Pr. N. S. 159; People ex rel. King v. Gallagher (1883) 93 N. Y. 438, 45 Am. Rep. 232.

Chief Judge Ruger in the latter case said it would seem to be a plain deduction from the Slaughter-House Cases, 16 Wall. 36, 21 L. ed. 394, that the privilege of receiving an education at the expense of the state, being created and conferred solely by the laws of the state, and always subject to its discretionary regulation, might be granted or refused to any individual or class at the pleasure of the state. From which the inference seems reasonable that the right to an education is not one of "the rights and privileges secured to citizens." But the effect of this opinion must be deemed modified, if not wholly neutralized, by the common school provision incorporated in the Constitution of 1894, by which the legislature is expressly commanded to maintain a system of free common schools "wherein all the children of the state may be educated." The right to an education is now one of the rights secured by the Constitution.

Fire department.-The rule of the New York Fire Department, prohibiting members from affiliating with any club of association intended to procure legislation respecting the department, is not a violation of the provision relating to rights and privileges secured to citizens of the state, and a member of the department who disobeys such an order is subject to discipline there for. Membership in the department is voluntary, and a member who objects to its rules may withdraw if he desires greater freedom of action than the regulations permit. Such regulations do not abridge any rights of citizenship. People ex rel. Clifford v. Scannell (1902) 74 App. Div. 406, 77 N. Y. Supp. 704.

Master and servant.-Persons intending to assume the relation to each other of master and servant have the right to agree upon the rate of wages which the servant is to receive, and they cannot constitutionally be deprived of this right. A city, as well as an individual, possesses the right to negotiate for the services of its employees, and it cannot by law be compelled to pay the prevailing rate of wages in the locality. A provision of the labor law, 1889, chapters 192 and 567, § 3, requiring the payment of the prevailing rate of wages on municipal contracts, is unconstitutional. People ex rel. Rodgers v. Coler (1901) 166 N. Y. 1, 52 L. R. A. 814, 82 Am. St. Rep. 605, 59 N. E. 716. As to hours of labor, see People ex rel. Cossey v. Grout (1904) 179 N. Y. 417, 72 N. E. 464.

Minors. It is not an unconstitutional interference with the rights and privileges secured to citizens to provide by statute that property

given to an infant by will may be used for the support or education of the infant during minority, although, by the terms of the will, such beneficiary would not regularly come into the possession and enjoyment of the property until she arrived at her majority. "To affirm that this was depriving her of any right or privilege secured by the Constitution is little better than saying that an infant has a constitutional right to grow up in ignorance, or enjoys the chartered privilege of suffering for the want of necessary food and raiment." Clarke v. Van Surlay (1836) 15 Wend. 436, 445; Cochran v. Van Surlay (1838) 20 Wend. 365, 32 Am. Dec. 570.

The rights of children committed to charitable institutions under 291 of the Penal Code, and the duty of the institution to which such a commitment may be made, are considered in People ex rel. Van Heck v. New York Catholic Protectory (1886) 3 How. Pr. N. S. 343, and Re Donohue (1876) 1 Abb. N. C. 1.

Offices. "Eligibility to office is not declared as a right or principle by any express terms of the Constitution, but it results as a just deduction from the express powers and provisions of the system. The basis of the principle is the absolute liberty of the electors and the appointing authorities to choose and to appoint any person who is not made ineligible by the Constitution." The legislature cannot establish arbitrary exclusions from office, or any general regulation requiring qualifications which the Constitution has not required. This general eligibility to office must therefore be deemed one of the rights and privileges secured to citizens of the state, and an unauthorized denial of it is invalid. Barker v. People (1824) 3 Cow. 686, 703, 15 Am. Dec. 322.

A citizen may be required to perform public service in an official capacity, and may be subjected to a penalty for his refusal. The sovereign has a right to compel the performance of a service for its benefit by the subject. The burdens of government are unavoidable qualifications, and belong essentially to the lot of freemen. Brooklyn v. Scholes (1883) 31 Hun, 110.

The right of a citizen to hold a public office was not violated by the act of 1883, chap. 354, providing for the appointment of three state civil service commissioners, not more than two of whom could be appointed from the same political party. This provision did not disfranchise any citizen, nor deprive him of any right or privilege secured to any other citizen of the state. If two appointments were made from one political party, that class was exhausted, and the third appointment must have been made from another class. Any person in that class was eligible to appointment. The legislaVOL. IV. CONST. HIST.-3.

ture may create classes as a basis of eligibility to office. Under this statute three political appointments were possible, but the governor was not required to appoint from any political party. Rogers v. Buffalo (1890) 123 N. Y. 173, 9 L. R. A. 579, 25 N. E. 274.

The right to continue to hold an office to which a person has been chosen is not absolute, but an office not protected by the Constitution may be abolished by the legislature. People ex rel. Mitchell v. Sturges (1898) 156 N. Y. 580, 51 N. E. 295.

The general rule is that "to be a citizen is to be qualified for the enjoyment of any right or privilege under our state government." People ex rel. Price v. Woodbury (1902) 38 Misc. 189, 77 N. Y. Supp. 241, in which it was held at special term by Leventritt, J., that 1560 of the revised charter of New York of 1901, which disqualifies from holding any office in the city or in any county composing the city any person receiving a pension under any department of the city or from any city fund, is unconstitutional.

