Rathbone v. Wirth

The learned justices, who, at the Special Term

and in the Appellate Division, have expressed their views of the unconstitutionality of this act, have done so with such thoroughness as to leave but little to be added to this very important discussion. Mr. Justice Parker, at Special Term, rested his determination of the question upon the ground that the act violates section 1 of article 1 and section 1 of article 13 of the State Constitution; the former of which declares

In this clause of the Constitution under consideration, we find the express reservation of the right of local self-govern-

It ought not to require much of argument to show the importance of this clause in our Constitution, or what its presence means for our political institutions. Its very pres

Having in mind this principle of local self-government, as an inherited and pronounced feature in the general governmental system, let us turn to the statute in question and, more particularly, consider the provisions of the first section. What was it intended to do and what will it do, if allowed effect % What are its spirit and its purpose; for we must consider them in determining whether the legislative intent may be effectuated. It was passed as an amendatory act; affecting chapter 77 of the Laws of 1870 and the acts supplemental thereto, which related to the police department of the city of Albany. At the time of its passage the board of police commissioners consisted of five persons, viz.: of the mayor ex-offieio and of four persons whom he might appoint. The present statute provided for a board of only four commissioners, “ not more than two of whom shall belong to the same political party,” who shall be chosen or elected at a prescribed meeting of the common council; and “ for the purpose of such meeting the members attending shall constitute a quorum.” Each member of the council is restricted in his vote to two persons and “ no person is eligible to the office * * * unless, at the time of his election, he is a member of the political party or organization having the highest or the next highest representation in the common council.” If a vacancy occur in the board, “ it shall be filled by appointment by the mayor upon the written recommendation of a majority of the members of the common council belonging to

That this statute violates the Constitution in its letter, as in its spirit, seems to me an indisputable proposition. It goes beyond the power to designate the local authority, who, under the new system, shall appoint police commissioners. It designates the class of persons from whom the selection must be made and excludes all others, and it precludes the majority in the common council from naming the majority of the board.! Ror does it confine the designation of an authority to what would be, in fact, such under the charter of the city of Albany; for it attempts to create an appointing body in violation of the provisions of the city charter. At the time of the adoption of the Constitution of 1894 the local authorities of the city of Albany, under its charter, were the mayor, as the executive power, and the common council, as the legislative power. (Chap. 298, Laws of 1883.) The reference, therefore, of the constitutional provision in question was to local authorities as they were constituted by force of existing public laws; for the legal presumption must be that the revisers used those words not only intelligently, hut with knowledge of the forms of municipal government and of the rules which guide executive and administrative action. The legislature was, consequently, clearly restricted, in its designation of an appointing

We are not confronted here with any question of “ minority representation.” That is not the purpose of the act. It places the political minority in the legislative body upon, an

I will refer to two cases, which are deemed to bear upon the discussion of this case. In Rogers v. Common. Council of Buffalo ( 123 N. Y. 173 ), the law provided as to a board of three civil service commissioners, there in question, that “ not more than two shall be adherents of the same political party.” It was held that “ nothing in the law compelled the appointment of even one member of any political party; but that it simply prevented the appointment of more than two from such party.” Commenting upon the case of the Atty.-Genl. v. City of Detroit ( 58 Mich. 213 ), where the provision was for the appointment of two election inspectors from each of the two leading political parties, Peckham, J., said : “ The law recognized but two political parties, and made it necessary for the appointments to be made from and confined to members of those parties. An individual not a member of either was not eligible to appointment. In the case before us there is

The case of People ex rel. Woods v. Crissey, ( 91 N. Y. 616 ), cannot be deemed to confuse the present discussion. The act confined the vote of each alderman for police commissioners to one out of the two to be chosen, so that the minority would be sure to elect one. The common council had already acted upon the appointments and the court refused to pass upon the restriction in the act. Finch, J., observed, in that connection, “ if we assume this provision to be unconstitutional, it was a nullity. * * * They (the common council), are presumed to have known the law, and had an official legal adviser. * * * They must be held then to have voted without restraint.” In the case at bar, however, the appointments remain to be made and the answers either admit that the defendants intend to comply with the provisions of the act; or are silent as to the allegations of the complaint with respect to what is proposed to be done in obedience to the provisions of the act.

