uance of such vacancy, absence, or disability. There is no provision by law for a special election of a new Mayor within the year, in case of his death. The President of the board of Aldermen supplies his place for the residue of the year. Here is no difficulty.

As to the office of Sheriff, the act of April 24th, 1823, chapter 268, provided for a special election in the case of a vacancy in that office, as well as in that of Register or Clerk of the city, happening within the prescribed term of service. But all such special elections were done away by the Revised Statutes, unless the right of office of the person elected should cease before he commenced his service. (Vol. 1, 126, sec. 6, 8.) They declare that all vacancies in those offices were to be supplied at the next general election; and vacancies in the office of Clerk or Register, otherwise than by death, were to be supplied by the Governor, who is to appoint some fit person to execute the duties of the office, until the vacancy is supplied by an election. (R. S. vol. 1, 124, sec. 49.) There does not appear to be any specific provision for supplying the vacancy occurring by death in the office of Register or Clerk, until the next general election thereafter for the city officers. The statute (R. S. vol. 1, 379, sec. 72. Ibid. 380, sec. 78) provides that the under Sheriff shall supply the Sheriff's place whenever a vacancy in the office occurs. The vacancy here must mean by death or removal from office, but if the Sheriff be otherwise totally disabled to execute the office, the provision for the case does not seem to be explicit. There appears also to be a want of explicitness or provision for the case of the death of the Coroner. There is no provision for supplying a vacancy arising from that cause, prior to the next succeeding general election, unless in the rare occurrence that a vacancy proper to be supplied at a general election was not so

supplied, and then there is to be a special election. (1. R. S. 128, sec. 9.) The act of April 12th, 1822, Sec. 4, followed the charter and directed only one Coroner to be elected in New-York; and by the Revised Statutes (vol. 1, 122) he is directed to be elected at the same general election as Sheriff, In the case of the absence or inability of the Coroner, any Alderman or special Justice may perform the duties of the office, during such absence or inability. (R. S. vol. 2, 743, sec. 9.) Still the occurrence of his death within the year, does not seem to be provided for.

NOTE XXVI. P. 52.-C. C.

The 11th Section provided for supplying vacancies happening within the period of the regular appointment or election, in the office of Alderman, Assistant, Collector, Constable, Chamberlain, and High Constable by a special election or appointment. The provision is supplied by new statute regulations. Thus by the act of the 7th of April, 1830, Ch. 122, a special election is to be ordered by the Board of Aldermen or Assistants as the case may be, for supplying within the year, the vacancy in the office of Alderman or Assistant, by death removal from the city, resignation or otherwise.

The act of April 8, 1813, Ch. 86, Sect. 13, provided that if any of the Aldermen, or other officers of the city, chosen by the people, as charter officers, should refuse to serve, die, or remove out of the city before his time of service expires, and the office becomes vacant, the Common Council were to order a special election to supply the vacancy. The same provision was in the act of Feb. 23d, 1787, regulating the election of charter officers, and it applied specially to Aldermen, Assistants, Assessors, Collectors, and Constables.

There is no other provision that I am aware of, for

supplying vacancies by death or otherwise, happening within the year in the office of Assessor, Collector, or Constable, but that contained in the act of 1813, and which has not been repealed, nor introduced into the Revised Statutes, and I presume it therefere remains in force. The charter made adequate provision for the case, and the act of 1813 may be considered as an affirmative or cumulative provision of more specific direction.

NOTE XXVII. P. 53.--D. D.

This Section imposed a penalty not exceeding £15, for the use of the Corporation, which might be assessed by the Common Council upon every person elected Alderman, Assistant, Assessor, Collector, or Constable, or appointed High Constable who should on due notice neglect or refuse to serve.

I have not seen any Statute abrogating this provision and I presume it remains in force. It is analagous to the policy of the law in respect to town officers throughout the state. Thus a fine of $62 50, was formerly imposed upon every Supervisor, Town Clerk, Assessor, Collector, Commissioner of highways, Overseer of the Poor, and Constable, who should refuse to serve in the office to which he was elected. (Act 27th of March, 1801, Ch. 78. Act March 19th, 1813, Ch. 35.) The fine reduced to $50 is still continued against the town officers, except the Collector and Constables, who are required to give security, which it might be inconvenient or impossible to be procured, and the fine for not serving is withdrawn. (R. S. Vol. 1. p. 346, 347.)

NOTE XXVIII. P. 54.-E. E.

The 13th Section provides for the case in which the

election should fall on Sunday. This necessity arose from fixing on the 29th of September yearly, or the feast day of St. Michael the Archangel. The law now prevents any such difficulty, by naming as the day of election, another day in the week of the month designated.

NOTE XXIX. P. 56.-F. F.

The 14th Section relates to the Constitution and power of the Common Council, and it was materially altered by the Act of 7th April, 1830, Ch. 122, amending the charter.

Neither the Mayor or Recorder are any longer members of the Common Council, and instead of a single chamber, composed of the Aldermen and Assistants acting together, as one indivisible body, the Aldermen and Assistants meet in separate chambers, with equal rights and concurrent power, and no act, ordinance, or regulation can pass without the assent of each House or Board, nor until it has been presented to the Mayor and received his approbation, or returned with objections, and then reconsidered and passed in each Board by a majority of the members elected thereto. The Common Council as now organized, resembles in the order of its proceedings, and in the checks imposed, a regular legislative body; and considering the great interests confided to its care, and the large discretionary powers with which it is invested, it was fit and proper that its laws and ordinances should pass with similar deliberation and solemnity.

I apprehend that the general powers of the Common Council, as described in this Section of the charter, remain in full force. The amended charter of 1830, superseded certain other powers and checks, in respect to the borrowing and appropriation of monies, and the annual publication of detailed statements of receipts and

expenditures, during the year preceding, and in respect to the establishment of distinct executive departments, and providing for the accountability of officers and persons entrusted with the city funds. The general power under the charter, was to make, ordain and establish, from time to time, laws and ordinances, such as to the Common Council should "seem to be good, useful or necessary for the good rule and government of the body corporate, and of all officers, inhabitants and residents of the city, within the limits thereof;" and for "the further public good, common profit, trade, and better government and rule of the said city;" and for governing and disposing of the corporate property, real and personal. These broad and latitudinary powers were given to be exercised with sound discretion, and with a liberal spirit commensurate with the growing wants and prosperity of a great commercial metropolis. The courts construe powers liberally, for such purposes. Thus in the case of the Mayor and Aldermen of Memphis v. Wright, in 6 Yerger, Rep. 497, when the town of Memphis, in Tennessee was laid off on the banks of the Mississippi, there was a public promenade set apart, and the corporation, under the authority in its charter, "to do all things necessary to be done by corporations," diverted the promenade to a different use, by converting it into wharves and landings for Steam Boats and Flat Boats; and it was held by the Supreme Court of Tennessee in 1834,that the corporation had authority to do so, and to enforce the regulation by penalties, and that the power was included in the words above quoted.

The Common Council were authorized also to ordain and enforce penalties for breaches of their laws and ordinances, and to collect the same by the summary process of warrant and distress and sale of the delinquents' goods, or by action of debt. The By-Laws were not to be repugnant to the statute or common law of the