical and other environmental conditions which must be taken into account differ in each political jurisdiction. There are three conclusions with respect to organization, however, that may be accepted with confidence, viz. : L That in making constitutional changes those expedients w'lich have uniformly worked well should be considered. 2. That the devices and adaptations which have universally worked badly should be discarded or, if continued, should be retained only for lack of something better. 3. That whatever be the general design of the mechanism for doing business, every part should be in harmony with and complementary to every other part. 4. That each part of the machinery of government should be adapted to performing the service for which it was in- tended. Indictments of the Present Organisation and Procedure of the Legislature Attention has already been called to the fact that one of the essential functions of a representative body, whether in government or in private corporate organization, is to make officers who conduct the details of the business, responsive and responsible. Without such an official body, those who do things and are responsible for what is done must deal directly with the electorate or the membership ; without such an official body the electorate or membership is put to the disadvantage of not having a per- manently organized reviewing and approving agency to bring before it specific and definite matters of policy concerning which there may be differences of opinion. Attention is also called to the fact that the con- stitutional character given to the representative body has been such that it has operated to defeat many of the fundamental purposes of a repre- sentative system. Against the present organization and procedure three indictments may be laid : 1. That they are of a kind that has uniformly worked badly. 2. That they are not adapted to doing the work for which they are intended. 3. That they are not complementary and supplementary to the other working parts of the government. 59 CONSTITUTION AND GOVERNMENT OF THE STATE The Organkation and Procedure Have Worked Badly Our political institutions have been on trial before the people and found wanting. It is for the members of the convention now to cure the obvious defects. Defects in provisions with respect to the "electorate," with respect to the conditions governing public employment or surround- ing the " official personnel," and with respect to the general structure, have already been commented on. It remains to discuss more concretely the defects in the organization and procedure of the legislature, in the organization of the executive, and in the several administrative depart- ments and offices. The first indictment (that the organization of the representative body is of a kind that has uniformly worked badly) may be passed without further proof than is already before the people. Past legislative per- formance has been of such a character as to cause many persons to lose confidence in representative government itself. Instead of " responsible government," we had "invisible government"; instead of responsible " leadership," we had a personnel that is dominated by " spoils " and " patronage " — discipline being administered from without ; instead of efficiency, we had inefficiency and waste of public resources to a degree that have caused citizens to conclude that even the most pressing and obvious public functions should not be entrusted to the government; in- stead of a government that is responsive to public opinion, our public institutions in many respects have been irresponsive — in fact we have not developed any effective official means of formulating, expressing and enforcing opinion on matters of large moment. Experience in Other Governments Siniilarly Organised Nor is there any reason for thinking that these results have 'been due to social, economic or other conditions peculiar to the State of New York. The people of every state in which the same type of legislative organization and procedure has been used have had the same experience. Results obtained by every government, and by every private institution that has adopted similar methods have proved just as disappointing. Un- der circumstances of this kind it behooves those charged with responsi- bility for determining whether it shall continue either to inquire into the reasons why the mechanism has worked uniformly badly or to discard it without inquiry. Not Adapted to the Work to he Done The principal function of the legislature is to reflect public opinion on questions of policy. A body whose function is to express public opinion should be so organized that the interests and opinions of the state may be precisely represented in the membership. It mayl^e accepted as a principle that a legislative body is representative only as it provides 60 ORGANIZATION AND PROCEDURE OF THE LEGISLATURE for two things : a membership representing constituencies, so that the body itself may reflect the opinion of constituents on matters which have not been referred to the electorate; and a membership which may keep in contact with citizenship, so that it can have independent judgment on questions currently raised for discussion and a vote. Present MembcrsJiip Represents Territory and Not Constituencies The present membership of the legislature does not represent con- stituencies in any sense which will enable it accurately to reflect opinion on statewide matters ; it represents territory. Its selection is based on geographic lines. Territorial Idea Originally Justified The reason for geographic representation is purely historic. When representative government originated, it was the result of opposition that was locally organized. Recognizing this fact a parliament, whose membership was territorial, was employed by the king to obtain the consent of the locally organized opposition to the imposition of taxation. And in assigning or agreeing to representatives, he selected agents of the most important local subdivisions for these very obvious reasons. They were in control of the resources that the king sought to reach, and of~ people whose ill-will he could not afford to incur. Significance of Geographic Subdivisions Lost At that time and for centuries the territorial subdivisions, such as counties and boroughs, were fairly uniform in their interests and in their demands on the central government. Within recent times economic and social interests have taken on a new alignment. Instead of self-centered communities, in whose affairs interests are common, the principle of specialization and subdivision in individual employment has operated so that constituencies based on community of interest are not territorial but functional and state-wide in their organization and association. Only One Territorial Issue Remains Beside this, the fairly equal distribution of the population which formerly made the representation of these local units reasonably equitable, has by a rapid process of development in the mechanical arts given way to a relatively more sparsely settled country and highly congested cities. This situation obtains in New York even to greater extent than elsewhere. There is now no such thing as even a rough equ2.1ity between counties and towns, and local representation has come to mean almost nothing when considering matters of state-wide importance. Evils of Present System of Representation The acceptance of the purely fortuitous boundary lines of county and town has more than a negative importance. It places representatives 61 CONSTITUTION AND GOVERNMENT OF THE STATE in the attitude of local competition and reduces the legislature as a branch of the government to the plane of a commercial exchange in which local representatives bicker for advantage. A second result has been to pit the country against the town in a contest of strength, which not infrequently defeats measures necessary to the highest welfare of the people of the state. A third result is that it causes the legislature to retain control over many local matters that could best be left to county or municipal government. Even assuming that territory and not constituencies are of primary importance, the system has worked badly. It is true, the present consti- tution requires that each senate district shall contain as nearly as may be an equal number of inhabitants, excluding aliens, and that representa-' tion in the assembly 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. But, as is well known, the principle em- bodied in these provisions is grossly violated by limitations imposed by the constitution itself (such as the provision that each county except Hamilton shall have one assemblyman regardless of its population) and by the methods of apportionment employed by both political parties. The gerrymander, which is persistently used, is openly designed to defeat responsibility by securing to the dominant party which resorts to it a representation larger than that to which its vote entitles it, and the gerry- mander cannot be prevented as long as the single member district is the basis of apportionment. Nexv Adaptations Made in Other Political Jurisdictions In other jurisdictions and political systems where the need for a new method of defining constituencies has been recognized, the prin- ciple of proportional representation has been adopted. This has led to the abolition of the single member district and the establishment of a system of membership responsive to constituencies by giving to each reorganized constituency representation approximately according to its voting strength. For this method it is claimed that it works justice to all parties, guarantees an approximately exact reflection of all shades of public opinion in the legislature and establishes in fact, as well as in name, a legislature responsive to the will of the people. Whether by this or other methods, the end is accomplished, fulfillment of the essen- tial purpose of a representative body in government requires that the present territorial system be abandoned. The Bicameral Organization Originally Founded on Class Interests Another problem involving the lack of adaptation of organization to work to be done is presented in the two-chamber assembly. Tire bicameral legislature was founded on the idea of constituencies. In its origin the 62 ORGANIZATION AND PROCEDURE OF THE LEGISLATURE upper house of the legislature, both in Europe and in New York, was distinctly a class institution, designed to protect a well-defined prop- erty interest against a radical unpropertied numerical majority. The English House of Lords represented the landed interests of England. So the first senate of New York, under the constitution of 1777, repre- sented the landed proprietors, as none but freeholders could sit in that body or vote for members of that body Likewise, in some other states dis- tinction was first made between the upper and lower houses on the basis of property or taxation, and it was everywhere contended by the defend- ers of the system that if both houses were elected by voters possessing the same qualifications, all grounds for the existence of the second cham- ber would disappear. Although, in the early years of the republic, legis- latures and conventions of delegates yielded to the increasing demands for an electorate in which no class distinctions would obtain and swept them away, the bicameral system was nevertheless retained. It is a significant fact that about the time the check of a distinct electorate for the senate was removed, the practice of protecting the rights of minorities against popular will by means of judicial control developed with extraordinary rapidity. To the judicial control exer- cised over legislation by the state courts, was added the control of the federal courts, particularly after the enactment of the fourteenth amend- ment to the Constitution of the United States which, by prohibiting states to deprive any person of life, liberty or property without due process of law, established positive standards for the protection of individual rights against state legislatures throughout the whole American empire. While these changes affecting the position of the state legislatures were taking place, a third development was exercising a profound influ- ence on the working of the bicameral principle, namely, the growth of strong party organizations capable of controlling, when in power, both houses of the legislature and rendering the idea of the houses checking each other practically obsolete. A thorough study of the operations of the New York legislature recently made by a capable observer shows pretty conclusively the failure of the check and balance principle in actual practice when the same party controls both houses.* The useless and irritating friction which occurs when the two houses are in the posses- sion of opposing parties needs no description here. Li considering whether the provision for a bicameral body shall be retained in the new constitution these facts should therefore be taken • into account : L The original justification and chief reason for two houses, i. e., the representation of the landed interest in the senate have disappeared with the establishment of identical suf- frage for voters for both houses. * Colvin, The New York Legislature : A Study in tlie Bicameral Principle. 6?> CONSTITUTION AND GOVERNMENT OF THE STATE 2. Adequate control for the protection of private rights exists in the fourteenth amendment to the federal Constitution. 3. Party organization destroys the check and balance principle now employed in defence of the theory. 4. When the two houses are possessed by opposing parties waste- fulness, friction and political folly usually ensue. The change to the single chamber system has been effected, after long experiments with the other, in the legislatures of most of the lead- ing cities of the country, some of which have larger budgets than that of the state of New York. Aside from the fact that the reason for the original institution of two houses has disappeared, it has been found as a matter of experience that it adds enormously to the cost of government ; it divides responsibility ; and it gives opportunity for thwarting the public will through maneuvering for delays and deadlocks that could not obtain with one house. It is, therefore, a matter for serious consideration whether these evils which are admitted to be connected with the system do not outweigh the accepted arguments that may be advanced in sup- port of the bicameral principle. Number of Members of the Legislature Not Determined by Standards of Responsiveness and Efficiency The number of members of our state legislature has always been determined by reference to local, party and historical considerations, and not by standards of responsiveness or efficiency. As a result, we find 402 members to the lower house in New Hampshire with a population of 430,572, and 150 members in New York with a population of 9,113,614. In 1777, when New York had a population of about 300,000, the constitu- tion made provision for 24 senators ; in 1821 the number was increased to 32; and in 1894 it was fixed at 50, with an arrangement for adding one more senator upon certain contingencies. The number of members of the assembly was fixed at 70 in the first constitution, at 128 in 1821 and 1846, and at 150 in 1894. If we apply standards of responsiveness and efficiency to the determination of the number of members in a legislative assembly it is necessary to take in account: (1) the means of reaching and keep- ing in touch with constituents, (2) the number needed for doing the com- mittee and other work of a reviewing and approving body, and (3) time limits upon debate in the transaction of business. The Relation of Members to Constituencies With reference to the first it is clear that with the modern press and means of travel and communication a representative to-day can keep in closer touch with 100,000 constituents than his predecessor a century ago could, with one-tenth the number. But this is not all that is required. Citizens should have some means for coming into personal contact v/itli 64 ORGANIZATION AND PROCEDURE OF THE LEGISLATURE members of the policy determining branch of the government, so that from this viewpoint a large membership in a state having a large popula- tion is preferable to a small membership. The Relation of Members to Conmiittee Work and Debate The membership of the legislative body should also bear some relation to the increasing number of activities of the government and provide opportunities for constituencies to be represented in the principal com- mittees. This suggests increasing rather than decreasing membership. With reference to the problem of securing ample debate, however, it may be noted that the United States Senate, a body of 96 members, has been able to maintain substantial unlimited discussion (whereas in the House of l<.epresentatives it is closely restricted), and it has also proved to be a remarkably efficient body in the technique of law-making, at least as com- pared with the lower house. Assuming that the present organization and procedure are to be retained, the mere fact of numbers is of great importance. While mathe- matical tests cannot be imposed, it is safe to say that even though a single chamber were established, one hundred members would constitute a large enough working body for the expeditious transaction of business. I'ut it is further to be noted, that with a system which provides for responsible leadership, and in which the legislature is used to enforce responsiveness and responsibility, a much larger membership has not proved incompatible with efficiency, in fact, it has often proved to be of advantage in representing constituencies and in committee work, at the same time maintaining a high order of debate. Legislature Not Complementary to Other Working Parts As has been said,, there is nothing which will justify a misfit, and one branch of the government is a misfit if it is inconsistent with the purpose of its own existence and is not harmonious in its action with other parts. By this test both the organization and procedure of the legislature are defective. They are defective : 1. In the rules governing its action while in session. 2. In the organization of its standing and special committees. 3. In its staff agencies. Rules Governing Legislature in Session Out of Harmony With Purpose The organization of the legislature in session is a simple matter which conforms to that of other large representative bodies, consisting of a presiding officer, clerk, sergeant-at-arms, pages, etc. The difference lies in the procedure governing the debate and the taking of votes. Already these defects have been described. What has been said may be sum- marized in a paragraph. 65 CONSTITUTION AND GOVERNMENT OF THE STATE Rules Governing Not Adapted to Enforcing Responsibility In the development of rules controlling the representative body one or the other of two principles has dominated: Either they have been framed for the purpose of locating and enforcing responsiveness and responsi- bility upon high executive officers — the persons who must transact the details of business ; or they have been framed for the purpose of gaining direct control over executive subordinates, thereby vesting responsibility in that body both for legislative or administrative acts. With all the varia- tions in details of organization and procedure, the one conspicuous result of adopting the first principle has been to emphasize inquiry and debate on the floor, while the one conspicuous result of adopting the second l)rinciple has been to emphasize the committee, and to prevent real debate. Under the first plan those who must execute are made responsible for the drafting of administrative bills and preparing briefs in support of execu- tive measures, making these executive proposals the subject of open- house inquiry and debate, the floor being made the opportunity for the " opposition." Pursuant to the second plan, the executive is not per- mitted to formulate, introduce or defend administrative or any other measures, and the whole procedure becomes one that cannot be followed or understood by either the membership or constituencies. The first plan is adapted to making government responsible — the pur- pose of the representative system. The second plan is adapted only to irresponsible government, as it does not provide for leadership, limits advocacy and defense largely to chairmen of legislative committees, whose ways are secret, deprives the " opposition " of all opportunity to question the administration on the floor, applies " gag " rule to debate to force measures of an irre- sponsible " organization " through each house, and in case of difiference, through joint conference committees, whose reports are accepted under the whip, and sends to the executive measures without giving him any public opportunity to participate, except by acceptance or rejection. This is the type of regulation of legislative procedure employed in the state of New York. Nor is the present unsatisfactory character of the rules and of results due to any lack of constitutional verbiage in the organic law itself. Its evils have only grown larger in the efforts of the people to prevent " log rolling," " pork barrel " legislation, and " dark chamber " proceedings by mere restrictions on procedure. The defect is one of fundamental design that cannot be cured by patchwork or safety devices to prevent disaster. Legislature in Conflict zvith Authority and Jurisdiction of the Executive The results of the ill adaptation of the legislative machinery for lo- cating and enforcing responsibility that have already been commented on constitute only one side of the picture. A most serious consequence 66 ORGANIZATION AND PROCEDURE OF THE LEGISLATURE of the irresponsible use of legislative power, under conditions where inadequate provision is made in the organization of the legislature for direct dealing with the executive, has been the invasion of the field of ad- ministration, through the activities of legislative committees which are given in fact (whatever the theory) the power to recommend and refuse to report requests for, appropriations, to create, modify and destroy the administrative machinery, to determine who shall be employed, what salaries may be paid, what supplies and equipment may be obtained, what are the conditions surrounding the service — without any opportunity being given to the executive to state publicly and defend openly in the legislature his reasons for dissent based on real administrative experience. When these powers are exercised on the one hand on recommendations of com- mittees and little or no power is given to the governor to appoint, remove, direct, discipline or control administrative officers and agents, the uniform result has been that all of the functions and processes of administration sooner or later come under the domination of committees, whose member- ship in turn has no responsibility for results and no accounting to render to the people of the state at large, but on the contrary is interested first of all in local favors or in appropriations, contracts or apportionment laws which afifect the partisan organizations. Standing Committees Not Adapted to the Proper Consideration of Mea- sures Either of Legislation or Administration In the standing and special committees there is the same lack of co- ordination with the work of the government that is found in the adminis- trative departments and offices. In connection with this subject the fol- lowing points should be noticed : ( 1 ) The committees of the senate and assembly do not correspond in several respects, although the legislative functions of the two houses are identical. In 1915, the former body had twenty-five standing committees and the latter had thirty-one. Not only is there a lack of correspondence in the committees, but there is a want of co-operation between the committees of the two houses — a need which in some states has led to the creation of joint standing committees, as in Massachusetts. (2) In several instances there is a lack of centrali- zation of work. "For example, the senate has one committee on finance and another on taxation and retrenchment in spite of the obvious inti- mate relation of the two functions. The assembly distributes financial matters among three committees : ways and means, excise, and taxation and retrenchment. In the lower house transportation is divided among committees on canals, railroads, and commerce and navigation. (3) The committees of the two bodies do not correspond precisely with the chief branches of administration which are charged with the execution of the respective laws and whose finances should be adequately scrutinized by the committees. 67 CONSTITUTION AND GOVERNMENT OF THE STATE The first two maladjustments, namely, absence of correlation be- tween the respective committees of the two houses and lack of cen- tralization of related work in the hands of single committees, are due largely to historical and political causes. Committees have grown up irregularly with the needs of the state. When a new and important func- tion is undertaken, there is great pressure to establish a new committee rather than to relate the work to that of an appropriate committee already in existence. Each new committee affords new opportunities to make assignments to importunate members who are often more anxious for self- advertisement than for work. Each new committee also brings in its train clerkships and other perquisites which are regularly employed to reward party service. Thus no permanent staff of informed experts is ever found attached to ordinary committee service. The results of frequently entrusting important functions to a body of inexperienced legislators as- signed to a committee and aided by a staff' of servants recruited from local party workers are so patent as to need no commentary here. The second maladjustment, the lack of co-ordination of the legislative committees to the great branches of state administration is to be attributed to two causes. In the first place the administrative organization of the state has been so broken into minor and disjointed subdivisions that an adjustment of committees to them has been impossible. In the second place, the idea that the legislature should be a genuine scrutinizing agency over the several branches of administration instead of a seeker after patronage in them is so recent as to have received little or no attention from those concerned with legislative organization and procedure. Legislative Staff Agencies Although legislation is an exceedingly complicated and technical function, being related on the one hand to complex human relations and to previous acts and judicial decisions on the other, it is only recently that state legislatures have begun to build up a permanent expert service. At the present time the legislature of New York has at its command the following staff agencies : 1. A legislative bill drafting commission composed of two com- missioners and charged with the duty of aiding in draft- ing legislation, giving advice as to constitutionality and other legal questions, making researches as to proposed legislation, and advising on matters of consolidation of the laws. 2. A commissioner charged with the duty of indexing the laws and statutes of the state. 3. A temporary board of statutory consolidation comj^osed of five members charged with the duty of reporting to the 68 ORGANIZATION AND PROCEDURE OF THE LEGISLATURE legislature a practice act, rules of court, and short forms — the consolidation and simplification of the civil practice of the courts of the state. 4. A board of estimate composed of the governor, lieutenant- governor, president pro tempore of the senate, the chair- man of the finance committee of the senate, the speaker of the assembly, the comptroller, the attorney general and the commissioner of efficiency and economy (now abol- ished) and authorized to prepare and transmit to the legislature an estimate for a budget for the amount re- quired to be appropriated by the legislature for the con- duct of public business for the ensuing fiscal year. 5. A commission for the promotion of uniform legislation in the United States to consider and recommend uniform laws on certain specified subjects. 6. A number of special commissions from time to time to report on matters for legislative action. It is evident from a survey of these agencies that some of them could be consolidated in the interest of efficiency and economy and at least one of them, the board of estimate, is not adapted to the purpose for which it was created.* There is certainly no reason why the promotion of uniform legislation and the indexing of the statutes should be sepa- rated from the general work of the bill drafting commission. In giving proper technical advice, that commission must be entirely familiar with existing law and in a position to index it with more precision than an independent ofificer. The promotion of uniform legislation is not so re- mote from bill drafting and legislative research that it requires separate organization and office equipment. The constant resort to special com- missions on legislative subjects suggests that the staff agencies for supply- ing information to the legislature must be inadequately equipped for the performance of the duties vested in them by law. Local Legislation The working power of the best organization in the world can be utterly destroyed by overloading it with details and by constantly injecting extraneous issues concerning which the members cannot possibly be in- formed. What may be said, therefore, of our state legislatures which are now overburdened with a mass of legislation relative to the affairs of counties, towns, villages, and cities, about which the members in general are almost wholly ignorant and the members from the localities involved only partially informed? It is a well-known fact that each legis- *For a discussion of the board of estimate see the Proceedings of the Ne\ York Academy of Political Science for October, 1914, pp. 141-192. 69 CONSTITUTION AND GOVERNMENT OF THE STATE lator is constantly harassed by the demands of his constituents for local legislation, that the pressure to obtain this legislation compels him to sacrifice larger affairs of the state to local necessity, that the time of the legislature is withdrawn from the consideration of great questions to the transaction of petty business and that the finances of the state and of localities are disorganized and wasted by special legislation. The present constitution recognizes the evils connected with this system and touches upon it slightly (Art. Ill, sees. 16, 20, 26, 27; Art. VIII, sec. 10; Art. XII, sec. 2), but it does not go to the root of the difficulty, namely, by conferring home rule upon counties and cities in such a form to relieve the local communities of the necessity of con- stant application to the legislature for powers. Of course, it is obvious that by conferring general powers of local legislation upon cities and counties, the problem of the state and the community is not solved. Questions as to what powers are actually con- ferred upon the communities will constantly arise, and the will of the state must be superior to that of the local body. The limitations on the legislature are in this regard subject to judicial interpretation and by granting home rule to localities the control of the courts may be substi- tuted for control by the legislatures. There is, however, another method of exercising the control of the state over local legislation. Local legislation under general grants of power may be subject to administrative supervision in the first instance, with appeal to the courts as the last resort. In Michigan, where general powers are conferred upon counties, important local legislation under this grant is subject to the approval of the governor. In California, it is sub- mitted to the legislature for approval or rejection. In England, the most satisfactory solution of the problem seems to have been made.* If the vast mass of local and special bills which now clog the legis- lative machine, divert attention from matters of large significance, and degrade members to the level of negotiators for pettv local favors, could be disposed of in such a manner as to secure state-wide control, and at the *In England the power to authorize local bodies to perform manv functions and undertake various enterprises is vested by law in several appropriate central administrative officers, subject to the approval of Parliament. When a local body seeks a new power or authorization it applies to the appropriate department. On receiving an application the department makes inquiry into the advisability of grant- ing the request, holds hearings, and gives all interested parties a chance to be heard. All orders granted are arranged in proper groups and submitted to Parliament for its approval. If there is no nbiection to any of the orders the entire eroup eoes through unopposed. If there is obiection. then a hearing is granted and the measure is treated like any other ordinarv bill. In practice, however, this relieves narh'ament of a large mass of petty legislation and centralizes the initial responsi- 1 il-'tv in the hands of expert administrative officers. See in Lowell. The Govern- ment of England, Vol. I., Chap. xx. 70 ORGANIZATION AND PROCEDURE OF THE LEGISLATURE same time relieve the legislature, the gain for efficiency and real responsi- bility would undoubtedly be enormous. Any reduction in the amount of " log-rolling " is a step in the direction of better government, and the sub- stitution of administrative for legislative control over matters of local concern is full of promise. 71 CHAPTER VII. CONSTITUTIONAL PROVISIONS DEFINING THE RELA- TIONS OF LEGISLATURE AND EXECUTIVE In other relations it has been said that one of the prime reasons for the representative system is to make officers charged with carrying on or administering afifairs of state responsible to the people for their acts ; and that this, when analyzed, means : responsibility for leadership, responsibility for the fidelity and fitness of subordinates, and responsibility for efficiency in management — for the use of men and money as measured by results. It has also been said that the function of the legislature is to serve as a regularly organized constitutional means for enforcing execu- tive responsibility. This suggests consideration of the provisions in the constitution of the state defining the regulations of the legislature and the executive. Responsibility for Use of Executive Pozver Implies Leadership Responsibility for the use of executive power inevitably implies leadership. Executive power and leadership cannot be separated. In both public and private business, those who are charged with high duties, and who are made responsible for their proper discharge must be leaders or failures. On the contrary, irresponsible official leadership means autocracy. Irresponsible, unofficial leadership means domination by political " boss." N'eed for Executive Leadership Understood at Time of First Constitution At the time the first constitution was adopted there was a very definite comprehension of the need for executive leadership, though, as before pointed out, the plan for making the official leader responsible had not been developed as a matter of public law (above pp. 54-58). It was also understood that autocracy must be prevented at any cost. The well- established constitutional principle was therefore adopted that the adminis- trative officer must wait on legislative authority before he could raise or spend money, before he could proceed with any undertaking. As has been shown, this principle is not inconsistent with executive leadership. But does not in itself provide for executive leadership. So far as the executive is concerned it is purely negative in its importance. It is posi- tive only in the opportunity it gives for the enlargement of legislative power when executive leadership is not provided for. The conclusion that the need for executive leadership was understood when the government was first established, appears from the provision of the organic law of the state, which declares that " the executive power shall be vested in a governor," but, paradoxical as it may sound, the first 72 RELATIONS OF LEGISLATURE TO EXECUTIVE constitution as well as every subsequent constitution failed to vest in the governor the executive power which it has declared to be his. As Governor Hughes remarked in his inaugural address of 1909, " There is a domain of executive or administrative action over which he has no control, or slight control." In other words, the means of exercising the executive power are not given to the governor. To continue the analysis made by Governor Hughes : " There are several elected state ofificers not account- able to the governor, who exercise within their prescribed spheres most important executive powers * * *. The multipHcation of executive duties incident to the vast and necessary increase in state activities has resulted in the creation of a large number of departments exercising administrative powers of first consequence to the people. The governor has the power of appointment, but in most cases the concurrence of the senate is necessary. The terms of officers are generally longer than the governor's term. And in their creation the legislature, with few excep- tions, has reserved the final administrative control to the senate in making the heads of departments, to whose appointment the senate's consent is necessary, removable only by it." Thus the fundamental fact stands forth that the means of exercising the executive power are largely withheld from the governor in whom the power is constitutionally vested. Two Important Ways in Which Governor is Recognized as Leader Nevertheless, in two important ways the governor is recognized as a responsible leader: His Duty to Recommend Measures All of the constitutions of this state have made it the duty of the governor to inform the legislature of the condition of the state and to recommend such matters as he shall deem worthy of consideration by that body. In the first organic law, he w^as instructed to recommend such matters " as appear to him to concern its [the state's] good government, v/elfare and prosperity." Under the present constitution he is to recom- mend whatever he shall " judge expedient." Obviously the duty of studying public policies and administrative methods is thus clearly laid upon the governor, with a view to his formulating positive recommenda- tions to the legislature. By this very act the governor assumes before the public a marked responsibility, which is not discharged by a mere per- functory address to the representative body. His Pozvcr to Call Representatives Together in Extra Session Further evidence of recognition of the need for executive leadership is found in provisions that give to the governor the power to call an extraordinary session of the legislature and to limit the work of such a 7Z CONSTITUTION AND GOVERNMENT OF THE STATE session to only those subjects which he may recommend for consideration. The exercise of this power by executives of great distinction and the general approval that has followed such exercise, in most cases, are evi- dence of popular appreciation and understanding of its significance. Lacking in Means for Making Leadership Effective What is lacking is the means for making leadership effective. When the principle which is recognized in private affairs as essential to leader- ship (viz., responsibility and effective collective action) is applied to the business of government it is evident that the one power essential to effective leadership is withheld or not made mandatory. It is not made the duty of the executive to appear personally before the legislature with projects or measures that are regarded by him to be needful. He is not required to formulate measures nor to have them formulated and presented by a responsible body of executive advisers or cabinet. Neither the governor nor anyone responsible to him is required to appear on the floor of the legislature to submit and defend his proposals against all " opposition " or to modify them, so that, if he is not supported, he may be in a strong position in going before the people on the issue raised. This has long been the common practice in all business corporations, but it has not been fully developed as a means of making government responsible. Right to Introduce and Defend Measures Necessary to Effective Leader- ship Since the establishment of the first state constitution, however, the above principle has been firmly fixed abroad. Recognizing such a require- ment of the executive as essential to leadership, as well as essential to the location and enforcement of responsibility, the King's " speech from the throne " in England is written by the cabinet and embodies the recom- mendations of the executive branch of the government. The French constitution provides that the executive may call extraordinary sessions and communicate by message, as in this country, and also gives to the executive power to introduce bills concurrently with the members of the legislature ; and finally adds that *' the ministers have entrance to both chambers and must be heard" (Article 6 of the Act of July 16, 1875). The admission of the executive to the floor of the legislature has also found widespread approval in the United States. The principle has received the endorsement of more than one president and it was approved by a committee of the federal senate a quarter of a century ago. It has been demonstrated to be sound and effective in foreign government as well as in private business enterprises. 74 RELATIONS OF LEGISLATURE TO EXECUTIVE Argument Opposed to the Principle Not Well Founded The only argument in opposition to the principle, which carries weight with American opinion, is based on the assumption that admis- sion of the executive to the floor would break down the accepted theory of separation of powers. This assumption has no foundation. On the contrary, it has been shown by all the experience of representative gov- ernment that in those institutions in which the executive is required to meet with the representative body and submit his proposals and defend them, the principle of separation of powers has been preserved, whereas in those institutions in which no provision has been made for this, there lias been a constant invasion of the administrative field by the legislative branch or the legislative field by the executive, or both. Executive Leadership Essential to Preservation of Separation of Powers The power to propose, explain, and defend, does not convey any power to enact; the power to question and criticize an executive officer is not an executive power, but a legitimate legislative function. The practice of admitting the executive officers to the legislature, only empha- sizes the separation of powers and makes it really effective. It makes unnecessary those subterranean relations between the two branches which inevitably spring up when official lines of communication are for- bidden. Under such a system the executive can really and effectively criticize the legislature and the legislature can force the executive to give an account of his conduct in office every day in the year. Without such administrative measures the constitutional inhibitions to prevent autocracy (the provisions requiring the executive to get authority from the legislature before he can proceed) gives to the legislature the power gradually to supplant the executive in the field of administration as it has done in this country. Executive Leadership Essential to Safe Use of Veto Potver Certainly it must be admitted that such a system is not so much a violation of the separation of powers as is the authority to veto acts of the legislature; yet this is employed without any means of gaining for the people the benefits of requiring both the executive and the legislative to work in the open. Under present conditions the veto makes the gov- ernor responsible for legislation as well as for administration ; and the denial of the right to the governor to formulate measures of administra- tive importance, to introduce and defend them, makes the legislature responsible for administration as well as for legislation. The result is the utmost confusion, instead of separation, of powers and responsi- bilities, as has been claimed. 75 CONSTITUTION AND GOVERNMENT OF THE STATE An Alternative to Invisible Government V>y adding to the power to propose measures and veto enactments, the right of introducing bills and defending them before the legislature, responsibility for both administration and legislation is definitized and made enforceable through appeals to public opinion. In the absence of such a procedure, unwise administrative measures are proposed by per- sons not responsible to the state at large for results and enacted into law without receiving the scrutiny of any officers charged with their enforce- ment. The only consideration that can now be given to such measures is in committee. Those which are enacted into law are usually enacted as the result of arrangements among members who are not openly responsible to the legislature, to say nothing of the state at large, and who work often in conjunction with those wholly unofficial persons that make it a business to organize the votes of localities favored by the legis- lation in hand to build up a system of patronage through the appropria- tions, contracts, and independent administrative functionaries of the state. No Provision for Leadership in Matters of Economy No provision is made for executive leadership in obtaining authority to raise and spend money. The power of the governor is negative only. The present constitution of New York vests in the governor power to veto single items of appropriation as well as whole bills. Article IV, section 9, provides that " if any bill presented to the governor contain several items of appropriation of money, he may object to one or more of such items while approving of the other portion of the bill." If the legislature is in session it may enact such items into law only by a two- thirds vote. In actual practice, however, it generally happens that the legislature adjourns leaving a large number of unsigned appropriation measures in the hands of the governor. Executive Veto to Items in Money Measures Only a Palliative Under such circumstances the governor is held responsible for the acceptance or reduction of items as passed in measures for which he is not responsible. The power operates as a check on an irresponsible legislature. It does not cure irresponsibility; it does not supply leader- ship ; it does put into the hands of the governor the power to punish political enemies by using the pruning knife wdiere he will, in the plea of economy. The power is not constructive, but may be made highly destructive. It transfers from the legislative committee room to the executive chamber all the pressure that has been brought to bear in fur- therance of the plans of an irresponsible " boss." It simply invites an- other dark room proceeding, instead of having the business- of the state done in the open, in the face of the " opposition." 76 RELATIONS OF LEGISLATURE TO EXECUTIVE Uncertainty of Operation of Negative Pozver If the legislature is in session at the time the governor vetoes an appropriation measure, he is required to transmit a copy of his reasons for refusing to sign the same to the house in which it originated, and the said house is instructed to reconsider separately the items objected to. Under these circumstances the governor may, if he chooses, get a fair statement of a consistent fiscal policy before the legislature for discussion and action. But usually the legislature has adjourned before the gover- nor has an opportunity to act on many appropriations. He may also spread before the legislature in his messages a survey of the state's finances and recommendations for expenditures and retrenchments, but such a survey and such recommendations are merely pious wishes, so far as compelling even the attention of the legislature is concerned. Positive Requirements under Present System Ineffective A number of states impose upon the governor the constitutional obligation to present to the legislature estimates of the amount of money to be raised by taxation, but such a provision alone does not go very far in establishing executive responsibility for appropriation bills. The Efficiency and Economy Committee of Illinois, where such a constitu- tional provision exists, remarks in its recent report that as far as it is aware no governor has complied with this important mandate. It adds, in justice to the governors, that failure in this respect may be attributed in the main to the fact that the executive authorities of the state as now organized have not afforded the governor the facilities for securing the requisite information. In no state does the governor seem to have used his constitutional powers to the fullest extent in the direction of complete budget making, but doubtless for the additional reason that the incentive to do so is slight in view of the impossibility of really securing legislative action under proper scrutiny and in the light of effective public discussion. All the expedients have proved ineffective due to lack of provision for responsible executive leadership in matters that are of fundamental im- portance to the administration. Constitutional Requirement of Executive to Frame, Submit and Defend Money Bills The mere fact that there is an increasing number of states which are giving the governor the power to veto items in appropriation bills is indicative of a condition demanding change. Inasmuch as the finances in our states call for more systematic attention and centralized and respon- sible control, sound public policy requires that effective measures be adopted for giving the governor a power over the budget which is com- mensurate with the present responsibility really vested in him as the chief " executive " by popular opinion. Nothing short of a thorough- 77 CONSTITUTION AND GOVERNMENT OF THE STATE going treatment of the subject which will impose on the governor the duty of formulating, submitting and defending money measures will solve the problem of securing economy and responsibility in the appro- priation and management of public funds.* Constitution Lacking in Means for Enforcing Executive Responsibility Not only is the constitution lacking in the essentials for developing leadership, but it is also wholly lacking in provisions for enforcing responsibility. In the discussion of the " electorate " and " the organiza- tion and procedure of the legislature," it was pointed out that no means has been provided for defining and submitting issues to the voters. (Above, pp. 21-24.) No Provision for Making the " Opposition " Effective As has been shown, the organized official agency of the state for for- mulating and discussing issues and matters of public policy and admin- istrative proposals is the legislature — an independent elected body representing constituencies. It has also been shown that responsible leadership is necessary to the definition of issues as well as the location of official responsibility. The big principle that has been missed in our con- stitution making and in establishing the procedures governing the legisla- tive body has been the necessity for making the " opposition " effective, and bringing political criticism to some positive test before the electorate. The Provision for the Prompt Retirement of Officers Who Are A^ot Sup- ported by a Majority The principles of responsiveness and responsibility in a representa- tive government both call for a means whereby officers who do not have the support of an undoubted and united majority shall retire. This is true of both public and private management. The methods for making the "opposition" effective are: (1) to put it in a position to prevent executive action that does not have the approval of a majority of repre- sentatives, and to prevent legislative action by a majority of representa- tives that does not have the approval of the executive; (2) to provide for a prompt reference to the electorate in case these two independent branches cannot come to an agreement. The Power of Executive Dissolution As in the case of the constitutional provisions for executive leader- ship we have gone part way and stopped. We have provided for the *See Proceedings of the New York Academy of Political Scier,rf>iirt))ir>ital < )r(/aincatwn The forejjoiiifj is a general statement setting forth the basis for con- sidering what defects there are in the organization of the slate govern- ment ff)r ]>urposes of administration an prf)visioji for a single chief executive, if the gf)vernor were only a ])art of the legislature and each head of de- partment or t)ther administrative agency were rerjuired to deal directly with the legislature, the organization would be defective in nearly every particular noted below. 