I perceive no force in the argument that there has been a practical construction of the Constitution, given by the legislature and acquiesced in and acted upon by the executive and administrative departments of the government. The question here is purely one of law: Is the constitutional provision referred to violated by this statute % Is the passage of such a law authorized by the Constitution ? Practical construction of a law is usually accorded force, when it relates to the business conducted by the departments of the state government and when the legislation, depended upon to establish it, has

It is argued, however, that the objectionable clauses can be stricken out, as null and void, and that the statute may remain valid to the extent of conferring power on the common council to appoint police commissioners. I do not see how that may be done, within any correct or salutary application of a rule which is frequently resorted to, to uphold the acts of the legislative department of government. It is only applicable, where not only that which is vicious in the law is so distinct as to permit of being severed from the rest, but where, the severance being made, enough remains to effectuate the object which the legislature had in view. It will not do, to save legislative enactments from annulment, to strike out provisions which so clearly express the intention of the legislature as to characterize the purpose of the act and make their.presence essential to the existence of the statute. Judge

The judgment appealed from should be affirmed, with costs.

This action was brought by the plaintiffs, who are residents and taxpayers of the city of Albany, to enjoin the common council of that city from proceeding to execute and carry out a statute, passed during the last session of the legislature, which, in effect, removes the present police force from office and provides for the organization of a new one. The act is chapter 427 of the Laws of 1896, and by its title and provisions amends chapter 77 of the Laws of 1870, and also amends or repeals various other statutes relating to the municipal government of that city and to the organization and government of the police force therein. It is alleged in the complaint that this act is in conflict with the Constitution of the state, and, therefore, void, and that proceedings on the part of the common council in execution of its various provisions would be illegal official acts, within the meaning of the statute, which should be enjoined by the courts.

On a trial of the issues at Special Term the action was sustained, and the judgment there pronounced has been affirmed by the Appellate Division of the same court. The controversy involves important principles concerning the right of local self-government in cities and the individual and political rights of the citizen. These questions always open a very wide field of discussion, the materials for which are to he found in abundance in historical and judicial records. The provisions of our Constitution on these subjects, which it is claimed have been violated in the passage of this act, are, as is well known, but the expression, in brief and comprehensive language, of general principles, of remote origin, the development and recognition of which required centuries of discussion and civil strife before they were adopted here .as the fundamental law. Hence, when questions arise for determination concerning their true meaning and interpretation, the nature of the case

The particular questions presented by this appeal have been illustrated, both at the bar and in the opinion of the court below, by ample materials drawn from this source. We can add little of any value to what has been said upon this feature of the argument in the decision now under review, and we can safely and properly leave that branch of the discussion where it was placed by the learned judge who spoke for the majority in the court below. Assuming, without further argument, that the leading and fundamental principles there stated with respect to individual rights and local self-government are correct — and there is very little if any dispute in this respect between counsel—it remains to apply them to the provisions of this bill. What has been frequently called the political tendency of the Constitution is not always to be found expressed in words, but is to be derived from acknowledged principles of government that existed long before its adoption and are to be implied from the general language and evident purpose and scope of particular provisions.

The principal objections to the bill are founded upon the provisions of the first section, which amends section three of the act of 1870, and reads as follows:

“ § 3. The police board of the city of Albany shall consist of four police commissioners, not more than two of whom shall belong to the same political party or organization, and who shall be chosen and hold office as hereinafter provided. On the first Monday after the passage of this act, the common council shall meet at eight o’clock in the evening in the common council chamber and shall proceed to elect four persons, residents and freeholders in the city as such police commissioners, and for the purpose of such meeting the members attending shall constitute a quorum. Each member of the common council shall be entitled to vote for not more than

