USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume II > Part 23
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Although the powers of the commission were not as broad as those of the Convention of 1867, there is a close correspond- ence in the changes proposed by the two bodies. While the Convention of 1867 at various times brought a great number of topics under discussion, the actual outcome of its proceed-
3. Constitutional Commission of 1872-Chairman, Robert H. Pruyn. Ist District: George Opdyke, Augustus Schell, John J. Townsend, John D. Van Buren. 2nd: John J. Armstrong, Erastus Brooks, Odle Close, Benja- min D. Silliman. 3rd : Robert H. Pruyn, George C. Burdett, William Cas- sidy, Joseph B. Hall, Cornelius L. Tracy. 4th: James M. Dudley, Edward W. Foster, Samuel W. Jackson, Artemas B. Waldo. 5th: Francis Kernan, Elias W. Leavenworth, Ralph McIntosh, Daniel Pratt. 6th: John F. Hubbard, Jr., Barna R. Johnson, Jonas M. Preston, Lucius Robinson. 7th : George B. Bradley, Horace V. Howland, Van R. Richmond, David Rumsey, Lysander Farrar. 8th: Cyrus E. Davis, Lorenzo Morris, Benjamin Pringle, Sherman S. Rogers.
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ings was not as fruitful of amendments as the work of the commission. Upon the subject of legislation, of the Gov- ernor's veto, and particularly of municipal reform, the Consti- tution reported by the Commission went much further than the Constitution reported by the convention.
Like the Convention of 1867, the commission reported in favor of the abolition of all property qualifications for colored voters; and it reported, substantially, the amendment ex- cluding bribers from the exercise of the elective franchise, which is to be found in the Constitution adopted by the Con- vention of 1867. The last amendment was ratified by the Legislature and the people. The commission proposed also to increase the term of Senators to four years and to divide the State into eight Senate districts, each of which should choose four Senators, one every year; a change which had been proposed in the Convention of 1867 but in part voted down, the Convention of 1867 agreeing only to increase the Senatorial term to four years. The commission further re- ported the prohibition of private, special or local legislation in thirteen enumerated cases. The clause containing these restrictions was adopted and is now Section 18 of Article III. Some of the best suggestions of the commission upon the sub- ject of legislation were not approved by the Legislature, and, therefore, were never submitted to the people for ratification ; for example, a section requiring that every bill introduced into the Legislature should be considered and read twice, section by section, in the Senate and Assembly ; that every bill should have three readings, no two on the same day; that every bill and all amendments to it should be printed and distributed among the members of each House at least one day before the vote upon its final passage; that the question on the final passage should be taken immediately upon the last reading, section by section, and by yeas and nays to be entered upon the journals ; and that the assent of a majority of the members elected to each House should be requisite to the passage of
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every bill. The purpose of Section 18-which, unfortunately, was not approved by the Legislature and, therefore, was never submitted to the people-was to inform the public as to all private bills introduced into the Senate or Assembly, and thereby to secure to those most interested in defeating the passage of a private bill ample opportunity to register their opposition to it. This was the first attempt in the State of New York to adopt the principle of the parliamentary stand- ing orders which have proved an invaluable safeguard in Great Britain against the passage of improper private or local bills. In the matter of private legislation, as well as in ballot reform, the example of Great Britain is worthy of emulation. The passage of special legislation through Parliament is in the nature of a judicial proceeding. All private or special bills must be filed sixty days before Parliament convenes, and all whose interests such bills may affect adversely must be given ample notice to file objections. The promoters of all such bills are required to deposit sufficient sums to meet the ex- penses of the proceedings. The bills are then referred to special parliamentary committees acting as judges ; and if the objects of these promoters are approved, the bills must be made to harmonize with existing legislation before becoming laws.
The commission terminated the controversy which had perplexed the conventions of 1821, 1846 and 1867, as to the number of members of each House whose concurrence should be necessary to pass a bill over the Governor's veto. The pre- cision which it reported made the consent of two-thirds of the members elected to each House essential to the passage of a vetoed bill. It further reported that no bill should become a law after the final adjournment of the Legislature, unless approved by the Governor within thirty days after the ad- journment. These modifications were adopted by two Legis- latures and by the people, and form part of the Constitution.
Another and much needed amendment reported by the
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commission, which has also found its way into the Constitu- tion, empowers the Governor to veto one or more items of an appropriation bill, while approving all of its other features. The superior flexibility of the Constitution of New York, as contrasted with the Federal Constitution, is shown by this amendment. The State has not suffered more from improper riders upon appropriation bills than the general Government.