104 ASISTH rkiKiAk^ AND OTHh ? the a< a. 2. Cootrart: .V F'ur -i F'r., ! ili-ir*i-iiti.in fjf Present Agem in? 105 ;kbu iksc to lic CONSTITUTION AND GOVERNMENT OF THE STATE Comptroller Tax department Department of excise Commissioners of the land office Conservation department Sinking fund commission Canal fund commission Organizations for care and maintenance Central purchasing agencies Civil service commission Department of elections Generally speaking, there is a fairly clear recognition of the proprie- tary as distinct from the public service functions in the organization of all these. The exceptions are noted in the discussion which follows, and in the chapter dealing with the comptroller whose office does not belong in the group for the reasons already discussed, viz. : that the primary function of the comptroller, as independent auditor, makes it incompatible for him to administer funds and properties and to carry on transactions and assume responsibility for conditions and results that are to be made the subject of report by him to the " representative " body and to the " citizenship " of the state whose property is involved. Eliminating, therefore, the office of the comptroller (the subject treated in Chapter VIII), the offices administering functions within the pro- prietary group and the defects of organization are taken up in the order listed. Need for Correlation of Official Action and Responsibility Involved in the Handling of Proprietary Activities Before coming directly to the consideration of the organization for carrying on the proprietary relations of the state, it is of interest to observe that in England, France and Germany, and other great govern- ments in which provision is made for the location and enforcement of " executive responsibility," these functions are in general grouped to- gether as a department of treasury, with varying exceptions, such as the administration of rules and regulations governing employment — civil service provisions, etc. In England, for years, not only the great funding and trading relations were carried on and controlled from the treasury, but so were the rules, regulations and conditions governing civil service. The English civil service commission is largely a legislative and judi- cial body, rather than an administrator of rules governing transfers, promotions, salary increases, etc. In all countries where a cabinet system exists, the budget proposals are prepared in the central depart- ment having charge of the finances and the minister over the treasury 106 ADMINISTRATION OF PROPRIETARY FUNCTIONS is not infrequently the one to represent the executive in submitting and defending requests for appropriations, as well as the budget before parliament, it may be noted, also, that it is on account of the necessary detachment of the executive and administrative officers handling these matters of finance and control over the proprietorship from all persons who are the heads of service departments that the prime minister or chief executive often takes the treasury portfolio so that he may be the leader of the group. For him to take the executive leadership of any of the departments which exist to serve the public, would necessarily be to throw in his lot with officers who are the promoting spirits of gov- ernment, as distinguished from those who must find money, men, and material with which to carry on the enterprise. Taking the portfolio of the treasury puts the prime minister in a position to consider each proposal coming from a public service department in its perspective. When so organized, the central stafif agencies of the government, which are created to keep the chief executive informed, are not infrequently a part of this department. For cogent reasons, however, they may be quite disassociated, and the proprietary functions may be carried on under a head to whom the central stafT is not answerable. Technical Advantages of Grouping Aside from the better correlation of interrelated functions by group- ing the financial and other proprietary functions, there is an advantage which comes from having a single " political " head — a vice-governor, under whom all these activities are carried on. This makes possible using the " political " head to cooperate with the chief executive in making effective his leadership. What is quite important, it makes possible the development and retention of highly " technical " officers to care for the diverse operations having to do with budget-making, financial admin- istration, procedures, and custodianship. While it is readily accounted for historically, there is nothing in the annals of human affairs that is more unsound than the present organiza- tion of the state's business relations and activities. There is in it not a commendatory feature when considered from the viewpoint of require- ments for " responsible " administration. The old saying that what is everybody's business is nobody's, would have ample justification if its sole use had been to characterize the constitutional and legal provisions for the management of the estate of that corporation which now spends upwards of $50,000,000 a year, and which is possessed of properties of ten times this value — known as the government of the state of New York. Essen- tial defects in this part of the organization are responsible largely for the high cost of government — defects which will never be overcome so long as the technical requirements of proprietary management are lost sight 107 CONSTITUTION AND GOVERNMENT OF THE STATE of and the business of the state is left to a group of " poHtical " tyros, each of whom may act independently of any central executive who may be made " responsible." Secretary of State The name secretary of state has not here or in any other place in the world, the significance given by the federal government. In England, the term has no significance when standing alone. In colonial organization, the secretary performed the function largely of secretary to the governor. In early days in New York, he represented the pro- prietorship. Since the independent state government was established, the office has had a diminishing significance. Unless the present officer is re- stored to the position of secretary to the governor and made his appointee, removable at will, the only excuse for retaining the office as a separate department, would be to make the secretary the head of the proprietary group. The present working relation of the office of secretary of state has about the same significance and relative importance as the vermiform appendix in the human body. The constitution of New York provides that there shall be a secre- tary of state chosen at a general election at the times and places of electing the governor, but it does not create a department of state and define its functions in general or in particular. The duties of the sec- retary of state as they have been evolved by statute law are these: 1. He has custodv of the state archives and the great seal of the state. 2. Superintends the printing and distribution of the session laws. 3. Issues patents for lands and notices for elections. 4. Records commissions and pardons issued by the governor. 5. Has custody of certificates of incorporation of companies formed under general laws, except banking and insur- ance companies. 6. Reports annually to the legislature the statistics of crime received from the several counties and upon such other subjects as may be required by law or by resolution of either branch of the legislature. 7. Compiles the annual legislative manual. 8. Registers and licenses owners and operators of motor vehicles. 9. Licenses peddlers. 10. Administers oaths of office to members of the legislature and other state officers. 108 ADMINISTRATION OF PROPRIETARY FUNCTIONS In addition to discharging his regular departmental duties, the secre- tary of state serves in an ex-officio capacity as: 1. Commissioner of the land office. 2. Commissioner of canal fund. 3. Member of the canal board. 4. Member of the state board of canvassers. 5. Trustee of Union College. 6. Member of the state board of equalization of assessments. 7. Member of the state printing board. 8. One of the designators of the state paper. The details of organization of the existing department of state will be found on pages 31 to 43 of the descriptive report on the organization and function of the state government. The Treasurer The state treasurer is an independently elected, constitutionally desig- nated, officer chosen for a term of two years at the times and places of electing the governor and lieutenant-governor. The treasurer is the custodian of all monies paid into the state treasury and also custodian of other special and trust funds, such as the insurance fund and special departmental funds. The treasurer is ex-officio : 1. Commissioner of land office. 2. Commissioner of canal fund. 3. Member of the canal board. 4. Member of the state board of canvassers. 5. Trustee of Union College. 6. Member of the state board of equalization of assessments. 7. One of the officers empowered to designate the state paper. The details of the organization of the office of treasurer with a description of the work of each employee of the department are to be found on pages 60-62 of the report on the organization and functions of the state government. Historically the treasurer occupied a much more important position in corporate organizations, both public and private, than he does to-day. With the development of an independent auditor or comptroller and the establishment of a system of credit depositories for funds, the treasurj' is little more than a specialized bookkeeping office. In so far as it handles money, this is done by employees who correspond to receiving and paying tellers. Either the treasurer should be given executive duties which correspond roughly to the headship of a department covering every phase of administration of the proprietorship which is to be centrally 109 CONSTITUTION AND GOVERNMENT OF THE STATE controlled, or he should be reduced to the position of a " technical " head of a treasury bureau in a proprietary branch of the service. The theory of checks and balances which the founders of the republic intended to apply mainly in a broad sense to the legislature and the execu- tive was later carried to extreme lengths by the division of the executive department against itself. In this process, the governor has been in law, although not in the public mind, absolved practically from responsibility for administration. This is applied with special force to the finances by the adoption of the practice of making the treasurer as well as the comp- troller elective by popular vote. This has been done on the assumption that these two ofificers were in charge of collecting and auditing func- tions and that they would continually watch each other and report neglect of duty. If provision is made that the governor shall be the responsible head of the administration, the assumption that the treasurer should be inde- pendent fails. In the first place the two officers are almost uniformly of the same party and are subordinated by party loyalty to the outside irre- sponsible political organization. Even when the governor is in a weak position as at present the element of protection is thin and shadowy. Each is governed by standards and discipline of the dominant party con- trol. We can discover no noteworthy instance of a treasurer waging war on the governor or vice versa. At the present time, this may also be said of the comptroller who is brought under the domination of an irresponsible system of party control. There is no marked instance of the comptroller waging war on the administration or the treasurer as the disburser of funds, for neglect of duty or malfeasance in office. But fur- ther than this the present organization is inconsistent with itself. The legislature in its financial measures, has not kept the logical functions of the two departments, collection, custody, and disbursement, and audit, entirely separate in practice, and has thus destroyed in part the very ground for their separate distinct organization and for popular election of the incumbents. Members of the convention are familiar with the organization of the financial administration of the federal government wltich combines the functions of treasurer and auditor in one department and makes the whole responsible to the president who in turn is responsible to the public. While the combining of auditing and administrative functions is not urged for reasons already stated, the history of 125 years amply proves the desirability of making the treasurer a part of a coordinated plan for administering the affairs of the government. Further confirmation of this conclusion is found in the fact that this is the original relation of the treasurer in every existing government which provides for~a responsible chief executive. 110 ADMINISTRATION OF PROPRIETARY FUNCTIONS The Comptroller. The work of this office is the subject of Chapter VIII. Until the passage of the Hinman act amending the tax law and establishing the state tax department, the comptroller was in charge of several important financial functions in connection with the supervision of the levying and collecting of taxes. The governor has signed the bill and when the office is organized practically the only proprietary activity carried on by the comptroller will be the general supervision which he ex- ercises over the state printing. This responsibility should be placed in an officer who performs the services of a central purchasing agent and the comptroller should be in a position to pass critically and report on his acts. Need for a Central Accounting and Property Division No more potent argument in favor of the establishment of an execu- tive organization for providing administrative information through the keeping of accounts, can be had than that presented during the gov- ernor's hearings on finance bills. There the chief executive of the state, responsible to the people for the economical administration of all depart- ments immediately under his supervision and partially responsible for all expenditures on account of the veto power vested in him, is required to pass upon detailed financial requirements without any machinery having been provided to supply the needed information. The only central accounting agency at the present time is that main- tained by the comptroller. All accounts are established by the comp- troller for the purposes of his ofifice, and, considering this fact, it is not surprising that these accounts do not reflect the information necessary to the chief executive in the administration of his many departments. It would be as unwise to require the comptroller to maintain the kind of accounts needed by the governor as it would be to continue the present inadequate system. The comptroller is responsible to the people for one specific function, i. e., financial auditing. The governor is responsible to the people for the administration of the state's affairs. The accounts needed to prevent the misappropriation of funds or mischarging against appropriation bills are entirely inadequate and essentially different from those needed by the chief executive in enforcing proper administration in the various departments, bureaus and offices, for whose actions he is responsible. What is needed is obvious : a central accounting and property divi- sion under the complete supervision of the particular official — the gov- ernor — to whom the information is absolutely essential for the enforce- ment of administrative economy and efficiency. A Central Purchasing Division With the exception of the work undertaken by the fiscal supervisor and special committees in the institutional departments and the central 111 CONSTITUTION AND GOVERNMENT OF THE STATE control over the state printing, nothing has been done to place the pur- chasing of the state of New York upon an efficient basis. Otherwise, practically every department, board, bureau and office of the state gov- ernment carries on its purchasing wholly independently of any central control, except that of audit. Economy in purchasing depends upon two factors: (1) the estab- lishment of standard specifications, and (2) the standardization of pur- chasing methods, which is usually accompanied by the centralization of a large part of the purchasing. What is needed is a strong central agency which will develop and enforce the use of standard specifications, standardize purchasing methods and actually purchase all supplies, materials and equipment which can economically be purchased through a central agency. It has been suggested that when the salary standardization and classi- fication work of the present senate committee on civil service is com- pleted, its activities be directed to the standardization of purchasing speci- fications. But no matter what agency is selected for the pioneer work in this study, it is essential that some organization be set up which will carry on the routine activities connected with the standardization of specifications and purchasing methods. In addition to these departments of government which are desig- nated in the constitution and which have been developed by legislation, there are a number of other departments charged with financial and pro- prietary functions. These are entirely separate from the departments designated in the constitution. The Tax Department The present tax department, as reorganized by law during the last session of the legislature, is a development from a former organization called " the tax commission." The duties of the new tax department, which is under the supervision of a commission, may be briefly stated as the combined duties of the former board of tax commissioners and the former duties of the comptroller in supervising the levying and col- lection of corporation franchises, transfer and mortgage taxes. The former board of tax commissioners had supervision over the local tax officials, and every second year were required to visit each county to in- quire into methods of assessment. It approved assessment maps for cities and towns, determined appeals in the matter of county equalization of assessments, fixed and determined annually the values of special fran- chise property and equalized the assessment thereof with other real property in the city, town or village where special franchise property is located, supervised the operation of the mortgage tax law, audited the mortgage tax collections and examined the records of counTy clerks and registers in connection therewith. ATembers of this board were also members of the state board of equalization that prepared data on 112 ADMINISTRATION OF PROPRIETARY FUNCTIONS which the equahzation table was adopted. This duty has also been trans- ferred to the new tax department. For further detail as to the organiza- tion of the former tax commission see pages 263-267 of the report on the organization and functions of the state government. The transfer tax bureau, the corporation tax bureau, the secured debt tax bureau and the mortgage tax division, formerly of the comp- troller's office, had charge of the activities transferred to the new tax de- partment. A detailed statement of the organization and functions of these divisions of the tax commission and the comptroller's office before the transfer may be found in the descriptive report on the organization and functions of the state government. In this relation attention is called to the fact that the reorganization does not provide for the establishment of amounts to be collected, and for the collection of the amounts so determined. This is a division of functions that could be readily made in case of consolidation of all financial functions under one " political " head with separate " technical " bureau heads for carrying on the busi- ness. ,. Department of Excise Certain activities of tlie department of excise are to be included in the general proprietary activities of the state. These have to do with licensing liquor dealers or the determination of facts and conditions, knowledge of which is essential to fixing the charge. The department also collects amounts assessed against retail liquor dealers, together with fines, penalties, forfeitures and transfers and pays one-half of same to the city or town in which the collections are made. In addition, the de- partment collects taxes paid by the bottlers of malt liquors and common carriers, and forfeited tax bonds. It prosecutes or defends civil actions or proceedings brought under the liquor tax law. (See pages 125-131 of report on organization and functions of the state government.) Here is another case of defective organization due to the decentrali- zation of the financial functions, and the collection of discordant func- tions under the one administrator. It does not contribute to good admin- istration to put in the hands of one man the powers and duties above enumerated unless provision is made for central control through inspec- tion, etc. If all the financial functions were under one executive there would be a choice of alternatives that is now lacking. The Centralisation of Financial Administration The mere enumeration of the different departments and boards and commissions having financial functions and their respective duties is itself a criticism of the present system. The decentralization of revenue control is thus evident. For example, the tax commission, the board of equalization, and the comptroller's office all have arbitrary jurisdictional 113 CONSTITUTION AND GOVERNMENT OF THE STATE rights over certain phases of the state's taxation and revenue problems. Moreover, practically all of the important departments of govern- ment and the governor himself are engaged in collecting miscellaneous revenue through the issuance o.f various kinds of licenses, permit privi- leges and the charging of fees that could be much more effectively man- aged if the whole subject were considered as a part of one problem. Year after year recommendations have been presented to the legis- lature and bills have been prepared looking toward centrahzation of re- lated financial activities. The opportunity is now presented to the con- vention to provide efficient and responsible financial administration through the creation of great departments of government and the proper delimitation of their spheres according to standards worked out and successfully applied in both public and private business. Conservation Department The conservation department by its title is essentially a proprietary organization, but on account of the fact that certain protective and regu- lative duties have, in the past, been assigned to this department, only cer- tain of its activities may come properly within the scope of this chapter. These are the work of : 1. The division of lands and forests — which is charged with the administration of the laws enacted to protect the lands and forests of the state which comprehends tree culture, reforestation, care and management of state parks and reservations, and the protection of the lands and forests from fire. 2. The division of inland waters — which is charged with the ad- ministration, subject to the approval of the commission, of all laws relating to state jurisdiction over water stor- age and hydraulic development, water supply,, river im- provement, drainage, irrigation and navigation of water ways other than canals. 3. Division of fish and game — which is charged with the admin- istration, subject to the approval of the commission, of the laws relating to state jurisdiction over fish and game, and for the propagation thereof, including the propagation and protection of shell fish and shell fish beds, the issu- ance of hunters' licenses and the maintenance of a game protective force. fSee pages 727-741 of report on the organization and functions of government.) 114 ADMINISTRATION OF PROPRIETARY FUNCTIONS There would seem to be little reason for the existence of a separate department of conservation in any event. Having in mind effective correlation of functions, there is another group, " Public Works," into which it might be brought for purposes of administration. The justifica- tion for this would be that, while the works group is one which renders a public service in operating a canal, its primary function is providing public facilities for transportation — the primary prerequisite of which is the acquisition and maintenance of great state properties. The setting aside of the conservation divisions as a special proprietary group could be justified by reference to the highly specialized and technical requirement of proprietary management. Again there are direct public aspects of the conservation department which would suggest placing it in some public service group. It is only a question as to which would provide the better correlation of activities and forces used. Commissioners of the Land Office Public lands of the state and general management of Indian affairs are under the control and direction of this commission — an ex-ofificio board composed of the secretary of state, lieutenant-governor, speaker of assembly, comptroller, treasurer, attorney-general, and the state engineer. This has all the weakness of an ex-officio organization. What is needed is an administrative head who is responsible to an executive. In so far as it is desired to utilize the services of an ex-officio board they should form an ordinance body, and not an executive. A group of state agencies closely allied in their functions to those now vested in the conservation department and land office, is found in the various commissions charged with custody of historic buildings and parks scattered over the state. These will be found described in the report on organization and functions, pages 725 to 755. With what- ever group the conservation work is associated, it is thought that the supervision of these parks and memorials might well go with it. The Attorney General It has been said concerning administrative law that legislatures express opinions about what should be done, but the one who makes the law is the corporation counsel or attorney general. What is meant is this : that the law must be construed each time an officer acts ; that with respect to perhaps nine hundred ninety-nine acts out of a thousand there is no difference of opinion between offfcers as to the way it should be construed ; that when differences arise these are referred to the executive who must give final approval, and if he does not wish to assume responsibility for deciding what construction should govern the transaction he refers the matter to the law office for opinion. Now, the law officer is simply an adviser, but what gives him his power as a lawmaker is the fact that ll'5 CONSTITUTION AND GOVERNMENT OF THE STATE executive or administrative officers may be absolved from legal responsi- bility for an act if it is according to the opinion of the attorney general. There being no way of locating and enforcing responsibility for official acts politically through a chief executive, it is thought that the thing to do is to make the law officer directly responsible through the electorate for his opinions. And so it is that in a large number of our irresponsible representative governments the law officer is elected. But it is also of interest to note that in all responsible representative governments the law officer is appointed, and in the federal government the attorney general is a member of the president's cabinet, removable at his will. There, whatever conclusion may be drawn with respect to the position of the president as chief executive, he is the only one that must go before the people to explain his acts, and must assume political responsibility for acts of the administration based on the opinions of the attorney general. What is of special interest is this: that a thousand opinions are asked from the law officer to one asked for from the courts; that under our system the law officer makes the law governing the administration of affairs ; that making him politically independent gives to the executive another way of dodging political responsibility ; that it is a conception of organization that finds its justification as a " check " in a government which has no politically responsible head. Given a political system in which there is a real chief executive, then the political independence of the law office presents only vices with no offsetting virtues. The vices are found in the continuing development of " rep tape." When it would be in the interest of better adminis- tration to cut it, the executive is constantly confronted by adverse opin- ions of the law officer that makes it many times more difficult for him to exercise what would otherwise be perfectly good executive discretion. When a matter comes before the executive he must first decide whether he will assume responsibility for action without referring to the law officer for advice, or run the risk of an opinion which is adverse. And the disposition of the officer is likely to be adverse. The reason is obvious. The law officer has no political or other responsibility in common with the executive. He is always safe in saying that what has been done for years is in accordance with law, but, whatever be the business or adminis- trative considerations which demand a departure from old practice, when he gives an opinion supporting such departure, he runs the risk of being attacked. And all the forces which link the old contingent, those who stand for continuing the ancient practice because of all of the personal interests, both inside and outside the government, that have become crys- talized around it. are organized for the attack. If any national or personal interest is jeopardized which 4S cogniz- able in a court of law, this interest may be amply protected, and the 116 ADMINISTRATION OF PROPRIETARY FUNCTIONS law office as at present organized is simply one of the great negative forces in government — a negative force that in its operation is respon- sible for the construction of some of the most involved, unbusinesslike, ludicrous practices which, in a system that provides only for divided powers and no effective central executive control, continue to become more involved and unbusinesslike with each added legislative requirement. Laws made by detached committees, procedures elaborated by detached bureaucracies ; practices developed without controversy by construction " down the line " ; situations arising that could not be foreseen demanding a change in practice ; proposals referred to detached, irresponsible executives — irresponsible so long as they do not make changes ; references to a detached attorney general to avoid executive responsibility ; the law officer for self-protection, doing the same thing — these are among the matters to be considered when deciding whether the constitution should provide for a responsible chief executive, and a law officer who will be constituted a general staff adviser. An Employment Department Already the function and purpose of a civil service department which would operate positively instead of negatively and be co-operative in the development of better conditions for employees and better conditions fot management have been discovered as a part of Chapter IV. In this rela- tion question is asked as to whether this department should not be so de- veloped that there would be a close working relation between it and the officers charged with responsibility for preparing the budget, for making contracts for services other than personal, such as repairs, construction, printing, etc., and for decisions on matters of administrative law. Every request for departmental appropriations involves questions fundamental to civil service; one of the requisites to decisions as to wliether the government will undertake its own repairs, constructing, printing, etc., is conditions governing employment; every decision having to do with proprietary matters may make it desirable to have friendly legal advice. Whether a cabinet system is considered or not, the question as to what will be the means of correlating all these activities dealing with proprietary matters — matters of finance, of purchase, of employment, as well as custodianship of funds and properties of the state — is squarely before the convention. If a cabinet system is favored, then question is raised as to whether the branch handling employment shall be made a department and the head given a place in the cabinet along with the attorney general and the finance officer — the three to constitute a proprie- tary and staff group in the cabinet, whose interests comprehend the entire administration, as distinguished from the public service group, each executive within which is interested in earning for himself applause by obtaining facilities for promoting a particular service. 117 CHAPTER XI ORGANIZATION FOR THE ADMINISTRATION OF MILITARY FUNCTIONS OF THE STATE GOVERNMENT. Whether from a sense of necessity, or due to the fact that more ex- perience had been gained in the organization of this branch of the pubHc service, before the adoption of the first constitution, provision for central direction and control over the administration of the military functions has been more fully developed than have the provisions for the central direction and control of the non-military public service functions of the government. From the beginning, the governor has been constituted the "commander-in-chief of the military and naval forces of the state" thereby being made the responsible leader with the power to direct and control. Since 1846 the governor has also been given an organization by means of which this responsibility may be discharged — an organization suited to the exercise of his executive powers. To assist the governor in the performance of his duty as head of the military forces, he is not only given the power but it is made his main duty to " appoint the chiefs of the several staff departments, his aide-de-camp and military secretary, all of whom shall hold office during his pleasure." And the duty is im- posed on the legislature to appropriate a sufficient amount to cover the military expenses. This later provision was also made constitutional law in 1846, and has since remained. Especial attention is called to the fact that the constitution definitely contemplates that the governor shall have " staff " departments, and shall be given the overhead personnel and organization for keeping in touch with military activities. Whereas in the civil departments no such constitutional provision has been made, except in providing a " civil service " recruiting organization, and for two years a staff department called the " department of efficiency and economy." The " administration " of the military government of the state has at all times been considered as an organization separate and distinct from the civil government, and having no point of contact with civil govern- ment except in a common executive, a common treasurer, and legal ad- viser, the attorney general. From the beginning, it has been based on the idea of a citizen soldiery, it being declared in the constitution of 1777 that " it is the duty of every man who enjoys the ])rotection of society to be prepared and willing to defend it." The exception made in the first three constitutions was of persons who had conscientious scruples against mili- tary service, who might be excused by paying an exemption fee that in 1728 was fixed at ten pounds ($50.00) per year. The constitution of 1894 made "all ablebodied male citizens between the ages of eighteen and forty- 118 ADMINISTRATION OF MILITARY FUNCTIONS five years, who are residents of the state " members of the state militia. The first constitution provided for the storage of mihtary equipment and suppHes in each county in the thought that the inhabitants would organize themselves for military practice, thereby keeping themselves in prepared- ness, and show their wilhngness to perform military service. While the government has a right to impress persons into military service, it has usually been revolutionary, and the original concept of mili- tary organization was that it should be thoroughly democratic. The persons Avho came together for the purpose of defense organized them- selves just as they would for any other purpose, being empowered to select their own officers. This early practice was incorporated in the constitu- tions of 1821 and 1846. The provision with respect to election in 1821 being : " militia officers shall be chosen or appointed as follows — captains, subalterns, and non-commissioned officers shall be chosen by the written votes of the members of the respective companies ; field officers of regi- ments and separate battalions, by the written votes of the commissioned officers of the respective regiments and separate battalions ; brigadier- generals by the field officers of their respective brigades ; major-generals, brigadier-generals, and commanding officers of regiments or separate bat- talions shall appoint the staff officers of the respective divisions, brigades, regiments, or separate battalions." At this time, the governor with the consent of the senate appointed all major-generals, brigade inspectors, and chiefs of stafif departments except the adjutant general and com- missary general. The adjutant general, the administrative head of the militia was appointed by the governor, alone, though the commissary gen- eral was appointed by the legislature in the same manner as the treasurer, the attorney general, and the comptroller on nomination of the council of appointments. In 1894 the constitution was amended so that the legis- lature may pass laws for changing the mode of election and appointment of the military personnel, by a vote of two-thirds of each house. But it was specifically provided that the governor should nominate and with the consent of the senate appoint all major-generals, and that he alone should appoint and remove at will the adjutant generals and other staff officers, the militarv aid and secretary, so that these officers are placed beyond the power of the legislature to break down the control of the executive over the branches of the military service. Specifically, the organizations charged with carrying on various sub- functional activities are : 1. The adjutant general's department. 2. The state board of armory commissioners. 3. The armory board of the city of New York. 4. The national guard. 5. The naval militia. 119 CONSTITUTION AND GOVERNMENT OF THE STATE The Adjutant General's Department Under the governor the adjutant general is the executive head of the mihtary department. What is called his " department " is an organi- zation for assisting him in carrying out his functions as chief adminis- trator. The department is charged with issuance of orders, the auditing of militia accounts, the keeping of financial and military records, the receipt, custody and issuance of military stores, supplies uniforms and equipment, and the accounting to the federal government for government stores, and supplies issued to the state. In case of war, the adjutant would be responsible for organizing the reserve forces of the state, after the organized militia had been called into active service. The State Armory Board This organization, consisting of the commanding general of the national guard, the commanding officer of the naval militia, and the brigade commander in whose department the particular armory is situ- ated, has general supervision of the construction and maintenance of the various armories of the state other than those, except two, within the city of New York. The Armory Board of Nezv York City This organization, consisting of the mayor, the comptroller, presi- dent of the board of aldermen, president of the department of taxes of New York City, the commodore of the naval militia, and the two brigadier generals in command of the brigade stationed in New York City, has general supervision of the construction and maintenance of the armories owned and operated by the city of New York. The National Guard and the Naval Militia The national guard of the state of New York consists of the various organized regiments of infantry, cavalry, engineers, and artillery with their usual staff agencies. The naval militia consists of the organized naval forces of the state. Relation of State Militia to the Federal Government The military organizations of the various states have a dual allegiance which is recognized to the extent that the expenses of training and equipping the state troops are borne partly by the United States govern- ment, and partly by the state. The responsibility for the protection of any state from invasion having been assumed by the national govern- ment, the only important state duty for which the militia is liable for call is in the case of strike or riot. The military functions of the militia are to cooperate with federal authorities against a national enemy and the entire program of training 120 ADMINISTRATION OF MILITARY FUNCTIONS has been to this end. The national guard is the reserve of the federal army. In order that the state troops will be uniformly instructed and equipped, the war department and the navy department have prescribed certain regulations for controlling the national guard of the various states. The division of militia affairs of the war department and the division of naval militia of the naval department were organized especi- ally for this work, and in addition, both departments assign officers from the regular army and navy to act as instructor inspectors to the militia. This is a cooperative relation, however, which is permitted by sufferance on the part of the state governments — the regulations promulgated by the federal authorities are not binding in any way upon the state forces. State Constabulary From time to time the subject of a state constabulary has come up for discussion. Without going into the desirability of such a corps as a state police force, it would have a bearing on the need for the develop- ment of the state militia. The organization of a constabulary would greatly lessen the chances of using the militia in strikes or riots, thereby making the service in the militia more attractive and would remove the militia from the necessity of performing a kind of service that is domi- nated more or less by class or semi-political interests. Conditions Which Make for Irresponsibility Having briefly described the present organization it remains to call attention to what seems to be defects from the view-point of administra- tion. These apparent defects are brought out in the official relations of the heads of the "line" and "staff" ; the assigning of line "military" duties to the adjutant general ; the unnecessary clerical work put on the governor in signing commissions of all officers; provision.^, for construc- tion of armories, and the present provision of law placing the burden of maintaining part of the armory on localities. The major-general who is the chief line officer of the national guard, is appointed by the governor, with the advice and consent of the senate and holds office until he attains the age of sixty-four years, but is removable only by the order of a general court-martial, or by the order of the senate after public trial and conviction on the charges of miscon- duct. The power of appointment carries with it no disciplinary force — ^only the power of removal may be used to enforce responsibility and that is reserved to the senate. The commodore holds a position in the naval militia similar to that of the major-general in the national guard. As distinguished from these, the adjutant general is appointed by the gov- ernor to serve during the term of the governor, and as has been pointed out, he is removable at the will of the governor. The adjutant general 121 CONSTITUTION AND GOVERNMENT OF THE STATE is the medium of communication between the governor and the organized mihtia — a vice governor on military affairs of the state. Thus we have a condition in which the chief staff" officer of the organized mihtia, who is responsible to the governor, issuing orders in the name of the governor to the chief line officers who are irresponsible or if at all respon- sible, only to the senate. The chief executive should consequently be given the power to call for the resignation of the major-general, and appoint another from the line without putting the incumbent out of the service. This would simply mean that the executive would be respon- sible for the direction and control of the forces. It would be consistent with good military organization. Questions Pertaining to Rank No military qualifications are necessary for appointment to the office of adjutant general, which insures to the governor the greatest freedom in the selection of his appointee. However, the incumbency carries with it the military rank of brigadier general, which, in turn, raises the question of what to do with our ex-adjutant generals. The problem has been solved by assigning the adjutant general to the list of brigadier generals, just before the end of his term. It may be seen that political pressure might be brought upon the governor to saddle upon the next administration a brigadier who, though he may have been an excel- lent adjutant general, is without qualifications or experience necessary for a general ofificer. The technically qualified commanding officer of the national guard holds the rank of major general, — one grade above that of brigadier. This arrangement is another serious objection to the present plan of granting military rank to the adjutant general. The Signing of Commissions The constitution requires that "commissioned officers shall be com- missioned by the governor as commander-in-chief." The practice of signing appointments of commissioned officers is merely routine as the governor cannot, and is not expected to have knowledge of the qualifica- tions of the persons so appointed, and since he must, of necessity, rely upon the advice of his adjutant general, it would seem that this duty should be performed by the person who is assuming responsibility, as a vice governor in charge of the military department. The signature of the governor may add to the historic and personal value of the document so signed, but this is only one of the many routine duties placed on the governor by constitution and statute, which could well be removed. Construction of Armories a Quartermaster Duty The ex-officio board whose duty it is to supervise the construction, alteration and maintenance of the armories of the state and other mili- 122 ADMINISTRATION OF MILITARY FUNCTIONS tary buildings, is a cumbersome organization. It is responsible to no one. In the event of war, all the officers of this board except the adju- tant general, would be expected to be in the field. The duty of caring for the armories would be thrust upon the adjutant general whose time then would be largely taken up in the organization of the reserve militia. The present constitution of the state of New York gives the adjutant general the powers and duties of the several staff departments of the militia. The quartermaster corps is the staff agency which is charged with furnishing the necessary supplies (not military), shelter and transportation for the army. It would seem that caring for armories is within the scope of this agency's proper functions. Nezv York City Performing State Functions With two exceptions, New York City owns and pays bills for the alteration, repair, maintenance, and operation of the armories situated in that city. The criticisms of the state board are equally applicable to the armory board of New York City. In addition, the system is open to further criticism : 1. The board is made up largely of political officers elected on municipal issues. 2. The military is inadequately represented. 3. The administrations of the city and the state might be of different political parties, and this board be used as a means whereby the city could seriously embarrass the state government in the development of its financial and military policies. 123 CHAPTER XII ORGANIZATION FOR THE ADMINISTRATION OF PUBLIC SERVICE FUNCTIONS i\s has been pointed out, the civil services which are rendered directly to the public by the government are now organized without any attempt at correlation and without adequate provision being made for executive direction and control. This condition is described and discussed in chapters VII. and IX. The Need for Grouping Services for Purposes of Administration While the question may be raised with respect to the desirability of central executive control and it may be contended that it is better to have many executives who are responsible directly to the legislature, or responsible directly to the people, through independent elections, this controversy does not enter here. The intelligent and efficient administration of public services requires that they be so grouped that those which are intimately related and interdependent in their operations shall be under the same excutive. For the purpose of considering the defects in the present organization, there- fore, the various direct services to the public which are not military in character are considered under group heads corresponding to the functions listed on page 90. Part I. — Organization for the Administration of Activities Having TO Do with the Promotion of Agriculture and Industry The functions which may be enumerated as promoting agriculture and industry may be briefly outlined as follows : The cooperation with farmers and farmers' organizations in the establishment of farmers' institutes and farm bureaus ; the education of agriculturists and the general public in matters relative to agriculture, farm economics and kindred subjects through conferences, lectures, exhibits, demonstrations, bulletins and reports; the prevention of diseases of animals and plants and the stamping out of injurious insects or other pests ; the promotion of animal husbandry and the protection of the life of animals useful to man ; the inspection of farm lands, methods of cultivation, stock raising and handling in state and county institutions ; the inspection, testing and grading of agricultural products, commercial feeding stuffs and fertilizing materials; the issuance of licenses for the sale of farm produce on commission, milk gathering stations, manufacture and sale of fertilizers and commercial feeding stuffs ; the collection and compilation of agri- cultural statistics and information valuable to farmers, immigrants, farm 124 ADMINISTRATION OF PUBLIC SERVICE FUNCTIONS laborers, etc. Very little has been done to promote enterprise other than agriculture, but whatever the state undertook to do of this character would be in this group of activities.* The head of the department is a commissioner, appointed by the governor by and with the advice and consent of the senate for a term of three years. Assisting him are four deputies, who are appointed by the commissioner. Their duties may be briefly outlined as follows : 1. General deputy (Albany office) is in direct charge of the work of the various bureaus of the department and in the absence of the commissioner acts in his stead. 2. The deputy in charge of state farm lands (Albany office) supervises the advisory and cooperative work in con- nection with the farms of state hospitals, charitable in- stitutions, prisons, reformatories, almshouses and other state and county institutions ; assists the bureau of veter- inary service in the disposal of cattle which react to tuberculin; addresses farmers' institutes and agricultural societies on matters of interest to them. 3. The deputy in charge of the Buffalo office has supervision of the work of the department in the counties of Cayuga, Chemung, Genesee, Livingston, Monroe, Ontario, Schuy- ler, Seneca, Steuben, Wayne, Wyoming, Yates, Alle- ghany, Cattaraugus, Chautauqua, Erie. Niagara and Orleans. He has supervision also over the Buffalo division of the bureau of dairy products, which is con- cerned with the work of agents and inspectors investi- gating violations of the agricultural law relating to dairy and food products and of the veterinarians and chemists in his territory. 