There are some other provisions of the act which will be referred to hereafter, but this section is the basis of nearly all the constitutional objections which have been urged against the bill. At the date of its passage, on the 30th of April, 1896, and at the time of the adoption of the present Constitution, and for a long time before, the common council was the regularly organized legislative and governing body of the city, composed of nineteen aldermen, elected from the different wards by the electors. There was then, and had been for many years, a board of police commissioners, composed of the mayor and four citizens, nominated by him and confirmed by the common council, and upon this board the government of the police force devolved. It is clear that it was the purpose of the act in question to abolish this board and to substitute another in its place and, as will be seen hereafter, to disband the whole police force and to create a new

The purpose of the legislature was to be attained through a board of police commissioners to be ei’eated under the act and composed of two members from each of the political pai’ties having the highest axxd the xxext highest representation in the common council, and the last clause of the sectioxx declares in tenns that ixo citizeix outside these two political organizations is eligible to the office.

The first objectioxx urged against the validity of the act is that it violates section one of article one of the Constitution, which declares that “ no member of this state shall he disfraixchised, or deprived of any of the lights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers,” and also section one of article thirteen, prescribing the oath to be taken by all officei’s, and providing that “ no other oath, declaration or test shall be required as a qualification for any office of public trust.”

At the expiration of the term of office of the commissioners created by the act, their places ai'e to be filled by the same process and, in case of a temporary vacancy, it must be filled by the mayox*, upon the written recommendation of a majority of the common council belonging to the same political party or organization as the police commissioner whose office shall become vacant. It is plain that the legislature has k taken every possible precaution to exclude for all time to come any person from holding the office, either for a full term ? or to fill a temporary vacancy, who is not a member of one ; of the political parties designated in the act.

When the validity of such legislation is brought in ques- f, tion it is not necessary to show that it falls appropriately j;j within some express written prohibition contained in the Con- I’i stitution. The implied restraints of the Constitution upon legislative power may be as effectual for its condemnation as the written words, and such restraints may be found either in the language employed, or in the evident purpose which

: When the two sections of the Constitution above referred to j are read together and all are read in the light of the historical I events and notorious abuses of power which led to their insertion in the Constitution it cannot, I think, be doubted that |l they are broad enough in their terms and that they were in i fact intended to prevent the enactment of laws proscribing any class of citizens as ineligible to hold office by reason of political opinions or party affiliations. The section of the Constitution last cited comprehends more than a mere prohibition of test oaths, such as are familiar to the student of English history. It deprives the legislature not only of all poVer to-/exact any other oath, but also any other declaration or test as (a qualification for office. That the statute under consideration does prescribe a political test as a qualification and makes party adhesion a condition of holding office cannot well be denied. It not only, in effect, requires the four commissioners to be-divided equally between the two political parties, but in terms brands every other citizen, except those who are members of the two parties, as ineligible to hold the office. The courts of this state have not passed upon the validity of a statute containing a disqualifying clause like the one in question, but. principles have been established which plainly lead to the conclusion that such enactments are destructive of local self-government and individual rights. That is plainly the result of the discussion in the case of Barker v. People (3 Cowen, 686), in which the principles embodied in these clauses of the Constitution were stated and explained.

In other states with constitutional restrictions identical cal in scope and purpose statutes containing similar provisions

In these cases it was fairly shown that legislation of this character is in conflict with the letter and spirit of the constitutional provisions referred to and with the fundamental principles of free government. They can be safely followed in disposing of the same features in this case.

The legislature of this state has no power to enact a law'-'V' which proscribes any class of citizens as ineligible to hold pub-j ,j lie office on account of political belief or party affiliations, and/" consequently, the last clause of the section of the bill in ques

