USA > New York > Courts and lawyers of New York; a history, 1609-1925, Volume II > Part 24
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"The establishment of a representative body, to be chosen by taxpayers, is, therefore, the proper method by which they can control the question of expenditure and taxation in large cities; but the provisions of the constitution, declaring in effect that all elective officers are to be chosen by universal suffrage, stands in the way of such a procedure. . . . The
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measure we recommend is not in opposition to the principle of general suffrage but in support of it-as much so as if the sole duty of this commission had been to consider how that principle could be best preserved and perpetuated. No surer method could be devised to bring the principle of universal suffrage into discredit, and prepare the way for its overthrow, than to pervert it to a use for which it was never intended and subject it to a service which it is incapable of per- forming."
The plan of the commission for the improvement of city government may briefly be summarized: In every city there should be a single elective Board of Aldermen, and elective mayor, clothed with the right to appoint department chiefs, except the heads of the department of law and of finance, and with a qualified power of removal, reviewable by the Governor. A board of finance, corresponding to the later Board of Esti- mate and Apportionment in New York City, should be elected by taxpayers and rent payers, certain minima of taxes and rents being established in order to qualify voters in different classes of cities. All estimates for annual expenditures should be made by this board, subject to the mayor's approval, the estimates stating separately the amount of moneys in the treasury or receivable for city purposes and the amount re- quired by taxation. No debt or liability should be created in the absence of a prior appropriation therefor. Local improve- ments falling altogether upon the city at large should not be undertaken without the consent of two-thirds of all the mem- bers elected to each of the two boards. No improvement charged exclusively upon property owners should be initiated without a two-thirds vote of the Board of Aldermen, and the approval of a majority in interest of the land owners within the contemplated district. No part of the cost should be paid by the city except with the approval of two-thirds of both boards and the consent of the majority in interest of the property owners within the proposed assessment district. Municipal borrowing power should be restricted, and legisla- tive assent to debt-creation required. Sinking funds should
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be created and ten per cent. amortization installments raised by annual taxation. These suggestions of the commission were embodied in an article known as Article XVII. The article contained eleven sections. It may be found in the Ses- sions Laws of 1877.
The commission proposed to liberate cities from legislative control by Section 8, but it was averse to the bestowal upon the mayor of exclusive power of appointment and removal. The commission viewed with disfavor constitutional limita- tions forbidding city indebtedness, in excess of a percentage of assessed values, because the limitation might readily be evaded by raising assessed values.
The suggestions of the Tilden Commission were approved by the Legislature of 1877, but were not acted upon by the succeeding Legislature, and hence were never submitted to the People. Possibly the attitude of Governor Robinson toward it, in 1878, explains why the recommendations of an important commission, with the endorsement of one Legisla- ture, could have been successfully "buried" and its submission to the people thus prevented. Governor Robinson had been a member of the Constitutional Commission of 1872, and suc- ceeded Tilden as Governor. His annual message of 1878 had no emphatic references to the Tilden Commission. Amend- ments in accordance with the report had, he said, been ap- proved by the last Legislature, and would require the approval ci the existing Legislature before they could be submitted to the people. If, he added, "you see fit to do so they will be referred to the people for action at the next general election."
Thus, the movement for a larger degree of municipal au- tonciny was checked, and did not regain vigor until 1894, when the committee on cities of the Convention of 1894 pro- posed a new article of the Constitution "to provide home rule for cities " The final outcome appears in Sections 2 and 3 of Article XII of existing Constitution, as adopted by the Con- stitution of 1894, and amended November 7, 1905 and as adopted November 6, 1923.
CHAPTER XXXIII. THE CONSTITUTION OF 1894.
The existing Constitution of the State of New York was formulated by the Constitutional Convention of 1894, and ratified by the people at the general election of that year. Certain specific amendments have since been made to partic- ular sections of some of the articles, and another convention wrote a new Constitution in 1915. But the latter did not meet with public approval; and the Judiciary Constitutional Con- vention of 1921 has not yet met with the requisite legislative sanction, and so has not been put to the people. Therefore, the Constitution of 1894 is, with amendments, still the organic law of the State. In Chapter XXXV the existing Constitu- tion is referred to section by section and article by article ; therefore it is unnecessary in this chapter to go very minutely into the proceedings of the Constitutional Convention of 1894. Some of the general purposes and plans of the convention, however, call for notice; and the work of the judiciary com- mittee will be more extensively reviewed.
