any judicial decision involving the validity of an appointment by the governor of a person who had been elected to the legislature. The action of the Commission of 1872 in changing the word "term" to "time" seems to have had some significance, although my researches have failed to disclose any reason assigned for the change. It is not difficult to suggest conditions which would make an appointment of a member-elect, after the beginning of the legislative term, as objectionable as if he were actually in office; for the party in power with a narrow majority might secure political advantage by giving a lucrative office to a member-elect, and by a special election procure the return of one more closely in sympathy with the dominant party or faction.

While pursuing my studies in connection with this work I found that the original section received a practical construction in 1823. At the first election under the new Constitution, November, 1822, Jacob Sutherland was elected to the office of senator. The senate journal shows that at the opening of the session on the 7th of January, 1823, Erastus Root, president of the senate, presented a communication from Mr. Sutherland in which he said that considerations, which it was then unnecessary and perhaps improper to state, had determined him not to take his seat in the senate. The "considerations" became manifest soon afterwards, for on the 29th of the same month Mr. Sutherland was appointed by Governor Yates to the office of justice of the supreme court under the new Constitution. The doubt as to the Governor's power of appointment suggested in 1899 and 1900 was not then expressed for the first time. Mr. Hammond, in his Political History of New York (Vol. 2, p. 107), speaking of Mr. Sutherland's appointment, says that "many persons entertained scruples whether, by declining the office of senator, he could render himself

eligible to an appointment by the legislative or executive authorities of the state. On the other hand, it was alleged that in order to be brought within the spirit and meaning of the clause in the Constitution, he must not only be elected, but, by his own voluntary act, become a member of the legislature." The significance of this practical construction is increased by the fact that Governor Yates had been for several years a justice of the supreme court; that Erastus Root, then president of the senate, had been one of the leaders in the Convention of 1821, and that Mr. Sutherland was also a member of the same Convention. They declined to construe the section as applicable to a member-elect before he had taken the oath of office. Mr. Hammond, whose book was published in 1842, says that the construction of the Constitution which resulted in Mr. Sutherland's appointment had, with great propriety, been acquiesced in ever since, and he expressed the opinion that "it would be absurd to permit a single county to deprive the state of the services of a citizen in a high office by electing him a member of the assembly against his will." It may be proper to observe that, in these modern days, whatever may have been the former practice, a man is not often elected to the legislature against his will.

The validity of an appointment of a member of the legislature under this section was considered in Stewart v. New York (1897) 15 App. Div. 548, 44 N. Y. Supp. 575. A member had been appointed to the office of clerk of a district court in New York, and the appointment was sustained on the ground that the justice who made it was not an officer under the city government.

§ 8. [Certain officers disqualified as members.]-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. 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 of the United States, or under any city government, his acceptance thereof shall vacate his seat.

[Const. 1821, art. 1, § 11; 1846, art. 3, § 8; Am. 1874]

This section was modified in important particulars by the Commission of 1872.

A park commissioner in Hornellsville was held to be an officer under the city government, and ineligible to the legislature. "The term 'eligible' relates to the capacity of holding, as well as to the capacity of being elected to the office." People ex rel. Sherwood v. State Canvassers (1891) 129 N. Y. 360, 14 L. R. A. 646, 29 N. E. 345.

§ 9. [Time of elections.]—The elections of senators and members of assembly, 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.

[Const. 1821, art. 1, § 15; 1846, art. 3, § 9.]

The first Constitution did not prescribe a time for the election of members of the legislature. The legislature of 1778-the first session at which any laws were enacted-appointed the last Tuesday of April as election day for members of the legislature. Members of the legislature were required to take their seats on the first Monday of July or at the first meeting of the legislature thereafter. The election law of 1787 continued these dates.

An act passed in 1797 provided that if the governor did not, on or after the first Monday of July and before the first Tuesday of January, convene the legislature, then the legislature should meet on the latter day without any summons or notification. An act passed in 1798 changed the day of meeting from the first Tuesday of January to the last Tuesday of January. This rule continued in force twenty years, until 1818,-when the day of meeting was changed from the last Tuesday of January to the first Tuesday of January, as first fixed by the act of 1797. It will be observed that, during these twenty years, the time when the legislature was required to meet was six months after the election, which was still to be held on the last Tuesday of April. The Convention of 1821 found the act of 1818 still in force, and by existing statutes members of the legislature were to be elected on the last Tuesday of April. That Convention transferred to the Constitution the statutory provision requiring the legislature to meet on the first Tuesday of January, and also incorporated in the Constitution the provision requiring the election of members of the legislature to be held either in October or November (art. 1, §15).

While the subject was under discussion in the Convention Chief Justice Spencer said: "Too long a period now elapses between the election and the time of the meeting of the legislature; and circumstances may occur in which it would be improper for a member elected in April to take his seat in January. It is a settled maxim that a legislative body should meet as soon after the time of its being elected as possible." The new Constitution was approved by the people in January, 1822, and took effect on the last day of December, 1822. The section of the Constitution which prescribed the time for election of members of the legislature specifically provided that the first election under it should be held on the first Monday

of November, 1822. The legislature of 1822 passed a new election law in April, after the approval of the Constitution, fixing the first Monday of November as the general election day throughout the state. This date was continued by the revised statutes of 1827, but the general election law of 1842 changed the day to the first Tuesday after the first Monday of November. This date was prescribed by the Constitution of 1846, and has since continued to be the date on which members of the legislature are required to be elected.

§ 10. [Quorum; special powers of each house.]-A majority of each house shall constitute a quorum to do business. Each house shall determine the rules of its own proceedings, and be the judge of the elections, returns, and qualifications of its own members; shall choose its own officers; and the senate shall choose a temporary president to preside in case of the absence or impeachment of the lieutenant governor, or when he shall refuse to act as president, or shall act as governor.

[Const. 1777, art. 9; 1821, art. 1, § 3; 1846, art. 3, § 10.]

In the chapter including the period from 1874 to 1894, I have given a brief history of the movement to amend this section by depriving the legislature of the power to determine the election and qualifications of its own members, and transfer jurisdiction in such cases to the courts, and have noted the submission of a constitutional amendment intended to accomplish that result, and its rejection in 1892.

The scope of the power conferred on the legislature by this section In determining the election and qualifications of its members is considered in Barker v. People (1824) 3 Cow. 686, 15 Am. Dec. 322, where the court, construing the anti-dueling act of 1815, chap. 1,