Compensation for taking private property.

Art. I, § 7.

The police power of the State must yield to federal authority in matters of interstate commerce when there is actual conflict. People v. Hudson River Connecting Railroad Corporation (1919), 186 App. Div. 602, 174 N. Y. Supp. 754.

Since saccharin is not injurious to health its use may be regulated but cannot be prohibited under the exercise of the police power. People v. Excelsior Bottling Works (1918), 184 App. Div. 45, 171 N. Y. Supp. 733.

The police power under which the State may affect franchise rights is an attribute of sovereignty to be exercised only by it or its agents to which such power has been delegated. City of New York v. Hudson & Manhattan R. R. Co. (1919), 188 App. Div. 294, 177 N. Y. Supp. 4.

The Public Safety Law, L. 1917, ch. 521, authorizing the Excise Commissioner to suspend the privileges under liquor tax certificates is constitutional. People

ex rel. Doscher v. Sisson (1917), 180 App. Div. 464, 167 N. Y. Supp. 801, affd. 222 N. Y. 387, 118 N. E. 789.

L. 1911, ch. 777, an enabling act, passed for the purpose of ameliorating the condition of grade crossing evils on the west side of the city of New York, is constitutional. Society for Prevention of Municipal Waste v. Mitchell (1917), 99 Misc. 552, 166 N. Y. Supp. 17.

Game laws within police power. "The preservation of such animals, birds and fish as are adapted to consumption as food, or to any other similar useful purpose, is a matter of public interest, and it is within the police power of the state as the representative of the people to make such laws as will best preserve such game and secure its beneficial use in the future to the citizens of the state, and to that end it may adopt any reasonable regulations not only as to time and manner in which such game may be taken and killed, but also may impose limitations upon the right of property in such game after it has been reduced to possession. Such limitations deprive no person of his property, because he who takes or kills game had no previous right to property in it, and when he acquires such right by reducing it to possession he does so subject to such conditions and limitations as the legislature has seen fit to impose." People v. Clair (1917), 221 N. Y. 108, 116 N. E. 868, revg. 175 App. Div. 912, 160 N. Y. Supp. 1140.

Section cited.-People ex rel. Childs v. Knott (1919), 187 App. Div. 604, 176 N. Y. Supp. 321; Matter of Otis (1920), 190 App. Div. 720, 180 N. Y. Supp. 313.

Art. I, § 7. Compensation for taking private property, etc.—When private property shall be taken for any public use, the compensation to be made therefor, when such compensation is not made by the state, shall be ascertained by a jury, or by the supreme court with or without a jury, but not with a referee, or by not less than three commissioners appointed by a court of record, as shall be prescribed by law. Private roads may be opened in the manner to be prescribed by law; but in every case the necessity of the road and the amount of all damage to be sustained by the opening thereof shall be first determined by a jury of freeholders, and such amount, together with the expenses of the proceeding, shall be paid by the person to be benefited. The use of property for the drainage of swamp or agricultural lands is declared to be a public use, and general laws may be passed permitting the owners or occupants of swamp or agricultural lands to construct and maintain for the drainage thereof, necessary drains, ditches and dykes upon the lands of others, under proper restrictions on making just compensation, and such compensation together

Art. I, §§ 8, 10, 18.

Freedom of speech and press.

with the cost of such drainage may be assessed, wholly or partly, against any property benefited thereby; but no special laws shall be enacted for such purposes.

The legislature may authorize cities to take more land and property than is needed for actual construction in the laying out, widening, extending or relocating parks, public places, highways or streets; provided, however, that the additional land and property so authorized to be taken shall be no more than sufficient to form suitable building sites abutting on such park, public place, highway or street. After so much of the land and property has been appropriated for such park, public place, highway or street as is needed therefor, the remainder may be sold or leased. (Adopted by vote of the people, Nov. 4, 1919.)