The ratification of the Constitution of 1894 will be re- membered by some as the final issue of a protracted and bitter partisan struggle, one of the most sanguine in New York political history. By the terms of the Constitution of 1846 the Legislature was required, in each twentieth year there- after, to put to the people the question whether a convention should be held to revise the Constitution. The question was answered by the people in 1866 in the affirmative, and the Convention of 1867 was the outcome. Its work, however, was nullified, with a single exception when put to the people for ratification, only the judiciary article finding favor. The Constitutional Commissions of the seventies did some good, but the constitutional improvements wrought by these com-
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missions were, at best, inadequate. So. in 1886. as the Con- stitution of 1846 required, the question was again put to the people. By this time it was quite generally recognized that there was need of constitutional revision. The popular affir- mative vote was 574,993, only 30,766 negative votes being cast. The people had never before spoken so decisively on consti- tutional matters. In 1821, out of a total vote of 144,247 upon the question, 109,346 favored a convention; in 1846 the per- centage of voters who wished a convention to be held was so large that Governor Wright, in his message to the Legislature, declared that the people had, with "a unanimity almost un- known in the history of our elections," decided that there should be a convention. The affirmative vote was 213,257 out of 247,117. On the other hand, the vote in 1866 was, by com- parison, so nearly equal (352,854 in favor and 256,354 in oppo- sition ) that Governor Fenton was not justified in declaring the vote to be "an emphatic expression of the public judgment that some modification of the organic law" was essential. The fact that the recommendations of the convention were voted down by the people indicates that the public expression in 1866 had not been emphatic. The same could not be said, however, of the voice of the people in 1886. With only thirty thousand negative votes in a total of more than 600,000 cast, the people had so emphatically expressed their wish that con- stitutional revision should be considered that the legislative the electors.
bodies should at once have made provision to meet the will of
It was not done, a political factor intervening. It seems that "for years the conditions determining the political control of the State had presented a curious anomaly." The Demo- crats, though frequently able to elect the Governor and other executive officers, had been hopelessly in the minority in the Legislature. Governor Hill and the State Legislature could not, in this instance, agree upon the method of selecting dele- gates. But upon the election of Governor Flower, who took
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office in 1892, the deadlock was ended, a Democratic Legisla- ture aiding him. Governor Hill's situation had been different. In 1887 a Republican Senate and Assembly had passed a measure providing for the election of delegates to the pro- posed Constitutional Convention. The Democrats had as- serted that the Constitutional Convention Bill of 1887 was so drawn as to insure Republican ascendency in the proposed convention. Hence the Democratic Governor vetoed the bill. All subsequent attempts of legislators and executives to recon- cile their differences were of no avail; but in 1892 the Demo- crats seized their opportunity, and passed the bill during the sessions of 1892 and 1893, calling for election of delegates in November, 1893, and for the holding of a Constitutional Con- vention of 1894. However, by election time of 1893 the polit- ical pendulum had swung toward the Republicans, and of one hundred and sixty-eight delegates elected only sixty-five were Democrats.1 One hundred and seventy-five delegates were
