[5] Power of state to resume or transfer local functions.

Whether the transfer of powers from one officer to another impairs obligation of franchise contracts,—see ante, § 1, note [15].

L. 1885, ch. 499, requiring companies operating or intending to operate electrical conductors in any city in the state to file maps and plans with the Board of Commissioners of Electrical Subways is constitutional. It simply transferred the reserved police power of the state from one set of functionaries to another; viz., from the commissioner of public works to the board of commissioners of subways.- People ex rel. N. Y. Elect. Lines v. Squire, 145 U. S. 175, 12 Sup. Ct. R. (U. S.) 880.

The legislature has the power to transfer the control of the streets from the city officers who have previously exercised the same, to some other board or department of the city government.- Wilcox v. McClellan, 185 N. Y. 9, 77 N. E. 986.

Local functions cannot be transferred to a state officer. The legislature has the power to regulate, increase or diminish the duties of the local officer, but this power is subject to the limitation that no essential or exclusive function belonging to the office can be transferred to an officer appointed by central authority.- People ex rel. Metropolitan St. R. Co. v. Tax Comrs., 174 N. Y. 417, 67 N. E. 69.

It is no violation of the "home rule" principle to delegate to officers appointed by the governor, powers which have never been exercised by local officers and which are not exclusively local in character.- People ex rel. Metropolitan St. R. Co. v. Tax Comrs., 174 N. Y. 417, 67 N. E. 69.

An act abolishing the office of commissioner of jurors in the City of New York appointed by the mayor, and providing that in counties of more than one million inhabitants a commissioner of jurors shall be appointed by the justices of the Appellate Division in that department in which such county is located, is constitutional.- Matter of Allison v. Welde, 172 N. Y. 421, 65 N. E. 263.

The legislature, unless restrained by constitutional limitations, may resume powers delegated to localities, and assume the direct control of matters pertaining to local government.-People ex rel. Morrill v. Supervisors, 112 N. Y. 585, 20 N. E. 549.

The common council of New York City provided for the selection of jurors, and designated the assessors to make such selections. The Act of 1847 took such powers away from the council, and provided that the supervisors of the city, judges of the superior court, and judges of the court of common pleas, should appoint a commissioner of jurors, who should make the selections, etc. In 1873, the functions and office were merged in a distinctively city office filled by appointment of the

mayor and council.- Held, that the Act of 1873 was constitutional.— People ex rel. Taylor v. Dunlap, 66 N. Y. 162.

The transfer of the functions of commissioner of jurors, in and for New York City and county, from a county to a city office may be accomplished by an act which by its title is indicated to be a revision of the New York City Charter.- People ex rel. Taylor v. Dunlap, 66 N. Y. 162.

In view of the anomalous relation between the city and county of New York, there can be no incongruity in committing to the city authorities the functions of commissioner of jurors within the city and county. People ex rel. Taylor v. Dunlap, 66 N. Y. 162.

By vesting the functions of commissioner of jurors in a county office, the legislature lost none of its power to vest them in a city office. What it could have done originally, it could do by subsequent enactment. People ex rel. Taylor v. Dunlap, 66 N. Y. 162.

The power to make improvements, etc., was vested in the mayor and council of New York City. The legislature passed an act authorizing the improvement and regulation of Central Park, and placed the work under the authority of a board of commissioners, not appointed by the local authorities.- Held, that this was not an unconstitutional taking away of the powers of local officers.- Astor v. Mayor, 62 N. Y. 567, limiting In re Comrs. of Central Park, 35 How. Pr. (N. Y.) 255.

From time to time, as the occasion may require, police powers committed to the towns, cities or counties, may be resumed by the state and vested in other authorities appointed by the state government.— People v. Shepard, 36 N. Y. 285.

The legislature may recall to itself, and exercise at its pleasure, as much of the power it has conferred upon a municipal corporation as is not secured to it by its charter.- People v. Pinckney, 32 N. Y. 377.

It would not be competent for the legislature to create a new civil division of the state, and abrogate the local offices of the several counties that compose it, and direct the appointment by the governor and senate of other officers limited to perform the same local functions only, though distinguished by new and more extended titles.— People v. Pinckney, 32 N. Y. 377.

If from exceptional causes the public good requires that legislation be directed towards any particular locality, whether consisting of one county or several counties, it is within the discretion of the legislature to apply such legislation as, in its judgment, the exigency of the case may require, and it is the sole judge of the existence of such causes. It belongs to the legislature to arrange and distribute the administrative functions, committing such portions as it may deem suitable, to local jurisdiction, and retaining other portions to be exercised by

officers appointed by the central power, and changing the arrangement from time to time as convenience, the efficiency of administration, and the public good, may require.- People ex rel. Wood v. Draper, 15 N. Y. 532, affg. s. c. 25 Barb. (N. Y.) 344.

To establish judicially the principle that the legislature can never reduce the administrative authority of counties, cities or towns; can never resume in favor of the central power any portion of the jurisdiction of those local divisions, or change the partition of it among them, as it existed when the N. Y. Constitution was adopted, would make an impracticable government.- People ex rel. Wood v. Draper, 15 N. Y. 532, affg. s. c. 25 Barb. (N. Y.) 344.

Powers of local legislation and regulation, which have been conferred on local boards under N. Y. Const. Art. III., § 27, may be at any time resumed by the legislature.― Matter of Reddish, 45 App. Div. (N. Y.) 37, 60 N. Y. Supp. 1111.

Local powers may be transferred by the legislature from one body of local officers to another.- Matter of Lester, 21 Hun (N. Y.), 130.

