Relation to article 12, section 3.— This section must be read in connection with section 3 of article 12, which provides that all elections of city officers except to fill vacancies shall be held in odd-numbered years and that the term of such officers shall expire in odd-numbered years. Matter of Schultes, (1898) 33 App. Div. 524, 54 N. Y. S. 34. See also People v. Scheu, (1901) 167 N. Y. 292, 60 N. E. 650, affirming 60 App. Div. 592, 69 N. Y. S. 597: People v. Wallin, (1910) 141 App. Div. 34, 125 N. Y. S. 613. Thus, where the Greater New York charter (ch. 378, Laws of 1897) provides that the mayor shall appoint seven additional justices of the municipal courts to hold office until the end of the year 1899, and that their successors shall be elected only at the general election of that year, their successors cannot be elected in 1898 in violation of section 3 of article 12. The court said: "One provision is as controlling as the other, and it is a familiar rule that they must, if possible, be so construed that both shall stand. It is clear that the scheme of the constitution was to provide for the election of certain officers, including justices of inferior courts, in the odd-numbered years. To issue a writ compelling the election officers to publish a notice of the election of additional justices of the municipal court in the current year would be a clear disobedience of the mandate of article 12, section 3." Matter of Schultes, (1898) 33 App. Div. 524, 54 N. Y. S. 34. The phrase "except to fill vacancies" contained in section 3 of article 12 simply reserves to the legislature the right to fill vacancies in elective offices in even-numbered years and is permissive, not mandatory, and, therefore, not in conflict with this section of the constitution. People v. Scheu, (1901) 167 N. Y. 292, 60 N. E. 650, affirming 60 App. Div. 592, 69 N. Y. S. 597.

Scope of application of section.— The general rule is that the provision of this section applies only to such offices as are created or made elective by the constitution, and is not applicable to offices provided for or controlled by the legislature. People v. Hogan, (1914) 214 N. Y. 216, 108 N. E. 459, affirming 165 App. Div. 298, 151 N. Y. S. 261, 166 App. Div. 895, 151 N. Y. S. 270; People v. Scheu, 167 N. Y. 292, 60 N. E. 650, affirming 60 App. Div. 592, 69 N. Y. S. 597; People v. Comstock, (1879) 78 N. Y. 356, reversing 18 Hun 311. See also Markland v. Scully, (1911) 203 N. Y. 158, 96 N. E. 427, affirming 146 App. Div. 350, 131 N. Y. S. 364; People v. Blair, (1897) 21 App. Div. 213, 47 N. Y. S. 495, affirming (1897) 154 N. Y. 734; People v. Dempsey, (1879) 19 Hun 322. However, the constitutional offices to which this section applies embrace not only those elective offices specifically created by the Constitution but also such elective offices as are required to be maintained in existence to fulfil the express mandate of the constitution. Thus, "inasmuch as in order to apportion the assembly districts in New York city there has to be," under article 3, section 5, of the constitution, a common council or body exercising the powers of a common council, the members of such a body are necessarily constitutional officers because the constitution by necessary implication requires such a body to exist." Accordingly, where the powers of the common council are devolved on the board of aldermen, the New York city aldermen are constitutional officers, and they will continue of that character so long as the board enjoys the powers of a common council. It follows that section 18 of the charter of the city of New York (Laws of 1901, ch. 466), so far as it provides that a person elected to fill a vacancy in the board of aldermen shall serve for the unexpired portion of the term, is unconstitutional. People v. Hogan, (1914) 214 N. Y. 216, 108 N. E. 459, affirming 165 App. Div. 298, 151 N. Y. S. 261, 166 App. Div. 895, 151 N. Y. S. 270. (Seabury, J., and Collins, J., though reaching the same conclusion on the case as the majority of the court differed with the majority on the point set out above. The Appellate Division likewise differed with the majority as to that point.)