I. Constitutional Convention of 1894-Delegates-at-Large: Joseph H. Choate, Elihu Root, Edward Lauterbach, Jesse Johnson, Frederick W. Holls, Michael H. Hirschberg, J. Rider Cady, John T. McDonough, John M. Francis, John F. Parkhurst, Commodore P. Vedder, John I. Gilbert, Augustus Frank, William P. Goodelle, and Daniel H. McMillan. Dele- gates, First Senate District : Lucius N. Manley, Frederick Storm, Charles L. Phipps, Nicoll Floyd, Nathaniel S. Ackerley. 2nd: Mirabeau Lamar Towns, William H. Cochran, John G. Schumaker, John B. Meyenborg; Almet F. Jenks. 3rd: Stephen B. Jacobs, Henry A. Powell, William H. Allaben, Solomon Galinger, Charles B. Morton. 4th: Joseph C. Hecker, Frank H. Vogt, William A. Faber, Andrew Frank, Robert M. Johnston. 5th : William D. Veeder, William Sullivan, Thomas J. Farrell, William B. Davenport, John Cooney. 7th: William C. Whitney, Wright Holcomb, DeLancey Nicoll, John M. Bowers, Arthur D. Williams. 8th: John Bige- low, Frank T. Fitzgerald, Leonard A. Giegerich, Elliot Sandford, Morris Tekulsky. 9th: Joseph M. Phmeis, Joseph Koch, Charles Goeller, Aaron Herzberg, Henry D. Hotchkiss. Ioth: Gideon J. Tucker, Delos McCurdy, Charles H. Truax, William Q. Titus, James W. Mclaughlin. IIth: Robert E. Deyo, M. Warley Platzek, Francis Forbes, Nelson J. Waterbury, William P. Burr. 12th: Nelson Smith, William McM. Speer, Jacob Marks, John D. Crimmins, David McClure. 13th: Andrew H. Green, James P. Camp- bell, Joseph I. Green, Eugene Durnin, Thomas Gilleran. 14th: Charles W. Dayton, Michael J. Mulqueen, John A. Deady, Stephen S. Blake, Chauncey S. Truax. 15th. Andrew C. Fields, William Church Osborn, William T. Emmet, Adolph C. Hottenroth, John Gibney. 16th : William D. Dickey,
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originally nominated, but deaths, resignations and the unseat- ing of some who were declared to have been fraudulently elected, reduced the total to one hundred and sixty-eight. Possibly Joseph H. Choate, in his opening address as president of the convention, had this in mind when, on May 8, 1894, he said :
"Strange, indeed, it will be if we shall meet and sit together for four or five months and separate without being able to throw some new safeguards around the purity of the ballot and to rescue our people from these shocking scenes, almost amounting to anarchy, which have recently disgraced the polls in various sections of the State."
Chapter VIII of the Laws of 1893, which is the Constitu- tional Convention Act, made eligible as a delegate any male or female citizen of this State above the age of twenty-one years. Vacancies among district delegates were to be filled at a special election, in the same manner as vacancies in the
Henry W. Wiggins, Willard H. Mase, Charles W. H. Arnold, Ira M. Hedges. 17th: John A. Griswold, George L. Danforth, Jacob M. Maybee, Howard Chipp, George H. Bush. 18th: Roswell A. Parmenter, John H. Peck, William J. Roche, Amos H. Peabody, Edwin C. Rowley. 19th: A. Bleecker Banks, Edwin Countryman, Peter A. Rogers, William Kimmey, Dennis P. Kerwin. 20th: Abram B. Steele, Edward A. Brown, Walter L. van Denbergh, Charles C. Lester, Edward C. Whitmyer. 2Ist: Chester B. Mclaughlin, Charles H. Moore, Edgar A. Spencer, Frederick Fraser, Thomas W. McArthur. 22nd: Vasco P. Abbott, John G. McIntyre. Wil- liam H. Baker, William H. Steele, Elon R. Brown. 23rd: Henry J. Cook- inham, John C. Davies, Charles S. Mereness, James W. Barnum, Abraham L. Kellogg. 24th: D. Gerry Wellington, Ceylon H. Lewis, Louis Marshall, George Barrow, Thomas G. Alvord. 25th: Charles A. Fuller, William J. Mantanye, Abram C. Crosby, H. Austin Clark, George F. Lyon. 26th : John W. O'Brien, Henry R. Durfee, Frank H. Hamlin, Frank E. Tibbetts, George R. Cornwell. 27th: William H. Nichols, Milo M. Acker, Charles R. Pratt, Owen Cassidy, Charles A. Hawley. 28th: Nathaniel Foote, Merton E. Lewis, John A. Barhite, George W. Clark, James H. Redman. 29th : Nathan A. Woodward, Lockwood R. Doty, Myron L. Parker, William Pool, I. Sam Johnson. 30th: Philip W. Springweiler, William Turner, James S. Porter, Charles Beckwith, Herman F. Trapper. 3Ist: Henry Wayland Hill, Tracy C. Becker, John Coleman, George A. Davis, Johnathan W. Car- ter. 32nd : Benjamin S. Dean, Louis Mckinstry, Charles Z. Lincoln, Oscar A. Fuller, Frank B. Church .- See "Journal of the Constitutional Conven- tion of 1894," pp. 11-14.
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office of State Senator. Any vacancy in the office of delegate- at-large was to be filled by special election in the same man- ner as a vacancy in the office of a State officer. The date of opening the convention was fixed as the second Tuesday of May, 1894. The provision for submission of amendments or of a revised Constitution were like those of the Act of 1892, save that all amendments were to be submitted at the general election in November, 1894. If ratified by the people, the Constitution was to take effect at the end of that year, unless the convention should prescribe a different date. The Legis- lature of 1894 passed a bill for the submission of the work of the convention either at one time or in two separate years, at the option of the convention ; but the measure was vetoed by Governor Flower.
