charge, management or control of such schools shall cause this provision of law to be enforced," is not in violation of this section. The right to attend schools is necessarily subject to restrictions and limitations in the interest of the public health. Viemeister v. White, (1904) 179 N. Y. 235, 72 N. E. 97, 103 A. S. R. 859, 1 Ann. Cas. 334, 70 L. R. A. 796, affirming 88 App. Div. 44, 84 N. Y.,S. 712.

§ 2. University of State of New York.

Regents.

The corporation created in the year one thousand seven hundred and eighty-four, under the name of The Regents of the University of the State of New York, is hereby continued under the name of The University of the State of New York. It shall be governed and its corporate powers, which may be increased, modified or diminished by the Legislature, shall be exercised by not less than nine regents.

Const. 1894, Art. IX, § 2.

3. Educational funds.

The capital of the common school fund, the capital of the literature fund, and the capital of the United States deposit fund, shall be respectively preserved inviolate. The revenue of the said common school fund shall be applied to the support of common schools; the revenue of the said literature fund shall be applied to the support of academies; and the sum of twenty-five thousand dollars of the revenues of the United States deposit fund shall each year be appropriated to and made part of the capital of the said common school fund.

Const. 1846, Art. IX, § 1; continued without change in Const. 1894, Art. IX, § 3. See also Const. 1821, Art. VII, § 10.

Normal school.-"Normal schools differ materially from the common schools to which the constitution refers." Accordingly, the application of the revenues of the common school fund to the support of normal schools would be clearly in violation of this section, and a statutory direction to that effect (ch. 466, Laws of 1866) is unconstitutional and void. Gordon v. Carnes, (1872) 47 N. Y. 608.

Loan for establishment of astronomical observatory.- An act (Laws of 1868) appropriating moneys from the common school fund to the establishment of an astronomical observatory is in violation of this section, although made in the form of a loan or investment, if the specified security is entirely inadequate and the act, in its practical effect, would amount to a donation of the money. People v. Allen, (1870) 42 N. Y. 404.

4. Denominational schools not to receive state aid.

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.

Const. 1894, Art. IX, § 4.

Orphan asylum under church control.- St. Mary's Boys' Orphan Asylum of the city of Rochester, incorporated under chapter 319 of the Laws of 1848, is neither a school nor an institution of learning within the meaning of this section, but on the contrary is an orphan asylum within the meaning of section 14 of article 8 of the constitution permitting the payment of public moneys for the secular education of the inmates therein. Provision may

therefore be made for the secular education of its inmates although the asylum itself is under the control of a religious organization. Sargent v. Board of Education, (1904) 177 N. Y. 317, 69 N. E. 722, affirming 76 App. Div. 588, 79 N. Y. S. 127.

Wearing of sectarian garb by teacher.- The wearing by a teacher of a garb peculiar to a particular religious order would have a distinctly sectarian influence in inspiring pupils with respect, if not sympathy, for the denomination to which the teacher manifestly belongs, and may, therefore, under the constitution and the statutes, be prohibited by the superintendent of public instruction. Accordingly, a teacher having knowledge of a prohibition by the superintendent of public instruction against the wearing of a religious garb, cannot recover on her contract of employment for services rendered by her while she was wearing such garb. O'Connor v. Hendrick, (1905) 109 App. Div. 361, 96 N. Y. S. 161.

ARTICLE X.

§ 1. Sheriffs, county clerks, district attorneys and registers; election, term, etc.

Removal by governor.

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 after 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. 1821, Art. IV, § 8; amended, Const. 1846, Art. X, § 1; amended, Const. 1894, Art. X, § 1. See also Const. 1777, Arts. XXVI and XXVIII.