Parties, rights of.—The right of a party to be present at the trial of his case is one of the rights secured to citizens of this state by the common law, and a party cannot be constitutionally excluded from such trial. An order of a referee allowing the presence of counsel in a given proceeding, but excluding the party himself, was held to be a violation of a constitutional right. Chandler v. Avery (1888) 47 Hun, 9.

A citizen's right to defend an action brought against him is not absolute, but is subject to a limited control by law. Section 162 of the Code of Civil Procedure, which authorizes a summary judgment in an action by the sheriff on a bond for liberties of the jail, is valid. All the issues were presumably tried in the action against the sheriff for an escape, in which action the sureties in the bond had an opportunity to defend. They voluntarily became sureties, and thereby subjected themselves to the conditions imposed by the statute, including the possibility that a judgment might be ordered against them in the sheriff's action, without a trial. Buttling v. Hatton (1897) 18 App. Div. 128, 45 N. Y. Supp. 720.

Property.-Private rights in general, including the rights relating to property, are, as a rule, subjects of exclusive state jurisdiction. and are not within the cognizance of Federal legislation or judicial determination. They are rights and privileges secured to citizens as citizens of the state, and not as citizens of the United States. "The legal rules of property existing in New York are those prescribed by the laws of New York, and such laws are the same whether they are administered by the courts of the state or by the

courts of the nation. There is no national code or system of laws respecting private property.” Whenever, as in a few exceptional cases, the general government is authorized to act, it undertakes through its courts to administer the state laws. "If a question is found to have been settled by the highest appellate court of a state, that decision is binding upon the courts of the United States to the same extent as upon the courts of the state in which it was made." On a question involving local personal or property rights, "the highest court of the nation has no legal pre-eminence over any of the courts of this state." It is therefore one of the privileges of a citizen of the state to have questions relating to such rights determined by a state tribunal. Towle v. Forney (1856) 14 N.

Y. 423

Among the rights and privileges secured to citizens of the state is the right to be protected in the enjoyment of their property. They are entitled to the best judgment of public officers in making contracts for municipal work, and a statute (in this case the labor law) which deprives such officers of any discretion in making such contracts, but requires them to pay the prevailing rate of wages in the locality, is an infringement of the rights of property owners, who are required by taxation to bear the expenses of municipal government. People ex rel. Rodgers v. Coler (1901) 166 N. Y. 1, 52 L. R. A. 814, 82 Am. St. Rep. 605, 59 N. E. 716.

The act of 1872, chap. 741, validating certain paving assessments in Utica, did not violate this section. Mann v. Utica (1872) 44 How. Pr. 334

Public health.-The rights and privileges secured to a citizen must yield to the right of the preservation of the public health, which is one of the highest functions of government. People v. Hawker (1897) 152 N. Y. 234, 240, 46 N. E. 607.

A municipal corporation may, under legislative authority, enact an ordinance requiring licenses for the sale of meats outside the public markets. Such an ordinance is not an unwarranted interference with the rights and privileges secured to citizens under the Constitution. Buffalo v. Hill (1903) 79 App. Div. 402, 79 N. Y. Supp. 449.

Section 66 of the Sanitary Code of New York, which prohibits the sale of milk in the city without a written permit granted by the board of health, is constitutional, and does not unreasonably interfere with any of the rights or privileges secured to a citizen of the state. People ex rel. Lieberman v. Vandecarr (1903) 175 N. Y. 440, 67 N. E. 913.

The rights and privileges secured to citizens include the formalities and the safeguards recognized as due process of law, or the orderly application of the law of the land. People ex rel. Frank v. Davis (1903) 80 App. Div. 448, 457.

The words "by the law of the land" do not mean a statute passed for the purpose of working a wrong. Rights and privileges cannot be taken away unless the matter is adjudged upon trial had according to the course of the common law. "It must be ascertained judicially that he has forfeited his privileges, or that someone else has a superior title to the property he possesses, before either of them can be taken from him. It cannot be done by mere legislation." Taylor v. Porter (1843) 4 Hill, 140, 40 Am. Dec. 274; also White v. White (1849) 5 Barb. 474, in which the married woman's act of 1848, chap. 200, was held unconstitutional. Wynehamer v. People (1856) 13 N. Y. 392.

The act of 1797, chap. 51, "to settle disputes concerning the titles to lands in the county of Onondaga," and appointing a commission to take testimony and determine all controversies relating to such lands, was held to be the law of the land within the meaning of this section, although applicable only to a single county. Barker v. Jackson (1826) 1 Paine, 559, Fed. Cas. No. 989.

The act of 1818, chap. 213, providing for closing streets in the city of New York, and which vested in the city the title to the land in the streets so closed, was held to deprive adjoining owners of their property in such land. The legislature has no power to transfer property from one person to another without the owner's consent, and a statute which purports to do this is not due process of law, and is therefore not the law of the land. Re John & C. Streets (1839) 19 Wend. 659.

§ 2. [Trial by jury.]—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.

[Const. 1777, art. 41; 1821, art. 7, § 2; 1846, art. 1, § 2.]

A provision preserving trial by jury was included in the original draft of the first Constitution, presented to the convention which framed that instrument. A sketch