Two fundamental principles underlie the exercise of the right of eminent domain. -The one, the obligation to make just compensation for the property taken attaches to the exercise of the power to take it, even though it were not constitutionally created. The other, the legislature must provide an impartial and disinterested tribunal to ascertain the amount of the compensation and a reasonable opportunity for the parties interested to be heard before such tribunal. Matter of City of Rochester v. Holden (1918), 224 N. Y. 386, 121 N. E. 859, affg. 184 App. Div. 369, 171 N. Y. Supp. 12.

Appointment of commissioners.-Section 438 of the charter of the city of Rochester, requiring that at least one of the commissioners of appraisal to be appointed where lands are to be taken by said city by eminent domain shall be a resident and freeholder of said city, is unconstitutional in a case where lands outside the city limits are to be condemned, being in violation of the provision of the State Constitution clothing the court with plenary power to appoint not less than three commissioners. Matter of City of Rochester (1918), 184 App. Div. 369, 171 N. Y. Supp. 12, revg. 100 Misc. 421, 165 N. Y. Supp. 1026, affd. 224 N Y. 386, 121 N. E. 102.

Validity of statute fixing price of gas.-Kings County Lighting Co. v. Lewis (1920), 110 Misc. 204.

Art. I, 8. Freedom of speech and press.

Validity of municipal ordinance prohibiting sale, circulation or distribution of certain newspapers.-A municipal ordinance prohibiting the sale, circulation or distribution of certain newspapers from the time such ordinance takes effect until the end of the war is beyond the powers of the municipality as it would thereby invade the constitutional rights of a free press. Star Co. v. Brush (1918), 185 App. Div. 261, 172 N. Y. Supp. 851, revg. 172 N. Y. Supp. 661.

Section cited.-Star Co. v. Brush (1918), 103 Misc. 631, 170 N. Y. Supp. 987.

Art. I, § 10. Escheats.

Application.-Provision relates solely to land and not to personal property. New York Central & H. R. R. R. Co. v. Cottle (1917), 102 Misc. 30, 39, 168 N. Y Supp. 463, affd. 187 App. Div. 131, 175 N. Y. Supp. 178.

Section cited.-County of Orange v. Storm King Stone Co. (1917), 180 App. Div. 208, 213, 167 N. Y. Supp. 806 (dissenting opinion).

Art. 1, § 18. Damages for injuries causing death.

Application. This section is not relevant to the determination of the rights arising through section 29 of the Workmen's Compensation Law to the dependents of the deceased employee. Travelers Ins. Co. v. Padula Co. (1918), 224 N. Y. 397, 121 N. E. 348.

The right of action to recover damages for death preserved by this section is the one provided for in section 1902 of the Code of Civil Procedure. Barnhart v. American Concrete Steel Co. (1920), 227 N. Y. 531, 125 N. E. 675, affg. 181 App. Div. 881, 167 N. Y. Supp. 475.

L. 1911, ch. 122, amending section 1903 of the Code of Civil Procedure, and enacting that the spouse of the decedent should alone, in the absence of children of the decedent, receive the damages, instead of the spouse and the next of kin, did not abrogate a right of action existing on December 31, 1894, to recover damages for injuries resulting in death, and hence, does not contravene the Constitution. Matter of Meng (1919), 227 N. Y. 264, 125 N. E. 508, revg. 188 App. Div. 69, 176 N. Y. Supp. 290.

Section cited.-Loucks v. Standard Oil Co. (1918), 224 N. Y. 99, 111, 120 N. E. 198, revg. 172 App. Div. 227, 159 N. Y. Supp. 282; Hanke v. New York Consolidated R. R. Co. (1917), 181 App. Div. 53, 60, 168 N. Y. Supp. 234; Barnhart v. American Concrete Steel Co. (1917), 181 App. Div. 881, 167 N. Y. Supp. 475 (dissenting opinion).

Art. 1, § 19. Employers' liability; workmen's compensation.

Construction and effect.-Travelers Ins. Co. v. Padula Co. (1918), 224 N. Y. 397, 121 N. E. 348.

