authorizing, in a contract for street pavements, a clause to the effect that the contractor will, at his own expense, keep and maintain the pavement in good condition for ten years.

Section 98 of the railroad law in relation to the pavement of streets and the duty imposed on street railroad companies is a valid exercise of legislative power. Doyle v. New York (1901) 58 App. Div. 588, 69 N. Y. Supp. 120.

"The legislature has the supreme control of the streets and public highways, and has the right to regulate and restrict their use." People ex rel. Van Norder v. Sewer, Water, & Street Commission (1904) 90 App. Div. 555, 86 N. Y. Supp. 445.

Written notice of the existence of snow and ice on a sidewalk or street cannot be required as a prerequisite to an action for damages. McMullen v. Middletown (1905) 46 Misc. 360, 92 N. Y. Supp. 410.

INDIAN LANDS.

"It is not within the legislative power of the state to enable the Indian nation to make, or others to take from the Indians, grants or leases of lands within their reservations. In that matter the Federal government, having the power under the Constitution to do so, has assumed to control it by the act of Congress of June 30, 1834 (chap. 161 [4 Stat. at L. 729]), which provides that 'no purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto from any Indian nation or tribe of Indians shall be of any validity' in law or equity, unless the same is made by treaty or convention, entered into pursuant to the Constitution. As respects their lands, subject only to the preemptive title, the Indians are treated as the wards of the United States, and it is only pursuant to the Federal authority that their lands can be granted or demised by or acquired by conveyance or lease from them." Buffalo, R. & P. R. Co. v. Lavery (1894) 75 Hun, 396, 27 N. Y. Supp. 443, affirmed in (1896) 149 N. Y. 576, 43 N. E. 986; Jimeson v. Pierce (1902) 78 App. Div. 9, 79 N. Y. Supp. 3, sustains the provision of the New York Indian law which authorizes the peacemakers' court of the Seneca Nation to partition real estate among the heirs of a deceased Indian.

JUDICIARY.

Admiralty.-The legislature has no power to confer admiralty jurisdiction on state courts. The Federal courts have exclusive jurisdiction in such cases. Bird v. The Josephine (1868) 39 N. Y. 19.

City courts.-In People ex rel. Metropolitan Bd. of Health v.

Lane (1869) 55 Barb. 168, the court sustained the act of 1857, chap. 344, providing for a jury of six in the district courts of New York. These courts were successors to the justices' courts in which the jury had been limited to six prior to the adoption of the Constitu-tion of 1846.

The act of 1887, chap. 557, authorizing the city of Buffalo to acquire land outside the city for park purposes, vested in the superior court jurisdiction to entertain proceedings in relation to such land. This provision was held unconstitutional in Re Buffalo (1892) 46 N. Y. S. R. 81, 18 N. Y. Supp. 771.

The same principle as to the jurisdiction of a local court was applied in Pierson v. Fries (1896) 3 App. Div. 418, 38 N. Y. Supp. 765, construing provisions concerning the city court of Mount Vernon.

The act of 1895, chap. 601, which abolished the office of police justice in the city of New York, and provided for the appointment of city magistrates to hold courts of special sessions, was a valid exercise of legislative power. People ex rel. Thornton v. Hogan (1895) 14 Misc. 48, 35 N. Y. Supp. 226; Koch v. New York (1897) 152 N. Y. 72, 46 N. E. 170.

Court of appeals.-The Constitution of 1846 created a court of appeals, to be composed of eight judges, but did not prescribe how many should constitute a quorum. The judiciary act of 1847, chap. 280, declared that six judges should constitute a quorum. The validity of this statutory provision was challenged in Oakley v. Aspinwall (1850) 3 N. Y. 547, but the court, overruling the argument that the Constitution inflexibly required the presence of eight judges in all cases, said it was "safe to conclude that the omission to declare that a less number than eight might constitute the court was either accidental, or it was designed that the legislature should determine what number should make a quorum. .. The Constitution did not prepare the court for service. It declared that such a tribunal should exist, provided from what number and class of judges it should be constituted; enjoined upon the legislature the duty of organizing it [article 6, § 25], and left its jurisdiction and course of procedure to be defined by law. Legislative action was necessary before the court could be said to exist for any practical purpose. Without this. it could not have assembled and given audience to suitors; and it owes its being not more to the Constitution than to the act of 1847 and subsequent statutes which fashioned it and endowed it with form and legal vitality. The Constitution called for the court and presented the materials of which it might

be formed, and the legislature, under the express authority of the Constitution, organized it." The legislature had power to provide for a quorum to be composed of less than the whole number of judges "in order to guard against accident, render the court capable of efficient action, and to avoid the necessity of any judges sitting when interested or related to a party to a suit." The judiciary article of 1869 and the Constitution of 1894 fixed the number of judges at seven and required a quorum of five.

Extraordinary terms.-Section 234 of the Code of Civil Procedure, as amended in 1895, authorizing the governor to appoint extraordinary terms of the appellate division and of other branches of the supreme court, does not violate the provision in § 2 of article 6, conferring on the appellate division power to fix the time and place for holding trial and special terms, and to assign justices in the departments to hold such terms or to make rules therefor. People v. Young (1897) 18 App. Div. 162, 45 N. Y. Supp. 772.