1. Generally, 526.

II. Provisions relative to New York and Kings counties and counties coterminous with city, 528.

I. GENERALLY.

Abolition and encroachment. While the legislature is doubtless vested with authority to regulate the duties and functions of the officers mentioned in this section, it is not competent either directly or indirectly to abolish their offices or to transfer to other offices any essential attribute thereto pertaining. People v. Rafferty, (1913) 208 N. Y. 451, 102 N. E. 582, reversing 154 App. Div. 767, 139 N. Y. S. 572; Warner v. People, (1845) 2 Denio 272, 43 Am. Dec. 740; People v. Keeler, (1883) 29 Hun 175. See also People v. Draper, (1857) 15 N. Y. 532, affirming 24 Barb. 265. Thus, since the clerkship of the County Court is a component part of the office of county clerk, it follows that any attempt by the legislature to take from the clerk of a county the right to perform the duties of clerk of the County Court, is void. Wherefore, those portions of the Judiciary Law (Consol. Laws, ch. 30, § 195, as amended by Laws of 1911, ch. 826, §§ 282, 283, as amended by Laws of 1911, ch. 640) which operate to prevent an incoming county clerk from appointing a new chief clerk of the County Court of Kings county are unconstitutional, as also are those provisions which operate to vest such chief clerk with all the powers, and authorize him to fulfil all the duties, of the county clerk at any sitting or term of the county to the exclusion of the county clerk himself. “It is not intended to assert that the legislature may not authorize the county clerk to act through a deputy in performing his duties as clerk of the county court of Kings county, and it matters not that this deputy is denominated a chief clerk; but the legislature cannot provide for such a chief clerk who may exercise his functions in such a way as to exclude the county clerk from any activities as clerk of the County Court or who may continue in office against the will of his nominal superior by reason of enjoying a fixed term." People v. Rafferty, (1913) 208 N. Y. 451, 102 N. E. 582, reversing 154 App. Div. 767, 139 N. Y. S. 572. custody of the jail and of the prisoners confined therein is one of those powers and duties which, by common law, belong to the sheriff, and which continued to belong to him down to the adoption of the constitution. In declaring, therefore, that the sheriff should be elected, the constitution must have intended an officer who, among other things, should possess that custody." Wherefore chapter 251, Laws of 1882, is unconstitutional is so far as it attempts to deprive the sheriff of Albany county of the custody and control of the county jail and the prisoners therein and to vest such control and custody in the superintendent of the Albany County Penitentiary. People v. Keeler, (1883) 29 Hun 175.

"The

Temporary performance by other officers of county officers' duties. The legislature cannot provide that the duties of county officers shall be performed by "officers other than those elected or appointed," as provided by this section, by section 2 of this article, and by section 18 of article 3. Accordingly, a statute (ch. 548, Laws of 1912) which creates a county and then provides that "the duties which by law were devolved upon the county officers should,

until the county officers were elected, be performed by the officers of an adjoining county," is unconstitutional. Per Ingraham, P. J., in People v. Kennedy, (1913) 154 App. Div. 558, 139 N. Y. S. 896.

Temporary appointment to fill vacancy. The legislature is competent, on the happening of a vacancy in one of the offices here mentioned, to provide for the temporary discharge, during the interval between the occurrence of the vacancy and an election, of the duties thereto pertaining by an officer not chosen by the county electorate. The language of the constitution is not, that the office shall be filled by election in every possible case, nor that a vacancy shall be supplied in that manner as soon as it happens; but the language is, that vacancies shall be supplied by election as often as they happen. That end is fairly attained by referring the matter to the people at their next stated period for exercising the elective franchise. Section 5 of this article now expressly recognizes the right of the legislature to provide for such a temporary appointment to fill a vacancy. People v. Snedeker, (1856) 14 N. Y. 52.

Duration of term of officer elected to fill vacancy. It would seem that one elected to fill a vacancy occasioned by the death, resignation, or other disability of one of the officers here mentioned, is elected for the full constitutional term and not merely for the unexpired portion of the term of his immediate predecessor. Coutant v. People, (1833) 11 Wend. 511.

Power of district attorney.-"The district attorney is the official, from time immemorial, charged with the prosecution for crimes and offenses cognizable' by the courts held in the county where he serves. He is an official designated in the constitution, and without any statute defining his duties the prosecution of those under indictment and tried in his county whether pursuant to order of the court or by virtue of original jurisdiction is within the scope of his duties." Per Spring, J., in People v. Neff, (1907) 121 App. Div. 44, 106 N. Y. S. 1140, affirmed (1908) 191 N. Y. 286, 84 N. E. 63. Sheriff as county authority. The stipulation of this section that a sheriff "shall hold no other office" does not prohibit that official from serving as a county authority to appoint county officers under the provision of section 2 of this article, that "all county officers, whose election or appointment is not provided for by this constitution, shall be elected by the electors of the respective counties or appointed by the boards of supervisors, or other county authorities, as the legislature shall direct." "The duty devolved upon the sheriff by the 2d section of article 10 of the constitution is a duty and obligation which attaches to the office which he holds as a county official in common with all other county officers. It arises by reason of his relation to the county. . . . It is not an office which is created in connection with his duties as sheriff, or in connection with the functions required of such officer. It rests solely upon the fact that by the constitution he becomes, by virtue of his office, a county authority, and upon such authority the constitution imposes a burden which is distinct and independent of the particular duties which attach to the office of sheriff. As the constitution has selected the county authority, without making any exception in the personnel which goes to make it up, upon which the obligation is imposed, we think that it must be construed as adding thereto a new duty and function by reason of his position in the body where the duty may be made to rest. And although the sheriff may hold no other office, he may and is by constitutional requirement obligated to perform such duties as may be constitutionally imposed, in his capacity as a county officer, which are as clearly imposed and enjoined as is the obligation to perform the duties of sheriff." Wherefore a sheriff is competent to serve as a member of a board created by the legislature to appoint the police commissioners of his county. Pearce v. Stephens, (1897) 18 App. Div. 101, 45 N. Y. S. 422, affirmed 153 N. Y. 673, 48 N. E. 1106.

