the expenditure for clerk hire, including stenographer, each year, shall not exceed fifteen hundred dollars. In each county having a population of less than ninety thousand and containing within its boundaries at least three cities of the third class and in each county having a population of ninety thousand and less than one hundred and twenty thousand the salary of a commissioner shall not exceed fifteen hundred dollars, and the expenditure for clerk hire, including stenographer, each year, shall not exceed three thousand dollars each year. In each county having a population of one hundred and twenty thousand and less than five hundred thousand the salary of a commisioner shall not exceed three thousand dollars, and the expenditure for clerk hire, including stenographer each year, shall not exceed five thousand dollars. In each county having a population of five hundred thousand and less than a million the salary of a commissioner shall not exceed three thousand dollars. The population of the various counties of the state referred to in this section shall be fixed and determined according to the latest preceding federal census, or state enumeration. Not more than two of such commissioners, if the board of elections consist of four members, and not more than one of such commissioners if said. board consist of two members, shall belong to the same political party or be of the same political opinion on state or national politics. The persons composing such boards of elections shall be designated "commissioners of elections." Each of the said boards of elections shall be and is hereby charged with the duty of executing the laws relating to all elections held within their respective cities or counties, except as otherwise provided by law.

Derivation: Election Law, § 11, subd. 2, ¶ a, as added by L. 1901, ch. 95, § 5. Amended by L. 1911, chs. 649 and 740; L. 1912, ch. 406; * L. 1913, chs. 800 and 820, in effect Dec. 17, 1913.

The purpose of sections 190-196 of the Election Law is to provide for a bipartisian election board in New York city, and the mayor is given full authority to appoint the board. Matter of Kane v. Gaynor (1911), 144 App. Div. 196, aff'd 202 N. Y. 615, on opinion of Burr, J., below.

Salary of Clerk.- Under § 12, subd. 5 of the County Law, as amended by L. 1914, ch. 358, the board of supervisors has power to fix the salary of the chief clerk of the board of elections. People ex rel. Simpson v. Snyder (1916), 173 App. Div. 171, 158 N. Y. Supp. 937.

* Reducing Number of Commissioners.-L. 1912, ch. 406, section 4, in effect April 16, 1912, although not amending any section of the Election Law, provides as follows: "In any county in which the number of the commissioners constituting the board of elections is reduced by the provisions of this act,

designate the two members of such board of opposite political faith who shall retire therefrom. Upon the adoption of a resolution to that effect, the terms of office of such retiring members shall cease and determine and the remaining members shall thereafter constitute, until the expiration of their terms, the board of elections of such county."

§ 191. Appointment, term and qualifications of commissioners of elections.

All commissioners of elections shall be appointed by the board of supervisors of the county in which such board of elections is located and in the city of New York by the board of aldermen of such city. The supervisors of each county and the members of the board of aldermen of the city of New York shall appoint the commissioners of elections for their respective counties and the city of New York. Such appointment shall be evidenced by the supervisors of each county or the board of aldermen of the city of New York making such appointments, executing a certificate substantially as follows: "We, the undersigned, comprising the supervisors of

county, (the members of the board of aldermen of the city of New York) do hereby, pursuant to the election law, appoint residing at

...

a commissioner of elections for said county.

"In witness whereof we have hereunto subscribed our names and the towns or wards (aldermanic districts) we represent, this 19.."

day of...

and shall acknowledge said certificate. Said certificate shall thereupon be filed in the office of the county clerk of said county and said county clerk shall immediately upon such filing notify the secretary of state of such appointments. All such appointments shall be for the full term of two years, beginning at twelve o'clock noon of January first in each odd numbered year.

Each of the said commissioners of elections shall be at the time of his appointment a resident and an elector of the political subdivision for which he is appointed. A commissioner of elections may, while holding such office, hold one of the following offices: Notary public, commissioner of deeds, police justice of a village, trustee or officer of a common or union school district outside of a city, justice of the peace of a town, and any other office filled by election or appointment within or for a town or village, or district or subdivision of either, except supervisor, town clerk, inspector of

election, poll clerk or ballot clerk. Such commissioner shall not hold, while he is commissioner, any other office, except as above provided; nor shall he be a candidate, while he is commissioner, for any elective office which he would not be entitled to hold under the provisions of this section, nor after he has ceased, by resignation or otherwise, to be commissioner, if the election shall occur within fifty days therefrom, and any votes cast for any person for any such office who shall have been a commissioner of elections within fifty days of the election at which such votes were cast shall be void and shall not be counted, except that such commissioner may be a candidate for the office of supervisor or town clerk while he is commissioner, and at any time thereafter, subject to the ensuing provisions of this section. Any votes cast for a person for either of such offices who shall have been a commissioner of elections, and who shall have resigned from or otherwise ceased to hold the office of commissioner at least fifteen days before the election at which such votes were cast shall be valid and shall be counted.

A commissioner of elections may be removed from office by the governor for cause in the same manner as a sheriff. Any vacancy in the office of commissioner of elections shall be filled by the supervisors of such county or in the city of New York by the members of the board of aldermen within five days after the filing of the certificate provided for in section one hundred and ninety-five of this act, and the person appointed to fill such vacancy shall hold office during the remainder of the term of the commissioner in whose place he was appointed.

Derivation: Election Law, § 11, subd. 2, pt. of I b, as added by L. 1901, eh. 95, § 5.

Amended by L. 1911, ch. 649, and L. 1913, ch. 820, in effect Dec. 17, 1913. Cross-reference.-As to appointment, qualifications, etc., of election officers in general, see Election Law, § 302.