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Illustrations of application.— The justices of the Municipal Court of the city of New York are District Court justices within the meaning of the

constitution (see Art. 6, § 17), and as such are elective constitutional officers. Hence, as this section of the constitution provides that "in case of elective officers, no person appointed to fill a vacancy shall hold his office by virtue of such appointment longer than the commencement of the political year next succeeding the first annual election after the happening of the vacancy," it follows that section 1357 of the charter of the city of New York, as amended by Laws of 1907, chapter 603, section 3, providing that vacancies in the office of justice of the Municipal Court of the city of New York, created otherwise than by expiration of term, shall be filled at the next general election in an odd numbered year, happening not less than three months after such vacancy occurs, for a full term, and further allowing the mayor to fill the vacancy by appointment in the interim, is unconstitutional and void, in so far as it may postpone the election of such justice contrary to the provision of this section of the constitution. Markland v. Scully, (1911) 203 N. Y. 158, 96 N. E. 427, affirming 146 App. Div. 350, 131 N. Y. S. 364. Likewise, the office of supervisors, recognized and made elective by article 3, section 26, lies within the purview and is subject to the provision of this section. The term of a ward supervisor in a city expired Jan. 1, 1900, and the office became vacant by his death in March, 1898. In April, 1898, the city council elected his successor to fill out the vacancy, pursuant to section 374 of the city charter (Laws of 1891, ch. 105, as amended by Laws of 1895, ch. 805, § 24), which provided that "the term of the person so elected to fill such vacancy shall continue until, and including, the next thirty-first day of December of an odd-numbered year, and until his successor shall have been elected and qualified." It was held that the charter provision was in contravention of this section of the constitution and that the term expired January 1, 1899, and not January 1, 1900. People v. Erie County, (1899) 42 App. Div. 510, 59 N. Y. S. 476, affirmed 160 N. Y. 687 mem., 55 N. E. 1099

Immediate entrance by officer-elect under legislative provision.— By virtue of this section the legislature is competent to provide that a person elected to fill a vacancy in a constitutional office shall enter upon the discharge of his duties immediately after his election. People v. Townsend, (1886) 102 N. Y. 430, 7 N. E. 360, reversing 40 Hun 360. The court said: “It was competent for the legislature to provide, as it did by section 5 of the Act of 1871, for the selection of some person, to fill the office of surrogate between the occurrence of a vacancy, and the first day of January thereafter, and the designation by such section of the persons who had been theretofore elected as surrogate did not thereby enlarge his constitutional term, but provided simply a mode of filling out a term of limited duration, over which the legislature had unquestionable constitutional authority. During the period intervening between the occurrence of a vacancy happening so that an election can be held at a regular general election, and the commencement of the next political year, the constitution gives the legislature unlimited power to indicate the mode of filling it, and it is competent to provide therefor by conferring power of appointment upon the executive department or in such other mode as in its discretion it may deem wise and prudent."

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Immediate entrance by justice of peace elect under article 6, section 17.— The direction that the incumbent selected to fill a vacancy shall not hold longer than until a certain period, no doubt implies that one may in some cases be appointed to hold until that period, but it does not prove that under all circumstances an appointment for so long a time may be made.” Thus, a justice of the peace elected to fill a vacancy created otherwise than by the expiration of a regular term, is by the express provision of article 6, section 17, entitled to enter upon his office immediately after the election. Therefore, the term of a justice of the peace appointed by the governor to fill a

Political Year; Removals from Office, Etc

Art. X, §§ 6-9

vacancy terminates at once upon the election of a person to fill the residue of the unexpired term. "This is not at all inconsistent with the powers implied in the fifth section of the tenth article authorizing such appointments to extend to the commencement of the ensuing year. The two provisions, when construed together, as they must be, show that although appointments extending beyond the election may be made in many cases, the office of justice of the peace presents an exception." People v. Keeler, (1858) 15 N. Y. 370, reversing 25 Barb. 421.

§ 6. Political year; legislative term.

The political year and legislative term shall begin on the first day of January; and the Legislature shall, every year, assemble on the first Wednesday in January.

Const. 1821, Art. I, § 14; continued without change in Const. 1846, Art. X, § 6; amended, Const. 1894, Art. X, § 6.

§ 7. Removals from office.

Provision shall be made by law for the removal for misconduct or malversation in office of all officers, except judicial, whose powers and duties are not local or legislative and who shall be elected at general elections, and also for supplying vacancies created by such removal.

Const. 1846, Art. X, § 7.

§ 8. Vacancies; when legislature may determine.

The Legislature may declare the cases in which any office shall be deemed vacant when no provision is made for that purpose in this Constitution.

Const. 1846, Art. X, § 8.

§ 9. Compensation of constitutional officers.

No officer whose salary is fixed by the Constitution shall receive any additional compensation. Each of the other state officers named in the Constitution shall, during his continuance in office, receive a compensation, to be fixed by law, which shall not be increased or diminished during the term for which he shall have been elected or appointed; nor shall he receive to his use any fees or perquisites of office or other compensation.

