to, and made part of the capital of, the said commonschool fund.

[Const. 1821, art. 7, § 10; 1846, art. 9, § 1.]

The history of this provision will be found in the previous volumes.

The legislature had no power to authorize the comptroller to loan a portion of the capital of the common school fund for the purpose of establishing an astronomical observatory at Schenectady. People ez rel. Schenectady Astronomical Observatory v. Allen (1870) 42 N. Y.

404.

The same principle was applied in Gordon v. Cornes (1872) 47 N. Y. 608, where it was held that the legislature had no power to appropriate the revenue of the common school fund for the support of normal schools.

§ 4. [Sectarian aid prohibited.]-Neither the state nor any subdivision thereof shall use its property or credit or any public money, or authorize or permit either to be used, directly or indirectly, in aid or maintenance, other than for examination or inspection, of any school or institution of learning wholly or in part under the control or direction of any religious denomination, or in which any denominational tenet or doctrine is taught.

[New.]

See the article on education, in the chapter on the Fourth Constitution, 1894, for a sketch of the history of this section.

This section was construed in Sargent v. Board of Education (1904) 177 N. Y. 317, 69 N. E. 722, in which the court sustained appropriations by the board of education of Rochester for the secular education of inmates of St. Mary's Boys' Orphan Asylum. It is stated in the opinion that the institution "gave secular education

the same as that furnished the children of like age in the public schools, and the same system of grades, the same course of studies, the same text books, examinations, and hours of study were followed therein and made use of in the teaching of the inmates; that no denominational tenet or doctrine is taught or religious instruction imparted in the asylum during the hours of school prescribed by the rules and regulations of the board of education, but religious instruction is given in the evening at seven o'clock." The court say that 4 should be construed in connection with that part of § 14 of article 8 which provides for secular education in orphan asylums and other charitable institutions. Replying to the suggestion that "public moneys ought not to be used for the education of children in an orphan asylum maintained by any church or religious organization," the court say: "It is perfectly obvious that these children could not receive instruction in any other place. They were under the exclusive control of the managers of the asylum. ... The statute [1850, chap. 261] clearly recognizes the fact that the instruction was to be had or given . . . in the asylum where the boys were detained."

ARTICLE X.

[LOCAL OFFICERS; GENERAL PROVISIONS.]

§ 1. [Election and removal of certain county officers.] Sheriffs, clerks of counties, district attorneys, and registers in counties having registers, shall be chosen by the electors of the respective counties, once in every three years and as often as vacancies shall happen, except in the counties of New York and Kings and in counties whose boundaries are the same as those of a city, where such officers shall be chosen by the electors once in every two or four years, as the legislature shall direct. Sheriffs shall hold no other office, and be ineligible for the next term ofter the termination of their offices. They may be required by law to renew their security, from time to time; and in default of giving such new security, their offices shall be deemed vacant. But the county shall never be made responsible for the acts of the sheriff. The governor

may remove any officer, in this section mentioned, within the term for which he shall have been elected; giving to such officer a copy of the charges against him, and an opportunity of being heard in his defense.

[Const. 1777, arts. 26, 28; 1821, art. 4, § 8; 1846, art. 10, § 1.]

Under the first Constitution county officers were appointed by the Council of Appointment, and the sheriff's term was limited to one year. This section, substantially in its present form, was incorporated in the Constitution of 1821. It was modified in 1894 by omitting the office of coroner, and by providing for a different term for county officers in the counties of New York and Kings. The reader is referred to the preceding volumes for various notes relating to the subject of this section.

The provision requiring a copy of the charges to be given to the officer, with an opportunity to be heard, was apparently borrowed from colonial procedure. Thus, without giving numerous instances, we find that in September, 1771, charges were preferred against the sheriff of Dutchess county, and that a copy of the charges was served on the sheriff and an order requiring him to appear before the Governor and Council on a day specified to answer the complaint. On the day named the parties appeared, and on the defendant's application the complainant was required to give a bond for costs. Then the Council, the Governor presiding, heard the evidence and disposed of the matter. The public officers law (1892, chap. 681, § 24) authorizes the governor to take the evidence himself, or appoint a commissioner for that purpose.