Pursuant to the Act of 1893, the convention assembled in Albany on May 15, 1894, and continued in session until Sep- tember 29. Its officers were: President, Joseph H. Choate ; first vice-president, Thomas G. Alvord, second vice-president, William H. Steele; secretary, Charles E. Fitch. There were twenty-seven regular committees.
At the outset, the convention had four or five great subjects before them, matters upon which the public mind had been exercised. The judicial system demanded "renovation"; the educational system called for improvement; the question of the application of public money for charitable purposes was a matter that demanded scrupulous consideration ; canal mat- ters also might vitally affect the public purse; the readjust- ment of legislative apportionment was a subject of almost para- mount public interest at that time.
President Choate expressed a hope that on "the great and important question of the reapportionment of the districts of the State, the convention would be "courageous and virtuous enough to unite upon an apportionment which shall be at once fair, honest and just to all the districts and all the people of the State." Second only in importance was the call that at-
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tention should be given to the changed condition of munic- ipal affairs, Mr. Choate confidently believing that the delegates would unite "upon some provisions that shall enable the people of the great cities of this State each to conduct and govern its own affairs without the necessity of perpetually resorting to legislative interference and aid." The purity of the suffrage was at that time one of the subjects for very serious considera- tion ; and the committee on suffrage would have the oppor- tunity to deal with another "very delicate question; in its nature the most delicate of which human nature admit," stated Mr. Choate. He referred to women's suffrage, stating: "I have no doubt that the demands of those who call for an ex- tension of the suffrage to all human beings without regard to sex will receive at last the respectful attention and considera- tion of this convention in its appropriate time."
Altogether the convention had under consideration more than four hundred amendments; and the president, in his closing address, found satisfaction in the fact that of these only thirty-three were adopted by the convention.2 While the delegates knew that the Constitution of 1846 had become obsolete in some of its provisions, they did not feel that they were commissioned to treat it "with any rude or sacrilegious hands." They did not do so, for in the instrument they drafted, during their four months of painstaking consideration of the public good, they retained the general framework and substance of the existing Constitution, seeking only to make such modifications "as experience had shown to be desirable, without venturing upon undue experiments," stated the ad-
2. "In my judgment, one of the greatest services that we have rendered, one of the greatest claims to the gratitude of the people of the State which we can put forth is, that of those more than four hundred (amendments) we have adopted only thirty-three. They have demonstrated that at least this was a conservative Convention, mindful of the value of the experience of the past, of the precious value of the institutions which our fathers had handed down to us."-Joseph Hodges Choate, in the "Journal of the Consti- tutional Convention of the State of New York, 1894," p. 851.
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dress of the convention to the people. They submitted a re- vised and amended Constitution of fifteen articles, in which thirty-three of the more than four hundred amendments pro- posed were incorporated.
Some of the main features of the revised Constitution put to the people are stated briefly below.
The delegates sought to foster agriculture by requiring general laws giving the right of drainage across adjoining lands. They sought to separate, in the larger cities, munic- ipal elections from State and National elections, to the end that municipalities might be unaffected and uncontrolled by State and National politics, and that the issues of the latter might be determined upon their own merits, free from the dis- turbing and often demoralizing effects of local contests. With this intention the amendments sought to rearrange the terms of office and times of election of Governor, State officers, Sen- ators and municipal officers, so that the State officials might be elected on the even-numbered years and the municipal exec- utives on the odd.
Provisions to safeguard abuses in legislative procedure re- quired that all bills should be printed in their final form at least three days before their passage; prohibited riders on appropriation bills, and provided for notice to municipal au- thorities before special acts relating to the larger cities could take effect.
The prohibition against the sale of the unprofitable Onon- daga salt springs, and the pestilential mile of unused canal in the city of Buffalo was removed; but the revised Constitution prohibited the sale or leasing of any of the forest reserves of the State, hoping thereby to preserve uncontaminated the water supply of some of the principal streams.
All reference to the office of coroner was removed from the Constitution, leaving the Legislature free to devise ways and means of reorganizing or abolishing a branch of the public service that was then in an unsatisfactory condition.