The learned counsel for the defense contend that this provision, if held to he invalid, may he eliminated from the act and the remainder permitted to stand; but when that provision is exscinded nothing would remain in the bill to require the appointment of adherents of either of the parties named. There would, indeed, be a prohibition against appointing more than two persons from any political party, but nothing whatever to require the appointees to belong to any party. The common council would then be at liberty to make the selections from that class of independent citizens who were not adherents of any party. This, however, would defeat one of the main purposes of the bill. When the several provisions are carefully read together, it is quite manifest that it was the intention to divide the power of the police department and the police force itself equally between the two political parties designated, and the exclusion of all other persons as ineligible to be members of the board was a necessary means to the accomplishment of that end. The principle of a division of the board and the whole police force equally between the two parties is so firmly imbedded in the act, and so inseparably connected with all of its provisions, that it cannot be omitted without frustrating the fundamental purpose which was in view. When the statute is so reduced as to permit the common council to constitute the board from independent citizens, not members of either party, it would not only fail to embody the main purpose of its enactment, but it could not reasonably be asserted that the legislature would have passed it at all in that form. The purpose of the legislature to constitute a board of police commisioners and a police force equally divided between two political parties, is so closely interwoven with all the provisions of the bill, that the disqualifying words at the close of the first section cannot be eliminated without essentially changing the scope and operation of the law and reducing it to a form in w'hich it could not be said that it would have been originally passed. But the essential and

It is admitted that police commissioners are city officers within the meaning of article ten, section two, of the Constitution, which reads as follows: “ All city, town and village ' officers whose election or appointment is not provided for by this Constitution, shall be elected by the electors of such cities, ji towns and villages, or of some division thereof, or appointed \ by such authorities thereof, as the legislature shall designate for that purpose.” The true interpretation, scope and meaning of this section of the Constitution has been frequently passed upon by this court, and it has been uniformly held that its obvious purpose was to secure to the people of the cities, towns and villages of the state the right to have the local offices administered by officers selected by themselves. It was designed to protect and give force and effect to the principle of local self-government which has always been regarded as fundamental in our political institutions, and to be the very essence of every republican form of government. The local government, even in the smallest division of the state, is the preparatory school in which the citizen acquires the rudiments of self-government, and hence these institutions have been justly regarded as the nurseries of civil liberty. (People ex rel. v. McKinney, 52 BT. Y. 374; People ex rel. Bolton v. Albertson, 55 B". Y. 50; People ex rel. v. Porter, 90 B". Y. 68 ; People ex rel. v. Groolcs, 53 BT. Y. 648 ; People ex rel. v. Bull, 46 B". Y. 57; People ex rel. v. Foley, 148 B". Y. 682.) In the case of People ex -rel. Bolton v. Albertson {supra), the meaning of this provision of the Constitution was stated in the following comprehensive language: “ The purpose and object of section 2 of article 10 of the Constitution, as is very obvious, was to secure to the several recognized civil and" political divisions of the state the right of local self-government, by

This right of self-government lies at the foundation of our institutions, and cannot be disturbed or interfered with, even in respect to the smallest of the divisions into which the state is divided for governmental purposes, without weakening the entire foundation; and hence it is a right not only to be carefully guarded by every department of the government, but every infraction or evasion of it to be promptly met and condemned; especially by the courts, when such acts become the subject of judicial investigation.”

There can be no doubt that this provision of the Constitution secured to the people of the city of Albany the right' of choosing or appointing their own local officers without let or hindrance from' the state government. The only power that the legislature had with reference to a' board of police commissioners in that city, was to provide either for their election by

The common council of a city, like every other legislative body composed of individual members, acts in its official capacity as a unit through the vote of the majority. While the power to elect or appoint the four police commissioners under the act in question is nominally conferred upon this body or authority, yet the members are, in terms, prohibited from voting for more than two. There is nothing in the bill to prevent the whole body from voting for the first two candidates presented, but, having so voted, their powers are exhausted, and acting in the ordinary way only two members of the board could be elected. But the bill was evidently ft

The question is whether the legislature, while professing to confer power upon the common council to appoint four persons to compose a board of police commissioners, can at the same time and in the same breath empower a minority of the body, whether it be composed of one person or more, • to appoint half of them. It would seem to be clear that any attempt on the part of the legislature to divide the appointing power into groups or fragments, each acting independent of the other in such a way as to enable a minority to exercise the same power as the majority, and thus, indirectly, to bring about the same result as the legislature itself would desire if it could act directly, is a violation of the spirit and purpose if not the letter of the Constitution. The two commissioners who under the scheme of this statute are to be elected by a mere minority fragment of the common council would hold their