Construction together with Workmen's Compensation Law. Freess v. Kleinau (1919), 190 App. Div. 131, 179 N. Y. Supp. 347.

The word "employees" is used in its ordinary sense; the legislature recognizes the subsistence of a contract of employment, which presupposes an employer capable in law of making a contract. The existence of the fact of a contract is essential to the operation of the workmen's Compensation Law; without such a contract the statute has no operation whatever, and with it it deals only with a specified body of workers, and no attempt is made to make a different rule for determining what is a contract of employment between persons within or without the special groups. In other words, the question whether there is a contract of employment is jurisdictional, and due process of law requires that this fact shall be determined judicially; that the rules which apply to contracts generally shall be applied in determining whether the contract which must underlie the operation of the Workmen's Compensation Law exists, and this is a question of law depending upon established facts. Kackel v. Serviss (1917), 180 App. Div. 54, 167 N. Y. Supp. 348.

Application. This section is not limited to the provisions of the original Compensation Act. Edsall v. Edsall (1917), 179 App. Div. 481, 165 N. Y. Supp. 967.

Amendment of this section was made for the express purpose of permitting the Legislature to enact the Workmen's Compensation Law. Barnhart v. American Concrete Steel Co. (1920), 227 N. Y. 531, 125 N. E. 675, affg. 181 App. Div. 881, 167 N. Y. Supp. 475.

Legislation under this section discussed. Matter of Sweeting v. American Knife Co. (1919), 226 N. Y. 199, 123 N. E. 82, affg. 186 App. Div. 926, 172 N. Y. Supp. 921.

The right of recovery has been placed by the Statute under authority of the constitutional amendment upon the extent of disability suffered by the employee from any accident happening out of and in the course of the employment. Morris v. Muldoon (1920), 190 App. Div. 689, 180 N. Y. Supp. 319.

The provision of subdivision 3 of section 15 of the Workmen's Compensation Law permitting an award for injury resulting in serious facial or head disfigurement is valid. Matter of Sweeting v. American Knife Co. (1919), 226 N. Y. 199, 123 N. E. 82, affg. 186 App. Div. 926, 172 N. Y. Supp. 921.

Subdivison 7 of section 15 of the Workmen's Compensation Law, requiring the insurance carrier to pay to the state treasurer the sum of one hundred dollars for every case of injury causing death in which there is no person surviving the deceased who is entitled to compensation under the law, is a valid enactment within the letter and spirit of this section of the Constitution. Matter of State Industrial Commission v. Newman (1918), 222 N. Y. 363, 118 N. E. 794, affg. 179 App. Div. 481, 165 N. Y. Supp. 967.

Section cited.-Hanke v. New York Consolidated R. R. Co. (1917), 181 App. Div. 53, 60, 168 N. Y. Supp. 234; Barnhart v. American Concrete Steel Co. (1917), 181 App. Div. 881, 167 N. Y. Supp. 475 (dissenting opinion); Basso v. Clark & Son (1919), 108 Misc. 78, 177 N. Y. Supp. 484.

Art. II, § 1. Qualification of voters.-Every citizen of the age of twentyone years, who shall have been a citizen for ninety days, and an inhabitant of this state one year next preceding an election, and for the last four months a resident of the county and for the last thirty days a resident of the election district in which he or she may offer his or her vote, shall be entitled to vote at such election in the election district of which he or she shall at the time be a resident, and not elsewhere, for all officers that now are or hereafter may be elective by the people, and upon all questions which may be submitted to the vote of the people, provided however that a citizen by marriage shall have been an inhabitant of the United States for five years; and provided that in time of war no elector in the actual military service of the state, or of the United States, in the army or navy thereof, shall be deprived of his or her vote by reason of his or her absence from such election district; and the legislature shall have power to provide the manner in which and the time and place at which such absent electors may vote, and for the return and canvass of their votes in the election districts in which they respectively reside. (Adopted by vote of the people, Nov. 6, 1917.)

