New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1900-11-29
CONSTITUTION AND POLICE.

GERS whose election or appointment is not pro-
''vided for In this Constitution shall be elected
"by the electors Of such cities, towns and vii
| '1ases or of some division thereof appointed
| ''by such authorities thereof the Legislature
shall designate for that purpose"-must be ex-
| tremely interesting to the lawyers TO whom the
task Is committed. 1t is not rendered less so by
! the fact that they can only guess what verdict
| the Court OF Appeals may pass on their work II
| placed on the statute book, that court having
| hitherto rendered decisions on the subject rar
| from consistent in spirit. 1t has upheld ana IL
| has oyertbrown laws taking the control of the
| police of various municipalities away from local
authorities and 1t is exceedingly difficult TO fix
surely the line of distinction. Indeed. one judge
while making distinction in courtesy to a de-
cision of former days. says lie does not agree
with It, If he had been on the bench when the
case came up our whole law on the shDJec'
might have been different.
The constitutional provision in question was
enacted in 1886 It came up for construction in
1851 ghen the law establishing a metropolitan
police district for New York, Kings. Richmond
and Westminster with Commissioners appointed
by the Governor was passed on by the Court OF
Appeals in the case of the People eX rel. Fer
nando Wood agt. Simeon Draper % y. ".
The court declared the law constitutional. Chief
Judge DEMO. writing the majority opinion,
said that this provision concerned only ofnces
existing when the Constitution of 1886 was
| adopted, and that the Legislature had a free
hand as to offices subsequently created He
conceded however. that it could not evade the
Constitution by merely creating offices with
new names and without any substantial changes
III the scope of duties performed. that they
! could not properly be performed by existing
local officers. He held that the creation Of
metropolitan district including the cities of New
| York and Brooklyn did create offices not
properly local In character Nor did this inter
| fere with the local self-government safeguarded
| by the Constitution or lessen the usefulness of
| city and town organizations. The Constitution
| did not require that local divisions should al
| ways possess the same measure of administra
| tive power Changes were made committing
the support Of the poor and the management Of
| the schools to new hands. and there was moth
ing in the Constitution which localized the police
| power under all circumstances and deprived the
Legislature of discretion as to the best mode of
exercising it. Judge Brown and Judge Com
| stock dissented, and the former wrote an opn-
ion holding that the police power was essen
| TALLY local and that II IT could be centralized
| by establishing new territorial division
| neither city. town nor county then the whole
| local government Of the Constitution was under
mined
In 1857 the same question again arose. The
| Legislature Of 1866 established n capital police
| force at Albany responsible TO the Governor,
| The next year the city of Schenectady and a
narrow strip the width Of the New-York Cen
| trail Railroad tracks connecting the two cities
were added TO the district. Practically the only
| question at issue was concerning contiguity of
| territory. Without committing himself to the
doctrine that eontiguity was necessary, Judge
| Porter held that this strip frequented by crimi-
nails. was proper object &C especial vigilance
and that the territory WAS IN fact contiguous.
| The constitutonality of the law was unani-
mously affirmed people e1 rel. McMullen
agt. Shepard. 36 n " on the doctrines Of the
| People agt Draper.
| Six years later in the case Of the People ex
| rel. Bolton agt. Albertson (55 n. " an en-
tirey different spirit prevailed in the Court OF
Appeals. police district under State control
had been created for Troy and three small
tracts of territory. being parts but not the
whole of adjoining towns 1t was declared I'm
| constitutional. Judge Allen wrote the opinion
which was concurred in by all the Court except
Judge Folger, who upheld the authority of the
People agt Draper. Judge Allen pointed
gard to Capitalization of the police authority
| over two cities, as I'm the earlier cases. wber
| the only object of legislation was TO take author
| ity from local officers by adding. to the city
limits an nconsderable strip merely to give the
| territory the name and form Of police district
as distinct from the ordinary civil divisions OF
the State. the law plainly unconstitutional
Thus Judge Allen avoided reversing the former
decisions, but he did not hesitate to say OF
Judge DEMO that but for his ability and in
huence the decision might possibly have beer
1.-The other way and to add
urcondemned, although never, | think, satisfac
tory to the public or the legal profession. tina
1t might not be proper under any circumstances
TO review or overrule ii, and 1t is to be hoped II
the interests Of constitutional government b!
the people. that the occasion to reaffirm 1t!
doctrines may never arise To my mind the
| dissenting opinion Of Judge Brown concurreC
| In by Judge Comstock, presents unanswered l,
arguments why the decision should have beer
dlnerent. The Constitution in providing for {
state government in all It's parts and for thu
entire territory, distributing it's powers an1ont
ne Various departments and organizing an(
authorizlng the creation and organization O
local governments for the different parts OF III,
State. under the general division Of counties
cues. villages and towns. and in such forms
that every power or government necessary 10 b,
, delegated TO any locality may be delesated I,
ana conferred upon one or other OF the muntcf
ca governments thus authorized and recognized
would seem TO exclude the idea Of the creatin1
or any ne" or other division for the exercise n
| pohtical power or any other different loca
government and by necessary Implication nro
| hibit Il. pa
Another attempt at a State police force wa
made few years later. when district includ
ing the villages OF Niagara Falls and Susnen
sion Bridge was established This law set III
district police courts and these were declareI
unconstitutional the Court of ANNALS q. ,b