4. The deputy in charge of the New York office has supervision of the work of the department in the counties of Queens, Richmond, Rockland, Suffolk, Westchester, Nassau and Greater New York City. He supervises specifically the work of agents and inspectors investigating violations of the agricultural law relating to dairy and food products, and of the veterinarians and chemists within his territory. Conservation Department The division of fish and game of the conservation department is charged with the execution of the laws relative to the protection and pro- pagation of fish and game; the issuance of hunters' and fishermen's * See report on organization and functions, pages 299 to 315, inclusive, and chart G A, page 298. 125 CONSTITUTION AND GOVERNMENT OF THE STATE licenses and the maintenance of a game protective force ; the supervision of fish hatcheries and game preserves and the stocking of streams and forests with game ; the cooperation with individuals and associations for the protection and propagation of fish and game (See report on organi- zation and functions, pages 734 to 739 inclusive and chart K A, page 726). The work of the division is carried on through several bureaus or branches of work as follows : 1. The bureau of protection of fish and game supervises the work of game protectors; issues hunting and trapping licenses to the county clerks and examines their reports; issues licenses for the possession of venison and the shipment of game, and receives, examines and files appli- cations for pheasants and eggs. 2. The bureau of inland fisheries issues licenses to fishermen and enforces the rules of the commission relative to the grant- ing of such licenses. 3. The bureau of marine fisheries supervises the work of fisheries' protectors ; makes surveys of marine fishing grounds and grounds for the propagation of shell fish. 4. The game farm is conducted for the propagation of game. 5. Fish propagation is carried on through several hatcheries throughout the state. The foreman of the various hatcheries are under the direct supervision of the chief fish culturist. There are 10 stations for fish propogation located at — Adirondack, Bath, Caledonia, Chautauqua, Cold Spring, Delaware, Fulton Chain, Linlithgow, Constantia, Ogdensburg. The State Fair Commission The state fair commission consists of seven commissioners, five of whom are appointed by the governor for terms of five years each. The president of the senate and the commissioner of agriculture are ex-officio members of the commission. The commission is authorized to hold a state fair at such times as it may deem proper, and make or amend the 126 ADMINISTRATION OF PUBLIC SERVICE FUNCTIONS rules and regulations necessary therefor; appoint and remove assistants and employees ; receive all moneys payable to the state on account of such fair and make all disbursements therefrom, and also from any legislative appropriations for the state, fair. The provisions of the state finance law do not apply to the state fair commission. (See report on organization and functions, pp. 317 to 322, inclusive, and chart GB p. 316). Experiment Station at Geneva The agricultural experiment station at Geneva was created for the purpose of promoting agriculture by scientific investigations and experi- ment. The station is under the administrative control of a board of nine members which includes the governor and the commissioner of agriculture as ex-officio members. A director is appointed by the board of control who exercises personal supervision of the work of the station. (See report on organization and functions, pp. 343 to 348 inclusive, and chart GGp345). Lack of Correlation of Related Functions The purpose of the department of agriculture as indicated in the pre- ceding paragraphs is primarily the promotion of agricultural industry. There are however certain functions now provided for in the department of agriculture which are regulative and primarily for the promotion of public health rather than the promotion of agriculture. These are the protection of the food supply, including milk, now performed by the bureau of dairy products, and the prevention of diseases of animals now under the supervision of the bureau of veterinary service. These func- tions are more fully considered in the chapter on promotion of public health. One of the functions of the department of agriculture is the pro- motion of animal industry. It would seem that the function of protec- tion and propagation of fish and game, which is now carried on by the conservation department, is very closely allied to work which is carried on in part by the department of agriculture. The state fair commission though chiefly concerned with the holding of a state fair is in fact performing a very important function in the promotion of agriculture and agricultural industry. Here again correla- tion of the promotive and educational functions of the state fair com- mission with other similar and closely related functions would be desirable. The agricultural experiment station is performing functions pro- motive of agricultural industry and its work parallels to a considerable degree that which is performed by various bureaus of the department of agriculture through its bureau of dairy products, its bureau of horti- 127 CONSTITUTION AND GOVERNMENT OF THE STATE culture and its bureau of chemistry. Coordination of all research activi- ties under a single technical head would reduce cost and improve service. Need for Change in Tenure of Office of Commissioner of Agriculture Because of the fact that the commissioner of agriculture is appointed for three years and the term of the governor is only two years, it is possible that only every third governor can control the appointment of the commissioner of agriculture. For example, assuming a change in the governorship every two years the first incumbent would be able through the commissioner he would appoint, to shape the general policy of the department during his entire administration. The second incum- bent, however, would be able to exercise such influence only during the second year, or last half of his administration, and the third incumbent would be confronted throughout his entire administration with a hold- over commissioner who might be quite out of sympathy wath the plans and the ideals of the governor. The commissioner of agriculture should be appointed for an indefi- nite term but should be removable by the governor at his discretion. This would place the responsibility for the appointment of the commis- sioner and the policy of the department upon the governor, where it properly belongs. Improved Coordination of Functions Within the Department of Agri- culture Suggested The present organization of the department of agriculture does not provide for effective coordination of related functions within its own organization, as is evidenced by examination of chart G A (page 299) of the report on organization and functions. For example, the bureau of supervision of cooperative associations, the bureau of farmers institutes and the bureau of agricultural statistics are all performing functions which are promotive of agricultural industry by educational field work and by the publication and distribution of information of value to the general public and particularly to those interested in the various branches of agricultural work. In the interests of economy and efficiency, a closer coordination of these bureaus under a single head is suggested. Again there are certain functions in the work of prevention of animal diseases which are now divided among several bureaus of the department of agriculture. For example the bureau of veterinary service is concerned chiefly with the prevention of animal diseases and the pro- motion of animal husbandry, while the bureau of horticulture combines functions promotive of horticulture with those of the prevention of diseases of bees. Coordination of all functions having to do with the 128 ADMINISTRATION OF PUBLIC SERVICE FUNCTIONS prevention of animal diseases and the propagation of useful animal life suggests itself as a next step in improved administrative control. Inspection service in the department of agriculture is specialized throughout the various bureaus. Inspectors of the bureau of dairy products for example take samples of dairy and food products, agri- cultural seeds, fertilizers, etc., for analysis by chemists assigned to their particular division; inspectors of the bureau of horticulture take samples of insecticides for analysis by the chemists attached to their own division of work; inspectors of the bureau of butter substitutes take samples of butter substitutes for analysis by the chemists attached to their particu- lar division. Closer coordination of inspectional work under a single head or bureau of inspection would eliminate probable duplication of work. The chemists of the department of agriculture are scattered throughout the state ; five in Albany, one in New York, two in Ithaca, one in Buffalo, one in Canton. Administrative control of the work of chemists is therefore made difficult. It is not clear that the work of all chemists could not be better performed from a central laboratory located perhaps in Albany, or at the experiment station in Geneva, where all laboratory facilities for analysis and research are available. This is the plan adopted by the state department of health and it is found to work well. Staffs Advisory Council Suggested At present the various agricultural schools though performing func- tions promotive of agricultural industry are not brought into as close contact with the work of the department of agriculture as is desirable. The creation of a staff advisory council to the commissioner of agricul- ture, composed of some or all of the heads or directors of the agricutural schools would serve to keep the department in touch with the agricul- tural needs and interests in the various localities and with the develop- ment of a state-wide program for educational work. Such an advisory staff should act as a legislative body in the preparation and promulga- tion of rules and regulations for the conduct of the work of the depart- ment of agriculture. Part II. — Organization for the Administration of Public Works Functions The public works activities of the state may be defined as the plan- ning, construction, maintenance and operation of public buildings, high- ways and canals, and the conservation of natural resources insofar as they concern engineering supervision of the property of the state. 129 CONSTITUTION AND GOVERNMENT OF THE STATE Organisations Nozo Carrying un These Functions At present the public works functions of the state are being carried on by the following organizations : Two legislative commissions pages 18 and 19* The Department of Highways " 690 — 715 The Department of Buildings " 717 — 721 The Department of Public Works (canal operation) . " 678 — 690 The state engineer " 651 — 668 The canal board " 669 The commissioners of the canal fund " 669 The state architect " 671—678 The trustees of public buildings " 717 The Palisades Interstate Park Commission (part).. . . " 751 The Bronx Parkway Commission (part) . " 723 — 724 The conservation department (part) " 727 — 741 The iV(7tc' York Bridge and Tunnel Commission This commission is composed of four appointed commissioners and the commissioner of bridges of the city of New York. Three of the commissioners are appointed by the governor and one by the mayor the city of New^ York. The duties of this commission are to confer v/ith the governor and the legislature of New Jersey for the purpose of securing the passage of an act by the legislature of that state providing for the appointment of a joint commission under proper legislation of both states to purchase the necessary land and water rights, and to secure necessary federal consent for the construction of one or more bridges over the Hudson River. This commission is also charged with the consideration of tunnel communication between the two states. Commission to Investigate Port Conditions and Pier Extensions in Neiv York Harbor This commission consists of three commissioners appointed by the governor to act jointly with similar commissioners of the United States and the state of New Jersey to investigate port conditions and pier ex- tensions in New York Harbor, and to recommend proper policies to be pursued for the best interests of the entire port of New York. The commissioners serve without compensation. The Department of Highways This department is under the executive supervision of a commissioner appointed by the governor for a term of three years, and is charged with * The page numbers refer to the report on the organization and functions of the state government. 130 ADMINISTRATION OF PUBLIC SERVICE FUNCTIONS the construction and maintenance of all state roads and county highways and the supervision of the construction and maintenance of town high- ways. Trustees of Public Buildings The trustees of public buildings have supervision over the capitol and other buildings of the State at Albany. They revise all contracts for construction and repair before award. The board of trustees is composed of (a) the governor; (b) the lieutenant governor; and (c) the speaker of the assembly — serving without extra compensation. Department of Ptiblic Buildings The department of public buildings is under the direction and con- trol of the trustees of public buildings. This department is charged with the care and maintenance of the geological hall, the state hall, the capitol and the executive mansion in Albany, and the state house at Kingston, and the maintenance and operation of the capitol power house, including the supplying of heat, light and power to the educational build- ing. Department of Public Works This department is under the supervision of a superintendent of public works appointed by the governor by and with the advice and con- sent of the senate, to hold ofTice during the term of the governor and is charged with the execution of all laws relating to the repair, navigation, construction and improvement of canals, except so far as such construc- tion or improvement may be confided by statute to the state engineer and surveyor. The office of superintendent of public works and the general duties of the office are prescribed in the constitution. Department of the State Engineer The office of state engineer and the general duties of this office are implied in the constitution. The state engineer is charged with the supervision of the state topographical and hydrographical surveys, the examination and maintenance of the state boundary line monuments, the making of surveys in defense of claims against the state and such other engineering duties as may be prescribed by law. The improving of the canal system of the state and the construction of the barge canal and terminals have been placed under the supervision of the state engineer by statute. Canal Board The canal board consisting of the commissioners of the canal fund, together wHh (a) the state engineer and surveyor; (b) the superin- 131 CONSTITUTION AND GOVERNMENT OF THE STATE tendent of public works; and (c) the attorney general, has jurisdiction over the fixing and changing of the canal land boundaries ; determines what canal lands shall be sold, exchanged or abandoned ; investigates all transactions connected with canals ; examines and approves or disap- proves canal plans and estimates submitted by the state engineer; con- trols the sale of surplus water of the canals or feeder creeks ; grants permits for the erection of buildings on canal land for commercial or manufacturing purposes ; and investigates charges against canal officials. The Commissioners of the Canal Fund The commissioners of the canal fund form an ex-officio board, com- posed of (a) the lieutenant governor; (b) the secretary of state; (c) the comptroller; (d) the treasurer; and (e) the attorney general. It is charged with the supervision and management of the. canal fund; makes advances to the superintendents of repairs in the department of public works and may borrow money for canal purposes when authorized. Department of Architecture This department is under the direction of the state architect ap- pointed by the governor by and with the advice and consent of the senate, for a term of three years and is charged with the preparation of draw- ings and specifications and the letting of contracts for the construction, alteration or improvement of all state buildings with the exception of armories, school buildings and buildings under the jurisdiction of the trustees of public buildings. The work in progress is supervised by the inspectors of the department. Progress summaries of work done, pre- pared by the inspectors, are used as a basis for partial payments to the contractors. By virtue of special legislation or special requests from the departments or boards in charge, the state architect often assumes supervision over the construction, alteration or improvement of buildings exempted from the arbitrary provisions of the general state architects' law. Palisades Interstate Park Commission This commission was organized to select and locate such lands within specified limits as may be proper and necessary to be reserved for the purpose of establishing a state park, and to acquire, maintain and make available for use as a public park, lands so located. The commis- sioners are appointed by the governors of the states of New York and New Jersey. Conservation Department The division of lands and forests, and the division of inland waters €,if the conservation department are charged with the preservation and 132 ADMINISTRATION OF PUBLIC SERVICE FUNCTIONS protection of public lands, forests and inland waters not under the con- trol of the United States government. Bronx Parkzvay Commission This commission consisting of three commissioners appointed by the governor by and w^ith the advice and consent of the senate for a term of five years is empowered to examine, survey and acquire lands for the purpose of establishing a public park in the borough of the Bronx, New York City, and to prevent the pollution of the Bronx River. One-fourth of the expenses so incurred are paid by Westchester County and three- fourths by the city of New York. Constitutional Restrictions on Executive Personnel In organizing a works department one of the essential rec^uirements is to provide for engineering talent. The position of state engineer is one which should be held by a highly trained, technical man who desires to make public service a career. The present constitution provides for the election of a state engineer for a term of two years, and further pro- vides for some of the general duties of this officer. Arguments in support of making the state engineer elective have been numerous, but the weakness of such a provision is obvious to those familiar with the admin- istration of public offices. Briefly some of the objections may be stated as follows : 1. It is impossible to correlate the different parts of the admin- istration when the heads of some of the departments are made independent of the governor 2. It is impossible to obtain eft"ective administration within a department and especially of a highly technical one like public works when the executive in charge of most of the construction work is likely to be changed every two years and in the meantime is subjected to the disrupting influences of past political promises and an approaching political campaign 3. It is difficult to secure candidates technically qualified for the highest engineering positions of the state who would be willing to undergo the irritation and uncertainty of a political campaign. Engineers of the quality needed for the office of state engineer are too much in demand in other places to submit to the annoyances and inconveni- ences of a campaign for votes and which offers nothing but small honor, smaller salary and a short tenure 133 CONSTITUTION AND GOVERNMENT OF THE STATE 4. The election of the state engineer, wholly independent of the governor, must of necessity relieve the governor from individual responsibility for the administration of the public works activities under the state engineer's super- vision. Whatever related responsibility there is comes from the fact that the governor and the state engineer are usually of the same political party. Notwithstand- ing the fact that under the present organization the department of the state engineer is practically a separate autocratic government, the governor, through his appoin- tive officials, is held responsible for working with what the state engineer provides. What has been accomplished in the past in coordinating the public works activities and engineering service of the state has been accom- plished in spite of the constitution rather than on accouni of it Legislative Restrictions on the Selection of Executive Personnel Attention has already been called to the legislative restrictions in the selection of executive personnel. In the department of highways, the department of architecture, and in the conservation commission the chief executives are appointed for definite terms, all of which are longer than the two-year term of the governor, which means that certain governors have no appointive rights in three of the important departments of the state. This would not be so important if these functions were all brought into one works department and means were provided whereby the governor, as the chief executive of the state and directly responsible to the people for the administration of all of the state departments, could assign as vice-governor someone who would act as his direct repre- sentative in supervising the professional heads of these technical organi- zations. But, as at present organized, the state governmental machinery does not provide any agency whereby the governor may impress his official personality or his responsibility for the execution of state policies on the actions of what are regarded as his departments, except through the appointment of the departmental executives. Not having any means of enforcing discipline, he cannot insist on cooperation between these related agencies. Constitutional Restrictions Which Prevent the Development of Efficient Organisation and Management Perhaps the most fundamental defect in the present public works machinery of the state government is the lack of coordination of duties and the consequent lack of cooperation in management of the various public works affairs. A most conspicuous example of this condition is 134 ADMINISTRATION OF PUBLIC SERVICE FUNCTIONS to be found in the relation of the state engineer and the superintendent of pubHc works. The state engineer is given charge of the construc- tion of the new barge canal and in the past he has usually been charged with all construction of the state's canal system, and most of the impor- tant maintenance and reconstruction work. The superintendent of public works, an appointee of the governor, is charged by the constitution with the operation and maintenance of these same waterways which the state engineer has constructed. Thus an appointee of the governor is responsible for operating and maintaining economically and efficiently a canal system handed bodily over to his department by the state engi- neer, over whom no one in the state administration has the slightest administrative control. This condition is incompatible with good man- agement as is evidenced by the fact that it is not found in great privately owned and operated public service enterprises. If it were, it would mean that the operating department of a railroad would be required to accept anything that the purchasing agent or the maintenance department might hand it, in the way of rolling stock or motive power. No Organisation Available for Constructive Planning With 15 boards, commissioners, officers and departments engaged in handling various parts of the public works problem of the state and with certain of these executives responsible to the governor, others elected by the people, others appointed by special boards, others ex-officio, etc., it is impossible to formulate any sort of a constructive public works program which will coordinate all of the engineering and general public service ac- tivities of the state. Whatever may be adopted as a principle of control, whether executive or legislative, the present organization is chaotic, and the various parts are misfits. Engirreertng problems cannot be solved' quickly, and can never be solved effectively without careful preliminary planning. The only coordinating factor now to be found in the state organization is in the state engineer as an individual, due to the fact that he, as an individual, has been placed on most of the boards and commis- sions having to do with special problems. Since the abolition of the high- ways commission, however, there is no organic provision for cooperation of any nature between the highways department and the general engineer- ing department of the state. There is no organic provision for cooperation between the department of architecture and the state engineer's depart- ment, although such cooperation would unquestionably increase the effi- ciency of the engineering service of the state architect's department. There is no organic provision for cooperative working relation between the state engineer's department and the department of public buildings, or the trustees of public buildings, and quite inadequate provisions for coordina- tion of effort between the hydrographic and general surveying corps of the state engineer's department and the work of the conservation com- 135 CONSTITUTION AND GOVERNMENT OF THE STATE mission, particularly as this latter is concerned with the conservation of water power. It cannot be expected that either economical or efficient administra- tion of the public works affairs will result where the heart of the public works organization of the state is wholly independent of every other organization engaged in related work. Best results can never be obtained until the services of the engineers of the state engineer's department are made available for use in every other department of the state government requiring engineering service. That such a coordination is not possible at the present time is an indictment of both the constitution and statute law of the state. Continuity of Policy in Management Impossible It has already been pointed out that the election of the state engineer makes it impossible to secure continuity of policy and program in the management of that department. This criticism is none the less true of the other departments and other public works agencies of the state, although due to other causes, the most important of which is that a clear distinction has not been made between the professional or technical heads of departments and bureaus, and administration appointments. It has been found that the establishment of a definite term of years extending over a period greater than the two-year term of the governor has been of practically no effect. Threatened '* ripper " legislation has either forced resignations, or when carried out through providing for an apparent re- organization of the department, secured what seemed to be desirable in the way of political appointments. Every change in politics in Albany has been followed by an epidemic of " ripper " legislation and removals upon charges. The primary reason for much of this legislation and the un- scrupulous way in which departments have been reorganized, broken up and readjusted, merely to make additional places for political appointments, is to be found in fundamental constitutional defects adverted to. The following list of highway commissioners is typical of changes in the executive personnel of these departments. 1898 Campbell W. Adams. 1899 Edward A. Bond. 1900 Edward A. Bond. 1901 Edward A. Bond. 1902 Edward A. Bond. 1903 Edward A. Bond. 1904 Henry A. Van Alstyne. 1905 Henry A. Van Alstyne. 1906 Henry A. Van Alstyne. 1907 Frederick Skene. 136 ADMINISTRATION OF PUBLIC SERVICE FUNCTIONS 1908 Frederick Skene. 1909 Commission of 3 appointed by Governor Hughes. 1910 Commission of 3 appointed by Governor Hughes. 1911 Wm. H. Cathn, Oct. 19, 1911. C. Gordon Reel, Superintendent of Highways. 1912 C. Gordon Reel, Superintendent of Highways. 1913 C. Gordon Reel, J. H. Sturtevant, acting May, 1913. J. H. Carlisle, Commissioner. 1914 J. H. Carlisle, Highway Commissioner. What is need is an organization which will provide certain super- visory executive positions for administrative purposes and at the same time protect the professional and technical heads of the suborganization units in office. Defects in Organization of the Architectural Service In pointing to defects in the organization of the present department of architecture due consideration has been given to the fact that some agency must be provided for rendering architectural service to the various departments of the state government. The difificulty with the present architectural organization is that it is a highly centralized organization which without authority is useless and with authority will be in continual disagreement with the architects retained directly by the various depart- ments of the state. Innumerable delays in the completion of the state's buildings may be charged directly to an almost continuous condition of friction between the state architect's department and the various insti- tutions and other similar agencies of the state government. The present department has assumed an executive relation to all work coming within its jurisdiction. It has not, on the other hand, done anything in the way of establishing group unit construction standards for various kinds of institutions. This is a kind of the work to be done by a form of organization adapted to it before ultimate economy in the construction of the various institutional buildings is to be obtained. It is not probable that with the present organization much attention will be given to the development of group unit construction standards. Such work is primarily concerned with the administration of institutions and naturally seems of greater importance to the executives in charge of the carrying on of the institutional work than to a department charged merely with designing and supervision of construction. The department of architecture as now organized was established to provide a central administrative agency for coordinating the various architectural needs of the state, with the expectation that the establishment of architectural standards would be its chief work, but the department of architecture 137 CONSTITUTION AND GOVERNMENT OF THE STATE has given itself over almost entirely to the executive supervision of the building construction ordered by the various state departments. Department of Buildings One of the most conspicuous examples of the failure of ex-officio board administrations is to be found in the department of buildings. This department is ostensibly under the supervision of the governor, the lieu- tenant governor and the speaker of the assembly, who constitute the trustees of buildings. In immediate supervision of the force is a superin- tendent of buildings who, being responsible to an ex-officio board com- posed of elected officials having many other and more important duties, is in fact responsible to no one. The department of buildings is notori- ously the stronghold of the most questionable kind of political adminis- tration. The condition of the public buildings in Albany over which the department has jurisdiction is indicative of its inefficiency. Unless some- thing be done to establish executive responsibility for this very impor- tant work, little improvement can be expected and executive responsi- bility cannot be obtained by means of an ex-officio board. Not a little of the delay experienced in handling the contracts for the repair and maintenance of the public buildings in Albany may be charged directly to the fact that the trustees of public buildings must sign all official papers in connection therewith. During the summer months the state architect has found it necessary to employ a special messenger to obtain the signatures of the members of the board to official papers. Engineering Service in the Conservation Commission There are two divisions in the Conservation Department which are engaged on work similar if not identical with that carried on by the state engineer or the department of public works, i. e., the division of inland waters and the division charged with the inspection of docks and dams. The personnel of these two divisions is made up of engineers and is concerned chiefly with the conservation of the water power of the state and the apportionment of water power and water supply to various cities, towns, villages and private corporations. The inspection of state dams not connected with the barge canal system is under the juris- diction of this department. There are only two dams in this category and the inspection of these requires the services of special inspectors. In the department of public works and the state engineer's department at the present time there are more than one thousand employees engaged in the construction, maintenance and operation of the barge canal system, of which the construction and maintenance of dams and retaining- walls are very important factors. It would seem to be inevitable duplication of service to provide for special inspectors of other dams in the conservation 138 ADMINISTRATION OF PUBLIC SERVICE FUNCTIONS department where the engineering and supervision must either be dupli- cated or neglected. The work of the engineering corps of the division of inland waters parallels much of the work of the state engineer in the provision of adequate water supply for the barge canal. Moreover, the various services maintained by the state engineer through the hydro- graphic corps parallels much of the routine work of the engineering corps of the division of inland waters. Such a decentralization of the engi- neering supervision of the state's water sheds and water supply is ob- viously improper and one which prevents the securing of ultimate effi- ciency in the carrying on of the public works and engineering functions of the state. Part III. — Organization for Administration of Public Education Responsibility for the administration of the educational functions of the State of New York is laid upon the regents of the University of the State of New York by the constitution and legislation organizing them as a separate corporate entity. This body is composed of twelve mem- bers, each elected by the legislature for a term of twelve years, one regent being elected each year. Acting as a separate entity, the regents have the legislative direction of the department of education. This department is " charged with the general management and supervision of all public schools and all the educational work of the state, including the operations of the University of the State of New York."* The objects of the University of the State of New York, as described by law, are '■ to encourage and promote education, to visit and inspect its several institutions and departments, to distribute or expend or administer for them such property and funds as the state may appropriate therefor, or as the university may own or hold in trust or otherwise, and to perform such other duties as may be entrusted to it."t Executive Functions of Department of Education. The executive functions of the department are carried out by the commissioner of education, who is appointed by the board of regents to " serve during the pleasure of the board." This officer is also the president of the University of the State of New York — i. e., of the whole educational and regulative system that comes under the jurisdiction of the regents. With the approval of the regents the commissioner appoints assistant commissioners, directors and chiefs of divisions within the de- partment. Associated with him in the administration of this department are three assistant commissioners assigned respectively to " elementary " education, " secondary " education, and " higher " education. These * See educational law, paragraph 20. t See educational law, paragraph 40. 139 CONSTITUTION AND GOVERNMENT OF THE STATE commissioners, while performing advisory functions to the commissioner and board, are also the heads of their respective activities in the depart- ment. Over collateral functions there are tw^o directors, one of the state library and one of the state science work and museum. The details of this educational work are administered under thirteen chiefs of divisions in charge of, respectively, administration, attendance, educational exten- sion, examination, history, inspections, law, library school, public records, school libraries, statistics, visual instruction and vocational schools. (onditio)is Unfavorable to LocaU::ation and Enforcement of Respon- sibility When viewed from the standpoint of establishing responsibility to the electorate and within the department there are several features of the present organization which deserve consideration. Method of Selecting the Board of Regents The existing provision that the members of the board of regents shall be chosen one each year by the state legislature makes impossible the enforcement of responsibility for board functions by appeal to the elector- ate, except when an issue is raised of sufificient importance to cause the electorate to enforce their will through many successive years of legisla- tive action. That is, it is made difficult to get a definite issue before the legislature, or the people, unless such an issue is presented by the com- missioner after a division in which the board fails to support him. This might work quite effectively if there were any way of impressing the will of a majority on the board except by making the issue a partisan measure which could be successful only after a period of not less than six years, the period required to reconstitute the board so that a majority would represent the policy desired. Experience has shown that of all methods for selecting public officers election by such a numerous body as the legislature and one whose membership represents local interests only, is the least successful in securing popular scrutiny and attracting state wide interest. Under such a system no one feels any responsibility at all. Whatever may be said in favor of legislative ratification, the desirability of locating responsibility for nomination is generally agreed to by educational authorities as well as administrative experts. But assuming that it is thought desirable for historic or other reasons to retain the legislative appointment of the board of regents as a legisla- tive, reviewing and approving body, then in this case the question may be raised whether the commissioner of education, as the head of the administration of the department, should not be appointed by the governor with an indefinite tenure, but removable at wnW — thereby putting the gov- ernor in a position to enforce responsiveness to public will, and making 140 ADMINISTRATION OF PUBLIC SERVICE FUNCTIONS the commissioner a member of the cabinet. This conclusion, of course, rests on the assumption that the constitution will provide for a responsible chief executive. If it does not there will be no cabinet, and it would not be wise to select the commissioner of education merely for central executive control. Multiplicity of Lines of Control in the Department of Education Considered as a separate corporation, there is within the depart- ment no well defined grouping of functions. The principle of grouping by school grades (elementary, secondary and higher) is applied. There are at the present time eighteen heads of organization units, i. e., assistant commissioners, directors, and chiefs of divisions, who are theoretically responsible to the commissioner of education. A number of the organiza- tion units have double responsibility, that is, to the commissioner and to an assistant commissioner. It would appear that as new functions have been undertaken from time to time, no adequate eft'ort has been made to adjust them accurately to the work i)reviously carried on. Nevertheless it is fair to say that since the publication of the report on organization and functions several changes have l)een made looking to a somewhat higher centralization of work. While it is not easy to determine just how many deputy or assistant commissioners immediately responsible to the commissioner there should be, or to delimit exactly the field assigned to each, it is clear that efficient administration requires the drawing together of lines of control at the top. Some of the leading states in the Union have established five great divisions of work immediately under the supervision of the commissioner : one for elementary education, one for secondary education, one for higher education, one for vocational education, and one for research and statis- tics. Where this is done in a systematic manner, the subdivisions of work are grouped under the proper deputies according to functional relations. Experience would seem to show however that the organization of the department should not be too rigid, but that the commissioner of education should be allowed to assign to each of the deputy commission- ers responsibility for such things as may seem to him to make for the efficiency of the whole department. Lack of Centralisation of Collateral Educational Functions Turning to the broader principle of correlation of all educational functions under state control and especially those which are in whole or in part supported by the state, there are a number of institutions and activities of the state which are properly denominated as educational that are not subject to effective control by the department of education. These are administered by independent boards or commissioners 141 CONSTITUTION AND GOVERNMENT OF THE STATE appointed according to varying methods which estabhsh no responsibility anywhere. Such institutions and activities are as follows : Agricultural colleges and schools New York State Nautical School Board of Geographic Names Commission for the Blind Instruction of children in the state institutions for the delinquent and dependent Board of Law Examiners Board of Embalming Examiners State School for Ceramics and Clay Working — Alfred Uni- versity It would seem reasonable to assume that for the sake of efficient administration and control, all educational functions which are supported by public funds should be under the supervision of the Department of Education or at least be subject to the inspection of that Department. This is especially true in view of the provisions within the department to take care of these additional functions and activities. Lack of Machinery for the Development of Work and Efficiency Pro- grams Where an executive officer, like the commissioner of education, is charged with such administrative responsibilities for activities, under his control, the absence of a free office staff for investigation, report, and the preparation of constructive programs cripples the efficiency of the head. The need for co-operation and advice which an executive of broad responsibility feels, can be supplied only when provision is made for an executive board on the one hand, made up of heads of branches of work, and for an independent staff on the other. The executive board advisers could be made most effective only by a regrouping of functions under a few deputies or assistant commissioners who in turn would be able to have reasonable freedom in the assignment of duties and a perspective of related experience gained through direction and contact within their divi- sions. The machinery for making investigations, analyzing departmental policies, and defining programs of work within the department might thus be at the commissioner's command and the consequent tendency to bring debatable questions to the chief executive would secure the com- bined and specialized talent of the staff as well as of line advisers. Problems of State Educational Policy In addition to the problems of central educational administration there are a number of questions which, though local in their character, 142 ADMINISTRATION OF PUBLIC SERVICE FUNCTIONS have a state-wide interest and deserve serious consideration at this time. Among these may be enumerated the following : 1. What is the best local administration unit for the school system 2. Shall textbooks and necessary school supplies be free 3. How is uniformity of regulation of the public school system to be promoted 4. What provision shall be made for a school census 5. How can facts about public education be made available in most useful form The Unit for Local Administration of Public Education The experience with the small unit of educational administration and the advantage gained in other states from the adoption of larger units suggest the desirability of abandoning the present policy of divid- ing the county into minor districts for educational purposes. The more important reasons for this change are to be found in the present inequali- ties in the burden of taxation and in the opportunities for education under the existing system of local administration. The attempt which the state makes through the apportionment of school funds to equalize the burden and the opportunity has not been successful, and probably never will succeed. Efficient administration and supervision of schools demands a larger unit of control. For instance if a county school board should be established it would make possible a quality of service on boards of education which is not now secured for the smaller school units. The present plan in New York state of dividing the county into districts, each of which is in charge of a district superintendent, cannot secure adequate specialized supervision. It is thought by many that what is needed is the larger unit of administration with the provision for deputy superintendents, each of whom shall be a specialist along some particular line. In one county in Maryland at the present time there are two assistant superintendents who supervise rural schools, one supervisor of the upper grades of schools which have more than two teachers, one primary supervisor, one super- visor of manual training, and one supervisor of domestic art and domes- tic science. This is infinitely superior to a county divided into six divisions, each of which might be presided over by the district superin- tendent. The facts with respect to the present inequality of burden and of educational opportunity can be established by examining the rate of taxation, cost per pupil, and the like, for the smaller districts in New York state. County units of organization should exclude cities of five thousand or more population, employing a superintendent who devotes his full time to supervisory duties. The county organization would, of 143 CONSTITUTION AND GOVERNMENT OF THE STATE course, make the county the unit for local taxation, and all state funds apportioned to the territory included in the county organization should be apportioned by the state to the county and reapportioned by the county in such manner as to secure equal educational opportunity. With the county organization once established, the consolidation of schools would be furthered, and the establishment of high schools could be under- taken with reference to this larger unit of administration. Provisions for Free Text-hooks Throughout the State The time has now arrived for a serious consideration of the question whether all text-books and necessary school supplies should be furnished free of charge by the county or city school districts. If this is decided in the afBrmative, provision then should be made which will establish the right of the different county or city units of supervision to select their own books. If the principle of free text-books throughout the state be established, there will be a desire upon the part of some to establish uni- formity throughout the state. This would be most unfortunate, since rural and city schools districts differ with respect to their needs, and must always be less efficient if the supervisory officers and teachers are not allowed to consider the problem of choosing or recommending to their local board texts which they feel they can use to best advantage. The Codification of Lazvs for the Administration of Public Education in City School Districts There is very great need for establishing uniform legislation with respect to the administration of public education in the cities of the state. Special legislation is demanded at every session of the legislature for some one city, ignoring in many cases, if not in most of them, principles which are well established with respect to educational administration. For example, in a recent session of the legislature the mayor of one city asked for a law abolishing the board of education and placing the schools under the control of the mayor's office. Provisions for a Permanent and Continuing Census These provisions are now to be found only in cities of the first class, and they should doubtless be extended to the whole state. Question may also be raised as to whether this should not be combined with other forms of canvass and census work, which may be used for purposes of legisla- tion and administration concerning matters of health, labor, industry, etc. Provision for More Adequate Record and Report of School Finances The diversity of financial methods now employed in the state make any scientific study of comparative costs and methods well nigh impos- sible. A uniform system of accounting should be required, which would enable any properly qualified investigator to discover the cost" of any part of the school system, or of any function performed by it. More adequate 144 ADMINISTRATION OF PUBLIC SERVICE FUNCTIONS records of pupils should also be required. A cumulative record for each pupil, giving the facts with regard to his name, birth, parentage, residence, days in school each year, scholarship, conduct, health, and the like, should be kept for each child during the entire school career. These records should be kept in duplicate, and should form the credentials provided by the school system when transfers are made from school system to school system, or when pupils are discharged to go to work. Such records are, of course, of very great advantage to the school system in which the child is registered in the study of problems of organization and administration. Part IV. — Organization for Administration of State Institutions FOR THE Care of Delinquents, Defectives and Dependents In New York, as in the other American states, the state is assuming an increasing responsibility for the support and custodial care of de- linquents, defectives and dependents. The delinquents have been provided for from the earliest times in state prisons and reformatories, but pro- vision for defectives and dependents has been made, for the most part, until quite recently by the state incorporating private institutions managed by separate and independent boards composed of the incorporators or per- sons chosen by them. The state has frequently made appropriations to such institutions in order to relieve itself of the necessity of providing for the work which they were doing largely through the voluntary con- tributions of their members and supporters. This is especially true of institutions for the care and instruction of the deaf and dumb and the blind. Such institutions receiving public aid have been subjected to public supervision by the state board of charities. The work of all institutions providing for these wards of the state is brought under some measure of supervisory control and public accountability through the activities of a formidable array of boards, commissions and state officers, but for the efficient administration of most of them there is no direct responsibility assumed by the state, nor is the effort of the state looking to their efficient performance of a public service concentrated in any direct and responsible way in any single department of the state government. The chief financial burden for the care of delinquents, defectives and dependents rests on the local government of the villages, towns, cities and counties. Partly on account of economic and social conditions, but chiefly for financial reasons, there is a growing tendency here, as elsewhere, for the state to assume an increasing share of this burden through the pro- vision of state custodial care. Economic and social development has made dependency no longer local with respect to its causes or measures necessary for its prevention and state care must take the place of local care as in the case of the insane and more recently for increasing num-^ bers of the feeble-minded. This fact makes it all the more desirable that 145 CONSTITUTION AND GOVERNMENT OF THE STATE the state should set up a suitable and clearly-defined department of gov- ernment for the exercise of functions destined to assume greater magni- tude. Financial Support of State Institutions For the fiscal year beginning October 1, 1914, the state appropriated for the 44 state institutions and the boards and commissions having to do with their administration or their supervision the sum of upwards of thirteen million dollars, of which over ten millions was for administra- tion and maintenance. The total appropriation amounted to over 30 per cent, of the estimated revenue set aside for the general expenses of the state. Large as these appropriations are, they were not sufficient to meet the demands of the institutions themselves, nor the still larger demands of those who desire the state to meet more adequately the public needs as they see them for state service in this field. Summary of Existing Organization and Exercise of State Authority. Of the 44 state institutions, for whose management and support nearly one-third of the estimated revenues of the state was appropriated, eight are administered by the state superintendent of prisons, a constitu- tional officer, appointed by the governor, by and with the consent and ad- vice of the senate, and the remaining 36 are administered (21 under certain supervisory fiscal control by the fiscal supervisor and 15 under the State Hospital Commission) by 36 separate boards of managers, one of 21 members (Juvenile Reformatory, Randall's Island), and one of 15 members (Industrial School at Industry, see ch. 121, Laws of 1915), and 34 of seven members each, appointed by the governor, who, with the comptroller and attorney-general, serves ex-officio on the board of the New York Reformatory at Randall's Island, and with the attorney- general, ex-officio, on the board of the State Soldiers and Sailors' Home. Penal Institutions Under the present grouping, for administrative purposes, the penal institutions comprise eight institutions, as follows : Sing Sing Prison. Auburn Prison. State Prison for Women (Auburn). State Farm for Women (Valatie). Clinton Prison. Great Meadow Prison. Dannemora State Hospital for Insane Convicts. Matteawan State Hospital for Insane Criminals. 