Eligibility of sheriff for position of highway commissioner.- The position of commissioner of highways under chapter 905, Laws of 1869, 66 office "

is an

within the meaning of this section prohibiting a sheriff from holding any other office. Wherefore, a commissioner under that act must be deemed to vacate his position as such on accepting the office of sheriff; and after his acceptance, is incompetent to perform the functions of a commissioner. People v. Nostrand, (1871) 46 N. Y. 375.

Removal. The power vested in the governor by this section of removing the officers therein mentioned, upon charges and after a hearing, is executive, not judicial, and when exercised, is not reviewable by the courts. "The suggestion that, if the courts do not interfere, some chief executive may proceed in disregard of those principles which courts of impeachment have established, should not be given weight, for the ability to act quickly in the removal of administrative officers and clerks is as important in the conduct of government as in the management of a gigantic corporation or large individual enterprise. The attempt to safeguard the rights of the official, or the clerk, should not be carried to such an extent as to override the interests of the public, for the public business is of paramount importance. It is better that occasionally a mistake should be made in the removal of an officer than that the public business should be seriously interfered with." In re Guden, (1902) 171 N. Y. 529, 64 N. E. 451, affirming 71 App. Div. 422, 75 N. Y. S. 794. Apparently, one who has been removed from office by the governor under authority of this section is not competent on appointment to hold that office for the remainder of the term for which he was removed. Per E. T. Bartlett, J., in People v. Ahearn, (1909) 196 N. Y. 221, 89 N. E. 930, 26 L. R. A. N. S. 1153, affirming 131 App. Div. 30, 115 N. Y. S. 1136.

II. PROVISIONS RELATIVE TO NEW YORK AND KINGS COUNTIES AND COUNTIES COTERMINOUS WITH CITY.

Purpose of provisions.—“The object of this provision prescribing that the terms of the county officers mentioned in the counties of New York and Kings should be two or four years, was to bring the time of electing these officers into harmony with the new constitutional provision contained in article XII, section 3, requiring that the election of city officers, except in cities of the third class and of county officers elected in the counties of New York and Kings, 'shall be held on the Tuesday succeeding the first Monday in November in an odd numbered year, and the term of every such officer shall expire at the end of an odd numbered year.' It is manifest that to carry out the purpose, that county officers in the counties of New York and Kings should be elected in odd numbered years, it was essential to change the term from an odd to an even number, as a continuous three-year term would necessarily make every alternate term expire in an even numbered year." People v. Palmer, (1897) 154 N. Y. 133, 47 N. E. 1084, affirming 21 App. Div. 101, 47 N. Y. S. 403.

Duration of term in absence of statute.- Since it is provided by this section that sheriffs, clerks of counties, district attorneys, and registers in the counties of New York and Kings and in counties whose boundaries are the same as those of a city, shall be chosen once in every two or four years as the legislature shall direct," the legislature may, in its discretion, prescribe a term of two or of four years for the officers mentioned. Where, however, it has neglected to exercise its discretion, the terms of the officers must be deemed to be of two years duration. People v. Palmer, (1897) 154 N. Y. 133, 47 N. E. 1084, affirming 21 App. Div. 101, 47 N. Y. S. 403. The court so held in that case with respect to a district attorney of Kings county the duration of whose term had not been fixed. In the course of the opinion this was said: "We are of opinion that, until the legislature acted, the terms of county officers elected in the counties of New York and Kings must be deemed to be two years, which, as to future cases, may be extended to