COUNTY CLERK.

"By the common law there were no officers who were properly denominated clerks of counties; nor was there any statute in this VOL. IV. CONST. HIST.-46.

state providing for the appointment of officers by that name. In England, there was in each county a clerk of the peace, who was appointed by the custos rotulorum of the county, and was clerk of the court of general sessions of the peace. The sheriffs also held courts which were called county courts, and such sheriffs had the appointment of the clerks of such courts, who were sometimes called county clerks, though they were more properly styled clerks of county courts. By the ordinance of May 15, 1699, for the establishing of courts of judicature in the province of New York, inferior courts of common pleas and courts of general sessions of the peace were appointed to be holden in the several counties. The establishment of courts of justice in the colonies was a prerogative of the Crown, as well as the appointment of the judges and officers of such courts. And as these courts of common pleas were called county courts, the clerks appointed for them by the colonial governors in the course of time acquired the name of county clerks." At the time of the adoption of the second Constitution "the clerk of the city and county of New York was the clerk of the court of common pleas, which had then recently been reorganized." The legislature had no power, as attempted by the act of 1843, chap. 88, to provide for the appointment of the clerk of the court of common pleas by the first and associate judges of that court. This statute deprived the electors of the city and county of the right to choose a county clerk in the manner prescribed by the Constitution. It was an unconstitutional exercise of power for the legislature "to take from a constitutional officer the substance of the office itself, and transfer it to another, who is to be appointed in a different manner and to hold the office by a different tenure than that which was provided for by the Constitution." Warner v. People (1845) 2 Denio, 272, 43 Am. Dec. 740.

DISTRICT ATTORNEY.

The district attorney is a state officer and an assistant appointed by him is also a state officer. The district attorney is an officer of the state connected with its judicial system. The fact that the salaries of the district attorney and assistants are paid by the county does not make them county officers. Fellows v. New York (1876) 8 Hun, 484. In a sketch of the office of attorney general, in the chapter on the Commission of 1872, it has been shown that the ordinary functions of the district attorney were originally per

formed by the attorney general, either directly or through assistants appointed in the several counties.

A district attorney was elected in Kings county in 1895. In 1896 the legislature, by chap. 772, provided that district attorneys in Kings county should be elected once in every four years, and specifically declared that the incumbent should hold office until the 31st of December, 1899. Construing the provision providing for a different term for certain officers in the counties of New York and Kings, the court say that until the legislature acted, the terms of county officers elected in those counties "must be deemed to be two years, which, as to future cases, may be extended to four years if the legislature shall so prescribe;" and in the absence of legislation the minimum period should be taken as the duration of the term. People ex rel. Eldred v. Palmer (1897) 154 N. Y. 133, 47 N. E. 1084. The same rule was applied as to coroners, construing Laws 1896, chap. 424; Re Burger (1897) 21 Misc. 370, 47 N. Y. Supp. 292.

SHERIFFS.

A sheriff elected to fill a vacancy holds for three years, and not simply for the remainder of the unexpired term. People ex rel. Gallup v. Green (1829) 2 Wend. 266.

The same rule was applied to a register elected to fill a vacancy in New York. Coutant v. People (1833) 11 Wend. 512.

Governor Seward in 1842 removed a sheriff and appointed a successor. In 1843 Governor Bouck removed this successor without charges, and appointed another person to fill the vacancy. In People ex rel. Faxton v. Parker (1843) 6 Hill, 49, it was held that the appointment by Governor Bouck was regular, and that he could remove Governor Seward's appointee without charges under the authority conferred by 1 Rev. Stat. 122, § 38, which provided that "all officers who are or shall be appointed by the governor for a certain time, or to supply a vacancy, may be removed by him." It will be observed that the constitutional provision requiring a copy of the charges to be delivered to an accused officer, and giving him an opportunity to be heard, applies only to officers elected by the people. The present statutory provision on this subject is found in the public officers law, § 23, which requires notice and an opportunity to be heard before removal in the case of officers appointed to fill a vacancy as well as to those appointed for a full term.

Construing the provision relating to the liability of the county for the sheriff's acts, Justice Ingraham, in Wolfe v. Richmond County