Election commissioner; illegal appointment.-Where a person was certified by the county committee of his party for the office of election commissioner, but the board of supervisors disregarding the certificate appointed another person to the office, the person certified, not having title to the office, may not maintain an action as relator to oust the occupant. Until a person is legally appointed and the occupant refuses to surrender the office the Attorney-General in the exercise of his discretion should not bring an action to oust the occupant. Rept. of Atty.-Gen. (1913), Vol. 2, p. 616.

Vacancies. Where the present residence or whereabouts of a commissioner of elections is unknown and he has for a long time been absent from the county for which he was appointed and he does not attempt to exercise any of the powers of his office, a vacancy exists which may be filled by the appoint. ing power without recourse to any action at law to determine his status. Rept. of Atty.-Gen. (1914), Vol. 2, p. 131.

§ 192. Organization of board; rules and reports.

At their first meeting the commissioners of elections shall organize as a board by electing one of their number as president and one as secretary, and in case no election can be had the members shall draw lots for such places. The president and secretary shall not belong to the same party. The board shall have power to adopt such rules and regulations for the control and conduct of the affairs of such board and of its employees as are not inconsistent with or in violation of law. The board shall keep a record of its proceedings and shall make an annual report in the month of January of the affairs and proceedings of said board to the secretary of state. The board of elections of a county outside of the city of New York shall also make an annual report in the month of January, of its affairs and proceedings, to the board of supervisors. The board shall append to the report to the secretary of state a statement of the number of voters enrolled with each party for that year in each election district. The board shall also collect such data as may be available relating to the expense connected with registrations, enrollments and elections within its county or city each year and include a statement thereof in such report to the secretary of state, together with such other information relating to elections as the secretary of state may prescribe.

Derivation: Election Law, § 11, subd. 2, pt. of ¶ b, as added by L. 1991, ch. 95, § 5.

Amended by L. 1911, ch. 649; L. 1917, ch. 703, in effect June 1, 1917.

§ 193. Salaries of commissioners of elections.

The salary of each commissioner of elections in the city of New York shall be six thousand dollars a year, payable in equal monthly instalments. The salaries of all other commissioners of elections shall be fixed by the board of supervisors appointing said commissioners and may be changed from time to time by resolution of the said board of supervisors, but shall not exceed the amount specified in section one hundred and ninety.

Derivation: Election Law, § 11, subd. 2, pt. of ¶ c, as added by L. 1901, ch. 95, § 5.

Amended by L. 1911, ch. 649; L. 1912, ch. 406, § 2; L. 1913, ch. 800; L. 1917, ch. 703, in effect June 1, 1917.

Consolidators' note.- Election Law, § 11, subd. 2, ¶ c. Heading new, The old paragraph required the mayor to appoint commissioners within ten days after the act took effect, to hold office until noon of January 1, 1903, and to again appoint "upon the expiration of the term of office of the commissioners first appointed and every two years thereafter." The new section defines the term of office generally by referring to "each odd numbered year," also omitting the matter relating to the qualifications of the first board, which was merely a duplication of the general provision retained.

Designation of newspapers.- Aldermen of the city of New York and not the board of elections are empowered to designate newspapers to publish notices. Standard Publishing Co. v. City of New York (1906), 111 App. Div. 260, 97 N. Y. Supp. 740.

§ 194. Recommendations for appointment of commissioners of elections.

Within ten days after this act takes effect and at least five days. before the first day of January in each odd numbered year, the respective chairmen of the county committees within the counties of New York and Kings and the respective chairmen of the county committees of all the other counties in the state excepting the counties of Bronx, Queens and Richmond of each of the two political parties which at the general election last preceding the date of such certificate cast the highest and the next highest number of votes for governor, shall each respectively make and file or cause to be filed in the case of the counties of New York and Kings with the board of aldermen of the city of New York, and in the case of each of the other counties with the board of supervisors of such . county a certificate in substantially the following form, each of which certificates shall certify the name of a person who is a resident and qualified voter in the case of the counties of New York and Kings of the city of New York, or in the case of the other counties a resident of such county, and who is recommended as a fit and proper person to be appointed a commissioner of elections: "I. chairman of the county committee of party, for the county of .....

the ..

do hereby, in accordance with the provisions of section one hundred and ninety-four of the election law, certify that in the opinion of a majority of the said committee, pursuant to resolution duly adopted, a resident and qualified elector of the borough of city of New York, or of the county of ... is a fit and proper person to be appointed a commissioner of elections, and I do hereby recommend him for appointment to said office. In witness whereof, I have made and executed this certificate, this ... day of . . . . . . 19.."

Each of such certificates shall be duly acknowledged by the person executing the same, before a notary public or other officer authorized to take acknowledgments to deeds for record in this state.

Derivation:

ch. 95, § 5.

Election Law, § 11, subd. 2, pt. of d. as added by L. 1901,

Amended by L. 1911, ch. 649, and L. 1913, ch. 820, in effect Dec. 17, 1913. Consolidators' note. As in section 193, the obsolete provisions governing the making of nominations to the mayor for the original board are omitted, and the general provision retained is defined by reference to "each odd numbered year." The form of certificate making the nomination is also made a part of the general provision and its place in the section changed accordingly.

Application of section.

People ex rel. Woods v. Flynn (1913), 81 Misc. 279. Effect of nominations. The mayor of the city of New York in appointing a commissioner of elections cannot be confined to a single person, nominated under the provisions of this section. Matter of Kane (1911), 71 Misc.