The fatal objection to the bill is that, while professing to comply with the Constitution by designating the common i council as the appointing authority, it violates it by restrictions j upon its action and by the enactment of methods of procedure for a special purpose which, in their practical operation, confers the power to select upon two political groups in the body, each acting independently of the other. The unity and efficiency of the common council as a deliberative body, representing the people, and as an organ of city authority, is thus destroyed by the distribution of its legitimate powers between two unequal groups or fragments of the whole body. City officers selected in this manner are in no just or proper sense either chosen by the people or appointed by the common

The act should not he viewed as an expedient for a day, but a permanent law for all time, and, thus considered, it is obvious that the powers conferred upon the minority may be exercised by a single member. Such a situation is, of course, possible and quite conceivable. To .say that the two commissioners, elected under such circumstances, held office and exercised the important powers conferred by the bill, either by the choice of the electors, the common council, or any other city authority, would he to state a proposition so glaringly erroneous as to merit no consideration whatever. Their appointment under such circumstances would manifestly be due to the fact that, by a legislative edict, all the other members of the common council were prohibited from participation in the • choice. It would he quite as competent under such conditions for the legislature to omit mere formalities, without substance, and to name the commissioners in the hill. The principle is y] the same whether the minority consists of one member or/J more. When the common council is designated as the appointing authority, but the majority of the members are disqualified and debarred from voting and the minority empowered to make the choice, the official organ of the popular will is silenced and, though the real nature of the proced-! ure may be disguised by the observance of forms, yet the appointment in such a case is, in substance, the act of the central and not the local authority, and so the Constitution is violated. (Menges v. City of Albany, 56 N. Y. 374 ; Warner v. People, 2 Denio, 272 ; People ex rel. v. Angle, 109 N. Y. 564 ; State ex rel. Holt v. Pemiy, Mayor, etc., 118 Ind. 449 ; Clapp v. Ely, 27 N. J. Law, 622 .)

This objection affects the most important section of the bill, without which the other provisions can have no practical operation. In this section the principal purpose of the legislature is embodied and declared, and when eliminated the whole act must fail.

If the views here stated are correct they are sufficient to

Having attempted to create a board, composed equally of members of two political parties, a disagreement or deadlock is anticipated and provided for. In the fourth section power is conferred upon the board to organize an entirely new police force and to appoint a chief of police. It is true that it may in its discretion retain and continue in • office members of the present force, but such continuance must be manifested by an affirmative resolution duly passed, which, of course, requires the vote of a majority of the board, and unless the two parties in the board can agree to pass such a resolution, the present force shall cease to exist on the first day of August, 1896. To this sweeping provision, however, a single exception is made in favor of the person who was senior captain on the first day of January, 1896, who, for some reason, is retained by force of the act itself. The section then provides that in case of a failure of the board to agree upon the appointment of a chief of police, this person who was such senior captain at that time shall act as and perform all the duties and possess all the powers and receive the salary of the chief of police until the board shall agree upon an appointment. In case the board cannot agree upon the appointment of the various members of the police force who are designated in the act as captains or sergeants, it is made the duty of the person so acting as chief to assign members of the police force to perform such duties until the board shall agree upon appointments.

But since the present force is disbanded on August first, 1896, with the exception of such members as the board can agree to retain by resolution of the majority, and as there may be no police force in existence after that date, the authority to assign persons to police duty is in substance an authority to organize and create a new police force. Thus it appears that the legislature, having attempted to create a board of police commissioners which is tied politically, has also designated a