The commission proposed also that the Governor's and Lieutenant-Governor's term should be increased to three years. This amendment was ratified and became part of the Constitution. It also reported amendments to Article V, which provided that the comptroller should be elected at the same time with the Governor and for the same term, and that the secretary of state, attorney-general and State engineer and surveyor should be appointed by the Governor with the con- sent of the Senate, and hold their offices until the end of the term of the Governor by whom they should be nominated and until their successors should be appointed. These amend- ments to Article V, not having been favorably received by the Legislature, were never voted upon by the people.
The commission proposed also that a superintendent of State prisons and a superintendent of public works should be appointed by the Governor with the consent of the Senate for the like term, and that the State treasurer should be chosen by the Senate and Assembly in joint ballot, to hold his office for three years, or until his successor should have qualified. Only two of these provisions were adopted by two Legisla- tures and have met with popular approval; namely, those re- lating to the appointment of the superintendent of State prisons and the superintendent of public works. These were em- bodied in the Constitution. The amendment in the mode of electing the treasurer was defeated in the Legislature. The commission also decided that the lateral canals had outlived their usefulness and were and would continue a burden to the State. They, therefore, recommended a modification of Sec-
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tion 6, Article VIII, restricting the prohibition upon the sale, lease or other disposition of the canals of the State to the Erie, Oswego, Champlain and Cayuga and Seneca. This amendment became part of the Constitution.
The commission proposed also to amend Section 4, Article VIII, of the Constitution, by requiring the Legislature by general law to conform all charters of savings banks or institu- tions for savings to a uniformity of powers, right and liabil- ities, and that all charters thereafter granted for such cor- porations should be made to conform to such general law and to amendment thereto. No such corporation was to be per- mitted to have capital stock, nor were the trustees to possess any interest, direct or indirect, in the profits of the corporation nor to be interested in any loan or use of money or property of such corporation. This amendment was ratified. The amendment eradicated an evil which had sprung from the cre- ation of savings banks with stock, under special charters, with- out proper restrictions upon the investment of their funds. Some of these institutions, actuated by the desire to make large profits and declare handsome dividends, had taken risks entirely inconsistent with the nature of their business, to the great injury of depositors; and the temptations to such risks was increased by their having capital stock of which the direc- tors or trustees could be holders.
Further amendments to Article VIII were reported by the commission in the shape of two new and most important sections (10 and II). Section 10, in effect, prohibited the State from loaning its credit or money in aid of any associ- ation, corporation or private undertaking, but expressly per- mitted appropriations for the benefit of the blind or of the deaf and dumb or of juvenile delinquents. Section II prohibited every city, county, town or village within the State from there- after giving any money or property or loaning its credit in aid of any individual, association or corporation, or from becom- ing directly or indirectly the owner of stock or bonds of any
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association or corporation; and further prohibited every such county, city, town or village purposes. The section was not, however, to preclude provision for aid or support of the poor.
These sections were aimed at the latitudinary construction which courts, particularly those of the United States, had given to the powers of municipalities and towns, and were designed to terminate the disastrous system under which money and credit were loaned by cities to railroads and other private enterprises. Similar constitutional limitations were adopted about the same time in many other States. A new section (9) was also added to Article X, providing that no officer whose salary is fixed by the Constitution should re- ceive any additional compensation ; that the compensation of cther State officers should be fixed by law and neither in- creased nor diminished during their term; and that no State officer should receive and put to his own use any fees or per- quisites of office or other compensation. Article III, relating to the oath of office, was also amended. Despite the stringent oath now required from legislators and the severe penalties enforced against all concerned in bribery at elections, the offence contiued to be common.
All of these amendments were subsequently approved by two Legislatures and ratified by the people.
The commission proposed two additional articles to the Constitution : Articles XV and XVI. Article XV related to municipal reforms. Article XVI related to bribery. This article (which closely resembles Article XIV, proposed by the Convention of 1867) was adopted. The article made it a felony for any person holding office under the laws of this State to receive any money except his legal salary, or any fees or perquisites or anything of value or of personal advantage or any promise of either, for the performance or non-perform- ance of any official act or upon the express or implied under- standing that his official action is to be influenced thereby. The article further provided that any person who should offer
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or promise a bribe, if it should be received, would be deemed guilty of a felony and liable to punishment. The briber should not be privileged from testifying upon any prosecu- tion of the officer for receiving such bribe ; but he should not be liable to civil or criminal prosecution for offering the bribe if he should testify to offering or giving it. Offering a bribe, even though it be refused was made a felony. The article also permitted either the briber or the bribed to testify in his own behalf in any civil or criminal prosecution for the bribery. Provision was also made that any district attorney failing to prosecute a person amenable under this article should be re- moved from office by the Governor, after due notice and an opportunity to be heard in his defence. Expenses incurred in any county investigating and prosecuting any charge of bribery or attempt at bribery within such county were made a charge against the State, and their payment by the State was required to be provided for by law.