146 ADMINISTRATION OF PUBLIC SERVICE FUNCTIONS State Superintendent of Prisons This officer, provided for in Article V., Section 4 of the constitution, is appointed for a term of five years. His duties as prescribed by the prison law include the superintendence, management and control of the state prisons and the convicts therein, and all matters relating to the government, discipline, police, contract, and fiscal concerns thereof. He appoints the agents, wardens, physicians and chaplains of the five state prisons. He has under his control six prisons, including the State Farm for Women, and the two Prison Hospitals at Dannemora and Mattea- wan for insane convicts and insane criminals. State Commission of Prisons This is a constitutional body, provided for in Article VHI., Section 11, established in 1895 (L. 1895, Chapter 1026, con't. L. 1907, Chapter 381, re-enacted L. 1909, Chapter 47) consisting of seven members, with powers of visitation and inspection of all institutions used for the detention of sane adults charged with or convicted of crime or detained as witnesses or debtors. Under Article HI of the prison law this commission is directed to inspect all penal institutions throughout the state, recommend a system of employing inmates, arrange for the distribution of industries among penal institutions, prepare estimates annually of the articles which may be manufactured in penal institutions to meet the needs or require- ments of the state or its political divisions, or purchases by institutions with state funds under the provisions of the state use system ; also to make rules for the diversification of industries and the requisitions for supplies. The duties with respect to the industries of penal institutions are rather perfunctorily performed and their effect on the administration of the industries in the penal institutions is rather theoretical than actually controlling. Commission on New Prisons Created by act of the legislature in 1906 (L. 1906, Chapter 670) to select a new site for Sing Sing Prison and prepare plans for such addi- tional accommodation as might be necessary to take care of prisoners now sent to Sing Sing. This commission is still in existence, although two sites have been purchased and considerable expense incurred by the commission without any satisfactory solution or any action of the commis- sion looking to the relief of the congestion of Sing Sing. The commission, in a sense, serves for the penal institutions somewhat the same purpose as the commission on sites, grounds and buildings is supposed to serve for the charitable institutions. The State Board of Classification This board consists of the fiscal supervisor, the superintendent of prisons, the state commission of prisons and the state hospital commis- IA7 CONSTITUTION AND GOVERNMENT OF THE STATE sion, all of whom are ex-officio and without additional compensation. It acts under authority of the prison law (Consolidated laws, chapter 43, paragraph 184), to fix and determine the prices at which all labor performed and articles manufactured in the charitable and penal institu- tions of the state shall -be furnished to the state or political divisions thereof or to institutions, with certain exceptions. The board also classi- iies buildings, offices and institutions maintained or controlled by the state and fixes and determines styles, patterns and qualities of articles manu- factured for the use of the same. Board of Parole of State Prisons Constituted by Article VII of the prison law, it is composed of three members, including the superintendent of prisons and two others, ap- pointed by the governor by and with the advice and consent of the senate. The board meets monthly, except for two months of each year, at each of the prisons to pass upon applications for parole and it reports to the governor with its recommendations on all applications for pardon. It is charged with the duty of adopting a uniform system for determining the marks or credits which each prisoner must earn as a condition for release by parole. Board of Examiners of Feeble-minded Criminals and Other Defectives Provision was made in chapter 445 of the laws of 1912 for the ap- pointment by the governor of a board of three members, a surgeon, a neurologist and a practitioner of medicine for a term of five years to examine into the mental and physical condition of the record and family history of feeble-minded, epileptic, criminal and other defective inmates confined in the several state hospitals for insane prisoners, reformatories and charitable and penal institutions, and to perform such operations for the prevention of procreation as may be deemed advisable by the board. This board has never reallv functioned. Prison Association of New York This is a privately supported organization chartered by chapter 163 of the laws of 1846 and vested with power to visit, inspect and examine all the prisons in the state and to report annually to the legislature. Charitable Institutions and Reformatories Under this group, under the existing administrative classification, belong the following institutions : a. Ten reformatories. b. Five asylums for mentally deficient, including epileptics. c. Two hospitals and one school for defectives. d. Three institutions for dependents 148 ADMINISTRATION OF PUBLIC SERVICE FUNCTIONS The state authority is exercised over these institutions chiefly through two agencies and those, for the most part, inspectional in char- acter, viz., the state board of charities and the fiscal supervisor of state charities. The latter officer, however, is exercising a progressively in- creasing control through his powers to allow or disallow expenditures, and the eifect of his recommendations to the legislature upon its ap- propriations for the several institutions, all of which, however, are supposed to be directly managed by separate boards. The State Board of Charities This board was established in 1867 and created a constitutional body by Article VIII, section 11 of the constitution, and is composed of twelve members, one from each of the nine judicial districts and three additional members from the City of New York, appointed by the gov- ernor by and with the advice and consent of the senate for a term of eight years. The state charities law and the poor law (L. 1909, chapters 40, 46 and 57) enumerate in detail the powers and duties of the board, which are briefly to visit and inspect all institutions, whether state, county, municipal, incorporated or not incorporated, which are of a charitable, reformatory, eleemosynary or correctional character, and receive pub- lic aid,* except only those that are subject to the visitation and inspection of the state hospital commission and the state prison commission. The state board has a separate department of state and alien poor whose func- tions include supervision of institutions, with which they contract for the support of Indian, state and alien poor, auditing the bills for the same, and supervision of the removal of state and alien poor. Fiscal Supervisor of State Charities This is not a constitutional office, but provision is made for it in the state charities law providing for the appointment of the fiscal super- visor by the governor with the advice and consent of the senate. He is required to visit each institution of a charitable and reformatory char- acter, to examine into all matters relating to the financial management, to appoint a competent person to examine the books, papers and accounts of institutions and to submit to the legislature an estimate of appropria- tions needed for maintenance and special purposes. * This limitation of powers of inspection to institutions receiving public aid wa.^ apparently not intended by the Constitution nor the Charities Law but resulted from the decision of the Court of Appeals (April 17, 1900) in " The People of the State of New York ex rcl. The State Board of Charities. Respondent, against The New York Society for the Prevention of Cruelty to Children, Appellant," and the intent of the Constitution should be made clear in the present revision to meet this decision. 149 CONSTITUTION AND GOVERNMENT OF THE STATE Building Improvement Commission Organized in 1910, under chapter 47 of the laws of 1910; consists of the governor, the president of the state board of charities, and the fiscal supervisor, with powers to approve or reject plans and specifications for the erection, alteration, repair or improvement of buildings or plants for any state institution reporting to the fiscal supervisor, except the New York State Reformatory at Elmira and the Eastern New York Reforma- tory at Napannoch. Salary Classification Commission Organized under laws of 1899, amended by chapter 215, laws of 1914, provides for a commission consisting of the comptroller, president of the state board of charities, and the fiscal supervisor, to classify into grades the officers and employees of the institutions reporting to the fiscal supervisor, and to recommend to the governor changes in salaries and wages as may seem proper. Such changes, however, require the written approval of the governor before becoming effective. State Charities Aid Association Incorporated May 22, 1880, by special act, chapter 323, laws of 1881, and under sections 30-32 of Article III of the charities law (Cons. L., chapter 55), it is vested with power to visit and inspect all charitable in- stitutions and hospitals supported by the state, and to report thereon to the state board of charities. This is also a privately supported institu- tion, which renders a service through publicity intended to affect the man- agement of these institutions and the control which intelligent public opinion exercises in matters of this kind. Commission on Sites, Grounds and Buildings This commission, provided for by chapter 625 of the laws of 1913, consists of the fiscal supervisor, a member of the state board of charities, the state architect, a member of the conservation commission, the com- missioner of agriculture, the chairman of the assembly ways and means committee, and the senate finance committee, with power to acquire by gift, purchase or condemnation, property for the laying out of grounds and to locate all buildings to be erected at all state institutions reporting to the fiscal supervisor. Action of the commission is final and subject to review only by the governor at a public hearing. This is an organi- zation for the charitable institutions and reformatories somewhat analogous to the commission on new prisons for the needs of the penal institutions and is an equally foolish and wasteful method of fixing responsibility and securing economy in the planning for extension and new institutional equipment. 150 ADMINISTRATION OF PUBLIC SERVICE FUNCTIONS Joint Purchasing Committee The charitable institutions and reformatories reporting to the state fiscal supervisor have also a joint purchasing committee (established by L. 1905, chapter 457, amended by L. 1915, chapter 662), the chairman of which is a superintendent of an institution, appointed for two years by the fiscal supervisor, two stewards, appointed by the chairman, and three superintendents elected at the annual meeting of the superintend- ents. The committee meets on call of the fiscal supervisor to make awards under joint contracts for the purchase of staple supplies. Members are paid their necessary traveling expenses in attending meetings, from a fund prorated and charged to maintenance accounts of all institutions. The second deputy fiscal supervisor acts as secretary. State Hospitals for the Insane There are 14 of these institutions which are really administered by separate boards of managers, but as a group with respect to the exer- cise of state authority, they occupy an intermediate position between the penal institutions including, however, two hospitals for the insane which exist for insane convicts and insane criminals, on the one hand, and the charitable institutions and reformatories on the other hand. The state hospitals for the insane are governed by local boards of managers under supervisory control of a state hospital commission which, while not pos- sessing all the powers of control exercised by the state prison commission over the penal institutions, does, however, exercise a larger measure of control in addition to its powers of inspection than the state board of charities does over the charitable institutions and reformatories. A brief description of the public authorities or boards exercising supervisory powers over the state hospitals for the insane will be found in the dis- cussion of the State Hospital Commission below and in that of the State Charities Aid Association, Board of Examiners of Feeble-minded Crim- inals and other defectives. Salary Classification Commission, Building Improvement Commission, and the State Board of Classification, all of which have been described above in the discussion of the charitable institutions. State Hospital Commission The commission organized as the state commission in lunacy (L. 1912, chapter 121), is a constitutional board of three members, one of whom must be a physician and one an attorney and counsellor at law, appointed by the governor, by and with the consent of the senate. The insanity law (chapter 27 of the consolidated laws) charges this commission with the execution of the laws relating to the custody, care and treatment of the in- sane, not including feeble-minded persons and epileptics as such, and idiots. The state hospital commission is a successor to and has all the powers granted by the constitution to the state commission in lunacy. It examines 151 CONSTITUTION AND GOVERNMENT OF THE STATE all institutions, public and private, in which insane persons are kept, and may endeavor to secure legislation from congress to provide more effectually for the removal of alien and non-resident insane. It has gen- eral oversight of state hospitals and the control of all the property thereof, and must see that the purposes of such hospitals are carried into eft'ect by their respective boards of managers. It reports annually to the legis- lature and furnishes estimates of the amounts required for maintaining the state hospitals and presents the reasons for these estimates. There are 14 of these hospitals under the supervisory control of the commis- sion and, in addition, a psychiatric institute which makes psychiatric and psychological investigations and gives instruction to the medical staffs of the several hospitals, and also a retirement board of state hospital em- ployees charged with the administration of a' retirement fund established (L. 1912, chapter 59) to pay annuities to employees of state hospitals. The board designates employees for retirement and is composed of the chairman of the state hospital commission, a lay-member and the state comptroller. There is also associated with the hospital commission a joint pur- chasing committee created by the commission from among its own em- ployees, viz., three superintendents, tw^o stewards and five other employees of the hospitals who act together in making up specifications and draw- ing contracts for the purchase of supplies. A similar joint purchasing committee acts with and under the direction of the state fiscal supervisor in the performance of similar duties for the state charitable institutions subject to his financial supervision. State Supervisory Control Common to All Institutions There are several state officers or state authorities wdio exercise a certain supervision and, in some senses, limit or control at least a part of the administrative work of all the charitable and penal institutions, including, of course, hospitals, reformatories, etc. Notable illustrations of this are found in the ofiices of state comptroller and state architect. The state comptroller is the chief auditor by article V., section 1 of the constitution, and is also charged wath the duty of appointing the clerks in each state prison. He audits accounts and claims against the state, keeps records of all transactions, prepares budget estimates for the legis- lature and under chapter 342, L. 1913, copies of all estimates of $1,000 or over are filed wath him as w^ell as with the fiscal supervisor, resulting in duplication of work and power to dictate policies. The state architect (now made the Department of Architecture by chapter 111, L. 1914), under the provisions of the public buildings law and the insanity law, ]:)repares drawings and specifications and super- vises the construction of all new buildings erected at state expense, and likewise all additions, alterations and improvements to existing buildings. 152 ADMINISTRATION OF PUBLIC SERVICE FUNCTIONS He prepares necessary forms of contracts to be approved by the attorney general, and his approval is required in some cases for minor construction work when done by special order. General Characterization and Criticism of Existing Governmental Ma- chinery It is quite evident from the above summaries that the legislature has pursued a halting, variable and experimental policy in dealing with the problems of the scope and character of state authority and responsibility for its charitable and penal institutions. It has set up at least three lines of control primarily vested in the superintendent of prisons, the state hospital commission, and the fiscal supervisor for three arbitrary groups of institutions, in each case not clearly defined as to purpose and extent and not logically defined as to object. Three divisions in the exercise of state authority may be expedient and their classification justifiable, but the total lack of a co-ordinating agency through which problems common to all may be cleared and a stronger executive influence exerted is apparent to all. This is due to the absence of close working relation- ships between the three existing divisions of state authority. The superintendent of prisons and the prison commission are not brought into sufficiently close working relations or made as a unit directly responsible and responsive to the control of the governor. The same may be said of the state hospital commission and the boards of managers of the fourteen state hospitals for the insane, including also the two hospitals for insane convicts and criminals now under the super- intendent of prisons, all of which form another unit that could be organized under the president of the hospital commission and made more responsible and responsive to the governor. The state fiscal supervisor and the state board of charities might be organically related and made a third unit and in like manner made more responsible and responsive, through the president of the state board, to the governor. In some such way, if the head of each of these three services were brought into close personal contact through one departmental head with the governor, the necessary co-ordination of activities and the conse- quent elimination of some friction, much duphcation and unnecessary cost could be accomplished without any very serious disturbance in the existing classification of public institutions, which has seemed to work fairly well in this state. The suggestion of combining these services into one department was made in a bill considered in the last legislature, creating a board of regulation of state institutions, and this plan is quite in line with a general tendency in other states, many of which have already adopted state boards of control. The bill just mentioned, how- ever, consolidates only two divisions of this service, comprising the state 153 CONSTITUTION AND GOVERNMENT OF THE STATE hospitals, charitable institutions and reformatories and does not include the prisons, and yet this proposal aroused very vigorous and widespread opposition from those who fear a deterioration in this branch of public service and no economy or greater efficiency in administration from such consolidation.* The weight of evidence is, however, in favor of greater centralization in the management of these state institutions, provided local boards of management can be retained to perform subordinate functions and to hold and increase the popular interest and participation in the affairs of institutions which are organized to relieve distress and serve the unfortunate, but sometimes seem to furnish unusual oppor- tunities for the selfish exploitation of those who are helpless to protest or defend themselves. It is precisely such institutions, however, which do make a strong sentimental appeal to the' finer instincts of the people to share with the state the burdens of responsibility of caring for these unfortunate wards. There are, of course, strong arguments for the greatest amount of local autonomy in the management of these institu- tions, and considerable literature discussing the advantages and disadvan- tages of state boards of control has been published during the past fifteen or twenty years. f Specific criticism of the organization of the existing machinery is briefiy summarized below. Division of Authority In the case of the penal institutions, there is the greatest concentra- tion of authority in the hands of the state superintendent of prisons. His control is fiscal, actual and administrative. The institutions under his care have no separate, independent boards of managers, but along with supervision the state commission of prisons may and does affect in impor- tant particulars their administration. Its inspections and reports on conditions do not grow out of administrative experience and can perform no materially greater service of publicity as to conditions than similar work on the part of a private agency like the Prison Association might be expected to do. The boards of managers of reformatories seem to perform a useful service in bringing new ideas into the administration * See Memorandum and Brief of State Charities Aid Association issued March 18, 1915, in opposition to Hinman-Sage bill creating a board of regulation of state institutions. t See reports of the National Conference of Charities and Correction; numerous references to be found by consulting the general index ; also " Methods of Fiscal Control of State Institutions," by Henry C. Wright, in a report of the State Charities Aid Association of New York, printed March, 1911; also Summary of Findings, Conclusions and Suggested Method of Supervising State Institutions, reprinted from Mr. Wright's report by State Charities Aid Association, March, 1911 ; also State Control and Supervision of Charities and Corrections, by Ander- son W. Clark, University Studies, University of Nebraska, Volume V, No. 4, October, 1905 ; also Report on Charitable and Correctional Institutions, by James W. Garner, prepared for Illinois Economy and Efficiency Commission, 1914; also Report of Special Committee of the Board of Managers of Letchworth Village on the system of control of the state charitable and reformatory institutions, 1914. 154 ADMINISTRATION OF PUBLIC SERVICE FUNCTIONS of these institutions and connecting them up more directly with local and popular interest in their problems and their inmates, but no such boards exist for the prisons, neither does the superintendent of prisons stand, as he probably ought, as chief executive of a prison department with the prison commission acting in the capacity of an advisory council. The appointment by the state comptroller of the clerks in the prisons is intended to secure uniformity of bookkeeping and reporting, but repre- sents another authority exercising some fiscal supervision and perhaps incidental control. In the hospital division there is likewise a multiplicity of counselors and supervisors without sufficient co-ordination for general purposes between the state commission, the building improvement commission, boards of classification and the local boards, the functions of which could be better defined and exercised probably by concentrating all authority in the hospital commission and the local boards and defining more clearly their related and respective spheres of action. In the charitable group, including the reformatories, which more logically belong with the penal institutions, there is still greater division of authority and consequent lack of responsibility and responsiveness. An elaborate system of checks and balances is found in the division and overlapping powers and duties among the fiscal supervisor, the comp- troller, the state board of charities, the building improvement commission, the commission on sites, grounds and buildings, the salary classification commission, and the local boards of the several institutions themselves. A strong state board with a fiscal supervisor if necessary as one of its execu- tive officers could' be properly related to the local boards with whatever demarcation between supervision and control the legislature deemed wise, and the result would make for simplicity, directness and responsiveness in organization. Duplication of Inspection Divided authority naturally leads to duplication of inspection, since publicity and supervision rather than direct administrative control con- stitute the larger purposes in the exercise of the state authority over its charitable and penal institutions. In the prison group the prison commission, under Article III, sec- tion 46 of the prison law, has elaborate powers to visit and inspect all institutions used for detention of sane adults charged with or convicted of crime, or detained as witnesses or debtors, excepting such reforma- tories as are subject to visit and inspection by state board of charities. The powers and duties enumerated in the law with respect to this in- spection include, among other things: (1) sanitary and health inspection; (2) building inspection, including plans for new construction; (3) statis- tical information; (4) employment of inmates. 155 CONSTITUTION AND GOVERNMENT OF THE STATE The first is duplicated by the requirement of the pubhc health law (1913) that the state health department inspect all state institutions. Its schedules for this work in the past have been quite detailed and elaborate, and have probably exceeded the limits of sanitary and health inspection to which they ought to be confined with perhaps the addition of necessary inspection of fire protection since the abolition of the state fire marshal's office. At the last session of the legislature the powers and duties of the state fire marshal, with respect to factories, were transferred to the labor department after the abolition of the office of the state fire marshal. Therefore, inspection for safety and fire protection might now be added to that for health and sanitation and made exclusive and mandatory in the state health department for the charitable and penal institutions. The second, building inspection, is duplicated by special investigations by the superintendent of prisons, who has one confidential agent and details other employees for inspectional purposes as necessity -arises, and may be duplicated by the state architect's office with respect to plans for new construction, and also by the com.mission on new prisons. The third, statistical information, is duplicated by the relatively useless and inefficient bureau of criminal statistics and mining claims in the state department. The fourth, with respect to the employment of inmates, duplicates what the superintendent of prisons can do better and usually does do for the commission. Perhaps a concrete illustration of the unnecessary overlapping of inspectional functions will best illustrate this criticism. The best single illustration is found in the case of the Elmira and Napannoch reforma- tories which, under the present classification, belong with the charitable institutions and not with the penal group. These two reformatories hap- pen to be under the management of a joint board known as the state board of managers of reformatories under a peculiar provision of the state charities law (paragraph 50) with full investigational powers. They are also put under detailed and overlapping investigation by the state fiscal supervisor, the state board of charities, and the state health department. In the division of charitable institutions and reformatories, the duplication of inspection plainly results in unnecessary waste of efl:ort, annoyance to institutions, and lack of thorough accomplishment of the aim of the state. It is one thing for the state to grant the right of entry and full powers of inspection to an outside, privately managed organiza- tion Hke the State Charities Aid Association, or the New York Prison Association, in order to insure, at the expense of private citizenship organizations, the widest publicity concerning the operations of these institutions about which baseless rumors always exist and in which there is 156 ADMINISTRATION OF PUBLIC SERVICE FUNCTIONS constant danger of maladministration. It is quite another thing to provide at state expense for mandatory inspection and supervision, in order to in- sure efficient and economic administration and to know that the law is obeyed and is adequate to accomplish the full purposes of state responsibil- ity. The latter kind of inspection implies costly and well-organized expert service, and there is no reason why it should be divided among many independent or badly co-ordinated departments or should work at cross purposes and operate to stifle and discourage initiative and enterprise on the part of the administrators of the law. Inadequate Powers The state board of charities has been restricted in the scope of its powers by the decision of the court of appeals (April 17, 1900) in the case of " The People of the State of New York ex rel. The State Board of Charities, Respondent, vs. The New York Society for the Preven- tion of Cruelty to Children, Appellant," the effect of which was to re- move all the private charities not receiving public aid from its jurisdic- tion and put them beyond its inspectional powers.* y\lthough the state makes appropriations to many private institutions, especially to those for the benefit of the deaf, dumb and blind, it still relies upon a great num- ber of private institutions, to whose support it does not contribute, to perform a valuable service for its dependents, defectives and delinquents, for whom it otherwise would have to make provision. It was certainly the intention of the legislature to have public information as to how this work was being done, and the state board for several years rendered a valuable service in including them all in their inspection of institutions and the legislature voted adequate appropriations to enable the board to do this until the board was precluded from doing so by the effect of the decision to which reference has just been made. This raises a question whether the constitutional powers of the board should not be broadly defined to include the power and duty of inspection of all charitable institutions. The fiscal supervisor is limited, according to opinions of the attorney general,! to the supervision of the fiscal officers and the physical condi- tion of the grounds and buildings of the institutions reporting to him and has no supervisory powers in respect to policies, discipline or methods of said institutions. While the fiscal supervisor has exercised his fiscal powers at times in a way to amount to almost absolute control over all the affairs of the institutions according to competent critics, J his powers *For full report of this decision and the questions involved, see " State In- spection of Private Charitable Institutions, Societies or Associations," by William R. Stewart, President of State Board of Charities, reprinted from " The Quarterlv Record," June, 1900. t See reports, attorney general, November 10 and 15, 1909. i See H. C. Wright's report on State Charities Aid Association. 157 CONSTITUTION AND GOVERNMENT OF THE STATE are not as clearly defined as they should be and, what is more important, they are not co-ordinated with those of the state board of charities, which would eliminate much duplication of inspection and bring the institu- tions, subject to both, under a simpler and more direct supervision, less liable to conflicting tendencies in the underlying premises and policies of its guiding or controlling influence. Part \. — Organization for the Administration of Public Health Functions General Description of Functions In general the promotion of public health includes the following func- tions ; the investigation, prevention and control of diseases dangerous to public health; the investigation of the sources of mortality and the regis- tration, analysis and compilation of statistical data relative to births and deaths; the regulation and supervision of the manufacture, produc- tion, handling, storage and sale of foods and food products ; the regulation of the sale of drugs ; the supervision of water supplies and sewage disposal and sewage disposal plants; the prevention and abatement of nuisances, the dissemination of information for health protection and education ; the manufacture and distribution by sale or otherwise of laboratory products for use in the prevention or treatment of diseases, and the fur- nishing of laboratory examinations or analysis as an aid to physicians or others in the protection of public health. In the very broad terms of the public health law, the problems of public health involve matters having to do with the promotion of health and the security of life within the State. Present Organization for Carrying on Health Functions 1. The State Department of Health has been recently reorganized, and is now efirectively controlling the major part of the health functions of the State (see report on organization and functions, pages 132 to 143, inclusive). The head of the department is a commissioner, appointed by the Governor, by and with the advice and consent of the Senate, for a term of six years, and is required to appoint a deputy commissioner, who is subject to removal at the pleasure of the coinmissioner. The aeputy commissioner, under the present organization, is in direct super- vision of the work of the various divisions of the department. Under the commissioner and directly responsible to him are the oflices of the secretary of the department, who acts also as secretary to the public health council and the office of the executive clerk, who is charged with general office supervision, audit and clerical and steno- graphic work. The public health council consists of the commissioner of health and 158 ADMINISTRATION OF PUBLIC SERVICE FUNCTIONS six members appointed by tbe governor for terms of six years eacb. At least tbree of the members of tbe council shall be physicians and one shall be a sanitary engineer. Its duties are to establish, and from time to time to amend, sanitary regulations (sanitary code) dealing with any matter affecting the security of life or health within the state and it may enact, and as required, amend by-laws in relation to its own procedure. The public health council is further empowered to prescribe by regulation the qualifications of the directors of the various divisions of the depart- ment, sanitary supervisors, public health nurses and local health officers who may be appointed under the recently amended public health law. The consulting staff of physicians consists of four to six experts in public health work, who act as advisers or consultants to the commis- sioner in matters relating to their particular special fields. They are appointed by the commissioner as occasion requires and serve without compensation other than fees for services rendered and dependent upon the kind of service required. The following functional divisions are established in the department of health, each division being in charge of a director: a. The division of sanitary supervisors b. The division of sanitary engineering c. The division of laboratories d. The division of communicable diseases e. The division of vital statistics f. Division of publicity and education g. The division of child hygiene h. The division of public health nursing i. The division of cold storage inspection 2. State Department of Agriculture. Certain functions of the de- partment of agriculture are obviously health functions. A brief descrip- tion of the bureaus of the department of agriculture charged with these functions follows : a. The bureau of dairy products (see report on organization and functions, pp. 303 to 307 inclusive, and chart GA, p. 298). b. The bureau of veterinary service (see report on organization and functions, pp. 307 to 309 inclusive, and chart GA, p. 298). c. The bureau of chemistry (see report on organization and functions, pp. 314-315, and chart GA, p. 298). 3. The state department of labor also carries on certain functions which are directly concerned with the promotion of health. The organi- 159 CONSTITUTION AND GOVERNMENT OF THE STATE zation units of the department of labor which are charged with these health functions may be briefly described as follows : a. The division of industrial hygiene of the bureau of inspections (see report on organization and functions, pp. 240-241, and chart EH, p. 228). b. The division of industrial accidents and diseases of the bureau of statistics and information (see report on organization and functions, pp. 243-244, and chart EH, p. 228) . c. The division of homework inspection of the bureau of inspec- tions is here considered as being concerned chiefly with the performance of a health function. The primary purpose of this division is to carry on investigations ot hygiene and sanitation among workers engaged in work which is done for factories, but outside of such factories, that is, in the homes of the workers. The inspectors are required also to obtain information relative to the age of workers, the hours of employment and other facts of which the labor law takes cognizance (See report on organization and functions, p. 239, and chart EH, p. 228). 4. The state board of charities performs certain functions which have a very direct bearing upon the promotion of public health and which w^e believe may properly be considered from the standpoint of their health relations, rather than from that of their relation to the problems of poor relief. a. The department of state and alien poor is charged with the inspection and supervision of all state institutions. This includes the inspection and supervision of the hospital for the treatment of incipient pulmonary tuberculosis at Ray Brook, the primary purpose of which is the preven- tion and control of tuberculosis — a health function (see report on organization and functions, pp. 414-415 inclusive, and chart lA, p. 406). b. The department of inspection makes inspections of all chari- table organizations and institutions under private con- trol that receive public funds, and makes special investi- gations of state hospitals, charitable and reformatory institutions throughout the state. It also makes investi- gations of other hospitals, dispensaries, and private, municipal and county institutions within the state. In so far as the inspections and investigations of this depart- ment of the state board of charities relates to private 160 ADMINISTRATION OF PUBLIC SERVICE FUNCTIONS hospitals and dispensaries and municipal and county hospitals, the problem is one of health control rather than of charities (see report on organization and functions, pp. 415-416 inclusive, and chart I A, p. 406). 5. Certain regulative functions now performed by the state through independent and uncorrelated organization units are here considered as health functions, not because the w^ork performed by them is primarily for the promotion of public health, but because of the desirability from an administrative point of view of correlating them under one adminis- trative head, and because they are perhaps more closely allied to func- tions of health and safety promotion than to any other. a. The superintendent of weights and measures is appointed by the governor by and with the advice and consent of the senate for a term of five years (for organization of this office, see report on organization and functions, p. 283 and chart EN, p. 282). The superintendent of weights and measures is charged with the custody of the standards of weights and measures of the state ; correction by comparison with state standards of city and county standards as often as once in five years ; the testing at least once annually of all scales, weights and measures in every institution under the jurisdiction of the fiscal supervisor of state charities ; the inspection at least once in two years of all standards used by counties or cities, and the maintenance of a record of the same; the establishment of uniform tolerances of reasonable variation ; the certification to the attorney- general of the facts concerning intentional violations of the law. b. The state racing commission is composed of three members appointed by the governor for a term of five years. They have jurisdiction over all racing or steeplechase corpora- tions or association in the state, issue licenses to conduct racing meetings ; see that all such races are conducted according to the rules and regulations prescribed by law, and that five per cent, of all gross receipts of such racing meetings is paid to the state comptroller. (See report on organization and functions, p. 286, and chart EN, p. 282). 3. The New York state athletic commission is composed of three members appointed by the governor for a term of five years. Two are required to reside within the first and 161 CONSTITUTION AND GOVERNMENT OF THE STATE second judicial districts. The commission has direct management and jurisdiction over all boxing and sparring matches and exhibitions. They may issue and revoke all licenses and must see that five per cent, of the gross receipts from all licensed matches is paid to the comp- troller (see report on organization and functions, p. 286 and chart EN, p. 282). d. The harbormasters are three in number and are appointed by the governor to regulate and station steamboats and other vessels navigating the Hudson River, north of the city of New York, and determine how far and in what instances masters or other persons having charge of steamboats or vessels shall accommodate each other in their respective anchorages (see report on organization and functions, p. 284 and chart EN, p. 283). e. The state board of port wardens consists of nine port wardens who are appointed by the governor for terms of three years each, and one special port warden similarly appointed for a term of two years. The duties of the port wardens are to board vessels for the purpose of examining the condition and storage of cargo, and in case of damage to vessel or cargo, to ascertain the cause and extent of such damage. They are exclusive surveyors of vessels which have suffered wreck or which shall be deemed unfit to proceed to sea and are required to appraise the damage and determine the repairs necessary to render the vessel seaworthy and to estimate value or measurement of vessels or cargo in cases of dispute. They examine all applicants for positions as Hell Gate pilots, recommend appointments, and make all rates and regulations for the branch of pilot service (see report on organization and functions, p. 285 and chart EN, p. 283). Lack of Correlation of Health Functions Although the state department of health has recently been re- organized and has adopted a sanitary code which prescribes the regula- tions under which the various health functions of the state shall be per- formed, lack of correlation of these health functions prevents the properly responsible body — that is, the state department of health — from exercis- ing adequate supervision over the actual performance of these functions. 1. Complete and adequate regulations have been prescribed for the protection of the food supply, including milk, but the actual supervision 162 ADMINISTRATION OF PUBLIC SERVICE FUNCTIONS of the food supply through inspection and analysis of foods is still largely within the jurisdiction of the department of agriculture in its bureau of dairy products and bureau of veterinary service. The primary object of the regulation of the milk supply, for example, is not the promotion of the milk-producing industry nor the protection of the producer, but rather the protection of the public against diseases which are trans- missible through milk and the prevention of contamination of milk by dirt or adulterants. This is essentially a health measure. Similarly, the inspection of cattle by the veterinarians of the department of agricul- ture is not merely for the purpose of seeing that the cattle owners are protected against loss of their animals from disease, but to prevent the spread of those diseases to man through the consumption of the flesh of disease-contaminated animals slaughtered for food, or directly from living animals to man. The majority of the diseases of domestic animals are transmitted to man in one of these three ways, and the elimination of animal diseases is therefore of primary importance in the promotion of public health. 2. As previously shown the department of labor maintains a divi- sion of industrial hygiene, which conducts investigations of industrial processes with a view to the prevention of industrial diseases, and also a division of industrial accidents and diseases, which is charged with the collection, tabulation and compilation of statistical and other mate- rial regarding poisonings from lead, phosphorus, arsenic, brass, wood alcohol, mercury or their compounds, or from anthrax, or compressed air illness, contracted as the result of the nature of the patient's employment (Sec. 65 of Art. 5, Labor Law). The law requires physicians to report all such cases to the commissioner of labor and prescribes the information to be furnished by physicians. It is evident that the success of regis- tration and prevention of industrial diseases depends, in large measure, upon the co-operation of private physicians who are called upon to treat cases of industrial disease, and such co-operation is much more easily secured by the state department of health, which is in daily contact with the physicians of the state. Research and laboratory investigations, which may be carried on with reference to these diseases, require medical expertness in the highest degree. The state department of health already has a staff of experts in both field and laboratory research and investi- gation. The prevention of industrial diseases and the promotion of indus- trial hygiene is not exclusively a labor problem, but rather part of the general problem of the promotion of public health. Tuberculosis, for example, is so prevalent among workers in certain trades that it has come to be regarded, in certain of its forms, as an industrial disease, but the prevention of tuberculosis in all its forms is one of the state's great health 163 CONSTITUTION AND GOVERNMENT OF THE STATE problems, which to be effectively dealt with must be considered in its relation to other communicable diseases, the food supply, including milk, general sanitation and hygiene, and all other matters which pertain to public health. 3. The inspection and supervision of the conditions under which workers are employed in their homes, which service is now rendered by the division of homework inspection of the department of labor is intended as a health measure. In our larger cities considerable work is done for factories in the homes of employees and much of this work is done by children. The most fertile field for the promotion of public health is that of prevention of diseases and mortality among children. Conditions which might have little or no eft'ect upon adults quite often result in serious impairment of the health of children. The correlation of all existing activities designed to promote child health is therefore very desirable. 4. Up to the present time supervision of private, municipal and county hospitals and dispensaries throughout the state, as well as the supervision of the state hospital for the treatment of incipient pulmonary tuberculosis, has been in the hands of the state board of charities. Here again the object of such supervision is primarily that of promoting public health and not of providing relief for the indigent. For the best supervi- sion of such activities, it is essential that that department, which is charged with the prevention of disease, should be also responsible for the measures necessary to provide proper treatment. 