The appointment by the legislature of city officers in whatever form, or under whatever guise it may be attempted, is a clear invasion of the right of local self-government secured by the Constitution. The very extensive powers conferred by the fourth section upon a designated individual, who was captain at a certain date, is in substance and effect an appointment by the legislature of this person to discharge the new duties prescribed therein. It cannot be contended that the legislature has power to appoint a chief of p'olice or to authorize a designated person to organize and govern the police force in a city, but the act in question confers such powers, and provides for such an emergency. The powers thus attempted to be conferred indicate quite plainly the general scope and purpose of the bill and enable us to measure the .results in case the intention of the law is carried out. The two members of the commission selected by the minority of the common council, whether that minority consists of one member or more, are empowered to disband the whole police force of an important and populous city, the capital of the state. They may do that without any regard to the wishes of the people of the city who pay the taxes, and for whose safety and protection a police force is maintained. It can be accomplished without even any affirmative action on . their part. - They may remain passive and refuse to vote for

It seems to me impossible to reconcile a bill so framed and involving such possibilities with the principles of local self-government so plainly expressed in the Constitution.

The last clause of this section requires the board to appoint the requisite number of patrolmen within ten days from August 1, 1896, from the civil service list, and provides that no person shall be eligible xvho is over the age of forty years.

It is urged that this restriction is in violation of article five, section nine, of the Constitution, which requires appointments and promotions in the civil service of the state and in cities to be made according to merit and fitness, to be ascertained, so far as practicable, by competitive examinations. In a statute which authorizes the discharge of the Avhole police force of a large city this disqualification, based upon age, is quite significant. The discharged members of the present force might be able to satisfy all the requirements of the civil service regulations as to merit and fitness so completely as to be placed at the head of the list, but none of them could be appointed if over forty years of age. While the legislature has the poxver to prescribe a qualification based upon age as a condition of admission to the civil service, and particularly to the police force in a city, yet, since the Constitution has made merit and fitness the primary and controlling test, it is obvious that the spirit and purpose of the fundamental law cannot be defeated or evaded by statutory conditions or restrictions, merely arbitrary, or plainly unreasonable. The decision of the legislature that the constitutional test of merit and fitness

Whether the age qualification required by this statute is, under the circumstances, a justifiable exercise of power or an arbitrary and unreasonable condition, presents a question which, in view of the preceding discussion, it is not now necessary to decide.

The learned counsel for the defendants has attempted, with much industry and ability, to defend the various provisions of this bill by arguments drawn largely from the legislative interpretation of the Constitution manifested by the creation and operation through a long series of years of bi-partisan boards and commissions, and our attention is called to numerous laws enacted for that purpose, providing sometimes for their appointment and sometimes for their election by the people. ¡None of these statutes, however, contain such provisions as the one now under consideration, and, it should be added, this court has carefully refrained from expressing any opinion as to the validity of provisions which preclude the people of the appointing power from voting for or approving of all the members composing them. (People ex rel. v. Kenney, 96 N. Y. 303 ; People ex rel. v. Crissey, 91 N. Y. 616 ; Demarest v. Mayor, etc., 147 N. Y. 203 .) It will be found, I think, upon careful examination of the laws creating such boards, that they have been organized with such scrupulous fairness that in every case they can reasonably be considered as the result and outgrowth of local sentiment and local authority. Moreover, they have proved to be, as thus constituted, such useful instruments for the promotion of economy, order and good government as to disarm all opposition on the part of the people in the localities where they are in operation, and to meet with general public approval.

We do not decide or intimate anything against the validity of the laws under which such boards exist. When their par

It does not follow, however, that laws which merely require the local appointing power to so constitute boards as to be nonpartisan or bi-partisan are in conflict with the Constitution. So long as the people have the benefit of the judgment and discretion of the local authority in making the selection from the citizens it may not be a fatal objection that they are restricted from selecting all the appointees from the same party. So long as the appointment is in fact, as well as in form, made by the mayor or common council, as the case may be, and the appointing authority is left free to act in its integrity, the mere fact that they may be prohibited from making the choice from one particular class or political party may not invalidate the statute. There is, we think, a distinction between such a statute and that now under consideration, where the local authority is so divided that its action cannot be said to represent the popular will, but rather the choice of the central authority.

We are dealing now with the provisions of the bill before ns, and with nothing else. Confining the discussion and examination to that alone, we are compelled to hold that, in the particulars pointed out, it is in conflict with the Constitution.