The legislature cannot confer the power to perform local functions, and make regulations relating thereto, upon state officers, whether appointed by the legislature, or by the governor and senate. While the legislature might take such powers away from the mayor, council and existing boards of the city, the performance of them must be continued in the hands of the local officers or boards, and cannot be vested in officers appointed under the authority of the state.- People v. Acton, 48 Barb. (N. Y.) 524, 33 How. Pr. (N. Y.) 52.

Counties, townships, highway districts, school districts, etc., are governmental agencies and it is doubtful if they have any right which can be called private, and whatever rights or obligations they have depend upon the constitution or law of the state and otherwise would not exist. Attorney-General v. Lowrey, 131 Mich. 639, 92 N. W. 289.

[6] Attitude of the courts toward the home rule doctrine.

The provisions of the different Constitutions of New York State relative to the election or appointment of local officers, when read in the light of prior and contemporaneous history, show that the object of their enactment was to prevent centralization of power in the state and to continue, preserve and expand local self-government.- People ex rel. Metropolitan St. R. Co. v. Tax Comrs., 174 N. Y. 417, 67 N. E. 69.

The principle of "home rule," or the right of self-government as to local affairs, existed prior to the adoption of the N. Y. Constitution.People ex rel. Metropolitan St. R. Co. v. Tax Comrs., 174 N. Y. 417, 67 N. E. 69.

So far as practicable, matters of administration specially affecting the public interests of a particular locality should be controlled by the local government, subject to such general regulations as may be necessary for the common good.- People ex rel. Morrill v. Supervisors, 112 N. Y. 585, 20 N. E. 549.

The courts cannot, in furtherance of the supposed tendency toward decentralization and home rule, traceable in the N. Y. Constitution, however plainly it may be perceived, create exceptions or restraints on the legislature which are not fairly contained in the Constitution as it is written. The following out or advancing of such a policy is for the legislature, not the courts.- People ex rel. Wood v. Draper, 15 N. Y. 532.

As descriptive of a policy, "home rule" is a significant and appropriate term; but as descriptive of a right, it is indefinite, for it is coextensive with the right of local regulation and control, and its extent must always be tested by the state constitution.—AttorneyGeneral v. Lowrey, 131 Mich. 639, 92 N. W. 289.

[7] Constitutionality of appointment of local officers by state officers.

A statute creating a superintendent of elections for a district comprising the counties of New York, Kings, Queens, Richmond and Westchester, and vesting the appointing power in the governor, does not violate the "home rule" clause of the N. Y. Constitution, since the office of superintendent of elections is not a constitutional office and the essential functions were unknown at the time the N. Y. Constitution was adopted.- Matter of Morgan v. Furey, 186 N. Y. 202, 78 N. E. 869.

A local office created since the adoption of the N. Y. Constitution of 1846, may be filled in such manner as the legislature may direct.— Matter of Allison v. Welde, 172 N. Y. 421, 65 N. E. 263, revg. s. c. 72 App. Div. (N. Y.) 629, 76 N. Y. Supp. 1008; People ex rel. Taylor v. Dunlap, 66 N. Y. 162.

An act transferring the appointment of the Commissioner of Jurors of Kings County, a county office at the time of the adoption of the N. Y. Constitution, from the local authorities to the justices of the Appellate Division, and hence to state officers, is unconstitutional and void.- Matter of Brenner, 170 N. Y. 185, 63 N. E. 133, affg. s. c. 67 App. Div. (N. Y.) 375, 73 N. Y. Supp. 689.

L. 1901, ch. 89, creating a commission for the erection of a new court-house in Oneida County, is not unconstitutional as a violation of N. Y. Const., Art. 10, § 2, which provides that county, city and town officers, whose election or appointment is not provided for by the Constitution, shall be elected by the electors of such county, city or town,

and that all other officers whose election or appointment is not provided for by the Constitution shall be elected or appointed as the legislature shall direct.- People ex rel. Comrs. v. Supervisors, 170 N. Y. 105, 62 N. E. 1092.

A state act providing for the election or appointment of local officers is not unconstitutional where it appears that prior to 1846 there were no city officers with the powers or even substantial functions devolving upon these officers.- New York Fire Dept. v. Atlas Ss. Co., 106 N. Y. 566, 13 N. E. 329.

L. 1884, ch. 552, which extends the jurisdiction of the New York city department of parks over territory in Westchester county, is not in violation of N. Y. Const., Art. X, § 2, which preserves to counties, cities, town and villages the right to elect their own local officers or to have them appointed by some local authority, since no official of Westchester county is legislated out of office, nor are the powers and duties of any such official curtailed or bestowed upon another.- Matter of Mayor, 99 N. Y. 569, 2 N. E. 642.

An act creating the Rensselaer police district and placing it in charge of commissioners appointed by the state rather than the local authorities, is unconstitutional, as an unnecessary interference with rights of local self-government.- People ex rel. Bolton v. Albertson, 55 N. Y. 50.

C. was elected collector of taxes of a town for one year, but before he qualified or entered upon the discharge of his duties, the office of collector of taxes of that town was abolished and all provisions of statute affecting the duties of the office were abrogated and annulled by the act. By the same act the office of receiver of taxes of said town was established and said C. was designated as receiver for a period of three years. The powers and duties of the new officer were substantially the same as those of the old collectors. Action was

brought to oust C. from office on the ground that the statute, in so far as it pertains to the appointment of C., was unconstitutional. The judgment of ouster was sustained.- People ex rel. Lord v. Crooks, 53 N. Y. 648.

When the legislature creates new civil divisions of the state, embracing the whole or parts of different counties, the officers over such newly created district may legally be appointed by the governor and senate. - Metropolitan Board of Health v. Heister, 37 N. Y. 661.

A statute making commissioners of taxes appointable by the governor is unconstitutional, as it vests in a state officer the power to appoint a local officer whose duties and functions had been exercised by city officers previous to the adoption of the Constitution.- People v. Raymond, 37 N. Y. 428.