5. The various regulative organization units previously described, namely, the state superintendent of weights and measures, the state racing commission, the state athletic commission, the harbor masters and the board of port wardens now act entirely independently. Each is responsible directly to the governor, whose supervision of these organiza- tion units must, of necessity, be only a nominal one, and is based almost wholly upon the reports which are submitted to him by the heads of these various bodies. The result of such supervision has in certain instances been detrimental to the public welfare as well as unnecessarily costly. a. The office of the superintendent of weights and measures, which performs a purely regulative function, has up to this time been considered as a separate and distinct unit, not allied in any way with other regulative functions of the government. To a certain extent this is true, but it is also true that the office of the superintendent of weights and measures is more closely allied to those functions which are promotive of the public health than to any other functional grouping. The regulation of matters relating to weights and measures is very closely 164 ADMINISTRATION OF PUBLIC SERVICE FUNCTIONS concerned with the question of control of the food supply, which is a primary health function. The inspection of weights and measures throughout the state may, by close correlation with the food inspection service, be made to render signal service in the protection of goods against adulteration or misbranding. It is therefore suggested that the service now rendered by the office of the state superintendent of weights and measures should be con- sidered in its relation to the state's plan for the promotion of public health and should be placed under the same supervision as other functions in health control. b. The state racing commission and the state athletic commission are very similar in purpose. They are both created for the purpose of regulating recreational activities, which it is assumed the citizens of the state demand and which must be properly supervised, in order to prevent the exploitation of the public to its disadvantage. The func- tions of both these commissions are perhaps more closely allied to those functions which have been grouped as promotive of public health than to any other grouping of functions. For the sake of improved administrative control, these two commissions have been included among the functions herewith, considered as promotive of public health. c. Two other organization units, namely, the harbor masters and the board of port wardens, are created primarily for regulating and insuring the safety of navigation. The report on the board of port wardens indicates very clearly that there is need for better supervision of this work. The correlation of the functions now performed by the harbor masters and port wardens, under the single head responsible for the promotion of public health activ- ities, would do away with many of the defects of the present organization. It is therefore suggested that these functions be also included in the grouping herein de- scribed of functions for the promotion of public health. Need for Closer Relation of Legislative Coimeil to Executives The present organization plan of the state department of health under a single executive responsible directly to the governor and assisted by an expert legislative staff, namely, the public health council, is well calculated to secure best results in public health administration. The difficulty which now exists in the enforcement of the sanitary code, which has been drawn up by the public health council, is the result of the 165 CONSTITUTION AND GOVERNMENT OF THE STATE division of health functions among several departments of the state. It is essential in carrying out thoroughly a plan for the promotion of public health that the body which makes regulations shall be an integral part, or at least very closely allied with the organization charged with the enforcement of these regulations. Regulations may need modifications or amendment in order that the peculiar conditions found by supervisors or inspectors in the various fields of health service may be met, and the closer the contact and cooperation of the legislative council with the executive officers, the easier it is for the council to iit its regulations to the conditions in the field. Economy Through Better Organisation The lack of correlation of functions promotive of public health means, of course, increased cost for overhead, as well as special service. Each division of work, whether it be under the control of the depart- ment of health, the department of agriculture, the department of labor or other organization unit of the state government, requires its own directing officers or staff, its own clerical and stenographic force, its special inspectors and its special reports. The consolidation of many of these functions, now so widely separated, would inevitably reduce the amount of supervision needed, the clerical and stenographic force required and the cost of reporting results. Cooperation in the working out of a comprehensive inspectional plan would mean fewer inspectors and lower cost. Indeterminate Tenure of Office Desirable The commissioner of health is appointed for a term of six years. This means that every third governor has the appointment of a commis- sioner of health. While it is desirable that the term of the commissioner of health should be more than two years, it is very undesirable that the governor, who may be held accountable for the acts of his subordinates, should not be always responsible for the selection of those subordinates. He should not find it difficult to remove them when they fail to carry out the policies upon the basis of which his administration has been supported by the people. It is important, also, in carrying out any program for the promotion of public health that the offices responsible for the concep- tion of the plan, the organization of the force, and the performance of the work shall be continued in office long enough to work out his pro- gram. Six years is not long enough, and it has been the experience of public health workers that a long term of office of the commissioner of health or health officer almost invariably results in progressive efficiency of health service. If power of removal is freely given the appointing officer, that officer must, of necessity, exercise such power wisely, for in removing a competent subordinate he is certain that the public will review 166 ADMINISTRATION OF PUBLIC SERVICE FUNCTIONS his act to his own disadvantage. Such a plan of indeterminate tenure of office, Hmited only by the power of the appointing officers to remove the incumbent at his discretion, will result inevitably in the continuance in authority of an efficient commissioner, and the prompt removal of an inefficient one by the governor. Part VI. — Organization for the Administration of State Activi- ties Having to do with Industrial Relations There are peculiar difficulties in any attempt to appraise the existing governmental machinery for dealing with industrial relations in New York state. The legislature has just passed a comprehensive statute completely reorganizing the state labor department and combining with it the workmen's compensation commission, thus constituting an indus- trial commission with new and extensive powers. If the ne^v commissioaJ is thoroughly and efficiently organized along the lines projected and im- j plied in the Spring Bill, which has just received (May 22, 1915) the governor's approval, the grounds for many of the criticisms and sugges- tions contained in this chapter will doubtless be removed. The com- ments herein are based, however, on the existing order before the indus- trial commission comes into being. That order corresponds to the descrip- tion to be found on pages 229-247, 269-277, and elsewhere, in the survey of organization and functions reported by the New York bureau of municipal research and the New York state department of efficiency and economy, January 1, 1915. Scope of State Function of Regulation of Industrial Relations New York heads the list of states both in the number of its indus- trial establishments and in the number of its industrial workers. The United States Census Bureau in 1909 enumerated 44,935 manufacturing estab- lishments and 1,003,981 as the average number of wage earners in those establishments for the state of New York as compared with Pennsylvania, the second state in order of importance in this matter with 27,563 estab- lishments and 877,543 wage earners. The relatively large number of small establishments in New York is the significant fact indicated by these figures and complicating the question of state regulation. The reports of the New York state department of labor showed an even greater task accomplished in that, its division of factory inspection alone, in Septem- ber, 1914, covered 51,118 manufacturing establishments and 1,364,070 employees, of whom 88,022 were office employees. These figures do not cover the persons affected by the division of mercantile inspection, the division of inspection of mines, tunnels, etc., and the division of home work inspection. No adequate figures are available to show how many persons are affected by the labor law en- forced by these divisions of the inspection bureau of the department of 167 CONSTITUTION AND GOVERNMENT OF THE STATE labor. Nor do they include, of course, the persons affected by the work of the employment bureau, the mediation and arbitration bureau and the industrial and immigration bureau of that department, and by the work- men's compensation commission and by the public service commissions in their jurisdiction over employees on steam railroads, trolley lines, sur- face and underground railways, nor by the payment of wages provisions of the labor law also enforced by the department of labor. Since the preservation of order and the protection of property have always been regarded as primary duties of government it might be sup- posed that both historically and quantitatively the concern of the state would find its chief expression in dealing with strikes and industrial dis- putes. This is, however, not exactly the fact. A large mass of the legis- lation from the earliest time has set up standards and attempted to en- force them with respect to the health, safety and morals of employees and the sanitary condition of the places in which they work. A recent amendment to the state constitution (article 1, section 19) says " nothing contained in this constitution shall be construed to limit the power of the legislature to enact laws for the protection of the lives, health or safety of employees." And even in the absence of express authority, the legislature under the exercise of the police power has been sustained in the enactments of a wide range of provisions that extend widely the constitutional power just mentioned. The scope of state functions with respect to labor may be said to include at least the following matters : 1. Contractual relations of employers and employees 2. Safety and sanitation with respect to factories, workshops and conditions of work 3. Hours of labor, provision for rest periods and meal hours, with more stringent regulation and stricter supervision of those for women and children 4. Age, physical and educational qualifications of children who engage in industry 5. Machinery for securing compensation for industrial accidents and their prevention 6. Machinery for mediation, arbitration and investigation of in- dustrial disputes 7. Machinery for the equitable adjustment and local application of the general principles of the labor law, as well as the supplementing and amplifying of its mandatory provisions 8. Protection of the rights of aliens and immigrant laborers Existing State Organisation The labor department is a large and, within recent years, a strongly centralized department of the government. It has a staff of 391 em- 168 ADMINISTRATION OF PUBLIC SERVICE FUNCTIONS ployees costing in salaries alone nearly $600,000 per annum. The re- cently organized workmen's compensation commission, which has been in operation less than a year, has an additional staff nearly as large, com- prising 337 persons at an annual salary cost of over $500,000. The addi- tional cost of these two departments, over and above the salary cost, will amount to another half million dollars per annum. Yet neither of these departments, and least of all the labor department, is able to per- form the work contemplated in the laws it is called upon to enforce, notwithstanding also the fact that the health department and the public service commissions are expected to supplement this service, though at present the actual work they do in connection with matters pertaining to industrial relations from the point of view of protecting the interests and welfare of employees probably does not bulk large enough to add much to their respective annual budgets, nor to the cost to the state for the performance of this function. The Industrial Board Organized May 16, 1913, with the commissioner of labor as its chairman, and four associate members appointed by the governor and confirmed by the senate, this board has broad discretionary powers and authority to make rules and regulations applicable to varying conditions of industry. It may determine what specific measures or methods are necessary to fulfill the requirements of the labor law, but may not pass rules or regulations inconsistent with any statute or mandatory provision of the law. It may, however, require additional safeguards as to con- struction, equipment and maintenance of factory buildings, in order to carry out the purposes of the law. It has power to regulate sanitary arrangements even in labor camps furnished by factory owner, directly or indirectly, for housing workers employed in any factory. It may estab- lish a sanitary code for bakeries and confectioneries except in cities of the first class and make regulations for health and safety of workers in mines, tunnels and quarries. In many of these respects it exercises powers duplicated by the health authorities. It may exempt from or modify the provisions of the one day of rest in seven law (section 8a of the labor law) in cases of emergency, and for brief periods (June 25. to August 5) it may permit females eighteen years of age and upwards employed in canning establishments to work 66 hours per week instead of 60, and also modify specified fire and safety provisions that otherwise are mandatory. Its powers to make variations subject to public hearings and record are not, however, sufficiently broad to meet the needs of so complicated a situation as that created by the rigid state-wide mandatory provisions of many parts of the labor law. In New York City, for example, it is said that there are 22 inde- pendent public agencies empowered to inspect buildings for industrial 169 CONSTITUTION AND GOVERNMENT OF THE STATE purposes, and concurrent approval of many of them is necessary before any structural changes can be made, which leads to unnecessary expense and annoyance to owners and occupiers, as well as causes useless expense to the state. The industrial board does not have the sole and complete power to establish finally and fully the standards of protection required in buildings where workers are employed, even if other agencies were allowed to inspect or required to co-operate in the enforcement of these standards. The commissioner of labor has still power to issue orders approving safety devices and in other matters left to his discretion, independently of the board of which he is chairman and whose rules and regulations he must enforce, and this fact has given rise to some conflict and confusion. The board has no staff agencies of its own, but must make the inves- tigations upon which its quasi legislative and judicial powers are based with the aid of such persons as the commissioner of labor is willing to detail to the service of the board. A better concentration and simplifi- cation of powers could be brought about by not delegating to so many other bodies duties with respect to safety, fire protection and health of employees, at least in cases where the necessary standard might be better determined on the basis of a broader knowledge of the facts of industry by the more highly specialized industrial board. Merc an tile Est ab lis hm e n ts One division of the inspection bureau of the department of labor deals with mercantile establishments and is in charge of a chief mercan- tile inspector at a salary of $4,000, with 26 employees whose salaries aggregate $30,720. Another division of the same bureau has charge of home-work inspection, with a chief at $3,000 and 17 employees at a total annual salary cost of $21,000. Neither of these divisions is equipped to do more than a fraction of the work imposed upon it by the law if even the minimum standards of factory inspection are to be applied to mercan- tile establishments and to home work. The mercantile law dates from 1897 and resulted from the investigations of the Reinhard Committee ; it prescribed much lower standards for mercantile establishments than for factories with respect to the hours of work for children under 16 and girls under 21, with exceptions for the holiday season — at first to include ten days before Christmas, but since then reduced to seven days. For women over 21 years of age no protection was aft'orded. In 1897 the enforcement was put in the hands of local boards of health who made no attempts to do anything about it and, in many towns, made inspections only on complaint. The New York City board of health had a special corps of mercantile inspectors for only about eight months, and afterward turned this work over to the regular sanitary inspectors as a part of their other duties. They were not trained to enforce a labor 170 ADMINISTRATION OF PUBLIC SERVICE FUNCTIONS law, and the women and children in stores did not secure the protection the law intended. In 1908 the legislature passed laws giving the enforce- ment of the mercantile law in cities of the first class to the labor commis- sioner, who organized a separate bureau in charge of a mercantile inspector and eight deputies, later increased to nine. Even with this small force, inspection during the next four years revealed widespread non-compliance with the law. Thousands of children were found illeg- ally employed, but with even a few inspectors to cover the three largest cities of the state, the labor commissioner secured considerable improve- ment. The factory investigating commission in 1913 found the condi- tions outside of cities of the first class so unsatisfactory that upon its recommendation the legislature subsequently took away the jurisdiction of the local boards of health over mercantile establishments in second- class cities, and added it to that of the labor department. In 1914 the mercantile inspection division of the labor department, then covering cities of the first and second class, made 27,116 inspections, and estimated that these inspections represented roughly on the average about 18 per- sons affected by the law for each inspection; it covered in addition 913 inspections made on complaint. How inadequate this inspection is may be seen from the fact that there are doubtless a hundred thousand mercantile establishments' in New York City alone, and many aspects of the mercantile law apply to bowling alleys and places of amusement, with which the department can only deal on complaint, unless it is fur- nished with a very large stafif of inspectors. It is difficult to say how far the department has proven itself efHcient in developing ingenious plans of so-called " sample inspections " in selected areas, which, if fol- lowed by vigorous prosecution, might serve to strike terror in the ranks of the violators of the law. Such a plan would depend, of course, for its success upon the magistrates and courts backing up the department and punishing violations with prompt and severe sentences, and this they have not done. On the contrary, the department has been greatly ham- pered, not merely by the legislature failing to supply adequate appro- priations for enough inspectors, but by the indift'erence and lack of support of the magistrates and courts. Home Work The operations of the division for the inspection of home work have been even less satisfactory, from the point of view of any guarantee that the purposes of the law are being accomplished. The report of the commissioner of labor for 1913 gives an account of the work of this division, as far as the regulation of work done in tenement houses in Greater New York goes. There were outstanding on October 1, 1913, 11,183 licenses; during the previous year, 1,587 licenses were cancelled, and 198 revoked for sanitary causes. There does not seem to be the 171 CONSTITUTION AND GOVERNMENT OF THE STATE necessary co-operation with the health authorities, inasmuch as this inspection of tenement houses has to do primarily with sanitary condi- tions. If home-work inspection were transferred to the corps of ordi- nary sanitary inspectors, this division of the bureau in the labor depart- ment with its meagre force might be used as a flying squadron or detec- tive bureau to supplement work which is more properly part of the duty of regular health inspection, and might eventually be left almost entirely to the health department. The other aspect of home-work inspection which results in the detection of children who are truants from school should in like manner lead to better co-operation with the bureau of school attendance and the ultimate reliance upon the school authorities for this work without any necessity for the assistance of the labor department. Workmen's Compensation Where the state has assumed responsibihty for the administration of a system of workmen's compensation, there exists not only the need for an administrative organization to enforce the law, but especially one that will work to prevent expense and reduce the cost of compensation to employers, as well as minimize the burdens which injured workmen must bear for which no compensation can be made. Alany states, like New York, have created a separate commission or board for this purpose. In some states the commissions have purely supervisory powers and exist largely for the collection of information while the courts enforce the law. In other states, the commissions are quasi-judicial bodies and adjudicate claims. The New York Workmen's Compensation Commission was appointed in March, 1914, and held its first meeting on March 30th. The com- pulsory features of the statute became effective July 1, 1914, so that the commission had but three months in which to prepare for a complex system of insurance, for which there was httle experience and precedent. The business to be handled administratively comprised the industrial hazard in the greatest industrial state in the union, the annual payroll of whose workers aggregated $1,000,000,000, distributed in 180,000 employing industries and covering 2,000,000 workmen. The law required the main office of the commission to be located at Albany, where inadequate space was obtainable. The preliminary survey indicated that three-fourths of the business of the commission would have to be done with employers and employees located within Greater New York. Therefore, a branch office of large proportions was neces- sarily established in this city, and has remained the principal branch office of the commission. It was found necessary to divide the work of the commission into bureaus having to do with claims, with accounts, with the state insurance 172 ADMINISTRATION OF PUBLIC SERVICE FUNCTIONS tuncls and other subjects. The state was divided into nine districts and deputies located in charge of each at the following points: Buffalo, Rochester, Syracuse, Albany, aside from the main office, Poughkeepsie, The Bronx, Brooklyn, and one each in central and lower New York City districts. One additional deputy was appointed, but not assigned, and on January 1, 1915, an additional deputy was appointed and assigned to the main office, thus making 11 in all. These serve as representatives of the commission in the different sections of the state to explain the pro- visions of the law, to exercise delegated judicial functions and to expedite the handling of claims through advice and through the direction of the investigators in each district office. There was attached a hearing steno- grapher, an interpreting clerk, a stenographic-filing clerk, a representative of the state insurance fund and a junior clerk or page, whose salaries, together with that of the deputy and the rent of the office aggregate about $10,000 per year. Work increased in some offices to an extent that required the appointment of an assistant deputy, and five such assistant deputies were placed where most needed. Thirteen hundred cases were referred to deputies, for investigation and hearing, prior to February 1, 1915, the end of the period reviewed in the first annual report covering ten months of the existence of the commission. The organization of the commission is described and charted on page 269 ff. of the organization and functions report. The commission hears claims at Albany one day a week; at Syra- cuse, Rochester and Buffalo one day every other week, and at the New York branch office every day excepting Saturday. Deputy commissioners have heard and disposed of many calendars, thus relieving the commission for the consideration of the more difficult cases, but their findings are not binding and effective until approved by the commission itself. The arbitration feature of the law is a dead letter and was invoked in only one case. There is, however, an element of arbitration in the public hearings. The medical division is closely related to the claims division and con- sists of three physicians, one of whom is medical adviser to the state insurance fund, the other two confining their work to claims to be paid by other insurance carriers. The division has a surgical staff for examination of claims, which is done at the request of the claimants or on motion of the commission or at the request of the claims department, and is the best agency for determining the nature and extent of dis- ability. The division also examines reports of attending physicians and passes on fee bills of attending physicians. One result of the compen- sation laws has been the installation by employers of first aid equipment at trifling cost. Probably 70 per cent, of all accidents are preventable. 173 CONSTITUTION AND GOVERNMENT OF THE STATE In the New York office over 2,000 physical examinations of claimants have been made, and claim papers have been examined for diagnosis and time of disability to the number of 3,010. The legal bureau has had 79 cases on appeal in the Appellate Divi- sion of the Supreme Court; 95 cases in which complaints were made that employers failed to provide compensation insurance; 227 cases in which awards had been made and the employers had no insurance which cases were referred to legal department for collection of award; 49 cases against railroad companies involving questions of the law of interstate commerce; 207 miscellaneous claims referred for opinion. The commission reports that the State Insurance Fund is operating satisfactorily, and the commission hopes that no legislation will be enacted to hinder the extension of the State Insurance Fund, which, not- withstanding its inability to command solicitors and the usual instru- ments of business acquisition, has done more business than any other insurance carrier except one. The actuarial bureau has work wholly connected with the work of the State Insurance Fund, and the statistical bureau analyzes claims to discover causes of accidents and analyzes costs. Duplication of Inspection and of Work Inasmuch as the adequacy of enforcement of most of the labor law depends entirely on the completeness and efficiency of regular systematic inspection by disinterested and well-trained officials, the charge of dupli- cation is all the more serious. Already there is ample ground for this charge to be found in an analysis of the work of the factory inspection bureau, and the inspection department of the Workmen's Compensation Commission. And this duplication will become more serious as the in- spection department of the Workmen's Compensation Commission be- comes better organized. The administrative problems in the enforcement of many of the general provisions of the labor law and those of the com- pensation law are identical. They have a common purpose also in seek- mg to bring about prevention as their major task, rather than merely the detection of crime or violations. There is also duplication of work in the reporting of accidents and certain statistical information which it is necessary to ask employers to furnish the authorities who administer the general labor laws and those who are dealing with the matter of com- pensation for industrial accident. Where separate authorities have been set up in other states the desire for the elimination of the duplication referred to has led to a consolidation of the inspectional work of those departments. A recent report of a legislative committee in Missouri (December, 1914), recommending the enactment of a compensation law also suggested the creation of an industrial commission to administer it and the other labor laws of the state jointly. Among other things, the 174 ADMINISTRATION OF PUBLIC SERVICE FUNCTIONS committee says : " With the enactment of a workman's compensation law comes a duty to provide the machinery for reducing as far as possible the number of industrial accidents and correspondingly reducing their hardships to employees and their cost to employers. For some time there has been the feeling that in equipping their plants employers had been paying too little attention to accident prevention, and it is only within the last few years that special study and inventive genius has been de- voted to this field * * * The body fitted to prescribe safety rules and regulations is the body which, through factory inspection and daily hearings of accident cases, would know from actual experience what is reasonable and proper."* Inadequate Machinery and Pourrs of Existing Agencies The number of inspectors to cover all the establishments and condi- tions with which the labor department has to deal, always has been and probably always will be inadequate. Therefore the greater is the need for improvement in the organization and skill in the supervision of their work. The educational work of the inspector and the publicity given to the law and to demonstrations of its reasonableness in language that every employer and employee can understand, become increasingly important as the work of the department becomes more complex and dif^cult. Not only is the present lack of consolidation of functions in the industrial board and the office of the commissioner of labor incomplete and inade- quate but two definite tasks for the proper fulfillment of the industrial relations function are specially weak and partially unprovided for. These are first, the protection of employers and employees, or the function of rendering aid to employees who have reasonable claims against employers or are the victims of exploitation and injustice at the hands of strong corporate organizations of employers, and likewise the function of ren- dering aid to individual employers in determining the legality of the tac- tics and acts of trade unions and strong corporate organizations of em- ployees when they exceed their legal rights and try to oppress or intimi- date the employer. Secondly, the provision for industrial councils either state-wide for industry as a whole or for separate or local industries ac- cording to trades or geographical areas, for the purpose of bringing face to face the partisan representatives of employers' and employees' organi- zations and placing before them for discussion and advice the plans of the labor department in the interpretation and enforcement of the law, also proposals of rules and orders extending and applying the labor law to specific cases. Both of these tasks are partially provided for, the first through the industrial and immigration bureau of the department of labor, *For this and other evidence of similar import, see brief in support of industrial commission bill submitted by American Association for Labor Legislation to Governor Whitman at a public hearing on the Spring Bill, May 5, 1915. 175 CONSTITUTION AND GOVERNMENT OF THE STATE which, however, confines its efforts chiefly to aliens, and the second through the voknitary action of the industrial hoard in the organization of the state industrial board committees and sub-committees for the initial preparation of rules and regulations in the several departments of its work which has been divided as follows : Fire hazards Ventilation and lighting Sanitation and comfort Dangerous machinery Dangerous trades and processes Bakeries and confectioneries Foundries Mines, tunnels and quarries These committees contain persons regarded as having expert knowl- edge in these respective subjects but they are not frankly organized on the basis of partisan representation of conflicting interests with a view to their reconciliation in advance of the enactment of standards into law or rules and regulations having the force of law. They do not provide adequately at least the machinery for the new methods of compromise and education in order to secure a higher degree of compliance with desirable standards than can be secured with inadequate inspection through reliance on the policeman's club and prosecutions alone. Part VII. — Organization for Administration of Public Utilities Regulation Under the present organization of the state government, the regula- tion of public utilities is controlled through the agency of the two public service commissions, the commissions each consisting of five members appointed by the governor with the advice and consent of the senate for overlapping terms of five years, and each receiving a salary of $15,000 per year. Functions of the Public Service Commission, First District The commission of the 1st district is charged with the regulation and supervision of common carriers, gas, electric and steam companies, operating, wholly or in part, within the counties of New York, Kings, Queens, Richmond and the Bronx, as provided for in the public service commissions law; supervision of the protection, elimination and rear- rangement of grade crossings; issuance of certificates of public con- venience and necessity in connection with the construction of new- railroads; approval of assignments or transfers of franchises, approval of abandonment of routes and approval of change of motor powder, under the Railroad Law ; supervision of the construction, equipment, operation and maintenance of additional rapid transit facilities for the city of 176 ADMINISTRATION OF PUBLIC SERVICE FUNCTIONS New York and the granting of rapid transit franchises as provided for in the Rapid Transit Act. Functions of Public Service Commission, Second District The pubhc service commission of the 2d district is charged with the regulation and supervision of all common carriers (other than steam- boat lines) gas, electric, steam heating and stock yard corporations, operating within the state, except those operating wholly within the counties comprising Greater New York, as provided for in the public service commissions law; supervision of the protection, elimination and rearrangement of grade crossings; issuance of certificates of public con- venience and necessity in connection with the construction of new rail- roads; approval of assignments or transfer of franchises; approval of abandonment of routes, under the Railroad Law; supervision and regu- lation of telephone and telegraph corporations possessing physical property of a valuation of $10,000 or over, operating within the state (including Greater New York), as provided for in the public service commissions law. Common Powers Exercisea- Each commission has power to compel attendance of witnesses ; regulate the conduct and management of common carriers and transpor- tation corporations ; hear and investigate complaints ; approve contracts and leases ; fix standards of heating value, illuminating power and purity of gas ; inspect gas and electric meters ; prescribe uniform methods of accounting ; regulate the issuance of securities ; require special, periodical reports ; investigate accidents ; take summary proceedings to discontinue violations of law or the orders of the commission. A counsel, secretary and such experts, inspectors, clerks and other employees as may be neces- sary are appointed by the commissions. The commission of the first district has jurisdiction over the public utilities operating within the cor- porate limits of the City of New York, with the exception of the telephone and telegraph companies, which are controlled throughout the state by the commission of the second district. The commission of the second district has general supervision of the public utilities in the re- mainder of the state. Complete description of the organization and per- sonnel of these commissions may be found in the report on the organiza- tion and functions of the state government, pages 153 to 227. Critical Appraisal of the Organisation and Present Method of Regulating Public Utilities — Lack of Means for Locating and Enforcing Ex ecu tive R esp o nsibility With the present system of appointment and removal it is impos- sible to enforce executive responsibility. The governor of the state cannot 177 CONSTITUTION AND GOVERNMENT OF THE STATE be held responsible for the official acts of the commissioners, yet popular sentiment measures the efficiency of a governor's administration not a little by the efifectiveness of the regulation of the public utilities. Under normal circumstances a governor during his incumbency would have the appointment of but two members of each commission. He has no control over the acts of the commission except in the exercise of his right to remove commissioners from office upon the substantiation of formal charges alleging incompetency, inefficiency or misconduct in office, and this power is ineffective for the direction and control of administration. It is conceded that in the administration of the public utilities regu- lation, which involves the control over hundreds of millions of dollars of invested capital, there must be a strong factor of stability in policy and program, yet at the same time if is highly desirable that the executive officer of the state have available some method for impressing on the public service commissions the policies of his administration. Some method must also be provided for enforcing the opinions of the people upon the public service commissions and this cannot be effected through the removal rights now given to the governor. A difference of opinion in administrative matters between the public service commissions and the administration elected by the people, and presumably held responsible by them, does not imply inefficiency, incompetency or mis- conduct on the part of the commissioners. What is needed is the estab- lishment of a responsible and responsive body for the regulation of the public utilities in place of the existing organization which is essentially an independent body with both legislative and administrative powers. A Question of Geographic Distribution It was evidently the intention of the drafters of the present public service law to recognize the differences in the public utilities problems encountered in the City of New York and those of the balance of the state, yet these problems, in so far as they affect the well-being of the citizens of New York, are not confined within the corporate limits of the city, but extend throughout the metropolitan district surrounding the city. The lack of jurisdiction of the commission of the first district over the transportation lines in Westchester, Nassau, and Suffolk counties has interfered with the promulgation and carrying out of a complete New York City transit program. Tivo Distinct Problems of Utilities Regulation Not Recognized by the Present Laiv To those who have followed the history of the public service com- missions, particularly that of the first district, and have reviewed their administrative mistakes, or alleged mistakes, it is obvious that many of these difficulties have arisen from the confusion of the two main func- 178 ADMINISTRATION OF PUBLIC SERVICE FUNCTIONS tions of regulation, i. e., the promulgation of orders, and the enforcement of the orders after their issuance. These two activities are fundamentally different, and should be so approached in providing an organization for their conduct. The promulgation of orders and regulations and the action on complaints are primarily adjudicative and legislative functions, while the administration of inspections and enforcement of orders after they have been issued is an administrative function. The former demands a type of mind which has too often in private and public business been found unfitted for the irritating routine of an administrative department. The enforcement of orders, whch is primarily a question of inspection and cj[uasi police duty, is usually best handled by a type of man not par- ticularly adapted for adjudicative proceedings. Moreover, the adjudica- tive and legislative side of public utilities regulation could well be handled more or less independently of the administration as under the present system, whereas it would be highly desirable to hold an executive directly responsible for the enforcement of orders, after they are issued, through providing that the work be handled by an administrative department. Without a clear-cut distinction of these two duties in the organization of the public service commissions, it is almost inevitable that one of the two will be slighted. The history of the public service commissions shows that of the two it is the enforcement of the rules after they have been issued formally by the commission which has received the smaller amount of attention. The State Should Not Construct City Owned Subways The principle of home rule is directly related to the question of jurisdiction of the public service commission of the first district where subways paid for by the city and to be operated by the city's agents are designed and constructed by a state agency. Just why the public service commission should be required to design and construct the local subways and put themselves in a position to raise differences of opinion between the state and city officials is a question to be answered by those w*ho are responsible for the public service bill. It would be unwise no doubt to interrupt the work of completing the present subway system by changing the control over this work from the state to the city, but it would be still more unwise to continue the present practice for future work. No matter what arbitrary right may be given a public service commission for the construction of the city's subways, it would be impossible to give the complete control of this work to the state com- mission without breaking down entirely the jurisdiction of the city over its finances, so that the present subways, although ostensibly constructed by the public service commission, are really the result of a co-operative effort of the public service commission and state officials and the officials of the city government, most of which co-operation was effected 179 CONSTITUTION AND GOVERNMENT OF THE STATE by voluntary efforts of public service commission engineers and other officials rather than by the exercise of the financial rights of the city. Tzi'o Cornmissions Unnecessary If the construction of the city's subways in New York City is eliminated from the jurisdiction of the public service commission, there is little reason left for having two separate commissions as legislative and judicial bodies. By this it is not meant that it would not be desirable to retain two executive departments or divisions for inspection and the current enforcement of rules and orders after their issuance. Adminis- trative efficiency is not infrequently made more effective by geographical subdivision of responsibility, but this need not apply to the legislative powers. Administrative efficiency and definition of responsibility would probably demand the districting of the state for the enforcement of orders and the setting aside of the metropolitan district of New York City from the remainder of the state would be a logical apportionment. For the adjudication of public utilities questions and for the formu- lation of orders governing the operation of these utilities, two commis- sions are unnecessary and in fact tend to confusion. The control of capitalization and organization of pubHc utilities corporations, together with the rates for service, is as an important part of the commissions' duties as the regulation of the number of cars on a particular surface line and as the determination of the number of seats which must be provided on the subway and elevated lines of New York City. These questions of capitalization, organization and rates must be determined on established principles, and such principles unquestionably should be standards for the entire state. The present organization, whereby two commissions of independent but co-ordinate powers have been established, has not facilitated such standardization. It is also conceivable that the members of a public service commission having jurisdiction over the entire state, in so far as the issuance of orders is concerned, would be broadened by meeting problems in different sections of the state. I\o Control Over Inland Waterways One fundamental weakness in the present jurisdiction of the public service commissions is their lack of all control over the common carriers on the inland waters of the state that compete with the railroads over which the commissions have almost complete jurisdiction. If proper control of the transportation problem is to be obtained through the agency of the Public Service Commission, it is essential that the jurisdiction of the department comprehend all of the transportation interests. Although the question of control by the public service commission over the steamboat and barge lines is important to-day, it will be of much greater importance on the completion of the barge canal. This great 180 ADMINISTRATION OF PUBLIC SERVICE FUNCTIONS enterprise, which, upon completion, will have cost the state more than $130,000,000, will need careful management in order to become a profit- able enterprise. One of the important factors in such management will be the control over canal boat rates ; the only agency available for the exercise of such regulative control is the public service commission, v/hich is to-day helpless on account of lack of jurisdiction. Part VIII. — Organization for the Regulation of Banking and Insurance The present control over the banking and insurance companies of the state is effected through the agency of two independent departments : 1. The banking department. 2. The insurance department. Functions of the Banking Department This department is charged with the general supervision of (a) banks, (b) trust companies (c) savings banks, (d) loan, mortgage and invest- ment companies, (e) building, mutual loan and cooperative savings associations, and (f) credit unions, operating under the laws of the state of New York. The laws regulating the conduct of these institutions are enforced through periodic investigations by the examining staff of the department. The banking department also prepares an annual digest of the reports of the various financial institutions of the state and reports the same in summary form to the legislature. The organization and per- sonnel of this department will be found on pages 101 to 107 inclusive of the report on organization and functions of the state government. Functions of the Fnsurance Department This department is charged with the execution of the laws of the state relating to insurance. The department has supervisory control over all insurance companies, brokers and agencies transacting business in the state. It has custody of the securities of life and casualty companies of this state and of other countries and of fire and marine insurance companies of foreign governments deposited with it for the protection of policy holders residing in the United States ; examines into the affairs of corporations, associations, societies and orders, transacting, control- ling or organizing an insurance business in the state ; receives reports under oath at regular intervals from such corporations, etc., abstracts of which are to be included in the annual reports to the legislature ; acts as attorney for insurance companies organized under the laws of other states or countries in order that process in any action or proceeding against such companies may be served promptly ; values annually all outstanding policies, additions thereto, unpaid dividends and all other obligations of every insurance corporation doing business in the state. The department is empowered in certain cases, after due process of law, 181 CONSTITUTION AND GOVERNMENT OF THE STATE to take possession of an insurance corporation and conduct its business as the exigencies of the case may demand. The department is empowered to refuse admission to any company, corporation or association applying for permission to transact insurance business in the state whenever such refusal to admit shall be for the best interests of the people of the state. Defects in Organization for Purposes of Administration The present departments of banking and insurance are subject to criticism not so much on account of inadequate internal organization as of their dissociation which prohibits securing certain advantages that would be made possible through amalgamation of the two departments. The work of the staiT auditors and examiners of the two departments is closely related, yet the complete dissociation of the two bodies, as the departments are now organized, necessitates certain duplication in force and effort and obviously narrows the perspective of both branches. It is also a fact that certain trust companies throughout the state are, under the present practice, required to report to both the banking and the insurance departments and are, therefore, subject to the general supervision and discipline of two regulating departments. This is obviously unfair to the trust companies and causes a needless waste of public money. From the standpoint of locating and enforcing executive responsi- bility without impairing the technical and professional service of the bureaus, the present organization is also subject to criticism. The admin- istrative heads in direct supervision of the forces engaged in regulating banks and insurance companies should unquestionably be technical men of the highest order. The actuarial accounting and examining positions and the positions of supervision over actuarial accounting and examining stafifs in these departments also require men of the very highest order and are positions which require continuity of service for effective admin- istration. Regulation of banking and insurance companies occupies a large place in public thinking and the administration of such regulations is closely related to the enforcement of policies for which the governor is held responsible by public opinion, though not as a matter of constitutional and statute law. This would seem to demand that he have certain powers which will enable the legislature and the electorate to hold executives in general charge of this work to account for their stewardship. At the present time, however, the only method available for the governor to impress his official personality on the administration of these departments is to appoint men to the supervisory, technical and professional positions in them and make them parts of a system of irresponsible party politics. 