Jurors. The legislature has control over the subject of challenges to jurors. Walter v. People (1865) 32 N. Y. 147; Stokes v. People (1873) 53 N. Y. 164, 13 Am. Rep. 492.

The qualifications of jurors in the city of New York was considered in People ex rel. Turner v. Plimley (1896) 8 App. Div. 323, 41 N. Y. Supp. 365, 1128, (1896) 150 N. Y. 571, 44 N. E. 1128, construing the provision in § 1080 of the Code of Civil Procedure which provided, among other things, that “a person dwelling or lodging in the city and county of New York for the greater part of the time between the Ist day of October and the 30th day of June next thereafter, is a resident of that city and county for that jury year, ... and it is not necessary that he should have been assessed or should have voted there;" and it was held that a resident of New Jersey who voted in that state, but conducted business in the city of New York, was eligible as a trial juror in that city. "A state in which such person may have a substantial, although not a domiciliary residence, may exact from him the performance of some of those political duties which rest upon those who are legally domiciled there."

Justices courts.-The amendment of the Code of Procedure in 1861, chap. 158, conferring on justices' courts jurisdiction in actions of replevin, was valid, notwithstanding the fact that an action might afterwards be brought in an inferior court in which a jury was composed of six, as well as in a court of record in which the jury was composed of twelve. A provision preserving the right of trial by jury did not prevent the legislature from increasing the jurisdiction of courts. Knight v. Campbell (1872) 62 Barb. 16.

VOL. IV. CONST. HIST.-16.

Legislature. The power of the legislature to exercise judicial functions was considered in People ex rel. McDonald v. Keeler (1885) 99 N. Y. 463, 52 Am. Rep. 49, 2 N. E. 615. The court say that "to declare what the law shall be is a legislative power; to declare what it is or has been is judicial. But notwithstanding this general division of powers, certain powers, in their nature judicial, are, by the express terms of the Constitution, vested in the legislature." After referring to some of these judicial powers, including impeachment, the election of its own members, and the removal of certain officers, the court observes that it would be "going too far to say that every statute is necessarily void which involves action on the part of either house partaking in any degree of a judicial character, if not expressly authorized by the Constitution. Where the statute relates to the proceedings of the legislative body itself, and is necessary or proper to enable it to perform its constitutional functions," it cannot be regarded as "such an invasion of the province of the judiciary as to bring it within any implied prohibition of the state Constitution."

Supreme court.-In People ex rel. Decker v. Waters (1893) 4 Misc. 1, 23 N. Y. Supp. 691, certiorari to review proceedings of excise commissioners in refusing a license under the act of 1892, Justice Parker said that a person had no inherent right to demand a license. Discussing the suggestion that the legislature intended to confer on the supreme court the power to review proceedings by excise commissioners, and, in the exercise of discretion, to require such commissioners to issue a license, the judge further said that the legislature was without power "to require the supreme court, or the justices thereof, to perform other than judicial duties," and cannot assign to the "supreme court or the justices thereof, the performance of administrative duties such as are devolved upon boards of excise, boards of health, and boards of supervisors."

In Re Mount Morris (1886) 41 Hun, 29, it was held that the legislature might constitutionally delegate to the justices of the supreme court the power of determining whether a bridge between two towns should be built under specified circumstances, the court observing that "to determine the liability of towns to erect and maintain bridges, to enforce such liability, and to order the mode in which it shall be performed, are acts peculiarly judicial in their character."

Troy recorder.-The legislature had power to vest in the recorder of Troy (Laws 1849, chap. 121) the powers of a justice of the supreme court at chambers and of a county judge, including jurisdic

tion in proceedings supplementary to execution. The office of supreme court commissioner was abolished by the Constitution of 1846, but this did not prevent the legislature from distributing the powers and functions of the office among other branches of the judiciary. Hayner v. James (1858) 17 N. Y. 316; Cashman v. Johnson (1857) 4 Abb. Pr. 256.

LABOR.

The legislature may, by general law, regulate the compensation of laborers on state work, if vested rights or the obligations of contracts are not thereby affected. Clark v. State (1894) 142 N. Y. 101, 36 N. E. 817. The same principle was applied in Ryan v. New York (1904) 177 N. Y. 271, 69 N. E. 599.

LIMITATION OF ACTIONS.

This topic is closely related to remedies, procedure, and evidence, and often the same decision considers two or more of these subjects in determining the validity of For convenience the cases have been arranged in separate groups, though several are cited under more than one topic. The following decisions bear particularly on the question of legislative power in relation to the limitation of actions and other judicial proceedings.

In Dubois v. Kingston (1880) 20 Hun, 500, the court say it is the general rule "that a statute only impairing the remedy is constitutional, especially when it operates merely by way of limitation in point of time," citing Butler v. Palmer (1841) 1 Hill, 324, and also Jackson ex dem. Lepper v. Griswold (1809) 5 Johns. 142, where Judge Thompson said that the statute of limitations considered in that case was a mere question of expediency for the legislature.

The general doctrine in relation to statutes of limitations is stated in Rexford v. Knight (1854) 11 N. Y. 308, 313, where the court, quoting from Jackson ex dem. Hart v. Lamphire (1830) 3 Pet. 290, 7 L. ed. 683, say that the "time and manner of their operation, the exceptions to them, and the acts from which the time limited shall begin to run, will generally depend on the sound discretion of the legislature, according to the nature of the titles, the situation of the