But upon no topic before the commission was there a more urgent demand for action than upon that of municipal reform. The subject of abuses in municipal administrations was not considered in the Convention of 1821; for in that day cities were few in number and of comparatively small population ; and, as they were managed by citizens possessed of property, such abuses as have become so familiar of late years had no existence. The opening of the door of universal suffrage in 1826 and the great immigration from Europe which followed some years later had, when the Convention of 1846 assembled, injuriously affected municipal administration ; but questions of more urgent (although not of more transcendent) import- ance occupied that body till the close of its sessions. The continued flow of population into cities, their increase in num- ber and size, the relatively far greater increase in municipal debt and municipal taxation, the complicated and inconsistent character of municipal charters, the evil effects of constant legislative interference and of government by legislative com-
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missions gave the problem of city government a significance in the Convention of 1867 which it had never before possessed ; but that convention failed to administer relief, and the people failed to approve of the few provisions which it reported. In 1870-71, came the exposure of the Tweed frauds in New York City. Public sentiment then awoke, investigated the disease and demanded a remedy. The population of the cities of the State constituted one-half of all its inhabitants, and the valu- ation of property in municipalities amounted to three-fourths of that of the whole State. While economy had been steadily enforced in State government, corrupt and profligate expend- itures had characterized city administration. In the city of New York the municipal debt was ten million dollars in 1840, twelve million dollars in 1850, eighteen million dollars in 1860, seventy-three million in 1870, and one hundred and seventeen million in 1877; while taxation had increased from less than one-half of one per cent in 1816, or from about thirty-five one- hundredths of one per cent in 1836, to two and sixty-seven one-hundredths per cent in 1877, and this increase was ex- clusive of the sums exacted every year from property holders in the shape of special assessments upon property assumed to be specially benefited. A corresponding disproportionate in- crease of taxation and debt over population was observable all over the Union. According to the report of a commission appointed by the Governor of Pennsylvania in 1877, statistics of the increase of population, valuation, taxation and indebt- edness of fifteen of the principal cities of the United States, from 1860 to 1875, exhibited the following results : Increase in population, 70.5 per cent ; increase in taxable valuation, 156.9 per cent ; increase in debt, 270.9 per cent ; increase in taxation, 363.2 per cent.
Apart from the fact that cities have undertaken the per- formance of many functions for the citizens which legitimately require the disbursement of great sums, and that many cities
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have improperly lent their credit to private enterprises, the causes of these excessive expenditures must be sought in the difference in the treatment of cities and villages by the State; in the debasement of municipal suffrage, the system of legis- lative commissions, and the consequent use of public office for political or pecuniary gain.
The policy of the State in granting charters to municipali- ties has been diametrically opposed to its policy in the organi- zation of villages. General laws were passed by the Legisla- ture for the incorporation of villages as early as 1847, and the control of the expenditure of money for village purposes has been universally retained in the hands of the village tax- payers. On the other hand, no general law has ever been enacted in this State for the incorporation of municipalities, but legislative interference in municipal affairs has become almost the rule. No city charter is safe from legislative attack.
Legislative interference in city affairs had assumed pro- tean shapes, but perhaps its worst phase was the appointment of commissions. In 1857, the politics of New York City, always heavily Democratic, were so largely under the domina- tion of the ignorant and corrupt class and their unprincipled leaders that life and property were deemed to be in peril, and a Republican Legislature and Governor took the control of certain municipal departments from the city and placed it in the hands of the Governor and Senate. The system then initiated was gradually extended until a large part of the city's business was transacted at Albany, sometimes by commis- sioners who were not residents of New York City but were hostile to her interests. A similar centralizing policy was drawing to the capital the control of all municipalities throughout the State. This was the state of affairs when the Convention of 1867 sat; and this state of affairs accounts, in part, for the inability of that body to deal with the municipal question. The Democrats of the convention advocated home
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rule; the Republicans, with much justice, insisted that some of the offices controlled at Albany were State and not munic- ipal offices.
The subject of municipal reform was therefore, naturally, one of the most important topics before the Constitutional Commission of 1872. As already stated, the commission framed a new article relating to the subject of municipalities (Article XV) for addition to the Constitution. Mr. Opdyke, chairman of the committee on municipal reform, drew up, in explanation of the article, a report to the Legislature which was approved by the commission. According to this report the proper functions of municipal government consist chiefly in keeping the streets, avenues, parks and wharves of a city in proper condition; in the preservation of order ; in proper sanitary regulations; in the protection of property from fire and other hazards; in the assessment and collection of taxes ; and in the adoption of such local laws as may be deemed most conducive to the comfort and material welfare of the people and to the growth and prosperity of the city. The proper per- formance of these duties could not, the report declared, injuri- ously interfere with the civil or political rights of individuals, because these rights are under the guardianship of the State. But in conformity with the attitude taken by Mr. Opdyke in the Convention of 1867, the report argued that under munic- ipal government it was clearly right to vest in the holders of property the power to check improper expenditures of money. The report, therefore, recommended the creation, in each city, of a Board of Audit, to be chosen by taxpayers and clothed with power to restrain excessive taxation and the lavish or corrupt expenditure of money. The most important provi- sion of the new article was the creation of such a Board of Audit.