182 CHAPTER XIII THE CONTENT AND FORM OF THE CONSTITUTION The word constitution came into use in England during the struggles for representative government that first found national expression in signing of Magna Charta. In England the word constitution came to mean the law governing the government. Only the agreement between king and barons and the statutes were written. Most of the rules of practice were in the nature of customs that were given the sanction of law ; so that England is said to have an unwritten constitution. But so does England have its common or unwritten law. The Notion that the Constitution is Fundamental Frequently it is L"i(! that the constitution is the fundamental law. This means nothing; or more strictly speaking, it means anything that the person using the expression may wish. The law of private prop- erty is fundamental- — the law of self-protection is fundamental, just as fundamental as the law determining the rights of the crown. There is only one sense in which the word fundamental distinguishes Eng- lish constitutional law, and that is in the sense that government is fundamental to all law and consequently to all rights. Applying this idea of fundamental law to the constitution it means only that it is made up of the conventions or institutes by which the government is estab- lished and operated — the law governing the government, as distinguished from the law governing persons and property not of the government. The American Notion of the Constitution Although in constitutional discussions in the United .States the same idea is commonly conveyed, there is no warrant for it. There is nothing in this country that distinguishes what we call constitutional law from statutory law except the method of enactment. Even ibis distinction was not made initially. As a profound student of American state constitutions. Professor Dodd has said : " In 1776 and for some time thereafter a relatively slight difference existed between the forms of constitutional and statutory enact- ment." The so-called " first written constitution of the world," " the Fundamental Orders of Connecticut," drawn up in 1639, was not a consti- tution in the sense that it could be altered only by extraordinary process, because it was frequently changed by later legislative enactment. Three of the first state constitutions: Delaware (1776), South Carolina (1778), and Maryland (1776), permitted the legislature under certain restrictions to alter the fundamental law. Delaware declared that some portions of 183 CONSTITUTION AND GOVERNMENT OF THE STATE the constitution should never be changed, and added that " no other part of this constitution shall be altered, changed, or diminished without the consent of five parts in seven of the assembly and seven members [out of nine] of the legislative council." South Carolina provided that " no part of this constitution shall be altered without notice previously given of ninety days, nor shall any part of the same be changed without the consent of a majority of the members of the senate and house of repre- sentatives." Maryland rec[uired the approval of two successive legislatures to vali- date any alteration in the constitution. Six of the constitutions of the revolutionary period contained no provision at all for amendment. No Difference in Sanction of Early Constitutions Not only did some of the states provide for the enactment of con- stitutional law by the legislature (subject to certain restrictions) but other states in which no such provision existed frequently permitted legislative changes without extraordinary process. The convention which drafted the first Virginia constitution expressly conferred upon the governor powers in addition to those conferred by the constitution itself and the legislature of the state afterward renewed these powers by statutory enactment. The Maryland legislature in 1777 and 1778 in- creased the powers of the governor and council as defined by the con- stitution. In Rhode Island, v^-here the colonial charter was continued as the fundamental law, it was the common practice of the legislature to make alterations at will. The sharp distinction between constitutional and statutory law was a matter of growth not an original princi])le everv- where accepted and followed in practice. One may say that it was not until more than a quarter of a century after the Declaration of Inde- pendence that the doctrine was well established. As Dr. Dodd remarks, " towards the middle of the nineteenth century we have a well-defined notion that state constitutions should not be easily subject to change." Difference in Sanction Later Introduced Later each state established different methods of enacting constitu- tions and amendments from those organized for the enactment of statutory laws. The methods adopted were many, but in nearly all of them are these common characteristics, viz. : 1. What are called constitutions and amendments to constitutions at one time or another must be submitted to the people for a vote by the electorate. 2. The procedure of adoption and amendment is much more diffi- cult and dilatory in operation than the procedure for the enactment of statute law. 184 THE CONTENT AND FORM OF THE CONSTITUTION The first of these differences is being gradually broken down in some of the states. Legislation on various subjects is often required to be submitted to the people, and in some of them any law may be so sub- mitted. The only characteristic of what is called constitutional law that is general is the extraordinary difftculty of enactment and amendment and even this characteristic is abandoned in six states. Recent Abandonment of Difference of Sanction for Statute and Constitu- tional Law by Some States Within recent years, however, there has been a gradual relaxation of the hard and fast methods of changing the written constitutions. Nearly all the states have made the procedure more simple. Eleven states now provide for constitutional amendment by popular initiative and refer- endum, and in this respect six of the states, California, Oregon, Nevada, Colorado, Missouri and Arkansas make no distinction between the adop- tion of amendments and the adoption of statutes. In other words, they provide that a constitutional amendment may be initiated by the same number of petitioners and adopted by the same majority as in the case of statutes. The difficulty of enacting constitutional law is thereby being broken down and any measure initiated by popular action may be called a constitutional amendment or a statute at the pleasure of the initiators. " It mav be said," remarks Dr. Dodd, " that in about half of the states constitutions are easily amendable and that in a large and growing group of states the processes of amendment and of ordinary legislation are tend- ing to become substantially the same. Both in content and form of enactment the distinction between the two types of law is tending to disappear." The Idea of the Difference in the Nature of Constitutional and Statute Laiv Generally Abandoned Although only six states in the Union have destroyed the distinction between constitutional and statutory law which is derived from the dif- ferent manner of enactment, nearly all of the states have ignored the distinction between constitutional and statute law which flows from the nature of the law itself. It was in the nature of the law rather than in the solemn form of its enactment that the Fathers made the great dis- tinction between the constitution and ordinary statutes. Reflecting English traditions and experience in their opinion and practice the early constitutions were short and covered only such rights as were essential to popular sovereignty, the establishment of government, and the protec- tion of the people against usurpation, /. e., the rights of the people and the form of the government. The New Jersey constitution of 1776 occupies 185 CONSTITUTION AND GOVERNMENT OF THE STATE only four printed pages in Thorpe's collection of American constitutions. The New York constitution of 1777 (omitting the Declaration of Inde- pendence and other matter of the preamble) occupies about nine pages of that collection. \\'e are told on good authority (Dr. Dealey, Growth of American Constitutions, p. 120) that " the earliest constitutions sel- dom contained over five thousand words and averaged much less. Now, the shortest constitution (Rhode Island's) contains about six thousand words, the average is about sixteen thousand, and the five largest are codes in themselves." There are 33,000 words in the Alabama consti- tution, 25,000 in the Virginia constitution. 45,000 in that of Louisiana and nearly 50,000 in that of Oklahoma. Causes for the Change m the Content of Constitutions This immense growth in the size of state constitutions is due to the incorporation of a vast mass of law that is not fundamental but inci- dental and statutory in character. The underlying reason for this de- parture from the idea that the constitution should contain only funda- mental provisions of law governing the government is that under our constitutions the government has been irresponsible. This irresponsi- bility of the government has shown itself in two different ways that in themselves have operated to make the constitutions increasingly complex and verbose, viz. : 1. There has been a growing distrust of the legislature leading to the imposition of restrictions on that body and to the removal of many matters from its sphere of action 2. The legislature has failed to respond to popular desires and will, and the people have sought to obtain needed legisla- tion through the constitutional convention and popular initiative Distrust of the Legislature and Search for Responsibility From the standpoint of this appraisal, namely, that the govern- ment should be responsible and efficient, the first of these causes for abandoning the true distinction between constitutional and statute law, namely the loss of popular confidence in the legislature, is the most important. Not only has the electorate grown so distrustful of the legis- lature that it has invaded the field of statute law ; it has also added to constitution a mass of restrictions on the legislature with a view to preventing if from doing evil. We are told, for instance, that of the 287 articles in the Alabama constitution of 1901, thirty-six are restrictions in the form of a declaration of rights, thirty control legislative pro- cedure, and eight are prohibitions on special and local legislation. In 186 THE CONTENT AND FORM OF THE CONSTITUTION the rearranged draft of the present constitution (See Appendix pp. 193 ct seq.) it will be seen that sixteen out of forty-four pages (193 to 237) are in the nature of restrictions on the legislature and three pages more are in the nature of private law that owe their origin and continuation to similar causes. In other words, in an effort to secure responsibility, the voters have walled the legislature about with restrictions and enact- ments that it cannot change — with a resulting necessity for continual con- stitutional amendment which destroys all notion of the constitution being the fundamental law governing the government. The Time for a Fundamental Change Has Arrived The situation in which we now find ourselves is, in many respects, a travesty upon American political intelligence. All power is declared to be in the people whose will is to be expressed through an electorate and through representatives chosen by the voters. Our government thus organized is declared to be the most democratic instrument for legislation and administration known to history ; at the same time our written con- stitutional documents do not adequately provide for getting political issues before the electorate, and they record the fact that representatives cannot be trusted and held responsible to the voters. Every constitutional con- vention, in fact, almost every election, produces a new set of limitations on the sphere of legislative action, and yet it is not apparent that our legis- latures have grown more responsive and responsible or more efficient, or more economical in disposing of the resources at their command. Under these circumstances, it would be desirable to discontinue the futile process of swelling our constitutions by limitations and statutory enactments unless we are ready to admit that our government is not repre- sentative and our elected officials are not to be made responsible to the electorate. It is nowhere evident that the petty restrictions and popular i palliatives on which American ingenuity has exhausted itself have been f effective in preventing corrupt, wasteful, and invisible government. Our j irresponsible legislature has proved as ingenious in evasions as our con- stitution makers have been in their limitations. Paper declarations hav- ing been largely ineft'ective, the time has come to try the experiment of open official leadership held to responsibility by a body of representatives who are not presumed to do the impossible — viz., to make intelligent plans about administration and to formulate budgets and administrative law for the execution of which they have no responsibility. Is it rot time for the citizen to ask himself the question as to whether constitutions should not be based on the assumption that public Opinion when informed and under responsible leadership may be trusted to impose the inhibitions required for good government ? 187 CONSTITUTION AND GOVERNMENT OF THE STATE The Constitution Should Contain Only the Great Underlying Principles of the Provisions for Goz-\c\rnnient Such a procedure would require a return, in one respect, to the early view that a constitution should contain a brief, clear statement of the principles which should control the reserved rights of the people and the organization and essential working relations of the parts of the govern- ment. These principles should include in the organization the well-tried expedients which have been found most conducive to the establishment of responsibility and efficiency in government. By this alteration in the content of the constitution, the dignity of constitutional law could be restored and the organic principles of our government could be made so clear that any citizen could understand them. The sound practice of relying upon constant responsible leadership and informed public opinion would be substituted for reliance upon more or less ineffective paper declarations and resort to popular palliatives to curb the powers of the irresponsible boss. Representative government would be given the high place which it deserves, a new type of leader and legislato'- would be de- veloped, and open-handed constructive politics substituted for the present political game of hide and seek wdiich has resulted from the generally accepted doctrine that no one can be trusted in public office. Three Expedients for Simplifying the Constitution If, however, it is thought that the time has not arrived to abandon reliance upon safety devices which have not proved effective and that responsible representative government cannot be safely tried in the United States, there are three expedients which will go to the simplification of the government : 1. The separation of the temporary and private law provisions from the main body of the constitution, and the inclusion of temporary provisions in a schedule 2. The separation of the minor from the fundamental provisions of the constitution and the establishment of an easier method of amending those clauses which are of less im- portance and most likely to call for change 3. The correlation of administrative officers and departments WMth a view to prevent overlapping conflict and waste The first of these expedients involves no radical departure from present practice and yet it would greatly simplify the main principles of the constitution and bring them out into bolder relief. For example, the temporary provisions dealing with the apportionment of assemblymen and senators occupied in the constitution of 1894 about half as much space as the entire body "f the constitution of 1777. The removal of^this material to a schedule adds a very desirable element of brevity. 188 THE CONTENT AND FORM OF THE CONSTITUTION Application of a More Difficult Amendment Process to the Fi4ndamental Parts of the Constitution The second of these expedients, namely, the adoption of an easy amending process for the minor and more temporary parts and a more difficult process for the more fmidamental parts, is not unknown in the United States. As Dn Dodd points out (Political Science Quarterly, June 1915, p. 219) : " Several constitutions have, in fact, already made such a distinction, some by making important provisions more difficult of change, others by making easier the alteration of less important provisions." At all events, the present confusion of amendments covering important matters with amendments applying to minor matters — all mixed up to- gether on a long ballot — prevents discriminating action on the part of the voters. On the same occasion voters are called upon to enact a funda- mental provision dealing with the rights of persons and property, and are invited to express an opinion on how many judges should be elected in a part of the state with which they are wholly unfamiliar. Certainly nothing could add more to the muddle in which voters find themselves or prove more disastrous to the concentration of popular opinion on the grand matters of government. The Form of the Constitution The question of the form of the constitution, that is, the arrangement of the provisions, calls for only a brief treatment here. The volume which precedes is in fact a commentary on the proper division and classi- fication of the clauses of the fundamental law. The reasons for the creation of separate parts or articles are in each case set forth in the critical appraisement and to repeat them here would be a work of supererogation. If the principles of responsible government as expounded above are accepted, then the respective parts of the constitution embodying them in law should be so organized as to set them forth with the greatest precision and clarity for the information of the citizens and the govern- ment. To accomplish this purpose the following divisions are suggested : Enacting clause Declaration of rights reserved by the people Electorate and electors Officers Legislature Executive The departmental organization Financial and other proprietary departments, boards, and offices Civil departments rendering service to the public Military government 189 CONSTITUTION AND GOVERNMENT OF THE STATE General auditor Local government Courts Amendments Besides these it is suggested that the following provisions be elimi- nated from the continuing constitutional law as such : Provisions of private and administrative law included in the constitution Schedule (interim and temporary provisions) The first of these should be separately submitted to the electorate for adoption or rejection with any provisions that are desired for making them more difficult of amendment than ordinary statutes. For the purpose of illustration, the constitution of 1894, arranged on the basis of this classification, is included in the appendix which follows. 190 APPENDIX THE CONSTITUTION OF 1894 Rearranged under Functional Heads, Captions Corresponding with Sub- jects Discussed in Report and Annotated to Prior Constitutions To the end that the provisions governing the organization, powers, duties, and limitations of the government of the state may be made more readily avail- able to members of the convention and to others (who may be interested in this report) all of the matter of the Constitution has been rearranged under the fol- lowing titles: Enacting Clause Declaration of Rights Reserved by the People The Electorate and Electors Officers The Legislature The Executive Financial and Other Proprietary Departments, Boards and Offices Civil Departments for Rendering Service to the Public Military Government The General Auditor The Courts Local Government Amendments Provisions of Private Lazv included in the Constitution Schedule (Interim and Temporary Provisions) In this rearrangement the language of the present Constitution is used, except where by breaking up the context the meaning would be impaired without change of verbal form, in which event the words suppHed are put in brackets. The annotations at the side constitute an outline analysis with exact references to the original document. The annotations at the bottom of each paragraph are to former Constitutions — the purpose being to give a complete history of the evolu- tion of each clause as used here. The use of running article numbers, section numbers and paragraph numbers in the text is for convenience of reference to the rearrangement. 192 THE CONSTITUTION OF THE STATE OF NEW YORK Enacting Clause Purpose Rearranged and Annotated ENACTING CLAUSE — PREAMBLE* We the People of the State of New York, grateful to Almighty God for our freedom, in order to secure its blessing do establish this Constitution. Article I DECLARATION OF RIGHTS RESERVED BY THE PEOPLE Section 1. [The people of the state hereby make this declaration of principles and reserve to themselves the follow- ing rights, which may not be impaired.] 2. 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. (1777, XIII; 1821, VII, 1; 1846, I, 1) 3. The free exercise and enjoyment of religious profes- sion and worship, without discrimination or preference, shall forever be allowed in this state to all mankind. * * * The liberty of conscience hereby secured shall not be so construed as to excuse acts of licentiousness, or justify practices incon- sistent with the peace or safety of this state. (1777, XXXVIII; 1821, VII, 3; 1846, I, 3) Ciliscnship Art. I. Sec. 1 Religious Freedom Art. I, Sec. 3 Freedom of Speech and of the Press Art. I, Sec. 8 Habeas Art. I. Jurv Trial Art. I, Sec. 2 4. Every citizen may freely speak, write and publish his sentiments on all subjects, being responsible for the abuse of that right. (1821, VII, 8; 1846, I, 8) 5. The privilege of the writ of habeas corpus shall not be suspended, unless when, in cases of rebellion or invasion, the public safety may require its suspension. (1821, VII, 6; 1846, I, 4) 6. The trial by jury in all cases in which it has been heretofore used shall remain inviolate forever; but a jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law. (1777, XLI; 1821, VII, 2; 1846, I, 2) * While the constitution of 1777 had no preamble it had an elaborate introduction which took up one-third of the entire document. Beginning with the statement that. "Whereas the many tyrannical and oppressive usurpations of the King and Parliament of Great Britain on the rights and liberties of the people of the American colonies had reduced them to the necessity of introducing a government by congresses and committees, as temporary expedients, and to exist no longer than the grievances of the people should remain without redress," it proceeded to set forth the resolution of the General Congress recommending that new governments be organized in the colonies; the resolution of the Congress of the colony of New York, making recommendations for carrying this suggestion into effect; the fact that delegates had been elected with authority to frame a new government; the declaration of independence in full and the fact of its approval by the delegates and then continued: "By virtue of which several acts, declarations, and proceedings mentioned and contained in the afore-cited resolves or resolutions of the general Congress of the United American States, and of the congress or conventions of this State, all power whatever therein hath reverted to the people, thereof, and this convention hath by their suffrages and free choice been appointed, and among other things authorized to institute and establish such a government, as they shall deem best calculated to secure the rights and liberties of the good people of this State, most conducive of the happiness and safety of their constituents in particular, and of America in general. This convention, therefore, in the name and by the authority of the good people of this State, doth ordain, determine, and declare that no authority shall, on any pretense whatever, be exercised over the people or members of this State, but such as shall be derived from and granted by them." In a similar way the convention of 1801 prefaced its amendments by a recital of the act of the legislature providing for the election of delegates, the election of delegates and the fact of their deliberation. The convention of 1821 dropped the long introduction and adopted the following preamble: "We, the people of the State of New York, acknowledging with gratitude the grace and beneficence of God in permitting us to make choice of our form of government, do establish this constitu- tion." In 1846 the preamble was amended to its present form. 193 APPENDIX Excessive Bail and Punishment Detention of Wit- nesses Art. I. Sec. S Indictment Art. I. Sec. 6 Double Jeopardy Art. I, Sec. 6 7. Excessive bail shall not be required nor excessive fines imposed, nor shall cruel and unusual punishments be inflicted, nor shall witnesses be unreasonably detained. (1846, I, 5) 8. No person shall be held to answer for a capital or other infamous crime (except in cases of impeachment, and in cases of militia when in actual service, and the land and naval forces in time of war, or which this state may keep with consent of congress in time of peace, and in cases of petit larceny under the regulation of the legislature), unless on presentment or indictment of a grand jury. (1821, VII, 7; 1846, I, 6) 9. No person shall be subject to be twice put in jeopardy for the same offense. (1821, VII, 7; 1846, I, 6) Criminating Evidence Art. I, Sec. 6 Due Process Art. I. Sec. 6 Counsel Art. I. Sec. 6 Taking Private Properly Art. I. Sec. 6 10. [No person shall] be compelled in any criminal case to be a witness against himself. (1821, VII, 7; 1846, I, 6) 11. [No person shall] be deprived of life, liberty, or prop- erty without due process of law. (1821, VII, 7; 1846, I, 6) 12. In any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel as in civil actions. (1821, VII, 7; 1846. I, 6) 13. Private property [shall not] be taken for public use, without just compensation. (1821, VII, 7; 1846, I, 6) Article II THE ELECTORATE AND ELECTIONS General Qualifications Art. II, Sec. 1 The Electorate Section 1. Every male citizen of the age of twenty-one years, who shall_ have been a citizen for ninety days, and an inhabitant of this state one year next preceding an election, and for the last four months a resident of the county and for the last thirty days a resident of the election district in which he may offer his vote, shall be entitled to vote at such election in the election district of which he shall at the time be a resident, and not elsewhere, for all officers that now or hereafter may be elective by the people, and upon all questions which may be submitted to the vote of the people, provided that in time of war no elector in the actual mili- tary service of the state, or of the United States, in the army or navy thereof, shall be deprived of his vote by reason of his absence from such election district. (1777, VII; 1821, II, 1; 1846, IL 1) 2. The legislature shall have power to provide the man- ner in which and the place at which such absent electors may vote, and for the return and canvass of-their votes in the election districts in which they respectively reside. (1846, II, 1, added in 1874) 194 APPENDIX I.— CONSTITUTION OF 1891,, REARRANGED AND ANNOTATED Residence Art. II, Sec. 3 Section 2. 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; nor while engaged in the navigation of the waters of this state, or of the United States, or of the high seas; nor while a student of any seminary of learning; nor while kept at any almshouse, or other asylum, or institution wholly or partly supported at public expense, or by charity; nor while confined in any public prison. (1846, II, 3) Registration Art. II. Sec. 4 Persons Excluded from Right of Suffrage Art. II, Sec. 2 Section 3. Registration shall be completed at least ten days before each election. Such registration shall not be re- quired for town or village elections except by express pro- visions of law. In cities and villages having five thousand inhabitants or more, according to the last preceding state enumeration of inhabitants, voters shall be registered upon personal application only; but voters not residing in such cities or villages shall not be required to apply in person for registration at the first meeting of the officers having charge of the registry of voters. Section 4. No person who shall receive, accept, or offer to receive, or pay, offer or promise to pay, contribute, offer or promise to contribute to another, to be paid or used, any money or other valuable thing as a compensation or reward for the giving or withholding a vote at an election, or who shall make any promise to influence the giving or withholding any such vote, or who shall make or become directly or in- directly interested in any bet or wager depending upon the result of any election, shall vote at such election; and upon challenge for such cause, the person so challenged, before the officers authorized for that purpose shall receive his vote, shall swear or affirm before such officers that he has not received or offered, does not expect to receive, has not paid, offered or promised to pay, contributed, offered or promised to contribute to another, to be paid or used, any money or other valuable thing as a compensation or reward for the giving or withholding a vote at such election, and has not made or become directly or indirectly interested in any bet or wager depending upon the result of such election. [Persons convicted of bribery or of any infamous crime may be ex- cluded from the right of suffrage in the manner provided in article IV, section 21, paragraph 2.] (1846, II, 2, as amended, 1874) General Provisions Art. II, Sec. 5 Bi-partisan Election and Registration Boards Art. II, Sec. 6 Elections Section 5. All elections by the citizens, except for such town officers as may by law be directed to be otherwise chosen, shall be by ballot, or by such other method as may be pre- scribed by law, provided that secrecy in voting be pre- served. (1777, VI; 1821, II, 4; 1846, II, 5) Section 6. All laws creating, regulating or affecting boards of officers charged with the duty of registering voters, or of distributing ballots at the polls to voters, or of receiving, recording or counting votes at elections, shall secure equal representation of the two political parties which, at the gen- eral election next preceding that for which such boards or officers are to serve, cast the highest and the next highest number of votes. All such boards and officers shall_ be appointed or elected in such manner, and upon the nomina- 195 APPENDIX tion of such representatives of said parties respectively, as the legislature may direct. Existing laws on this subject shall continue until the legislature shall otherwise provide. This section shall not apply to town meetings, or to village elec- tions. Titne of Election Members of Legislature Art. Ill, Sec. 9 Section 7. The elections of senators and members of as- sembly, pursuant to the provisions of this constitution, shall be held on the Tuesday succeeding the first Monday of November, unless otherwise directed by the legislature. (1821, I, 15; 1846, III, 9) Governor and Lievt. -Governor Art. IV. Sec. 3 Secretary of State, Comptroller, Treasurer, Attorney General, State Engineer Art. V, Sec. 1 2. The governor and lieutenant-governor shall be elected at the times and places of choosing members of the assembly. (1821, I, 15; 1846, IV, 3) 3. The secretary of state, comptroller, treasurer, attorney- general and state engineer and surveyor shall be chosen at a general election, at the times and places of electing the gov- ernor and lieutenant-governor. (1846, V, 1; see 1777, XXII and 1821, IV, 6) Conntv Judges Art. VI, Sec. 14 4. The additional county judges whose offices may be created by the legislature shall be chosen at the general elec- tion held in the first odd-numbered year after the creation of such office. Sheriffs, County Clerks, District Attorneys, Registers Art. X, Sec. 1 Justices of the Peace Art. VI, Sec. 17 5. Sheriffs, clerks of counties, district attorneys, and regis- ters in counties having registers, shall be chosen * * * once in every three years and as often as vacancies shall happen, except in the counties of New York and Kings, and in counties whose boundaries are the same as those of a city, where such officers shall be chosen * * * once in every two or four years as the legislature shall direct. (1821, IV, 8; 1846, X, 1; see 1777, XXVI) 6. The electors of the several towns shall, at their annual town meetings, or at such other time and in such manner as the legislature may direct, elect justices of the peace. (1846, VI, 17; see 1821, IV, 7) Citv Officers Art. XII, Sec. 3 Election Districts Senate Art. Ill, Sec. 3 Apportionment Senate Art. Ill, Sec. 4 7. All elections of city officers, including supervisors and judicial officers of inferior local courts, elected in any city or part of a city, and of county officers elected in the counties of New York and Kings, and in all counties whose boundaries are the same as those of a city, except to fill vacancies, shall be held on the Tuesday succeeding the first Monday in No- vember in an odd-numbered year * * *_ This section shall not apply to any city of the third class, or to elections of any judicial officer, except judges and justices of inferior local courts. Section 8. The State shall be divided into fifty district? to be called senate districts, each of which shall choose one senator. The districts shall be numbered from one to fifty, inclusive. (1777, XII; amendment of 1801; 1821, I, 5; 1846, III, 3) Section 9. The said districts shall be so altered by the legislature at the first regular session after tjie return of every enumeration, that each senate district shall contain as nearly as may be an equal number of inhabitants, excluding aliens, and be in as compact form as practicable, and shall re- 196 main unaltered until the return of. another enumeration, and S/at all times, consist of -nt.guous err. ory (1777, XII; amendment of 1801; 1821, I, 6, 1840, HI, 4) 2 No county shall be divided in the formation of a sen- ate district except to make two or more senate districts wholly in such county. (1821,1,6; 1846,111,4) 3 No town, and no block in a city inclosed by streets or d^r^h^^^^^d^^S ?ri?t Count es towns or blocks which, from their location may" be included in either of two districts shall be so placed rio make said districts most nearly equal in number of in- habitants, excluding aliens. =; The ratio for apportioning senators shall always be ob- mmMmm tors shall be increased to that extent. mmmmm counties. ^^ ^_ ^^^^^ ^ .^ _ ^^^^^ ^^^^ 5^ ^^^ amendment of 1801) ' ? The quotient obtained bv dividing the whole number mmmmm 197 APPENDIX counties having the highest remainders in the order thereof respectively. No county shall have more members of assembly than a county having a greater number of inhabitants, exclud- ing aliens. (See references to preceding paragraph.) 3. In any county entitled to more than one member, the board of supervisors, and in any city embracing an entire county and having no board of supervisors, the common council, or if there be none, the body exercising the power? of a common council, shall assemble on the second Tuesday of June, one thousand eight hundred and ninety-five, and at such times as the legislature making an apportionment shall prescribe, and divide such counties into assembly districts as nearly equal in number of inhabitants, excluding aliens, as may be, of convenient and contiguous territory in as compact form as practicable, each of which shall be wholly within a senate district formed under the same apportionment, equal to the number of members of assembly to which such county ■ shall be entitled, and shall cause to be filed in the office of the secretary of state, and of the clerk of such county, a descrip- tion of such districts, specifying the number of each district and of the inhabitants thereof, excluding aliens, according to the last preceding enumeration and such apportionment and districts shall remain unaltered until another enumeration shall be made, as herein provided ; but said division of the city of Brooklyn and the county of Kings to be made on the second Tuesday of June, one thousand eight hundred and ninety-five, shall be made by the common council of the said city and the board of supervisors of said county, assembled in joint session. In counties having more than one senate district, the same number of assembly districts shall be put in each senate district, unless the assembly districts cannot be evenly divided among the senate districts of any county, in which case one more assembly district shall be put in the sen- ate district in such county having the largest, or one less as- sembly district shall be put in the senate district in such county having the smallest number of inhabitants, excluding aliens, as the case may require. No town, and no block in a city inclosed by streets or public ways shall be divided in the formation af assembly districts, nor shall any district contain a greater excess in population over an adjoining district in the same senate district, than the population of a town or block therein adjoining such assembly district. Towns or blocks w^hich, from their location, may be included in either of two districts, shall be so placed as to make said districts most nearly equal in number of inhabitants, excluding aliens ; but in the division of cities under the first apportionment, regard shall be had to the number of inhabitants, excluding aliens ; of the election districts according to the state enumeration of one thousand eight hundred and ninety-two, so far as may be. instead of lilocks. Nothing in this section shall prevent the division, at any time, of counties and towns, and the erec- tion of new towns by the legislature. (See 1846, III, 5) Judicial Districts Section 11. The existing judicial districts of the state are Art. VI, Sec. 1 continued until changed as hereinafter provided. * * * The legislature may alter the judicial districts once after every enumeration under the constitution, of the inhabitants of the state, and thereupon reapportion the justices to be there- after elected in the districts so altered. * * * -pj^g legis- lature may erect out of the second judicial "district as now constituted, another judicial district and apportion the justices in office between the districts, and provide for the election of 198 APPENDIX I.— CONSTITUTION OF 189J,, REARRANGED AND ANNOTATED additional justices in the new district not exceeding the limit herein provided [in article X, section 4, paragraph 2J. (1846, VI, 4, 5; VI, 1, as amended 1879; amended 1905) Members of LegislaHtre Art. Ill, Sec. 8 Governor and Lieutenant-Governor Art. IV, Sec. 2 State Engineer Art. V, Sec. 1 Court of Appeals, Supreme Court and Countv Courts Art. VI, Sec. 20 Court of Appeals Art. VI. Sec. 7 Appellate Division Art. VI, Sec. 2 Supreme Court Justices Art. VI, Sec. 1 By Election Members of Legislature Art. III. Sec. 2 Governor and Lieutenant-Governor Art. IV, Sec. 3 Article III OFFICERS Qualifications and Disqualifications Section 1. No person shall be eligible to the legislature, who at the time of his election, is, or within one hundred days previous thereto has been a member of congress, a civil or military officer under the United States, or an officer under any city government. (1821, I, 11; 1846, III, 8) 2. No person shall be ehgible to the office of governor or lieutenant-governor, except a citizen of the United States, of the age of not less than thirty years, and who shall, have been five years next preceding his election a resident of this state. * * * fhe lieutenant-governor shall possess the same qualifications of eligibility for office as the governor. (1821, III, 2; 1846, IV, 2, 7; amendment of IV, 2, 1874) 3. No person shall be elected to the office of state en- gineer and surveyor who is not a practical civil engineer. (1846, V, 2) 4. No one shall be eligible to the office of judge of urt of appeals, justice of the supreme court, or, except the couiL oi appeals, jusin.c ui iiic oupicmc luuii, ui, cAv-cpu in the county of Hamilton, to the office of county judge or surrogate, who is not an attorney and counselor of this state. (1846, VI, 21, as amended, 1869) 5. No justice shall serve as associate judge of the court of appeals, except while holding the office of justice of the supreme court. (1894, VI, 7, as amended 1899) 6. [The presiding justice of an appellate division of the supreme court] shall be a resident of that department. * * * A majority of the justices * * * designated to sit in the appellate division in each department shall be residents of that department. 7. [Justices of the supreme court] shall reside in [their respective judicial districts.] (1846, VI, 6, as amended 1869 and 1879) Methods of Selection Section 2. [Senators and members of assembly shall be elected by popular vote.] (1777, IV, XI; 1821, I, 2; 1846, III, 2) 2. [The governor and lieutenant-governor shall be elected by popular vote.] The persons respectively having the highest number of votes for governor and lieutenant-governor shall be elected; but in case two or more shall have an equal and the highest number of votes for governor, or for lieutenant- governor, the two houses of the legislature at its next annual session shall forthwith, by joint ballot, choose one of the 199 APPENDIX Secretary of State, Comptroller, Treasurer, Attorney- General, State Engineer Art. V, Sec. 1 Court of Appeals Art. VI, Sec. 7 Supreme Court Art. VI, Sec. 1 County Judges Art. VI, Sec. 14 Surrogates Art. VI, Sec. 15 Sheriffs, County Clerks, District Attorneys. Registers Art. X, Sec. 1 Justices of Peace- Towns Art. VI, Sec. 17 Justices of Peace, "District Court Justices — Cities Art. VI, Sec. 17 Appointment By the Legislaturf Art. Ill, Sec. 10 By the Govern Art. V, Sec. 7 Art. VI, Sec. 2 said persons so having an equal and the highest number of votes for governor or lieutenant-governor. (1777, XVII, XX; 1821, III, 3; 1846, IV, 3) 3. [The secretary of state, comptroller, treasurer, attor- ney-general and state engineer and surveyor shall be elected by popular vote.] (1846, V, 1, 2, see 1821, IV, 6 and 1777, XXII) 4. [The justices of the court of appeals] shall be chosen by the electors of the state [except as designations are made by the governor as provided in article III, section 3, para- graph 4.] (1846, VI, 2, as amended 1869, see 1846, VI, 2, 12) 5. The successors of [the] justices [of the supreme court] shall^ be chosen by the electors of their respective judicial districts. (1846, VI, 4, 12; 1869, VI, 13) 6. All county judges, including successors to existing judges, shall be chosen by the electors of the counties. (1846, VI, 15, as amended, 1869, see 1846, VI, 14) 7. [The] successors [of the surrogates] shall be chosen by the electors of their respective counties. (See 1846, VI, 15, as amended, 1869) 8. Sheriffs, clerks of counties, district attorneys, and registers in counties having registers, shall be chosen by the electors of the respective counties. (1821, IV, 8; 1846, X, 1, see 1777, XXVI) 9. [Justices of the peace of towns shall be elected by the electors of the several towns.] (1846, VI, 18, see 1821, IV, 7; 1777, XXIII) 10. [Justices of the peace and district court justices] may be elected in the different cities of this state in such manner [as shall be prescribed by law.] (1846, VI, 18, as amended, 1869, see 1846, VI, 18; 1821, IV, 7; 1777, XXIII) Section 3. [The senate and the assembly each] shall choose its own officers. (1821, I, 3; 1846, III, 10, see 1777, IX) 2. The governor shall appoint a competent person to discharge the duties of the office during [the] suspension of the treasurer. (1846, V, 7) 3. From all the justices elected to the supreme court the ^governor shall designate those who shall constitute the ap- pellate division in each department; and he shall designate the presiding justice thereof. * * * From time to time as the terms of such designations expire, or vacancies occur, he shall make new designations. * * * He may also make temporary designations in case of the absence or inability to act of any justice in the appellate division, or in case the presiding justice of any appellate division shall certify to him that one or more additional justices are needed for the speedy disposition of the business before it. (1894, VI, 2; 1899, VI, 2, see 1846, VI, 6, 1869, VI, 7) 200 APPENDIX I.— CONSTITUTION OF 189 J,, REARRANGED AND ANNOTATED Art. VI, Sec. 7 4. Whenever and as often as a majority of the judges of the court of appeals shall certify to the governor that said court is unable, by reason of the accumulation of causes pending therein, to hear and dispose of the same with reason- able speed, the governor shall designate not more than four justices of the supreme court to serve as associate judges of the court of appeals. The justices so designated shall be relieved from their duties as justices of the supreme court and shall serve as associate judges of the court of appeals until the causes undisposed of in said court are reduced to two hundred, when they shall return to the supreme court. The governor may designate justices of the supreme court to fill vacancies. (1899, VI, 7) By the Governor 5_ When a vacancy shall occur otherwise than by ex- Senat^ " piration of term in the office of chief or associate judge of Art. VI, Sec. 8 the court of appeals, the same shall be filled, for a full term, at the next general election happening not less than three months after such vacancy occurs; and until the vacancy shall be so filled, the governor, by and with the advice and consent of the senate, if the senate shall be in session, or if not in session the governor may fill such vacancy by appoint- ment. If any such appointment of chief judge shall be made from among the associate judges, a temporary appointment of associate judge shall be made in like manner; but in such case, the person appointed chief judge shall not be deemed to vacate his office of associate judge any longer than until the ex- piration of his appointment as chief judge. * * * AH appointments made under this section shall continue until and including the last day of December next after the election at which the vacancy shall be filled. (1846, VI, 3, as amended, 1869, see 1846, VI, 2) Art. VI, Sec. 4 6. When a vacancy shall occur otherwise than by expira- tion of a term in the office of the 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; and, until the vacancy shall be so filled, the governor by and with the advice and consent of the senate, if the senate shall be in session, or if not in session the gov- ernor may fill such vacancy by appointment, which shall continue until and including the last day of December next after the election at which the vacancy shall be filled. (1846, VI, 9, as amended, 1869) Art. VI, Sec. 15 7. Vacancies occurring in the office of county judge or surrogate shall be filled in the same manner as like vacancies occurring in the supreme court. Art. VIII, Sec. 12 g. The members of the [state board of charities, the state commission in lunacy, and the state commission of prisons] shall be appointed by the governor, by and with the advice and consent of the senate. Art. V, Sec. 4 9. A superintendent of state prisons shall be appointed by the governor, by and with the advice and consent of the senate. (1846, V, 4, as amended, 1869) Art. V. Sec. 3 10. A superintendent of public works shall be appointed by the governor, by and with the advice and consent of the senate. * * * The governor, by and with the advice and consent of the senate, shall have power to fill vacancies in the office of superintendent of public works; if the senate be 201 APPENDIX By the Courts Art. VI, Sec. 7 Art. VI, Sec. 2 Art. VI, Sec. 19 By the Comptroller Art. V, Sec. 4 By the Superintendent of Public Works Art. V, Sec. 3 Art. V, Sec. 3 By the Superintendent of State Prisons Art. V, Sec. Merit System it Civil Service Art. V, Sec. 9 Election or Appointment of Statutory Officers- County Art. X, Sec. 2 City, Town and Village Art. X, Sec. 2 not in session, he may grant commissions which shall expire at the end of the next succeeding session of the senate. (1846, V, 3, as amended, 1869) 11. The court [of appeals] shall have power to appoint * * * its reporter, clerk and attendants. (1846, VI, 2, as amended, 1869, see 1846, VI, 19) 12. [The appellate division of the supreme court] shall have power to appoint * * * ^^ reporter. 13. The justices of the appellate division in each depart- ment shall have power to appoint * * * a clerk. 14. The comptroller shall appoint the clerks of the prisons. (1846, V, 4, as amended, 1876) 15. The superintendent of public works shall appoint not more than three assistant superintendents * * *. Any vacancy in the office of any assistant superintendent shall be filled for the remainder of the term for which he was ap- pointed by the superintendent of public works. (1846, V, 3, as amended, 1876) 16. All other persons employed in the care and manage- ment of the canals, except collectors of tolls, and those in the department of the state engineer and surveyor, shall be appointed by the superintendent of public works. (1846, V, 3, as amended, 1876) 17. [The superintendent of state prisons] shall appoint the agents, wardens, physicians and chaplains of the prisons. The agent and warden of each prison shall appoint all other officers of such prison, except the clerk, subject to the ap- proval of the satne by the superintendent. (1846, V, 4, as amended, 1876) Section 4. Appointments and promotions in the civil ser- vice of the state, and of all the civil divisions thereof, in- cluding cities and villages, shall be made according to merit and fitness to be ascertained, so far as practicable, by exam- inations, which, so far as practicable, shall be competitive; provided, however, that honorably discharged soldiers and sailors from the army and navy of the United States in the late civil war, who are citizens and residents of this state, shall be entitled to preference in appointment and promotion, without regard to their standing on any list from which such appointment or promotion may be made. Section 5. All county officers, whose election or appoint- ment is not provided 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 Jegislature shall direct. (1846, X, 2, without change) 2. All city, town and village officers, whose election or appointment is not provided for by this constitution, shall be elected by the electors of such cities, towns and villages, or of some division thereof, or appointed by such authorities tliereof, as the legislature shall designate for that purpose. (1846, X, 2, without change) 3. All other officers, whose election or appointment is not provided for by this Constitution, and all officers, whose 202 APPENDIX I.^CONSTITUTION OF 189 Jf, REARRANGED AND ANNOTATED offices may hereafter be created by law, shall be elected by the people, or appointed as the legislature may direct. (1846, X, 2, without change; see IV, 15) Judicial Officers in 4_ AH other judicial officers in cities, whose election or Art^Vl Sec 17 appointment is not otherwise provided for in this article shall be chosen by the electors of such cities, or appointed by some local authority thereof. (1846, VI, 18, as amended, 1869; see 1846, VI, 17, 18) 5. Except as herein otherwise provided, all judicial offi- cers shall be elected or appointed at such times and in such manner as the legislature may provide. (1846, VI, 19, as amended, 1869, see 1846, VI, 18) Section 6. In case of the impeachment of the governor, or his removal from oft'ice, death, inability to discharge the powers and duties of the said office, resignation, or absence from the state, the powers and duties of the office shall de- volve upon the lieutenant-governor for the residue of the term, or until the disability shall cease. (1777, XX; 1821, III, 6; 1846, VI, 6) 2. If during a vacancy of the office of governor, the lieutenant-governor shall be impeached, displaced, resign, die or become incapable of performing the duties of his office, or be absent from the state, the president of the senate shall act as governor until the vacancy be tilled or the disability shall cease; and if the president of the senate for any of the above causes shall become incapable of performing the duties pertaining to the office of governor, the speaker of the as- sembly shall act as governor until the vacancy be filled or the disability shall cease. (1777, XXI; 1821, III, 7; 1846, IV, 7) Judicial Officers Art. VI, Sec. 18 Succession to Office of Governor Art. IV, Sec. 6 Art. IV, Sec. 7 Installation General Oath Art. XIII, Sec. 1 Section 7. [Before any person shall be competent to exercise the powers of any office to which he shall be elected or appointed, he shall take the oath and give bond for security whenever oath or bond are required as follows :] 2. Members of the legislature, and all officers, executive and judicial, except such inferior officers as shall be by law exempted, shall, before they enter on the duties of their respective offices, take and subscribe the following oath or affirmation: "I do solemnly swear (or affirm) that I will support the Constitution of the United States and the Con- stitution of the State of New York, and that I will faithfully discharge the duties of the office of according to the best of my ability." (1821, VI; 1846, XII, 1) And all such officers who shall have been chosen at any election shall, before they enter on the duties of their re- spective offices, take and subscribe the oath or affirmation above prescribed, together with the following addition there- to, as part thereof: " And I do further solemnly swear (or affirm) that I have not directly or indirectly paid, offered or promised to pay, con- tributed or offered or promised to contribute any money or other valuable thing as a consideration or reward for the giving or withholding a vote at the election at which I was elected 203 APPENDIX to said office, and have not made any promise to influence the giving or withholding any such vote," and no other oath, declaration or test shall be required as the qualification for any office of public trust. (Added, 1874) Giving Bonds for Seen rity Art. V, Sec. 3 Art. V. Sec. 4 Additional Sccufity Art. X, Sec. 1 Art. VI, Sec. 13 3. [The superintendent of public works] shall be required by law to give security for the faithful execution of his office before entering upon the duties thereof. (1846, V, 3, as amended, 1876) 4. [The superintendent of state prisons] shall give security in such amount, and with such sureties as shall be required l)y law for the faithful discharge of his duties. (1846, V, 4, as amended, 1876) 5. [The sheriffs are required to give security for the faithful performance of their duties.] 