Amendment of 1874, Art. X, § 9.

All able-bodied male citizens between the ages of eighteen and forty-five years, who are residents of the State, shall constitute the militia, subject however to such exemptions as are now, or may be hereafter created by the laws of the United States, or by the Legislature of this State.

Const. 1821, Art. VII, § 5; amended, Const. 1846, Art. XI, § 1; amended, Const. 1894, Art. XI, § 1. See also Const. 1777, Art. XXIV.

§ 2. Enlistment.

The Legislature may provide for the enlistment into the active force of such other persons as may make application to be so enlisted.

Const. 1894, Art. XI, § 2.

§ 3. Militia; organization and maintenance.

The militia shall be organized and divided into such land and naval, and active and reserve forces, as the Legislature may deem proper, provided however that there shall be maintained at all times a force of not less than ten thousand enlisted men, fully uniformed, armed, equipped, disciplined and ready for active service. And it shall be the duty of the Legislature at each session to make sufficient appropriations for the maintenance thereof.

Const. 1894, Art. XI, § 3.

Courts-martial are necessary incidents to the "discipline" of the state militia, and, therefore, are constitutional. People v. Daniell, (1872) 50 N. Y. 274, affirming 6 Lans. 44.

Maintenance of militia.— This section of the constitution was not intended to make the entire maintenance of the militia payable out of the state treasury, and does not have the effect of prohibiting the enacting of general laws imposing upon localities the expense of maintaining armories within their jurisdictions. Thus, the provision of section 179 of the Military Code, as amended by chapter 853, Laws of 1896, declaring that the compensation of employees in armories, including armorers and janitors, shall be a county charge upon the county in which the armory is situated, is not repugnant to the constitution. "The fact is that the militia of the state does not benefit all localities alike, and the legislation making a part of its maintenance a local charge is the legitimate exercise of the power of taxation vested in the legislature." Bryant v. Palmer, (1897) 152 N. Y. 412, 46 N. E. 851, affirming 15 App. Div. 86, 44 N. Y. S. 301

4. Governor to appoint certain military officers.

The Governor shall appoint the chiefs of the several staff departments, his aides-de-camp and military secretary, all of whom shall hold office during his pleasure, their commissions to expire with the term for which the Governor shall have been elected; he shall also nominate, and with the consent of the Senate appoint, all major-generals.

Const. 1821, Art. IV, § 2; amended, Const. 1846, Art. XI, § 3; amended, Const. 1894, Art. XI, § 4. See also Const. 1777, Art. XXIV.

Appointment of major-generals during recess of senate.-The governor of the state has no power, during the recess of the senate, to appoint a majorgeneral of the national guard to fill a vacancy occasioned by resignation, or otherwise, except in the time of war. People v. Molyneux, 40 N. Y. 113. In that case this was said: "When the constitution declares that the governor shall nominate, and, with the consent of the senate, appoint all majorgenerals, it is equivalent to saying, that he can make no such appointment, unless the same is accompanied by the consent of the senate. And this limitation exists, equally, whether he profess to act, as governor of the state, or as commander-in-chief of its military and naval forces. This restriction upon executive powers, as well as the adoption of a system of electing militia officers, is in accordance with the democratic tendencies of the country, and operates with safety, in time of peace.”

§ 5. Other military officers, how chosen.

All other commissioned and non-commissioned officers shall be chosen or appointed in such manner as the Legislature may deem most conducive to the improvement of the militia, provided, however, that no law shall be passed changing the existing mode of election and appointment unless two-thirds of the members present in each house shall concur therein.

Const. 1821, Art. IV, §§ 3 and 5; amended, Const. 1846, Art. XI, §§ 4 and 6; amended, Const. 1894, Art. XI, § 5. See also Const. 1777, Art. XXIV.

§ 6. Commissioned officers, how commissioned; removal.

The commissioned officers shall be commissioned by the Governor as commander-in-chief. No commissioned officer shall be removed from office during the term for which he shall have been appointed or elected, unless by the Senate on the recommendation of the Governor, stating the grounds on which such removal is recommended, or by the sentence of a court-martial, or upon the findings of an examining board organized pursuant to law, or for absence without leave for a period of six months or more.

Const. 1821, Art. IV, § 4; continued without change in Const. 1846, Art. XI, § 5; amended, Const. 1894, Art. XI, § 6. See also Const. 1777, Arts XXIII and XXIV.