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The convention expressed itself emphatically as to the "passion for gambling," believing that "betting upon horse races is working widespread demoralization and ruin among the youth and weak throughout the community." The re- vised Constitution extended the prohibition against lotteries so as to include all pool selling, bookmaking and other forms of gambling. The delegates knew that in this matter they would "array in opposition to the Constitution a great and unscrupulous money power," but they appealed "to the virtue and sound judgment of the people to sustain the position" which they had taken.
The convention recommended that the statutory provision limiting the right of recovery for injuries causing death to $5,000 be abolished. They thought the limitation by statute upon damages to be recovered in case of death was indefen- sible, if for an injury that does not prove fatal there was no statutory limit.
Safeguarding the elective franchise was the purpose of the prescription of a period of ninety, instead of ten, days of cit- izenship, before that right could be exercised. It was dis- closed that in some cases, upon the eve of an important elec- tion, a single judge had naturalized citizens at the rate of more than five hundred in a day. The language relating to election was modified in the revised Constitution so as to permit the Legislature to try mechanical devices for recording and count- ing votes. The well-tried system of registration of votes was not altered, except to make unnecessary personal attendance on the first day of registration of electors in thinly settled regions.
In the important readjustment of legislative apportion- ment, the number of Senate districts were fixed at fifty and that of the Assembly districts at one hundred and fifty. In 1846, the citizen population of the State was 2,450,778, and in 1892 it was 5,790,865. In 1846 the ratio of population for a Senator was 76,586, and in 1892 it was fixed at 180,899. In the
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reapportionment by the convention of 1894, the ratio was fixed at 115,817. The increase in members of the Assembly was deemed necessary to maintain a due proportion between the members of the two Houses and to permit, in the apportion- ment of members, a more reasonable recognition of the great difference in population in the smaller counties of the State. Under the then existing apportionment St. Lawrence County, with 80,699 citizen inhabitants had one Assemblyman, while Putnam County, with only 13,325 citizen inhabitants, had the same representation. The convention thought that the ef- fectiveness of the Assembly would at least not be impaired by the reapportionment, increasing the Assembly from one hun- dred and twenty-eight to one hundred and fifty members.
Attack had been made upon two rules laid down in the proposed measure for the guidance of the Legislature in future apportionments. One of these was the rule that no county should have more than three Senators unless it should have a full ratio for each Senator, although smaller counties could receive a Senator or an additional Senator on a major fraction of a ratio.3 The other rule attacked was a matter of vital con- sequence to the whole State, outside of New York City and what is now Greater New York. The convention ruled that no one county should have more than one-third of all the Sen- ators, and that New York County and Kings County together should not have more than one-half of all the Senators. The
3. "The reasonableness of this rule is manifest when we consider that in the large counties which include many Senate districts, the surplus popu- lation of all those districts is to be taken together as a whole in determining whether another Senator shall be awarded to that county, while the surplus population of the smaller counties is not taken together for that purpose, but considered separately. So that an equal number of Senate districts outside of a great city might have many times a surplus population which would entitle the city to another Senator and still receive no additional representa- tion. Even with this limitation, the advantage is still greatly on the side of the city as against the country districts, on account of their small territory, and the fact that all their representatives stand for the entire city."-See "Journal of the Constitutional Convention of 1894," p. 842.
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delegates did not lose sight of the fact that the impending union of the cities of New York and Brooklyn would contain a majority of the inhabitants of the State, and under the ex- isting Constitution would then be able to elect the Governor, the State officers, a majority of the Senate and a majority of the Assembly ; in fact, that Greater New York City would be able to absolutely control the government of the State, placing the interests of the vast region outside of New York City in jeopardy. The convention thought it unwise to permit the development of the other important cities of the State to be thus endangered; they deemed it far safer to secure to the whole State, outside of the counties of New York and Kings, a bare half of one house of the Legislature. Greater New York might have the Governor, the majority of State officers, and a majority of the Assembly, but with a minority in the Senate the great city could not legislate to the detriment of the other parts of the State. There were several precedents for this departure from the rule of strict numerical representation. The Constitution of the United States recognized it in the or- ganization of the United States Senate; the State of Pennsyl- vania protected other cities in the same way from dominance by Philadelphia ; and the same principle had been adopted by Ohio, Missouri, Rhode Island and by other States having large cities. (By the proposed new Constitution of Illinois, adopted by a Constitutional Convention September 12, 1922, but re- jected by the people December 12, 1922, Cook County would have only nineteen of fifty-seven Senatorial districts).
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