6. [Sheriffs] may be required by law to renew their security from time to time. (1821, IV, 8; 1846, X, 1) 7. Before the trial of an impeachment the members of the court shall take an oath or affirmation truly and impar- tially to try the impeachment according to the evidence. (1777, XXXIII; 1821, V, 2; 1846, VI, 1) Legislators Term Art. Ill, Sec. 2 Salaries Art. Ill, Sec. 6 Privileges Art. Ill, Sec. 12 Governor Term Art. IV, Sec. .Salary Art. IV, Sec. Personal Rights Section 8. [Persons who shall be elected or appointed to offices mentioned below and who qualify by taking oath and giving bond as required, shall have the following rights as officers.] 2. [Senators shall have the right to hold office] for two years. [Members of the assembly shall have the right to hold office] for one year. (1777, IV, XI; 1821, I, 2; 1846, III, 2) 3. Each member of the legislature shall receive for his services an annual salary of one thousand five hundred dol- lars. The members of either house shall also receive the sum of one dollar for every ten miles they shall travel in going to and returning from their place of meeting, once in each session, on the most usual route. Senators, when the senate alone is convened in extraordinary session, or when serving as members of the court for the trial of impeach- ments, and such members of the assembly, not exceeding nine in number, as shall be appointed managers of an impeachment, shall receive an additional allowance of ten dollars a day. (1821, 1,9; 1846, 111,6) 4. For any speech or debate in either house of the legis- lature, the members shall not be questioned in any other place. (1846, III, 12) 5. [The governor shall have the right to] hold his office for two years. * * * He shall receive for his services an annual salary of ten thousand dollars, and there shall be pro- vided for his use a suitable and furnished executive residence. (1777, XVIII; 1821, III, 1, 4; 1846, IV, 1, 4; as amended 1874) 204 APPENDIX I.— CONSTITUTION OF 189J,, REARRANGED AND ANNOTATED Lieut cnant-Govcr, Term Alt. IV, Sec. 1 Salary Art. IV, Sec. 8 Secretary of State, Comptroller, Treasurer, Attorney- General, State Engineer Term Art. V. Sec. 1 Salary Art. V, Sec. 1 Superintendent of Public Works Term Art. V, Sec. 3 Assistant Superintendent Public Works Term Art. V, Sec. 3 Salary Art. V, Sec. 3 Sutcriutcndcnl of Slate Prisons Term Art. V, Sl^c. 4 Judges of Court of Appeals Term Art. VI, Sec. 7 Presiding Justice of Appellate Division 'i'erm Art. VI, Sec. 2 Justices of Aj'pcUalc IHvision Term Art. VI, Sec. 2 Justices of the Supreme Court Art. VI, Sec. 4 Salaries of Judges and Justices Art. VI, Sec. 12 6. [The lieutcnaut-govenior shall have the right to hold office] for the same term [as the governor]. * * * [He] shall receive for his services an annual salary of five thousand dollars, and shall not receive or l)e entitled to any other com- pensation, fee or perquisite, for any duty or service he may be required to perform by the constitution or by law. (1777. XX; 1821, III, 1; 1846, IV, 1, 8; as atncndcd 1874) 7. [The secretary of state, comptroller, treasurer, attorney- general, state engineer and surveyor shall have the right to] hold their offices for two years, except as provided in [article XIV, section 5]. Each of the officers in this [paragraph] named * * *, shall at stated times during his continuance in office, receive for his services a compensation whicli shall not be increased or diminished during the term for which he shall have been elected ; nor shall he receive to his use any fees or perquisites of office or other compensation. (1846, V, 1, 2) 8. [The superintendent of public works shall have the right to] hold his office until the end of the term of the gov- ernor by whom he was nominated, and until his successor is appointed and qualified. He shall receive a compensation to be fixed by law. (1846, V, 3, as amended, 1876) 9. [The assistant superintendents of public works] shall [have the right to] hold their offices for three years, subject to suspension or removal by the superintendent of pul)lic works, whenever, in his judgment, the public interest shall so require. [They] shall receive for their services a compensa- tion to be fixed by law. (1846, V, 3, as amended, 1876) 10. [The superintendent of state prisons shall have the right to I hold his office for five years, unless sooner removed. (1846, V, 4, as amended, 1876) 11. The official terms of the chief judge and associate judges [of the court of appeals] shall be fourteen years from and including the first day of January next and after their election. (1869, VI, 2; 1894, VI, 2) 12. [The presiding justice of the appellate division shall be designated by the governor to] act as such during his term of office. (1846, VI, 6; 1869, VI, 7) 13. Tlie other justices [of the appellate division] shall be designated for terms of five years or the unexpired portions of their respective terms of offices, if less than five years. (1846, VI, 6; 1869, VI, 7) 14. The official terms of the justices of the supreme court shall be fourteen years from and including the first day of January next after their election. * * * (1894, VI, 4; see 1777, XXIV; 1821, V, 3; 1846, VI, 4) 15. Each justice of the supreme court shall receive from the state the sum of ten thousand dollars per year. Those as- signed to the appellate divisions in the third and fourth de- partments shall each receive in addition the sum of two thousand dollars, and the presiding justices thereof the sum of 205 APPENDIX two thousand five hundred dollars per year. Those justices elected in the first and second judicial departments shall con- tinue to receive from their respective cities, counties or dis- tricts, as now provided by law, such additional compensation as will make their aggregate compensation what they are now receiving. Those justices elected in any judicial department other than the first or second, and assigned to the appellate divisions of the first or second departments shall, while so assigned, receive from those departments respectively, as now provided by law, such additional sum as is paid to the justices of those departments. A justice elected in the third or fourth department assigned by the appellate division or designated by the governor to hold a trial or special term in a judicial district other than that in which he is elected shall receive in addition ten dollars per day for expenses while act- ually so engaged in holding such term, which shall be paid by the state and charged upon the judicial district where the service is rendered. The compensation herein provided shall be in lieu of and shall exclude all other compensation and allowance to said justices for expenses of every kind and na- ture whatsoever. The provisions of this section shall apply to the judges and justices now in office and to those here- after elected. Art. VI. Sec. 20 County Judges Term Art. VI, Sec. 14 Salary Art. VI, Sec. 14 Surrogates Term Art. VI, Sec. IS Salary- Art. VI, Sec. 15 Guaranty to County Judge and Surrogate Art. VI, Sec. 15 City Courts Term Art. VI, Sec. 17 Justices of the Peace in Towns Term Art. VI, Sec. 17 Time of Expiration of Terms Art. XII, Sec. 3 (1909, VI, 12; 1846, VI, 7; 1869, VI, 14) 16. No judicial ofliicer, except justices of the peace, shall receive to his own use any fee or perquisite of office. (1846, VI, 20; 1869, VI, 21) 17. [The term of office of the county judges shall be] six years from and including the first day of January following their election. (1777, XXIV, XXVIII; 1821, V, 6; 1846, VI, 15? 1869, VI, 14) His salary shall be established by law, payable out of the county treasury. (1846, VI, 15; 1869, VI, 14) 18. [The] terms of office [of surrogates] shall be six years, except in the county of New York, where they shall continue to be fourteen years. (1846, VI, 15, as amended 1869) When the surrogate shall be elected as a separate officer his salary shall be established by law, payable out of the county treasury. (1846, VI, 15, as amended 1869) The compensation of any county judge or surrogate shall not be increased or diminished during his term of office. (1846, VI, IS, as amended 1869) 19. Justices of the peace and District Court justices [shall hold] for such terms * * * ^s are or shall be prescribed by law. (1846, VI, 18, as amended 1869) 20. [The] term of office [of justices of the peace in towns] shall be four years. In case of an election to fill a vacancy occuring before the expiration of a full term, they shall hold for the residue of the unexpired term. (1821, IV, 7; 1846, VI, 17; 1869; 18) 21. The term of every city [and county "^officer, set forth in article II, section 7, paragraph 7] shall expire at the end of an odd-numbered year. 206 APPENDIX I.— CONSTITUTION OF 189J,. REARRANGED AND ANNOTATED Clerks, Co-urt of Appeals and Appellate Division Salary Art. VI. Sec. 19 General Provisions Term Art. X, Sec. 3 Salary Art. X, Sec. 9 22. The clerk of the court of appeals and the clerks of the appellate division shall receive compensation to be estab- lished by law and paid out of the public treasury. (1846, VI, 19; 1869, VI, 20) 23. When the duration of any office is not provided by this constitution, it may be declared by law, and if not so declared, such office shall be held during the pleasure of the authority making the appointment. (1821. IV, 16; 1846, X, 3) 24. Each of the * * * state officers named in the con- stitution, shall, during his continuance in office, receive a com- pensation, to be fixed by law, which shall not be increased or diminished during the term for which he shall have been elected or appointed ; nor shall he receive to his use any fees or perquisites of office or other compensation. (1846, X, 9; added 1874) Members of the Legislature Art. Ill, Sec. 7 Art. Ill, Sec. Judges and Justices Art. VI, Sec. 10 Art. VI, Sec. 2 Art. VI, Sec. 20 Disabilities of Officers Section 9. [Persons who are elected or appointed to the offices mentioned below and who qualify shall be under the following disabilities] : 2. No member of the legislature shall receive any civil appointment within this state, or the senate of the United States, from the governor, the governor and senate, or from the legislature, or from any city government, during the time for which he shall have been elected ; and all such appoint- ments and all votes given for any such member for any such office or appointments shall be void. * * * And if any person shall, after his election as a member of the legislature, be elected to congress, or appointed to any office, civil or military, under the government cf the United States, or under any city government, his acceptance thereof shall vacate his seat. (1821, I, 10, 11; 1846, III, 7, 8. See 1777, XXII) 3. The judges of the court of appeals and the justices of the supreme court shall not hold any other office or public trust. AH votes for any of them, for any other than a judicial office, given by the legislature or the people, shall be void. (1821, V, 7; 1846, VI, 8; 1869, VI, 9. See 1777, XXV) 4. No justice of the appellate division shall, within the department to which he may be designated to perform the duties of an appellate justice, exercise any of the powers of a justice of the supreme court, other than those of a justice out of court, and those pertaining to the appellate division or to the hearing and decision of motions submitted by con- sent of counsel, but any such justice when not actually en- gaged in performing the duties of such appellate justice in the department to which he is designated, may hold any term of the supreme court and exercise any of the powers of a justice of the supreme court in any county or judicial district in any other department of the state. (1894, VI, 2; amended 1905; see 1846, VI, 6; 1869, VI, 7) 5. Nor shall any judge of the court of appeals, or justice of the supreme court, or any county judge or surrogate here- after elected in a county having a population exceeding one 207 APPENDIX Art. VI, Sec. 15 hundred and twenty thousand, practice as an attorney or coun- selor in any court of record in this state, or act as referee. The legislature may impose a similar prohibition upon county judges and surrogates in other counties. (1846, VI, 21; added 1869) 6. No county judge or surrogate shall hold office longer than until and including the last day of December next after he shall be seventy years of age. (1846, VI, 13, 15; as amended 1869) 7. No person shall hold the office of judge or justice of any court longer than until and including the last day of December next after he shall be seventy years of age. (1846, VI, 13; as amended 1869; see 1777, XXIV; 1821, V, 3) Art. VI, Sec. 3 Art. VI, Sec. 13 Sheriffs Art. X, Sec. 1 General Provisions Art. X, Sec. S Art. X, Sec. 9 .\rt. XIII, Sec. 5 Criminal Prosecution Art. XIII, Sec. 2 8. No judge or justice shall sit in the appellate division or in the court of appeals in review of a decision made by him or by any court of which he was at the time a sitting member. (1846, VI, 8; as amended 1869; see 1777, XXXII; 1821, V, 1) 9. No judicial officer shall exercise his office, after articles of impeachment against him shall have been preferred to the senate, until he shall have been acquitted. (1777, XXXII; 1821, V, 1; 1846, VI, 1) 10. Sheriffs shall hold no other office, and be ineligible for the next term after the termination of their offices. (1777, XXVI; 1821, IV, 8; 1846, X, 1) 11. No person appointed to till a vacancy [in an elective office] shall hold his office by virtue of such appointment longer than the commencement of the political year next suc- ceeding the iirst annual election after the happening of the vacancy. (1846, X, 5) 12. No officer whose salary is fixed by the Constitution shall receive any additional compensation. (1846, X, 9; added 1874) 13. No public officer, or person elected or appointed to a public office, under the laws of this state, shall directly or indirectly ask, demand, accept, receive or consent to receive for his own use or benefit or for the use or benefit of another, any free pass, free transportation, franking privilege or dis- crimination in passenger, telegraph or telephone rates, from any person or corporation, or make use of the same himself or in conjunction with another. 14. Any person holding office under the laws of this state, who, except in payment of his legal salary, fees_ or perquisites, shall receive or consent to receive, directly or indirectly, any- thing of value or of personal advantage, or the promise thereof, for performing or omitting to perform any official act, or with the express or implied understanding that his official action or omission to act is to be in any degree in- fluenced thereby, shall be deemed guilty of afelony. This [paragraph] shall not affect the validity of~ any existing statute in relation to the offense of bribery. (1846, XV, 2; added 1874) 208 APPENDIX I.— CONSTITUTION OF 1891,, REARRANGED AND ANNOTATED Removal from Office Section 10. The treasurer may be suspended from office by the governor, during the recess of the legislature, and until thirty days after the commencement of the next session of the legislature, whenever it shall appear to him that such treasurer has, in any particular, violated his duty. (1846, V, 7) Treasurer Art. V. Sec. 7 Superintendent Public Works Art. V, Sec. 3 Superintendent Prisons Art. V, Sec. 4 State Boards Art. VIII, Sec. 12 Assistants Art. V, Sec. 3 Art. V, Se Counfv Officers Art. X, Sec. 1 General Provisions Art. X, Sec. 7 Judges Art. VI, Sec. 11 2. [The superintendent of public wrorks] may be sus- pended or removed froin office by the governor, whenever, in his judgment, the public interest shall so require; but in case of the removal of such superintendent of public works from office, the governor shall file with the secretary of state a statement of the cause of such removal, and shall report such reinoval and the cause thereof to the legislature at its next session. (1846, V, 3, as amended, 1876) 3. The governor may remove the superintendent [of prisons] for any cause at any time, giving to him a copy of the charges against him, and an opportunity to be heard in his defense. (1846, V, 3, as amended, 1876) 4. Any member [of the state board of charities, the state commission in lunacy, and the state cotnmission of prisons] may be removed from office by the governor for cause, an opportunity having been given him to be heard in his defense. 5. [The assistant superintendents, may be suspended or removed] by the superintendent of public works whenever, in his judgment, the public interest shall so require * * * but in case of the suspension or removal of any such assistant superintendent by him, he shall at once report to the gov- ernor, in writing, the cause of such removal. (1846, V, 3, as amended, 1876) 6. All other persons * * * appointed by the superin- tendent of public works [shall] be subject to suspension or removal by him. (1846, V, 3, as amended. 1876) 7. The governor may remove any officer, in [article III, section 2, paragraph 8,] 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. (1821, IV, 8; 1846, X, 1) 8. Provision shall be made by law for the removal for misconduct or malversation in office of all oft'icers, except judicial, whose powers and duties are not local or legisla- tive and who shall be elected at general elections, and also for suppying vacancies created by such removal. (1846, X, 7) 9. Judges of the court of appeals and justices of the supreme court, may be removed by concurrent resolution of both houses of the legislature, if two-thirds of all the mem- bers elected tO' each house concur therein. All other judicial officers, except justices of the peace and judges or justices of inferior courts not of record, may be removed by the senate, on the recommendation of the governor, if two-thirds of all the members elected to the senate concur therein. But 209 APPENDIX District Attorney Art. XIII, Sec. 6 Justices of Peace Art. VI, Sec. 17 no officer shall be removed by virtue of this [paragraph] except for cause, which shall be entered on the journals, nor unless he shall have been served with a statement of the cause alleged, and shall have had an opportunity to be heard. On the question of removal, the yeas and nays shall be entered on the journal. (1846, VI, 11; see 1821, I, 13) 10. Any district attorney who shall fail faithfully to prosecute a person charged with the violation in his county of any provision of [article III, section 9, paragraphs 13 and 14, or of article XIII, sections 16 and 17] which may come to his knowledge, shall be removed from office by the gov- ernor, after due notice and an opportunity of being heard in his defense. (1846, XV, 4; added, 1874) 11. Justices of the peace and judges or justices of inferior courts not of record, and their clerks may be removed for cause, after due notice and an opportunity of being heard by such courts as are or may be prescribed by law. (1846, VI, 17; 1869, VI, 18; see 1821, IV, 7) Court Officers Art. VI, Sec. 7 Art. VI, Sees. 2, 19 Impeachment Art. VI, Sec. 13 Ouster Art. XIII, Sec. 5 Office Declared Vacant Art. X, Sec. 8 Sheriff's Office Art. X, Sec. 1 12. [The court of appeals shall have power] to remove [its reporter, clerk and attendants] (1846, VI, 2; as amended 1869; see 1846, VI, 8, 19) 13. [The appellate division of the supreme court shall have power to remove the reporter and the clerk.] 14. [Any officer may be impeached]. (1777, XXXIII; 1821, V, 2; 1846, VI, 1) 15. A person who violates any provision of [article III, section 9, paragraph 13] shall be deemed guilty of a mis- demeanor, and shall forfeit his office at the suit of the attor- ney-general. 16. The legislature may declare the cases in which any office shall be deemed vacant W'hen no provision is made for that purpose in this Constitution. (1846, X, 8) 17. The offices [of sheriffs] shall be deemed vacant [in default of giving the new security required under article III, section 7, paragraph 6]. (1821, IV, 8; 1846, X, 1) Article IV Legislature Composition Senate Composition Art. Ill, Sec. 2 President Art. IV. Sec. 7 THE LEGISLATURE Organisation Section 1. [The legislature shall consist of two chambers —the Senate and the Assembly]. Section 2. The senate shall consist of fifty members, except as * * * provided [in article II, section 9]. (1777, X; amendment of 1801; 1821, I, 2; 1846, III, 2) 2. [The lieutenant-governor] shall be president of the senate, but shall have only a casting vote therein. (1777, XX; 1821, III, 7; 1846, IV, 7) 210 APPENDIX I.— CONSTITUTION OF ISQJf, REARRANGED AND ANNOTATED Temporary President Art. Ill, Sec. 10 3. The senate shall choose a temporary president to pre- side in the case of the absence or impeachment of the_ lieu- tenant-governor, or when he shall refuse to act as president, or shall act as Governor. (1777, XXI; 1821, I, 3; 1846, III, 10) Assembly Composition Art. Ill, Sec. 2 Impeachment Art. VI, Sec. 13 Section 3. The assembly shall consist of one hundred and fifty members. (1777, IV; amendment of 1801; 1821, I, 2; 1846, III, 2) 2. The assembly shall have the povirer of impeachment, by a vote of a majority of all the members elected. (1777, XXXIII; 1821, V, 2; 1846, VI, 1) Rules of Procedure Art. Ill, Sec. 10 Record Art. III. Sec. Sessions Public Art. Ill, Sec. 11 Adjournment Art. Ill, Sec. Political Year Art. X, Sec. 6 Regular Meeting Art. X, Sec. 6 Special Session Art. IV, Sec. 4 Rules Regulating Procedure Section 4. [Each house shall be governed in its official action by the following rules] : 1. A majority of each house shall constitute a quorum to do business. (1777, IX; 1821, I, 3; 1846, III, 10) 2. [In so far as not herein provided] each house shall determine the rules of its own proceedings. (1821, I, 3; 1846, III, 10; see 1777, IX) 3. Each house shall keep a journal of its proceedings, and publish the same, except such parts as may require secrecy. (1777, XV; 1821, I, 4; 1846, III. 11) 4. The doors of each house shall be kept open, except when the public welfare shall require secrecy. (1777, XV; 1821, I, 4; 1846, III, 11) 5. Neither house shall, without the consent of the other, adjourn for more than two days. (1777, XIV; 1821, I, 4; 1846, III, 11) Section 5. The political year and the legislative term shall begin on the first day of January. (1821, I, 14; 1846, X, 6) 2. The legislature shall, every year, assemble on the first Wednesday in January. (1821, I, 14; 1846, X, 6) 3. [The legislature shall assemble in extraordinary session when convened by the governor.] Enacting Clause Art. Ill, Sec. 1' Introduction of Bills Art. Ill, Sec. 13 Rules Regulating the Enactment of Lazvs Section 6. The enacting clause of all bills shall be, " The People of the State of New York, represented in Senate and Assembly, do enact as follows," and no law shall be enacted except by bill. (1777, XXXI; 1846, III, 14) Section 7. Any bill may originate in either house of the legislature. (1821, 1,8; 1846, III, 13) 211 APPENDIX Bills Must Be Printed and Laid on Desks of Members Art. Ill, Sec. 15 No Amendment o Last Reading Art. Ill, Sec. 15 Majoritv Required to Pass Bill Art. Ill, Sec. IS Amendment by Otlu House Art. Ill, Sec. 13 Veto Art. IV, Sec. 9 Veto Art of Money Bills . IV. Sec. 9 Section S. No bill shall be passed or become a law unless it shall have been printed and laid upon the desks of the members, in its final form, at least three calendar legislative days prior to its final passage, unless the governor shall have certified to the necessity of its immediate passage, under his hand and the seal of the state. Section 9. Upon the last reading of a bill, no amendment thereof shall be allowed, and the question upon its final pas- sage shall be taken immediately thereafter and the yeas and navs entered on the journal. (1846, III, 15) Section 10. [No] bill [shall] be passed or bccoine a law, except by the assent of a majority _of the members elected to each branch of the legislature. (1846, III, 15) Section 11. All bills passed by one house may be amended by the other. (1821, I, 8; 1846, III, 13) Section 12. Every bill which shall have passed the senate and assembly shall, before it becomes a law, be presented to the governor; if he approves, he shall sign it; but if not, he shall return it with his objections to the house in which it shall have originated, which shall enter the objections at large on the journal, and proceed to reconsider it. If after such reconsideration, two-thirds of the members elected to that house shall agree to pass the bill, it shall be sent to- gether with the objections, to the other house by which it shall likewise be reconsidered; and if approved by two-thirds of the members elected to that house, it shall become a law notwithstanding the objections of the governor. In all such cases, the votes in both houses shall be determined by yeas and nays, and the names of the members voting shall be entered on the journal of each house respectively. If any bill shall not be returned by the governor within ten days (Sun- days excepted) after it shall have been presented to him. the same shall be a law in like manner as if he had signed it, unless the legislature shall, bv their adjournment, prevent its return, in which case it shall not become a law without the approval of the governor. No bill shall become a law after the final adjournment of the legislature, unless approved bv the governor within thirty days after such adjournment. (1821. I, 12; 1846, IV, 9; amended 1874; see 1777, HI) 2. If any bill presented to the governor contain several items of appropriation of money, he may obiect to one or more of such items, while approving of the other portion of the bill. In such case, he shall append to the bill, at the time of signing it, a statement of the items to which he ob- jects; and the appropriation so objected to shall not take eflfect. If the legislature be in session, he shall transmit to the house in which the bill originated a copy of such state- ment, and the items objected to shall be separately considered. If on reconsideration one or more of such items be anproved bv two-thirds of the members elected to each house, the same shall be part o£ the law. notwithstnnding the objections of the governor. All the provisions of tliis sect'on. in relation to bills not approved bv the governor, shall apply in cases in which he shnll withhold his approval from any items con- tained in a bill appropriating money. (1846, IV, 9, as amended 1874) 212 APPENDIX I.— CONSTITUTION OF 189k, REARRANGED AND ANNOTATED Re-enactment Art. Ill, Sec. 17 Private and Local Bills Art. Ill, Sec. 16 Local and Private Bills Reported by a Commission Art. Ill, Sec. 23 Aptropriation Bills Art. Ill, Sec. 20 Art. Ill, Sec. 22 Creatinp Indebtedness Art. Vil, Sec. 4 Art. VII, Sec. 4 Art, VII, Sec. 4 Section 13. No act shall be passed which shall provide that any existing law, or any part thereof, shall be made or deemed a part of said act, or which shall enact that any ex- isting? law, or part thereof, shall be applicable, except by in- serting it in such act. (1846, III, 17; added 1874) Section 14. No private or local bills, which may be passed by the legislature, shall embrace more than one subject, and that shall be expressed in the title. (1846, I IT, 16) Section 15. Sections [13 and 14] of this article shall not apply to any bill, or the amendments to any bill, which shall be reported to the legislature by commissioners who have been appointed pursuant to law to revise the statutes. (1846, III, 25; added 1874) Section 16. 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. (1821, VII, 9; 1846,1,9) 2. No provision or enactment shall be embraced in the annual appropriation or supply bill, unless it relates specifically ■to some particular appropriation in the bill ; and any such provision or enactment shall be limited in its operation to such appropriation. 3. Every * * * law making a new appropriation, or continuing or reviving an appropriation, shall distinctly specify the sum appropriated, and the object to which it is to be ap- plied; and it shall not be sufficient for such law to refer to any other law to fix such sum. (1846, VII, 8) Section 17. [Any law which provides for the contracting of debts by or on behalf of the state, except those set forth in sections 36 and 37 of this article shall bej for some single work or object, to be distinctly specified therein; and such law shall impose and provide "for the collection of a direct annual tax to pay, and sufficient to pay, the interest on such debt as it falls due, and also to pay and discharge the prin- cipal of such debt within fifty years from the time of the contracting thereof. (1846, VII, 12) 2. No such law shall take effect until it shall, at a general election, have been submitted to the people, and have received a majority of all the votes cast for and against it at such election. (1846, VII, 12) 3. On the final passage of such bill in either house of the legislature, the question shall be taken by ayes and nays to be duly entered on the journals thereof, and shall be: "Shall this bill pass, and ought the same to receive the sanction of the people?" (1846, VII. 12) 4. The legislature may at any time, after the approval of such law by the people, if no debt' shall have been con- tracted in pursuance thereof, repeal the same; and may at any time, by law, forbid the contracting of any further debt 213 APPENDIX or liability under such law; but the tax imposed by such act, in proportion to the debt and liability wliich may have been contracted, in pursuance of such law, shall remain in force and irrepealable, and be annually collected, until the proceeds thereof shall have made the provision hereinbefore specified to pay and discharge the interest and principal of such debt and liability. The money arising from any loan or stock creating such debt or liability shall be applied to the work or object specified in the act authorizing such debt or liability, or for the repayment of such debt or liability, and for no other purpose whatever. No such law shall be submitted to be voted on, within three months after its passage, or at any general election when any other law, or any bill, shall be sub- mitted to be voted for or against. (1846, VII, 12) Taxation Section 18. Every law which imposes, continues or revives Art. Ill, Sec. 24 ^ tax shall distinctly state, the tax and the object to which it is to be applied, and it shall not be sufficient to refer to any other law to fix such tax or object. (1846, III, 20; added 1874) Art. Ill, Sec. 25 2. On the final passage in either house of the legislature of any 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 yeas and nays, which shall be duly entered upon the journals, and three-fifths of all the members elected to either house shall, in all such cases, be necessary to constitute a quorum therein. (1846, III, 2; added 1874) City Laws Section 19. Laws relating to the property, affairs or gov- Art. XII, Sec. 2 ernment of cities, and the several departments thereof, are divided into general and special city laws; general city laws are those which relate to all the cities of one or more classes; special city laws are those which relate to a single city, or to less than all the cities of a class. Special city laws shall not be passed except in conformity with the provisions of this section. Art. XII. Sec. 2 2. After any bill for a special city law, relating to a city, has been passed by both branches of the legislature, the house in which it originated shall immediately transmit a certified copy thereof to the mayor of such city, and within fifteen days thereafter the mayor shall return such bill to the house from which it was sent, or if the session of the legislature at which such bill was passed has terminated, to the governor, with the mayor's certificate thereon, stating whether the city has or has not accepted the same. Art. XII, Sec. 2 3. In every city of the first class, the mayor, and in every other city, the mayor and the legislative body thereof, concurrently shall act for such city as to such bill; but the legislature may provide for the concurrence of the legislative body in cities of the first class. The legislature shall provide for a public notice and opportunity for a public hearing con- cerning any such bill in every city to which it relates, before action thereon. Such a bill, if it relates to more than one city, shall be transmitted to the mayor of each city to which it relates, and shall not be deemed accepted unless accepted as herein provided, by every sucIt city. Whefiever any such bill is accepted as herein provided, it shall be subject, as are other bills, to the action of the governor. Whenever, during 214 APPENDIX I.— CONSTITUTION OF 1894, REARRANGED AND ANNOTATED the session at which it was passed, any such bill is returned without the acceptance of the city or cities to which it relates, or within such fifteen days not returned, it may nevertheless again be passed by both branches of the legislature, and it shall then be subject as are other bills, to the action of the governor. In every special city law which has been accepted by the city or cities to which it relates, the title shall be fol- lowed by the words " accepted by the city," or " cities," as the case may be; in every such law which is passed without such acceptance, by the words " passed without the acceptance of the city," or " cities," as the case may be. Legislative Power Art. Ill, Sec. 1 Duties Pertaining to Suffrage Art. II, Sec. 4 Art. II, Sec. 2 Art. Ill, Sec. 4 Apportionment Art. Ill, Sec. 5 Judicial Department Art. VI, Sec. 2 Administrative Organization Art. VIII, Sec. 11 Art. XII, Sec. 1 Choice of Officers Art. X, Sec. 4 Filling Vacancies in Office Art. X. Sec. 5 Powers and Duties Section 20. The legislative power of this state shall be vested in the senate and assembly. (1777, II; 1821, I, 1; 1846, III, 1) Section 21. [It shall be the duty of the legislature to make laws the purpose of which shall be:] (1) Ascertaining by proper proofs the citizens who shall be entitled to the right of suffrage hereby established and for the registration of voters. (1821, II, 3; 1846, II, 4) (2) Excluding from the right of suffrage all persons con- victed of bribery or of any infamous crime. (1821, II, 2; 1846, II, 2) (3) [Altering the senate districts] at the first _ regular session after the return of every [census] enumeration [so] that each senate district shall contain as nearly as may be an equal number of inhabitants.^ excluding aliens, and [shall] be in as compact form as practicable. (1777. XII; 1821, I, 6; 1846. Ill, 4; see amendment of 1801) (4) [Reapportioning] the members of the assembly * * * at the first regular session after the t-eturn of every [census] enumeration, among the several counties of the state, as nearly as may be according to the number of their respec- tive inhabitants, excluding aliens. (1777, V; 1821, I, 7; 1846, III, 5) (5) [Dividing] the state into four judicial departments. (1846, VI, 7, as amended 1869; 1846, VI, 6) (6) [Providing for a state board of charities, a state commission of lunacy, and a state commission of prisons]. (7) [Providing] for the organization of cities and incor- porated villages, and [restricting] their powers of taxation, assessment, borrowing money, contracting debt, and loaning their credit, so as to prevent abuses in assessments and in contracting debts by municipal corporations. (1846, VIII, 9) (8) [Prescribing] the time of electing all officers nained in [article III, section 2, paragraph 8]. (1846, X, 2) (9) [Providing] for filling vacancies in office. (1846, X, 5) 215 APPENDIX Art. V, Sec. 9 Art. X, Sec. 7 Local Ordinances and Administrative Regulations Art. Ill, Sec. 27 Incorporation Art. Ill, Sec. 18 Publicity Art. VI, Sec. 21 Art. VI, Sec. 21 Art. XII, Sec. 2 Expenses of Government Art. VII, Sec. 9 (10) [Providing for making appointments and promo- tions in the civil service of the state, and to all civil divisions thereof, including cities and villages, according to merit! and fitness]. (11) [Providing for the removals set forth in article III, section 10, paragraph 8]. (1846, X, 7) (12) [Conferring by general laws] upon the boards of supervisors of the several counties of the state further powers of local legislation and administration as [it] may from time to time deem expedient, and in counties which now have, or may hereafter have, county auditors or other fiscal officers, authorized to audit bills, accounts, charg^es, claims or demands against the county, [it] may confer such powers upon said auditors, or fiscal officers, as [it] may, from time to time, deem expedient. (1846, III, 23; as amended 1874 and 1909; see 1846, III, 17) (13) [Providing by general laws] for the cases enumer- ated in [article IV, section 28] and for all other cases which in its judgment may be provided for by general laws. (1846, III, 18; added 1874) (14) [Providing] for the speedy publication of all stat- utes. (1846, VI, 22; 1869, VI, 23) (15) [Regulating] the reporting of decisions of the courts. (1846, VI, 22; 1869, VI, 23) (16) [Providing] for a public notice and opportunity for a hearing concerning any [bills subinitted to the mayor or council of the city according to the provisions of article IV, section 19.] (17) [Providing] annually, by equitable taxes * * * for the expenses of the superintendence and repairs of the canals. (See 1846, VII, 1) Art. XIII, Sec. 6 Regulation of Banking Art. VIII, Sec. 6 Art. VIII, Sec. 4 Prison Labor Art. Ill, Sec. 29 (18) [Providing for payment by the state for] expenses which shall be incurred by any county in investigating and prosecuting any charge of bribery or attempting to bribe any person holding office under the laws of this state, in any county thereof, or of receiving bribes by any such person in said county, said expenses to be a charge against the state. (1846, XV, 4; added 1874) (19) [Providing] for the registry of all bills or notes issued or put in circulation as money, and [requiring] ample security for the redemption of the same in specie. (1846, VIII, 6) (20) [Conforming, by general laws] all charters of sav- ings banks, or institutions for savings, to a uniformity of powers, rights and liabilities. (1846, VIII, 4; as amended 1874) (21) [Providing] for the occupation and employment_ of prisoners sentenced to the several state prisons, penitentiaries, jails and reformatories of the state, and [that] no person in any such prison, penitentiary, jail or reformatory shall be re- quired or allowed to work, while under sentence thereto, at 216 APPENDIX I.— CONSTITUTION OF 189J,, REARRANGED AND ANNOTATED any trade, industry or occupation wherein or whereby his work, or the product or profit of his work, shall be farmed out, contracted, given or sold to any person, firm or associa- tion, or corporation [but] this [paragraph] shall not be con- strued to prevent the legislature from providing that convicts may work for, and that the products of the labor may be disposed of to the state or any political division thereof, or for or to any public institution owned, managed and con- trolled by the state, or any political division thereof. Violation of Constitutional Provision Art. I, Sec. 9 Common Schools Art. IX, Sec. 1 Art. IX, Sec. 3 Art. XI, Sec. 3 Amendment Art. XIV, Sec. 1 Art. VIII, .Sec. 10 Art. VII. Sec. 4 (22) [Preventing] offenses against any of the provisions of [article IV, sections 26 and 27.] (23) [Providing] for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated. (24) [Appropriating] the sum of twenty-five thousand dollars of the revenues of the United States deposit fund * * * each year * * * to * * * the capital of the * * * common school fund. (1846, IX, 1) (25) [Making] at each session * *_ * sufficient ap- propriation for the maintenance [of the militia]. (26) [Submitting to the people for approval such amend- ments to the constitution as are mentioned in article XII, sec- tion 1.] (1821, VIII, 1; 1846, XIII, 1) (27) [Prescribing] the method by which and the terms and conditions under which the amount of any debt [of New York city to be excluded] in ascertaining the power of said city to become otherwise indebted shall be determined. (Added 1909) (28) [Reducing the direct tax to an amount equal to the accruing interest on the debt provided for in article IV, sec- tion 40, when any sinking fund created under article IV, sec- tion 17, shall equal in amount the debt for which it was cre- ated]. (Added 1909) Freedom of Speech and Press Art. I, Sec. 8 Right to Assemble and Petition Art. I, Sec. 9 Damages for Injuries Causing Death Art. I, Sec. 18 Suspension of Specie Payments Art. VIII, Sec. 5 Specific Restraints on Legislation Section 22. No law shall be passed to restrain or abridge the liberty of speech or of the press. (1821, VII, 8; 1846, I, 8) Section 23. No law shall be passed abridging the right of the people peaceably to assemble and to petition the govern- ment, or any department thereof. (1846, I, 10) Section 24. The right of action now existing to recover damages for injuries resulting in death, shall never be abro- gated; and the amount recoverable shall not be subject to any statutory limitations. Section 25. The legislature shall have no power to pass any law sanctioning in any manner, directly or indirectly, the suspension of specie payments by any person, association or corporation, issuing bank notes of any description. (1846, VIII, 5) 217 APPENDIX Divorce Art. I, Sec. 9 Gambling Art. I, Sec. 9 Private and Local Bills Art. Ill, Sec. IS Section 26. [No] divorce [shall be] granted otherwise than by due judicial proceedings. (1846, I, 10) Section 27. [Xo] lottery [nor] sale of lottery tickets, pool- selling, book-making, or any other kind of gambling hereafter [shall] be authorized or allowed within this state. (1821, VII, 11; 1846, I, 10) Section 28. The legislature shall not pass a private or local bill in any of the following cases: 1. Changing the names of persons. 2. Laying out, opening, altering, working or discontinuing roads, highways or alleys, or for draining swamp or other low lands. 3. 4. cases. 6. visors, Locating or changing county seats. Providing for changes of venue civil or criminal Incorporating villages. Providing for election of members of boards of super- 7. Selecting, drawing, summoning or impaneling grand or petit jurors. 8. Regulating the rate of interest on money. 9. The opening and conducting of elections or designating places of voting. 10. Creating, increasing or decreasing fees, percentages or allowances of public officers, during the term for which said officers are elected or appointed. 11. Granting to any corporation, association or individual the right to lay down railroad tracks. Corporations Art. VIII, Sec. 1 12. Granting to any private corporation, association or individual any exclusive privilege, immunity or franchise whatever. (As amended 1901) 13. Granting to any person, association, firm or corpora- tion, an exemption from taxation on real or personal prop- erty. 14. Providing for building bridges, and chartering com- panies for such purposes, except on the Hudson river below Waterford, and on the East river, or over the waters form- ing a part of the boundaries of the state. (1846), III, 18; added 1874) Section 29. 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. (1846, VIII, 1) 2. All general laws and special acts parsed pursuant to this section may be altered from time to time or repealed. (1846, VIII, 1) 218 APPENDIX I.— CONSTITUTION OF 189 J,, REARRANGED AND ANNOTATED Banks Art. VIII, Sec. 4 Drainage of Agricultural Lands Art. I, Sec. 7 Street Railroads Art. Ill, Sec. 18 Private Claims Art. Ill, Sec. 19 Claims Barred by Statute of Limitatl Art. VII. Sec. 6 Section 30. The legislature shall have no power to pass any act granting any special charter for banking purposes, but corporations or associations may be formed for such purposes under general laws. (1846, VIII, 1) Section 31. General laws may be passed permitting the owners or occupants of agricultural lands to construct and maintain for the drainage thereof, necessary drains, ditches and dykes upon the lands of others, under proper restrictions and with just compensation, but no special laws shall be enacted for such purposes. Section 32. No law shall authorize the construction or operation of a street railroad except upon the condition that the consent of the owners of one-half in value of the prop- erty bounded on, and the consent also of the local authorities having the control of, that portion of a street or highway upon which it is proposed to construct or operate such rail- road be first obtained, or in case the consent of such property owners cannot be obtained, the appellate division of the supreme court in the department in which it is proposed to be constructed, may, upon application, appoint three commis- sioners who shall determine, after a hearing of all parties interested, whether such railroad ought to be constructed or operated, and their determination, confirmed by the court, may be taken in lieu of the consent of the property owners. (1846, III, 18; added 1874) Section 33. The legislature shall neither audit nor allow any private claim or account against the state, but may appro- priate money to pay such claims as shall have been audited and allowed according to law. (1846, III, 19; added 1874) Section 34. Neither the legislature, canal board, nor any person or persons acting in behalf of the state, shall audit, allow or pay any claim which, as between citizens of the state, would be barred by lapse of time. (1846, VII, 14; as amended 1874) Extra Compensation Art. Ill, Sec. 28 Indebtedness Art. VII, Sec. 2 2. This provision shall not be construed to repeal any statute fixing the time within which claims shall be presented or allowed, nor shall it extend to any claim duly presented within the time allowed by law, and prosecuted with due dili- gence from the time of such presentment. But if the claim- ant shall be under legal disability, the claim may be presented within two years after such disability is removed. (1846, VII, 14; as amended 1874) Section 35. The legislature shall not * * * grant any extra compensation to any public officer, servant, agent or contractor. (1846, III, 24; added 1874) Section 36. The state may, to meet casual deficits or failures in revenues, or for expenses not provided for, con- tract debts; but such debts, direct or contingent, singly or in the aggregate, shall not at any time exceed one million of dollars ; and the money arising from the loans creating such debts shall be applied to the purposes for which they were obtained, or to repay the debts so contracted, and to no other purpose whatever. (1846, VII. 10) 219 APPENDIX Debts to Repel Invasion Art. VII. Sec. 3 Section 37. In addition to the above limited power to contract debts, the state may contract debts to repel invasion, suppress insurrection, or defend the state in war; but the money arising from the contracting of such debts shall be ap- plied to the purpose for which it was raised, or to repay such debts, and to no other purpose whatever. (1846, VII, 11) Payment of Money Art. Ill, Sec. 21 Section 3S. No money 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 passage of such appropriation act. (1846, VII, 8) Aid to Private Undertakings Art. VIII, Sec. 9 Art. VII, Sec. 1 Creating Indebtedness Art. VII, Sec. 4 Pavment of State Debt Art. VII, Sec. 11 Section 39. Neither the credit nor the money of the state shall be given or loaned to or in aid of any association, corporation or private undertaking. This section shall not * * * apply to any fund or property now held, or which may hereafter, be held, by the state for educational purposes. (1846, VIII, 10; added 1874) 2. The credit of the state shall not in any manner be given or loaned to or in aid of any individual, association or corporation. (1846, VII, 9) Section 40. The legislature may provide for the issue of bonds of the state to run for a period not exceeding fifty years in lieu of the bonds heretofore authorized but not issued and shall impose and provide for the collection of a direct annual tax for the payment of the same as hereinbefore required. When any sinking fund created under [article IV, section 17], shall equal in amount the debt for which it was created, no further direct tax shall be levied on account of said sinking fund and the legislature shall reduce the tax to an amount equal to the accruing interest on such debt. The legislature may from time to time alter the rate of interest to be paid upon any state debt which has been or may be authorized pursuant to the provisions of [article IV, section 17] or upon any part of such debt, provided, however, that the rate of interest shall not be altered upon any part of such debt or upon any bond or other evidence thereof, which has been, or shall be created or issued before such alteration. In case the legislature increase the rate of interest upon any such debt, or part thereof, it shall impose and provide for the collection of a direct annual tax to pay and sufficient to pay the increased or altered interest on such debt as it falls due and also to pay and discharge the principal of such debt within fifty j-^ears from the time of the contracting thereof, and shall appropriate annually to the sinking fund moneys in amount sufficient to pay such interest and pay and discharge the principal of such debt when it shall become due and payable. (Added to 1894, VII, 4. in 1905) Section 41. The legislature may appropriate out of any funds in the treasury, moneys to pay the accruing interest and principal of any debt heretofore or hereafter created, or any part thereof and may set apart in each fiscal year moneys in the state treasury as a sinking fund to pay the interest as it falls due and to pay and discharge the principal of any debt heretofore or hereafter created under section [17] of article [IV] of the constitution until the same be wholly paid, and 220 APPENDIX I.— CONSTITUTION OF 189J,, REARRANGED AND ANNOTATED the principal and income of such sinking fund shall be applied to the purpose for which said sinking fund is created and to no other purpose whatever; and, in the event such moneys so set apart in any fiscal year be suificient to provide such sinking fund, a direct annual tax for such year need not be imposed and collected, as required by the provisions of said section [17] of article [IV], or of any law enacted in pursu- ance thereof. (1894, VII, 11; added 1905) Highways Art. VII, Sec. Private Roads Art. I, Sec. 7 Special Session Art. IV, Sec. 4 IVorkmen's^ Compensation Art. I, Sec. 19 Section 42. A debt or debts of the state may be authorized by law for the improvement of highways. Such highways shall be determined under general laws, which shall also provide for the equitable apportionment thereof among the counties. The aggregate of the debts authorized by this section shall not at any one time exceed the sum of fifty millions of dollars. The payment of the annual interest on such debt and the creation of a sinking fund of at least two per centum per annum to discharge the principal at maturity shall be provided by general laws whose force and effect shall not be diminished during the existence of any debt created thereunder. The legislature may by general laws require the county or town or both to pay to the sinking fund the proportionate part of the cost of any such highway within the boundaries of such county or town and the pro- portionate part of the interest thereon, but no county shall at any time for any highway be required to pay more than thirty-five hundredths of the cost of such highway, and no town more than fifteen hundredths. None of the provisions of [sections 17 and 40] of this article shall apply to debts for the improvement of highways hereby authorized. (1894, VII, 12; added 1905) Section 43. Private roads may be opened in the manner to be prescribed by law, but in every case the necessity of the road and the amount of all damage to be sustained by the opening thereof shall be first determined by a jury of free- holders, and such amount, together with the expenses of the proceedings, shall be paid by the person to be benefited. (1846, I, 7) Section 44. At extraordinary sessions no subject shall be acted upon, except such as the Governor may recommend for consideration. Section 45- Nothing contained in this constitution shall be construed to limit the power of the legislature to enact laws for the protection of the lives, health, or safety of employees ; or for the payment, either by employers, or by etnployers and employees or otherwise, either directly or through a state or other system of insurance or otherwise, of compensation of injuries without regard to fault as a cause thereof, except where the injury is occasioned by the willful intention of the injured employee to bring about the injury or death of himself or of another, or where the injury results solely from the intoxication of the injured employee while on duty; or for the adjustment, determination and settlement, with or without trial by jury, of issues which may arise under such legislation ; or to provide that the right of such compensation, and the remedy therefor shall be exclusive of all other rights and remedies for injuries to employees or for death resulting from such injuries; or to provide that the amount of such compensation for death shall not exceed a fixed or determinable sum ; provided that all moneys paid by an employer to his employees or their legal repre- 221 APPENDIX sentatives, by reason of the enactment of any of the laws herein authorized, shall be held to be a proper charge in the cost of operating the business of the employer. (Added 1912) Charitable Institutions Art. VIII, Sec. 14 .