Governor Van Buren resigned on the 12th of March, 1829, and Enos T. Throop, lieutenant governor, became the acting governor. As in the case of Mr. Pitcher, the senate journal describes Mr. Throop as lieutenant governor, and the assembly journal describes him as acting governor. I do not find that any of these lieutenant governors Mr. Tayler, Mr. Pitcher, or Mr. Throoptook the oath of office as governor. Governor Grover Cleveland resigned on the 6th of January, 1885. Lieutenant Governor David B. Hill took the oath of office as governor on the same day. It will be noticed that this was a departure from the practice which had prevailed in previous instances, though the constitutional provision was the same as that in force when Mr. Pitcher and Mr. Throop assumed the executive office. They would doubtless have been justified in taking the oath of office as governor, but they seemed to have contented themselves with performing the duties of the office while holding only the title of lieutenant governor. Under the Constitution of 1821, which in this respect has not since been changed, the lieutenant governor, in case of a vacancy, becomes the actual, and not simply the acting, governor, and may properly assume the full official title.

But the governor is sometimes absent from the state and the lieutenant governor is authorized to assume and perform the duties of the executive office during such absence. These instances have been quite rare, and when executive power has in this manner been left in the hands of the lieutenant governor it has usually been exercised only in minor matters. I am not aware that any question relating to the authority of the lieutenant governor to act as governor in the latter's absence has received judicial consideration in this state, but a similar provision in the Louisiana Constitution was construed by the supreme court of that state in State ex rel. Warmoth v.

Graham (1874) 26 La. Ann. 568, 21 Am. Rep. 551. The governor had been absent from the 6th to the 19th of May, 1871, and from the 26th of June to the 17th of July, 1871. In a case involving the right of the governor to his salary during these absences, the court answered in the negative the question "Does the absence of the governor from the state for a few hours or a few days create a vacancy in this office, and authorize the assumption of the duties, prerogatives, and emoluments thereof by the lieutenant governor during said absence?" The court say that "the inability to discharge the duties of the office as well as the absence from the state,

are such

as would affect injuriously the public interest. Some public record should be made of the intended absence, or the governor should publicly place the lieutenant governor in charge of the government, so that the time of absence shall appear of record, and during such absence the acts of the acting governor would be of unquestionable validity."

Following this suggestion it is now the custom, when the governor of New York leaves the state, to make a note of the fact in the records of the executive chamber, and a like note upon his return. In addition to this record the governor usually informs the lieutenant governor of his intended absence, so that the latter may be prepared to do whatever routine business may be necessary while the governor is out of the state, and the records of the executive office show who performed these executive duties during the governor's absence.

The supreme court of Missouri in State ex rel. Crittenden v. Walker (1883) 78 Mo. 139, also had occasion to consider the lieutenant governor's right to act as governor in consequence of the temporary absence of the latter officer. The governor was absent from the state on public business from the 17th to the 27th of May, 1882.

The

He was held entitled to his salary during this time. court say that 'absence from the state' does not mean either an absence from the state for the purpose of performing a duty imposed by law upon the governor, or a mere casual absence of a few days, but that it is necessarily implied from its connection with the other specified causes, that such absence must be of such a character as to indicate on the part of the governor an abdication for the time being of the duties of the office, and such as, in the opinion of the governor, would make it necessary for him to call upon the lieutenant governor to take his place and perform such duties as the condition of business in his office and the exigencies likely to arise might require during such absence, and when so called upon, his authority to act would neither be questioned nor his right to the emoluments of the office denied until the governor returned and resumed his place."

§ 7. [Lieutenant governor to be president of senate ; gubernatorial succession. ]-The lieutenant governor shall possess the same qualifications of eligibility for office as the governor. He shall be president of the senate, but shall have only a casting vote therein. 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 filled 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 assembly shall act as governor until the vacancy be filled or the disability shall cease.

[Const. 1777, art. 20; 1821, art. 3, § 7; 1846, art. 4, § 7.]

VOL. IV. CONST. HIST.-31.

Casting vote. The provision giving the lieutenant governor, as president of the senate, a casting vote, should be read in connection with § 15 of article 3, which requires the assent of a majority of each branch of the legislature on the passage of a bill. It is obvious that this majority cannot be made up by the addition of the lieutenant governor's vote. He is not a member of the senate, and legislative power is not vested in him, but in the senate and assembly. It is manifest, however, that in the orderly discharge of its duties, except in connection with the highest duty of all,—the making of laws,— business should not remain at a standstill in consequence of an equal division of the senate on an ordinary question within its jurisdiction. The power to dissolve a tie and decide the question has, therefore, been properly vested in the lieutenant governor. This power apparently extends to all matters not involving the passage of a bill, and requiring only a majority vote, including the determination of election contests, senate rules, the choice of its officers, including the temporary president, resolutions, either separate or concurrent, adjournments, confirmations of appointments by the governor, and removals from office.

The effect of a casting vote given by a mayor at a meeting of the common council, under a statute which authorized him to give such a vote, was considered in New York, L. E. & W. R. Co. v. Dunkirk (1892) 65 Hun, 494, 500, 20 N. Y. Supp. 596, sustaining a resolution which was declared adopted by the mayor's casting vote. The court said the mayor was not a member of the common council, but he was its presiding officer, and had a casting vote, and a resolution adopted by his vote must be deemed to have been adopted by a majority of the council. The Federal and state senates are cited as instances of a similar situation. The court say the case

would probably have been otherwise if the statute had required a vote of a majority of the councilmen.

Temporary president.-The office of temporary president of the senate is a colonial inheritance, and is another instance of the adaptation of colonial customs to conditions presented by the organization of the state government. The senate succeeded to the general powers and functions of the colonial council. That council has been described in former pages, and it has there been shown that it was an essential part of the machinery of the colonial government. The council, as known at the close of the colonial period, had a Dutch original, for we find it at the very beginning of actual Dutch administration in the colony, with large legislative and executive authority, and also with extensive judicial powers. It was continued after the English conquest, at first without much change, but later, in a somewhat modified form, became one of the fixed institutions of the colony, with well defined powers. Governor Tryon in his report of June 11, 1774, from which I have already made several quotations, describing the government of the colony, says that the governor "has a council in imitation of his Majesty's Privy Council. This board, when full, consists of twelve members, who are also appointed by the Crown during will and pleasure; any three of whom make a Quorum;" and he further says that the council, in place of the House of Lords, is a part of the legislative system of the colony.

I have already, in the first volume, described the council as a branch of the colonial legislature. This function was devolved upon it when the legislative system was established by the creation of the assembly in 1683, and thereafter, and especially after the revival of the assembly in 1691, the council sustained a double relation to colonial affairs; namely, it was the executive council, participating with the governor in general colonial administration, and