The article also conferred upon mayors increased executive powers. It provided that the mayor of every city, with the consent of the Board of Aldermen, should appoint heads of
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departments, and vested in him ample powers of removal. It gave him a veto over the acts of the Board of Aldermen analogous to that given to the Governor over the Legislature; and it gave to Boards of Aldermen power to pass measures over an executive veto, such as is bestowed upon the Legis- lature by the Constitution. The article then proceeded to con- fer upon every city government exclusive legislative power in all matters relating to taxation and expenditure for local pur- poses; the care, regulation and improvement of its streets, avenues, public grounds, and public buildings, of its supply and distribution of water, of its almshouses and its other charitable and benevolent institutions, and also such other powers as might be given by law. The article also required the Legislature forthwith to enact a general law for the gov- ernment of cities, in harmony with its terms.
This article did not meet with the approval of the Legisla- ture to which it was submitted, nor of any subsequent Legis- lature. As legislative approval was a condition precedent to its submission to the people, the people were not given an opportunity to say whether it ought to be adopted.
THE MUNICIPAL COMMISSION OF 1876-77.
Although municipal reform failed in 1874, it was soon again urged by a statesman who had been a member of the Constitutional Conventions of 1846 and 1867. After Governor Tilden's election as such he submitted to the Legislature a special message relating to cities. The message stated that the Convention of 1846 had accomplished nothing in the direc- tion of municipal reform beyond adopting a provision on the last day of its session devolving upon the Legislature the duty of enacting laws to protect municipalities against excessive taxation and financial evils similar to those from which the State had suffered prior to 1846. After referring to the fact that, so far from discharging the obligation imposed by the Constitution, the Legislatures had in reality acted in direct
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opposition to their duty, and after adverting to the alarming increase in the debts of some of the leading cities in the State, the Governor suggested that a commission should be appointed for the purpose of framing some permanent uniform plan for the government of the cities of the State. The message was pre- sented to the Legislature on May 22, 1875. On the same day a concurrent resolution was adopted by the two Houses, authorizing the Governor to appoint such a commission, to con- sist of not more than twelve persons, "whose duty it should be to consider the subject referred to in said message, to devise a plan for the government of cities, and to report the same to the next Legislature." The commission was made up equally from the two great political parties.
Its members were William M. Evarts, James C. Carter, Oswald Ottendorfer, William Allen Butler, Joshua M. Van Cott, E. L. Godkin, John A. Lott, Simon Sterne, Henry F. Dimock and Samuel Hand. The commission organized immediately after its ap- pointment. Its first meeting was held December 15, 1875, and Mr. Evarts was elected chairman. So great was the task undertaken by it that it was unable to report to the Legisla- ture of 1876. The Legislature of that year therefore extended its time to the session of 1877.
The report submitted by the commission is a most valuable contribution to the discussions respecting municipal reform and is deserving of the most attentive study. It deals first with the evils existing in the government of cities. These, it argues, are two in number: First, the accumulation of per- manent municipal debt; secondly, the excessive increase of the annual expenditures for ordinary purposes, which is well illustrated in the case of New York City.
These evils of municipal administration were declared to flow largely from the employment of incompetent and un- faithful governing boards and officers. Without challenging the integrity, intelligence or loyalty of every official in the municipal service, the report justly asserted that, had the cities
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of this State during the preceding twenty-five years had the benefit in the various departments of local administration of the services of competent and faithful officers, the aggregate of municipal debts would not have been one-third of the present sum nor annual taxation of one-half of its present amount, while the condition of these cities in respect to ex- isting provisions for the public needs would have been far superior to what is actually exhibited.
This evil, conjoined with the introduction of State and Na- tional politics into municipal affairs and the assumption by the Legislature of direct control of local questions, was de- clared to be responsible for the almost desperate condition of city government. The case of New York City was cited as, of course, the most striking example; its debt had increased from eighteen to one hundred and thirty millions since 1860; and the taxation for annual expenditures from nine to twenty- eight millions.
The remedies which the commission proposed were to give municipalities exclusive control over local affairs, and to lodge the choice of the local guardians and the trustees of the finan- cial concerns of cities with taxpayers and rent payers. The commission argued that the affairs of a municipality are analogous to those of a business corporation ; that unrestricted suffrage has no just place in the determination of expenditures for municipal purposes out of the money of taxpayers; that this view was in accordance with the established policy of the State with regard to villages and smaller cities, and should be made applicable to all municipalities. Summing up the argu- ment upon this head the commissioners said :
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