Application. The provision of this section, which entitles a citizen qualified as therein stated to vote at an election upon all questions which may be submitted to the vote of the people, applies only to such propositions as relate to the general governmental affairs of the State, and not to local affairs of municipalities. Matter of Carrick (1918), 183 App. Div. 916, 170 N. Y. Supp. 1071, affd. 223 N. Y. 621.

Under this section no superior political rights are conferred upon either sex either jointly or individually. Matter of Slawson (1920), 111 Misc. 271.

Designation of polling place-Designation by the town board of a building outside of the election district, for which a general election is held, as a polling place, is unlawful. Opinion of Attorney General (1917), 13 State Dep. Rep. 428.

The amendment of this section, conferring equal suffrage upon women, carries with it the right to hold office. Opinion of Attorney General (1918), 15 State Dep. Rep. 535. And superseded the provisions of the Election Law containing the masculine term only. Opinion of Attorney General (1918), 15 State Dep. Rep. 535, 539.

Citizenship; woman married to foreigner.-Inasmuch as citizenship is a required qualification for the exercise of suffrage, a woman married to a foreigner cannot vote until her husband has been naturalized or she is restored to citizenship upon the legal termination of the marital relations, as provided in chapter 2534, section 3 of the United States Statutes. Opinion of Attorney General (1918), 14 State Dept. Rep. 520.

Domicile of married woman.-While a wife is living with her husband, she cannot designate or claim a separate residence or domicile for the purpose of exercising her suffrage. Opinion of Attorney General (1918), 16 State Dep. Rep. 348.

Qualification of women to sign petition under City Local Option Law. Matter of Curtin v. Denton (1918), 183 App. Div. 312, 170 N. Y. Supp. 58.

Electors in military service; validity of ballots.-This section securing the vote to soldiers and sailors in actual service, does away with objections which might otherwise render the ballots of such voters void. Matter of Fiske (1918), 181 App. Div. 706, 168 N. Y. Supp. 779, mod. 222 N. Y. 687.

Failure of L. 1917, ch. 815 to provide for taking and counting votes on excise questions of electors in the military service does not violate this section of the Constitution. Matter of Zierbel (1918), 102 Misc. 626, 169 N. Y. Supp. 270.

Art. II, § 1-a. Absent voters.-The legislature may, by general law, provide a manner in which, and the time and place at which, qualified voters who may, on the occurrence of any general election, be unavoidably absent from the state or county of their residence because their duties, occupation or business require them to be elsewhere within the United States, may vote, and for the return and canvass of their votes in the election district in which they respectively reside. (Adopted by vote of people, Nov. 4, 1919.)

Art. II, § 3. Certain occupations and conditions not to affect residence. Election Law, § 163, is a reenactment of the provision of § 3 of the Constitution. Matter of Merrill (1918), 183 App. Div. 216, 171 N. Y. Supp. 163.

Occupants of Mount St. Alphonsus, a branch of "the Congregation of the Most Holy Redeemer," are not entitled to vote in the town where such institution is located, where there is nothing to indicate that they would be there, except for the fact that they are students. The fact that their location and vocation is determined for them by their superior rather than by themselves, does not affect the question. The right of students to vote in the town where the institution which they attend is located must depend on acts independent of their presence as students in that locality. Matter of Gardineer (1918), 183 App. Div. 491, 171 N. Y. Supp. 327.

Determination of rights of students of Syracuse University to vote at city local option elections. Opinion of Attorney General (1918), 16 State Dep. Rep. 341. Art. II, § 4. Registration and election laws to be passed.

Section cited.-Matter of Curtin v. Denton (1918), 183 App. Div. 312, 170 N. Y. Supp. 58.

Art. II, § 5. Manner of voting.

The Legislature has power to fix the form of ballot to be used and unless its acts are violative of some constitutional provision they must be upheld by the courts. Walsh v. Boyle (1917), 179 App. Div. 582, 166 N. Y. Supp. 681.