^rt. VIII, Sec. 9 Section 46. Nothing in this Constitution contained shall prevent the legislature from making such provision for the education and support of the blind, the deaf and dumb, and juvenile delinquents, as to it mav seem proper. (1846, VIII, 10) Public Service Art. XII, Sec. 1 Section 47. The legislature may regulate and fix the wages or salaries, the hours of work or labor, and make pro- vision for the protection, welfare and safety of persons employed by the state or by any county, city, town, village or other civil division of the state, or by any contractor or sub-contractor performing work, labor or services for the state, or for any county, city, town, village or other civil division thereof. (.\dded 1905) Article V Head of Administration Art. IV, Sec. THE EXECUTIVE Organization Section 1. [The head of the administration both of the military and of the civil government of the state shall be the governor; there shall also be a lieutenant-governor, who shall take the place of the governor whenever he shall be incapacitated, and who shall perform such other duties as are hereinafter provided]. Governor Executive Power Art. IV, Sec. 1 General Biisines Art. IV, Sec. 4 Pozvers and Duties of the Chief Executive Section 2. The [chief] executive power [both civil and militar\] sliall lie vested in a governor. (1777, XVII; 1821, III, 1; 1846, IV, 1) 2. He shall transact all necessary business with the offi- cers of government, civil and military. (1777, XIX; 1821. Ill, 4; 1846. IV, 4) Convenes Legislatui Art IV. Sec. 4 Pardons, Reprieves Art. IV, Sec. 5 Section S. He sliall have power to convene the legisla- ture, or the senate only, on extraordinary occasions. (1777, XVIII; 1821, III, 4; 1846, IV, 4) Section 4. The governor shall have the power to grant reprieves, commutations and pardons after convictions, for all offenses except treason and cases of impeachment, upon such conditions and with such restrictions and limitations, as he may think proper, subject to such regulations as may be provided by law relative to the manner of applying for pardons. (1777, XVIII; 1821, III, 5; 1846, IV, 5) 2. Upon conviction for treason he shall have power to suspend the execution of the sentence, until the case shall be reported to the legislature at its next meeting, when the legislature shall either pardon, or commute the_-sentence, or grant a further reprieve. (1777, XVIII; 1821, III, 5; 1846, IV, 5) 222 APPENDIX I.— CONSTITUTION OF 1S9J,. REARRANGED AND ANNOTATED Execute Laws Art. IV, Sec. Reports to Legislature Art IV, Sec. 4 Section 5. He shall expedite all such measures as may be resolved upon by the legislature, and shall take care that the laws are faithfully executed. (1777, XIX; 1821, III, 4; 1846, IV, 4) Section 6. He shall communicate by message to the legis- lature at every session the condition of the state. (1821, III, 4; 1846, IV, 4; see 1777, XIX) Reports on Pard etc. Art. IV, Sec. 5 2. [He shall] annually communicate to the legislature each case of reprieve, commutation or pardon granted, stat- ing the name of the convict, the crime for which he was convicted, the sentence and its date, and the date of the commutation, pardon or reprieve. (1846, IV, 5; see 1777, XVIII; 1821, III, 5) Recommend Legislation Art. IV, Sec. 3. [He shall] recommend such matters to [the legislature] IS he shall judge expedient. (1777, XIX; 1821, III, 4; 1846, IV, 4) Lieut. -Governor Art. IV, Sec. 6 Section 7. [When the lieutenant governor shall become governor as provided in Article III, section 6 all] the powers and duties of the office shall devolve upon [him]. (1821, HI, 6; 1846, IV, 6; see 1777, XX) Article VI FINANCIAL AND OTHER PROPRIETARY DEPARTMENTS, BOARDS AND OFFICERS Section 1. [P'or the purpose of caring for the properties, funds and records and performing such proprietary functions as they may be charged with by law, the following offices and boards are created : secretary of state, treasurer, commissioner of the canal fund, the commissioners of the land office; and such other offices or boards may be created for t'his purpose as the legislature may deem expedient]. Organisation Section 2. [The state treasurer siiall keep the moneys belonging to the state and perform such other fimctions as may be prescribed by law]. State Boards Commissioners of Canal Fund Art. V, Sec. 5 Section 3. The lieutenant-governor, secretary of state, comptroller and attorney-general shall be the commissioners of the canal fund. (1846, V, 5) Canal Board Art. V, Sec. Section 4. The canal board shall consist of the commis- sioners of the canal fund, the state engineer and surveyor, and tlie su|)erintendent of public works. (1846, V, 5) Commissioners of the Land office Art. V, Sec. 5 Section 5. The lieutenant-governor, speaker of the assem- l)ly, secretary of state, comptroller, treasurer, attorney- general and state engineer and surveyor shall be cominis- sioners of the land office. (1846. V, 5) 223 APPENDIX Secretary of State Taking Census Art. Ill, Sec. 4 Art. VII, Sec. 6 Art. IX, Sec. 4 Disposition of State Property Forest Reserves Art. VII, Sec. 7 Pozvcrs, Duties and Limitations Section 6. An enumeration of the inhabitants of the state shall be taken under the direction of the secretary of state, during the months of May and June, in the year one thousand nine hundred and five, and in the same months every tenth year thereafter. (1777, V; 1821, I, 6; 1846, III, 4) Section 7. [Neither the] canal board, nor any person or persons acting in behalf of the state, shall audit, allow, or pay any claim which, as between citizens of the state, would be barred by lapse of time. This provision shall not be construed to repeal any statute fixing the time within which claims shall be presented or allowed, nor shall it extend to any claims duly presented within the time allowed by law, and prosecuted with due diligence from the time of such presentment. But if the claimant shall be, under legal disability, the claim may be presented within two years after such disability is removed. (1846, VII, 14; as amended 1874) Section 8. Neither the state nor any subdivision thereof shall use its property or credit or any public money, or author- ize or permit either to be used, directly or indirectly, in aid or maintenance other than for examination or inspection, of any school or institution of learning wholly or in part under the control or direction of any religious denomination, or in which any denominational tenet or doctrine is taught. Section 9. The lands of the state now owned or here- after acquired, constituting the forest preserve as now fixed by law, shall be forever kept as wild forest lands. They shall not be leased, sold or exchanged, or be taken by any corpora- tion, public or private, nor shall the timber thereon be sold, removed or destroyed. 2. But the legislature may by general laws provide for the use of not exceeding three per centum of such lands for the construction and maintenance of reservoirs for municipal water supply, for the canals of the state and to regulate the flow of streams. Such reservoirs shall be constructed, owned and controlled by the state, but such work shall not be under- taken until the boundaries and high flow lines thereof shall have been accurately surveyed and fixed, and after public notice, hearing and determination that such lands are required for such public use. The expense of any such improvements shall be apportioned on the public and private propertyand municipalities benefited to the extent of the benefits received. Any such reservoir shall always be operated by the state and the legislature shall provide for a charge upon the property and municipalities benefited for a reasonable return to the state upon the value of the rights and property of the state used and the services of the state rendered, which shall be fixed for terms of not exceeding ten years and be readjust- able at the end of any term. Unsanitary conditions shall not be created or continued by any such public works. A violation of anv of the provisions of this section may bf restrained at the suit of the people, or, with the consent ot the supreme court in appellate division, on notice to the attor- ney-general at the suit of any citizen. (Added 1913) Section 10. The sinking funds provided Jor the payment of interest and the extinguishment of the "principal of the debts of the state shall be separately kept and safely invested, and neither of them shall be appropriated or used in any 224 Sinkii Art ng F VII. APPENDIX I.— CONSTITUTION OF 1891,, REARRANGED AND ANNOTATED manner other than for the specified purpose for which it shall have been provided. (1846, VII, 13; as amended 1874) Art. VII, Sec. 9 Section 11. All contracts for work or materials on any canal shall be made with the persons who shall offer to do or provide the same at the lowest price, with adequate security for their performance. No extra compensation shall be made to any contractor; but if, from any unforeseen cause, the terms of any contract shall prove to be unjust and oppressive, the canal board may, upon the application of the contractor, cancel such contract. Canals Improvement Section 12. The canals may be improved in such manner Art. VII, Sec. 10 as the legislature shall provide by law. A debt may be author- ized for that purpose in the mode [prescribed by section 17 of article IVJ, or the cost of such improvement may be de- frayed by the appropriation of funds from the state treasury, or by equitable annual taxes. No Tolls 2. No tolls shall hereafter be imposed on persons or Art. VII, Sec. 9 property transported on the canals. (1846, VII, 3; as amended 1874) Income 3. All funds that may be derived from any lease, sale Art. VII, Sec. 8 or other disposition of any canal shall be applied to the im- provement, superintendence or repair of the reinaining por- tion of the canals. (1846, VII, 6; as amended 1874) Not to Be Sold 4. The legislature shall not sell, lease or otherwise dispose Art. VII, Sec. 8 ^,|• j^i^g gj-je canal, the Oswego canal, the Champlain canal, the Cayuga and Seneca canals, or the Black River canal ; but th&y shall remain the property of the state and under its manage- ment forever. The prohibition of lease, sale or other dispo- sition herein contained, shall not apply to the canal known as the Main and Hamburg street canal, situated in the city of Buffalo, and which extends easterly from the westerly line of Hamburg street. (1846, VII, 6; as amended 1874) School Fund Section 13. The capital of the common school fund, the Art. IX, Sec. 3 capital of the literature fund, and the capital of the United States deposit fund, shall be respectively preserved inviolate. The revenue of the said common school fund shall be applied to the support of common schools ; the revenue of the said literature fund shall be applied to the support of academies; and the sum of twenty-five thousand dollars of the revenue of the United States deposit fund shall each year be appro- priated to and made part of the capital of the said common school fund. (1846, IX, without change) Article VII CIVIL DEPARTMENTS FOR RENDERING SERVICE TO THE PUBLIC Organisation Section 1. [For the purpose of rendering service to the public, other than military protection, the following depart- ments are established : department of public works, depart- 225 APPENDIX ment of canal construction, department of prisons, depart- ment of charities, department of education, and the legislature may create such other departments and offices as it may deem expedient]. Boards of Charities, Lunacy and Prisons Art. VIII, Sec. 11 University Regents Art. IX, Sec. 2 Section 2. [There shall be a state board of charities, a state commissioner in lunacy, and a state commission of prisons.]. Section 3. The corporation created in the year one tliou- sand seven hundred and eighty-four, under the name of The Regents of the University of the State of New York, is hereby continued under the name of The University of the State of New York. It shall be governed and its corporate powers, which may be increased, modified or diminshed by the legis- lature, shall be exercised by not less than nine regents. Superintendent of Public Works Art. V, Sec. 3 Pozvcrs, Duties and. Limitations Section 4. The superintendent of public works * * * shall be charged with the execution of all laws relating to the repair and navigation of the canals, and also those relating to the construction and improvement of the canals, except so far as the execution of the laws relating to such construction or improvement shall l)e confided to the state engineer and surveyor; subject to the control of the legisla- ture, he shall make the rules and regulations for the navi- gation or use of the canals * * * [He] shall perform all the duties of the canal commissioners, and board of canal commissioners, as now declared by law, until otherwise pro- vided by the legislature. (1846, V. 3, as amended, 1876) A'ssislants Art. V, Sec. 3 Section 5. [The duties of the assistant superintendents] shall be prescribed by [the superintendent of public works,] subject to modification by the legislature. (1846, \\ 3, as amended, 1876) Superintendent of State Prisons Art. V, Sec. 4 Section 6. The superintendent [of state prisons] shall have all the powers and perform all the duties not incon- sistent herewith, which were formerly had and performed by the inspectors of state prisons * * * He shall have the superintendence, management and control of state prisons, subject to such laws as now exist or may hereafter be enacted. (1846, V, 4, as amended, 1876) Of Charities Art. VIII, Sec. 11 Of Prisons Section 7. [The state board of charities] shall visit and inspect all institutions, whether state, county, municipal, in- corporated, or not incorporated, which are of a charitable, eleemosynary, correctional or reformatory character, except- ing only such institutions as are herebj- made subject to the visitation and inspection of either of the commissions herein- after mentioned, but including all reformatories except those in which adult males convicted of felony shall be confined. Section 8. [The state commission in lunacy] shall visit and inspect all institutions, either pul)lic or private, used for the care and treatment of the insane (not including institu- tions for epileptics or idiots). 2. [The state commission of prisons] shall visit and inspect all institutions used for the detention~of sane adults charged with or convicted of crime, or detained as witnesses or debtors. 226 APPENDIX I.— CONSTITUTION OF 1891,, REARRANGED AND ANNOTATED Other Powers and Duties Art. V, Sec. 6 Art. VIII, Sec. 15 Offices Abolished Art. V, Sec. 8 Restraint on Administration Supervision and Inspection Art. VIII, Sec. 13 3. The powers and duties of the respective boards, and of the several officers in this article mentioned, shall be such as now are or hereafter may be prescribed by law. (1846, V, 6) 4. The legislature may confer upon the commission and upon the board mentioned in the foregoing sections any additional powers that are not inconsistent with other pro- visions of the Constitution. Section 9. All offices for the weighing, gauging, measur- ing, culling or inspecting any merchandise, produce, manufac- ture or commodity whatever, are hereby abolished ; and no such office shall hereafter be created by law ; but nothmg in this section contained shall abrogate any office created for the purpose of protecting the public health or 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 purposes hereafter. (1846, V, 8) Section 10. Existing laws relating to institutions referred to in the foregoing sections and to their supervision and inspection, in so far as such laws are not inconsistent with the provisions of the Constitution, shall remain in force until amended or repealed by the legislature. The visitation and inspection herein provided for, shall not be exclusive of other visitation and inspection now authorized by law. Article VIII MILITARY GOVERNMENT Citizens Art. XI, Sec. 1 Aliens Art. XI, Sec. 2 Commander-in-Chief Art. IV, Sec. 4 Art. IV, Sec. 6 Militia Divisions Art. XI, Sec. 3 Constituency Section 1. All able-bodied male citizens between tfee-ages of eighteen and forty-five years, who are residents of the state, shall constitute the militia, subject, however, to such exemptions as are now or may be hereafter created by the laws of the United States, or by the legislature of this state. (See 1777, XL; 1821, VII, 5; 1846, XI, 1) 2. The legislature may provide for the enlistment into the active force of such other persons as may make applica- tion to be so enlisted. Organisation and Pozvers Section 2. The governor shall be commander-in-chief of the military and naval forces of the state. (1777, XVni; 1821, III, 4; 1846, IV 4) 2. When the governor shall, with the consent of the legis- lature, be out of the state, in time of war, at the head of a military force thereof, he shall continue commander-in-chief of all the military force of the state. (1777, XX; 1821, III, 6; 1846, IV 6) Section 3. The militia shall be organized and divided into such land and naval, and active and reserve forces, as the legislature may deem proper, provided, however, that there shall be maintained at all times a force of not less than ten thousand enlisted men, fully uniformed, armed, equipped, dis- ciplined and readv for active service. ( 1777, XL; 1821, VII, 5; 1846, XI, 1) 227 APPENDIX Officexs Art. XI, Sec. 4 Art. XI, Sec. S C ommissions Art. XI, Sec. 6 Removals Art. XI, Sec. 6 Military Appropriations Art. XI, Sec. 3 Militarv Debts Art. VII, Sec. 3 Section 4. The governor shall appoint the chiefs of the several staff departments, his aides-de-camp and military sec- retary, all of whom shall hold office during his pleasure, their commissions to expire with the term for which the governor shall have been elected ; he shall also nominate, and with the consent of the senate appoint, all major-generals. (1846, XI, 3; see 1821, IV) Section 5. All other commissioned and non-commissioned officers shall be chosen or appointed in such manner as the legislature may deem most conducive to the improvement of the militia, provided, however, that no law shall be passed changing the existing mode of election and appointment un- less two-thirds of the metnbers present in each house shall concur therein. (1821, IV; 1846, XI, 4 and 6). Section. 6. The commissioned officers shall be commis- sioned bv the governor as commander-in-chief. (1777, XXIV; 1821, IV, 4; 1846, XI, 5) Section 7. No commissioned officer shall be removed from office during the term for which he shall have been ap- pointed or elected, unless by the senate on the recommenda- tion of the governor, stating the grounds on which such re- moval is recommended, or by the sentence of a court-martial, or upon the findings of an examining board organized pur- suant to law, or for absence without leave for a period of six months or more. (1821, IV, 4; 1846, XI, S) Section S. And it shall be the duty of the legislature at each session to make sufficient appropriations for the main- tenance [of the militia]. Section 9. In addition to the * * * limited power to contract debts, the state may contract debts to repel invasion, suppress insurrection, 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. (1846, VII, 11) Article IX GENERAL AUDITOR [Nothing is said in the constitution regarding the organi- zation of the office of comptroller. The only provisions car- rying powers are those which make it his duty to appoint clerks of prison, article III, section 3, paragraph 14, and making him ex officio a commissioner of the land office and of the canal fund, article VI, sections 3 and 5.1 Article X THE COURTS Organisation Section 1. [The tribunals hereby constituted for the trial of cases are of two general classes, viz: courts of law and equity, and political courts. The courts of law and equity 228 APPENDIX I.— CONSTITUTION OF 189J,, REARRANGED AND ANNOTATED shall be: The court of appeals; the appellate division of the supreme court; the supreme court; the county courts; the court of sessions in the county of New York; the surrogates courts. The political courts- shall be : the court of impeach- ment, an election court for the determination of election re- turns and qualifications of members of the legislature]. Court of Appeals Composition Art. VI, Sec. 7 Quorum Art. VI, Sec. 7 Section 2. The court of appeals is continued. It shall consist of the chief judge and associate judges now in office * * * and their successors. [Justices of the supreme court may be designated by the governor to serve as associate judges as provided in article III, section 3, paragraph 4.] (1&46, VI, 2; 1869, VI, 2) 2. Five members of the court shall form a quorum, and the concurrence of four shall be necessary to a decision. * * * JsJq more than seven judges sliall sit in any case. (1846, VI, 2, as amended 1869) Art. VI, Sec. Clerk's Office Art. VI, Sec. 19 Appellate Division of the Supreme Court Composition Art. VI, Sec. 2 Departments Art. VI, Sec. 2 Departments Art. VI, Sec. 2 Quorum Art. VI, Sec. 2 Assignment of Terms and Justices Art. VI, Sec. 2 Transfer of Appeals Art. VI, Sec. 2 Clerk's Office Art. VI, Sec. 19 3. The powers and jurisdiction of the court shall not be suspended for want of appointment or election when the number of judges is sufficient to constitute a quorum. (1846, VI, 3, as amended 1869) 4. Tile clerk of the court of appeals shall keep his office at the seat of government. (1846, VI, 19; 1869, VI, 20) Section .?. There shall be an appellate division of the supreme court, consisting of seven justices in the first depart- ment, and of five justices in each of the other departments. (1846, VI, 7; as amended, 1869; 1846, VI, 28; as amended 1872) 2. The legislature shall divide the state into four judicial departments * * *. Once in ten years the legislature may alter the judicial departments, but without: increasing the number thereof. (1846, VI, 9; 1869, VI, 7) 3. The first department shall consist of the county of New York ; the others shall be bounded, by county lines, and be compact and equal in population as nearly as may be. 4. In each department four shall constitute a quorum, and the concurrence of three shall be necessary to a decision. No more than five justices shall sit in any case. 5. The justices of the appellate division in each depart- ment shall have power to fix the times and places for holding special terms therein, and to assign the justices in the departments to hold such terms ; or to make rules therefor. 6. Whenever the appellate division in any department shall be unable to dispose of its business within a reasonable time, a majority of the presiding justices of the several departments at a meeting called by the presiding justice of the department in arrears may transfer any pending appeals from such department to any other department for hearing and determination. 7. [The clerk of the appellate division] shall keep his office at a place to be designated by said justices. 229 Supreme Court Composition Art. VI, Sec. 1 Increasing Number of Justices Art. VI, Sec. 1 Clerks Art. VI, Sec. 19 Courts of Sessions Art. VI, Sec. 14 Countv Courts Art. VI, Sec. 14 Composition Art. VI, Sec. 14 Increasing Numbe of Judges Art". VI, Sec. 14 Surrogates Courts Art. VI, Sec. 15 Composition Creating New Courts Art. VI, Sec. 15 Art. VI, Sec. 16 Section 4. The supreme court shall consist of the justices now in office and of the judges transferred thereto by [article XIV, section 8,] all of whom shall continue to be justices of the supreme court during their respective terms, and of twelve additional justices * * * chosen by the electors of the several existing judicial districts, three in the first district, three in the second, and one in each of the other districts; and of their successors. (1821, V, 4; 1846, VI, 4; 1869, VI, 6; 1879, VI, 6) 2. The legislature may from time to time increase the number of justices in any judicial district except that the number' of justices in the first and second district or in any of the districts into which the second district may be divided, shall not be increased to exceed one justice for each eighty thousand, or fraction over forty thousand of the population thereof, as shown by the last state or federal census or enumeration; and except that the number of justices in any other district shall not be increased, to exceed one justice for each sixty thousand or fraction over thirty-five thousand of the population thereof as shown by the last state or federal census or enumeration. (Added 1905) 3. Clerks of the several counties shall be clerks of the supreme court. ( 1846, VI, 19 ; 1869, VI, 20) Section 5. Courts of sessions, except in the county of New York, are abolished from and after the last day of December, one thousand eight hundred and ninety-five. Section 6. The existing county courts are continued. (1846. VI, 15; as amended 1869) 2. [They shall consist respectively of] the judges thereof now in office [and their successors] * * * jj-, ^hg county of Kings there shall be four county judges. (1846, VI, 14; 1869, VI, 15; 1894, VI, 14; as amended 1913) 3. The number of county judges in any county may also he increased, from time to time, by the legislature, to such number that the total number of county judges in any one county shall not exceed one for every two hundred thousand, or major fraction thereof, of the population of such county. (Added 1913) Section The existing surrogates courts are continued. 2. [They shall consist respectively of] the surrogates now in office [and of their successors]. (1846, VI, 15; 1869, VI, 15, 16) 3. In counties having a population exceeding forty thou- sand, wherein there is no separate surrogate, the legislature may provide for the election of a separate officer to be surrogate. Section S. The legislature may on application of the board of supervisors, provide for the election of local officers, not to exceed two in any county, to discharge the duties of county judge and of surrogate, in cases of their inability or of a vacancy, and in such other cases as may be provided by law. and to exercise such other powers in special cases as are or may be provided by law. (1846. VI. 15: 1869, VI, 16) 230 APPENDIX I.— CONSTITUTION OF 1891,, REARRANGED AND ANNOTATED Number of Justices of the Peace Art. VI, Sec. 17 Inferior Local Courts Art. VI, Sec. 18 Political Courts Court of Impeachment Art. VI, Sec. 13 Court of Appeals Art. VI, Sec. 9 Appellate Division of the Supreme Court Art. VI, Sec. 2 Supreme Court Art. VI, Sec. 1 Art. VI, Sec. 5 Section 9. [The] number and classification [of justices of the peace] may be regulated by law. (1846, VI, 17; 1869, VI, 18; see 1821, IV, 7) Section 10. Inferior local courts of civil and criminal jurisdiction may be established by the legislature but no in- ferior local court hereafter created shall be a court of record. (1846, VI, 18; as amended 1869) Section 11. The court for the trial of impeachments shall be composed of the president of the senate, the senators or the major part of them, and the judges of the court of appeals, or the major part of them. On the trial of an impeachment against the governor or lieutenant governor, the lieutenant governor shall not act as a member of the court * * * No person shall be convicted without the concurrence of two-thirds of the members present. (1777, XXXII; 1821, V, 1; 1846, VI, 1) Section 12. [Each house shall] be the judge of the elec- tions, returns and qualifications of its own members. (1777, IX, XII; 1821, I, 3; 1846, III, 10) Pozvers and Duties of the Judiciary Section 13. After the last day of December, one thousand eight hundred and ninety-five, the jurisdiction of the court of appeals, except where the j^idgment is of death, shall be limited to the review of questions of law. No unanimous decision of the appellate division of the supreme court that there is evidence supporting or tending to sustain a finding of fact or a verdict not directed by the court, shall be re- viewed by the court of appeals. Except where the judgment is of death, appeals may be taken, as of right, to said court only from judgments or orders entered upon decisions of the appellate division of the supreme court, finally determining actions or special proceedings, and from orders granting new trial on exceptions, where the appellants stipulate that upon affirmance judgment absolute shall be rendered against them. The appellate division in any department may, however, allow an appeal upon any question of law which, in its opinion, ought to be reviewed by the court of appeals. 2. The legislature may further restrict the jurisdiction of the court of appeals and the right of appeal thereto, but the right to appeal shall not depend upon the amount involved. Section 14. From and after the last day of December, one thousand eight hundred and ninety-five, the appellate division shall have the jurisdiction now exercised by the supreme court at its general terms, and by the general terms of the court of common pleas for the city and county of New York, the superior court of the city of New York, the superior court of Buffalo and the city court of Brooklyn, and such additional ' jurisdiction as may be conferred by the legislature. Section 15. The supreme court [shall have] general juris- diction in law and equity, subject to such appellate jurisdiction of the court of appeals as now is or may be prescribed by law not inconsistent with this article. (1846, VI, 6, as amended 1869; see 1846, VI, 3) 2. The jurisdiction now exercised by the [superior court of the city of New York, the court of common pleas for the city and county of New York, the superior court of Buffalo, and the city court of Brooklyn] hereby abolished, shall be 231 APPENDIX Art. VI, Sec. 6 Art VI, Sec. 15 Clerks Art. VI, Sec. 19 vested in the supreme court. Appeals from inferior and local courts now heard in the court of common pleas for the city and county of New York and superior court of Buffalo, shall be heard in the supreme court in such manner and by such justice or justices as the appellate divisions in the re- spective departments which include New York and Buffalo shall direct, unless otherwise provided by the legislature. 3. All [the] jurisdiction [of the circuit courts and courts of oyer and terminer] shall [after the last day of December, one thousand eight hundred and ninety-five] be vested in the supreme court and all actions and proceedings then pending in such courts shall be transferred to the supreme court for hearing and determination. Any justice of the supreme court, except as otherwise provided in this article, may hold court in any county. 4. For the relief of surrogates courts the legislature may confer upon the supreme court in any county having a popu- lation exceeding four hundred thousand, the powers and jurisdictions of surrogates, with authority to try issues of fact by jury in probate cases. Section 16. [Clerks of the supreme court, shall have] such powers and duties as shall be prescribed by law. (1846. VI, 19; 1869, VI, 20) Cuiintv Courts Art. VI, Sec. 14 Art. VI, Sec. 14 Section 17. County courts shall have the powers and jurisdiction they now possess, and also original jurisdiction in actions for the recovery of money only, where the defendants reside in the county, and in which the complaint demands judgrnent for a sum not exceeding two thousand dollars. (1846, VI, 15; as amended 1869; see 1846, VI, 14) 2. All the jurisdiction of the court of sessions in each county, except the county of New York, shall [after the last day of December, one thousand eight hundred and ninety-five] be vested in the county court thereof, and all actions and pro- ceedings then pending in such courts of sessions shall be trans- ferred to said county courts for hearing and determination. Every county judge shall perform such duties as may be required by law. (1846, VL 14; 1869. VI, 15) 3. A county judge of any county may hold county courts in any other county when requested by the judge of such other county. (1846. VT, 15; as amended 1869) Art. VI, Sec. IS Court of Special Sessions Art. VI, Sec. 23 4. The legislature may hereafter enlarge or restrict the jurisdiction of the county courts, provided, however, that their jurisdiction shall not be so extended as to authorize an action therein for the recovery of money only, in which the sum demanded exceeds two thousand dollars, or in which any person not a resident of the county is a defendant. (1846, VI. 15; as amended 1876) 5. The county judge shall be surrogate of his county, except where a separate surrogate has been or shall be elected. (1846, VI, 15; as amended 1876) Section 18. [Courts of special sessions] shall have juris- diction of offenses of the grade of misdemeanors as may be Drescribed by law. (1846, VI, 26; as amended 1869) 232 APPENDIX I.— CONSTITUTION OF 189Jf, REARRANGED AND ANNOTATED Surrogates Courts Art. VI, Sec. 15 Justices of the Peace Art. VI, Sec. 17 Courts Created by the Legislature Art. VI, Sec. 18 Court of Impeachment Art. VI, Sec. 13 Jurisdiction and Proceedings Art. VI, Sec. 3 Section 19. Surrogates and surrogates courts shall have the jurisdiction and powers which the surrogates and existing surrogates courts now possess, until otherwise provided by the legislature. (1846, VI, 15; 1869, VI, 15) Section 20. [Justices of the peace and district court jus- tices in cities shall have such powers as may be prescribed by law]. (1846, VI, 18; as amended 1869) Section 21. The legislature shall not hereafter confer upon any inferior or local court of its creation, any equity jurisdiction or any greater jurisdiction in other respects than is conferred upon county courts by or under this article. Section 22. [The court of impeachment shall have the usual powers but] judgment in cases of impeachment shall not extend further than to removal from office, or removal from office and disqualification, to hold and enjoy any office of honor, trust or profit under this state; but the party im- peached shall be liable to indictment and punishment according to law (1777, XXXIII; 1821, V, 2; 1846, VI, 1) Section 23. Except as herein otherwise provided, the legislature shall have the same power to alter and regulate the jurisdiction and proceedings in law and in equity that it has heretofore exercised. (1846. VI, 5) Witnesses Art. I, Sec. 3 Libels Art. I, Sec. 8 Taking Private Property Art. I, Sec. 7 Apportionment Art. Ill, Sec. S Equity Art. VI, Sec. 3 Limitations of Poivers of Courts Section 24. No person shall be rendered incompetent to be a witness on account of his opinion on matters of religious belief (1846, I, 3) Section 25. In all criminal prosecutions or indictments for libels, the truth may be given in evidence to the jury; and if it shall appear to the jury that the matter charged as libelous is true, and was published with good motives and for justifiable ends, the party shall be acquitted; and the jury shall have the right to determine the law and the fact. (1821, VI, 8; 1846, I, 8) Section 26. When private property shall be taken for any public use, the compensation to be made therefor, when such compensation is not made by the state, shall be ascer- tained by a jury, or by the supreme court with or without a jury, but not with a referee, or by not less than three com- missioners appointed by a court of record, as shall be pre- scribed by law. (1846, I, 7) Section 27. An apportionment by the legislature or other body, shall be subject to review by the supreme court, at the suit of any citizen, under such reasonable regulations as the legislature may prescribe ; and any court before which a cause may be pending involving an apportionment, shall give pre- cedence thereto over all other causes and proceedings, and if said court be not in session it shall convene promptly for the disposition of the same. Section 28. The testimony in equity cases shall be taken in like manner as in cases at law. (1846, VI, 10; 1869, VI, 8) 233 Article XI LOCAL GOVERNMENT— SUBDIVISION THE STATE OF Cities Classification Art. XII, Sec. 2 Section 1. All cities are classified according to the latest state enumeration, as from time to time made, as follows : the first class includes all cities having a population of one hundred and seventy-five thousand, or more; the second class, all cities having a population of fifty thousand and less than one hundred and seventy-five thousand; the third class, all other cities. Organization Art. XII, Sec. 1 Section 2. It shall be the duty of the legislature to pro- vide for the organization of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent abuses in assessments and in contracting debt by such municipal corporations. (1846, VIII, 9, without change) Excess Condemnation Art. I, Sec. 7 Section 3. The legislature may authorize cities to take more land and property than is needed for actual construction in the laying out, widening, extending or relocating parks, public places, highways or streets ; provided, however, that the additional land and property so authorized to be taken shall be no more than sufi^icient to form suitable building sites abutting on such park, public place, highway or street. After so much of the land and property has been appropriated for such park, public place, highway or street as is needed there- for, the remainder may be sold or leased. (Added by vote of the people 1913) County Board of Supervisors Art. Ill, Sec. 26 Section 4. There shall be in each county, except in a county wholly included in a city, a board of supervisors, to be composed of such members, and elected in such manner, and for such period, as is or may be provided by law. In a city which includes an entire county or two or more entire counties, the powers and duties of a board of supervisors may be devolved upon the municipal assembly, common council or board of aldermen, or other legislative body of the city. (Added to 1846, III, as section 22, by vote of the people, 1874; amended 1899) Legislative Powers, Auditors Art. Ill, Sec. 27 Section 5. The legislature shall, by general laws, confer upon the boards of supervisors of the several counties of the state such further powers of local legislation and adminis- tration as the legislature may from time to time deem ex- pedient [1] and in counties which now have, or may hereafter have, county auditors or other fiscal officers, authorized to audit bills, accounts, charges, claims or demands against the county, the legislature may confer such powers upon said audi- tors, or fiscal officers, as the legislature may, from time to fime, deem expedient. (First part to [1], 1846, III, 17, changed to section 2v3, by vote of the people, 1874 ; the remainder added 1909) Liability Art. X, Sec. 1 Section 6. The county shall never be made responsible for the acts of the sheriff. (1821, IV, 8; 1846, X, 1) 234 APPENDIX I.— CONSTITUTION OF 1891,, REARRANGED AND ANNOTATED Money or Credit Not to be Given for Private Purposes Art. VIII, Sec. 10 Charitable Institutions Art. VIII, Sec. 14 Indebtedness Art. VIII, Sec. 10 Art. VIII. Sec. 10 Section 7. No county, city, town or village shall here- after give any money or property, or loan its money or credit to or in aid of any individual, association or corporation, or become directly or indirectly the owner of stock in or bonds of, any association or corporation ; nor shall any such county, city, town or village be allowed to incur any indebtedness ex- cept for county, city, town or village purposes. This section shall not prevent such county, city, town or village from mak- ing such provision for the aid or support of its poor as may be authorized by law. (Added to 1846, VIII, as section 11, by vote of the people, 1874) Section S. [Nothing in this constitution shall] prevent any county, city, town or village from providing for the care, sup- port, maintenance and secular education of inmates of orphan asylums, homes for dependent children or correctional insti- tutions, whether under public or private control. Payments by counties, cities, towns and villages to charitable eleemosy- nary, correctional and reformatory institutions, wholly or partly under private control, for care, support and main- tenance, may be authorized, but shall not be required by the legislature. No such payments shall be made for any inmate of such institutions who is not received and retained therein pursuant to rules established by the state board of charities. Such rules shall be subject to the control of the legislature by general laws. Section 9. No county or city shall be allowed to become indebted for any purpose or in any manner to an amount which, including existing indebtedness, shall exceed ten per centum of the assessed valuation of the real estate of such county or city subject to taxation, as it appeared by the assess- ment rolls of said county or city on the last assessment for the state or county taxes prior to the incurring of such in- debtedness ; and all indebtedness in excess of such Ijmitatioii, except such as now may exist, shall be absolutely void, except as herein otherwise provided. No county or city whose pres- ent indebtedness exceeds ten per centum of the assessed valua- tion of its real estate subject to taxation, shall be allowed to become indebted in any further amount until such indebted- ness shall be reduced within such limit. (1846, VIII, 11, added by vote of the people, 1884; 1894, VIII, 10) 2. This section shall not be construed to prevent the issu- ing of certificates of indebtedness or revenue bonds issued in anticipation of the collection of taxes for amounts actually contained, or to be contained in the taxes for the year, when such certificates or revenue bonds are issued and payable out of such taxes, nor to prevent the city of New York from issuing bonds to be redeemed out of the tax levy for the year next succeeding the year of their issue, provided that the amount of such bonds which may be issued in any one year in excess of the limitations herein contained shall not exceed one-tenth of one per centum of the assessed valuation of the real estate of said city subject to taxation. Nor shall this section be construed to prevent the issue of bonds to provide for the supply of water; but the term of the bonds issued to provide the supply of water in excess of the limitation of indebtedness fixed herein, shall not exceed twenty years, and a sinking fund shall be created on the issuing of said bonds for their redemption, by raising annually a sum which will produce an amount equal to the sum of the priticipal and interest of said bonds at their maturity. All certificates of 235 indebtedness or revenue bonds issued in anticipation of the collection of taxes, which are not retired within five years after their date of issue, and bonds issued to provide for the supply of water, and any debt hereafter incurred by any por- tion or part of a city, if there shall be any such debt, shall be included in ascertaining the power of the city to become otherwise indebted except that debts incurred by the city of New York after the first day of January, nineteen hundred and four, and debts incurred by any city of the second class after the first day of January, nineteen hundred and eight, and debts incurred by any city of the third class after the first day of January, nineteen hundred and ten, to provide for the supply of water, shall not be so included; and except further that any debt hereafter incurred by the city of New York for a public improvement owned or to be owned by the city, which yields to the city current net revenue, after mak- ing any necessary allowance for repairs and maintenance for which the city is liable, in excess of the interest on said debt and of the annual installments necessary for its amortiza- tion may be excluded in ascertaining the power of said city to become otherwise indebted, provided that a sinking fund for its amortization shall have been established and maintained and that the indebtedness shall not be so excluded during any_ period of time when the revenue aforesaid shall not be sufficient to equal the said interest and amortization install- ments, and- except further that any indebtedness heretofore incurred by the city of New Y'ork for any rapid transit or dock investment may be so excluded proportionately to the extent to which the current net revenue received by said city therefrom shall meet the interest and amortization install- ments thereof, provided, that any increase in the debt incur- ring power of the city of New York which shall result from the exclusion of debts heretofore incurred shall be available only for the acquisition or construction of properties to be used for rapid transit or dock purposes. (1846. VIIT. 11, added by vote of the people, 1884; 1894, VIII, 10; amended 1905, 1907, 1909) Art. VIII, Sec. 10 3. The legislature shall prescribe the method by which and the terms and conditions under which the amount of any debt to be so excluded shall be determined, and no such debt shall be excluded except in accordance with the determination so prescribed. (Added by vote of the people 1909) Art. VIII, Sec. 10 4. The legislature may in its discretion confer appropriate jurisdiction on the appellate division of the supreme court in the first judicial department for the purpose of determining the amount of any debt to be so excluded. (Added by vote of the people, 1909) Art. VIII, Sec. 10 5. No indebtedness of a city valid at the time of its inception shall thereafter become invalid by reason of the operation of any of the provisions of this section. (Added by vote of the people, 1909) Art. VIII, Sec. 10 6. Whenever the boundaries of any city are the same as those of a county, or when any city shall include within its boundaries more than one county, the power of any county wholly included within such city to become indebted shall cease, but the debt of the county, heretofore existing, shall not, for the purposes of this section, be reckoned as a part of the city debt. (Amended by vote of the people, 1899) 236 APPENDIX I.— CONSTITUTION OF 189J,, REARRANGED AND ANNOTATED Tax Rate Section 10. The amount hereafter to be raised by tax Art. VIII, Sec. 10 £qj. j^Qunty or city purposes, in any county containing a city of over one hundred thousand inhabitants, or any such city of this state, in addition to providing for the principal and interest of existing debt, shall not in the aggregate exceed in any one year two per centum of the assessed valuation of the real and personal estate of such county or city, to be ascertained as prescribed in [the foregoing] section in respect to county or city debt. (1846, VIII, 11 ; added by vote of the people, 1884) Extra Compensation Section 11. [Neither] the common council of any city> Art. Ill, Sec. 28 nor any board of supervisors [shall] grant any extra com- pensation to any public officer, servant, agent or contractor. (1846, III, 24; added, 1874) Article XII AMENDMENTS .■\rt. XIV, Sec. 1 Section 1. Any amendment or amendments to this Con- stitution may be proposed in the senate and assembly; and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment or amendments shall be entered on their journals, with the yeas and nays taken thereon, and referred to the legislature to be chosen at the next general election of senators, and shall be published for three months previous to the time of making such choice; and if in the legislature so next chosen, as aforesaid, such proposed amendment or amendments shall be agreed to by a majority of all the members elected to each house, then it shall be the duty of the legislature to submit such proposed amendment or amendments to the people for approval in such manner and at such times as the legislature shall prescribe; and if the people shall approve and ratify such amendment or amendments by a majority of the electors voting thereon, such amendment or amendments shall become a part of the Constitution from and after the first day of January next after such approval. (1821, VIII; 1846, XIII, 1) Art. XIV, Sec. 2 Section 2. At the general election to be held in the year one thousand nine hundred and sixteen, and every twentieth year thereafter, and also at such times as the Legislature may by law provide, the question : " Shall there be a convention to revise the Constitution and amend the same?" shall be decided by the electors of the state; and in case a majority of the electors voting thereon shall decide in favor of a con- vention for such purpose, the electors of every senate dis- trict of the state, as then organized, shall elect three delegates at the next ensuing general election at which members of the assembly shall be chosen, and the electors of the state voting at the same election shall elect fifteen delegates-at-large. The delegates so elected shall convene at the capitol on the first Tuesday of April next ensuing after their election, and shall continue their session until the business of such convention shall have been completed. Every delegate shall receive for his services the same compensation and the same mileage as shall then be annually payable to the members of the assembly. A majority of the convention shall constitute a quorum for the transaction of business, and no amendment to the Con- stitution shall be submitted for approval to the electors as hereinafter provided, unless by the assent of a majority of all the delegates elected to the convention, the yeas and nays 2Z7 being entered on the journal to be kept. The convention shall have the power to appoint such officers, employees and assistants as it may deem necessary, and fix their compensa- tion and to provide for the printing of its documents, journal and proceedings. The convention shall determine the rules of its own proceedings, choose its own officers, and be the judge of the election, returns and qualifications of its mem- bers. In case of a vacancy, by death, resignation or other cause, of any district delegate elected to the convention, such vacancy shall be filled by a vote of the remaining delegates representing the district in which such vacancy occurs. If such vacancy occurs in the office of a delegate-at-large, such vacancy shall be filled by a vote of the remaining delegates-at- large. Any proposed constitution or constitutional amendment which shall have been adopted by such convention, shall be submitted to a vote of the electors of the state at the time and in the manner provided by such convention, at an election which shall be held not less than six weeks after the adjourn- ment of such convention. Upon the approval of such con- stitution or constitutional amendments, in the manner pro- vided in the last preceding section, such constitution or con- stitutional amendment shall go into effect on the first day of January next after such approval. (1 A-"' . on the last date stamped below. ,s may be renewed by calling 642-3405. .11 loans may be recharged by bringing books to Circulation Desk. Renewals and recharges may be made 4 days prior to due date. ALL BOOKS ARE SUBJECT TO RECALL 7 DAYS AFTER DATE CHECKED OUT. LD21 — A-40to-5,'74 (R8191L) General Library University of California Berkeley 1 i iinniiu«._ IC aS^Wtaiilwr mi:2B'?^ JAN 311975 7 m STACKS JI/L31 :?3*«g' M 14 1975 ' k 4( f. t m. LD 21- N /i\^^ THE UNIVERSITY OF CALIFORNIA LIBRARY