There was nothing decided in the case of Rogers v. Common Council of Buffalo ( 123 N. Y. 113 ) which tends to sustain the provisions of this bill. That case involved no question which is really pertinent here. The question there was with respect to the power of the legislature to create the state civil service board. Since it was not claimed that they were in any sense city or local officers, the meaning of that provision of the Constitution which secures local self-government to cities was not involved. It was held that the legislature had the power to provide that not more than two of the members should belong to the same political party, but that is not the question here. The law did not require that any of them should be a member of any party or profess any particular political faith. It proscribed no one and disfranchised no one on account of his political opinions. It simply provided that a state board, the object and purpose of which was to remove the civil service from the conflicts of politics, should not itself be or become a political machine.

The bill now under consideration is framed upon widely

We think that the plaintiffs were entitled to maintain the action and that it was not prematurely brought. (Williams v. Boynton, 147 N. Y. 426 ; Flood, v. Van Wormer, Id. 284.)

The judgment should be affirmed, with costs.

(dissenting). This appeal presents the question whether chapter 427 of the Laws of 1896, amending existing statutes and repealing others for the purpose of reorganizing the police board and the police force of the city of Albany, is constitutional. The plaintiffs are taxpayers of the city of Albany, who secured a judgment at Special Term perpetually enjoining the common council of that city from electing or appointing police commissioners under the act in question, upon the ground that it is unconstitutional. The Appellate Division, third department, having affirmed the judgment, this appeal is taken.

The questions involved were exhaustively discussed by the courts below, and in the Appellate Division many general legal propositions were debated at great length and fortified by citations of authority concerning which there can be no real difference of opinion.

It goes without saying that, under our form of government, j the majority are to rule, and that the principle of local self- | government is recognized and protected in the Constitution Í and statutes of the state. If the act now under review subverts either of these great principles of popular government, it must be declared unconstitutional and void.

I shall refrain from discussing the propositions pressed upon the attention of= the court involving general principles, and consider only the specific grounds upon which the act is attacked.

Among other new provisions are the following: “ The police board of the city of Albany shall consist of four police commissioners, not more than two of whom shall belong to the same political party or organization, and who shall be chosen and hold office as hereinafter provided. * * * ¡No person

is eligible to the office of police commissioner unless, at the time of his election, he is a member of the political party or organization having the highest or next highest representation in the common council.”

The first quoted sentence, in so far as it limits eligibility, is not in violation of the Constitution, as this court approved similar phraseology in Rogers v. Common Council of Buffalo ( 123 N. Y. 173 ). The second quoted sentence, which practically confines eligibility to members of the two great political parties cannot, I think, be sustained as a constitutional provision.

If this latter sentence can be eliminated from the section where it is found, and still leave the act complete in itself and capable of enforcement, it disposes of one of the principal objections relied upon by the plaintiffs and greatly simplifies, this discussion.

With this unconstitutional provision stricken out the section would provide that the number of police commissioners should be four, not more than two of whom shall belong to the same political party. In the Rogers case ( 123 N. Y. 173 ) the Civil Service Act was attacked on the ground that the limitation placed upon the governor in appointing commissioners, to the effect that not more than two of the three commissioners should “be adherents of the same party,” rendered the act unconstitutional and void as violating that provision of the Constitution which declares that “ no member of this state shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or judgment of his peers.” (Art. 1, sec. 1.) It was also claimed to violate that part of section 6, art. 1, which

Judge Beckham, in delivering the opinion of the court, refers to the fact that provisions of a similar nature are contained in numerous statutes, the latest being the state railroad commission and the state board of arbitration.

While no conclusive argument can be based upon such legislation, it is proper to refer to it as showing the practical construction of the Constitution which has been acquiesced in for many years.

A few sentences from J udge Beckham’s opinion disclose the precise ground on which this court rested its decision. The opinion after calling attention to the fact that the legislation under review was an effort to do away with the “ semi-barbarous maxim” that “to the victors belong the spoils ” and replace it by a system of appointment based solely upon merit, administered by a commission that could not be made up exclusively of the adherents of any one political party, goes on to say: “ The appellant bases his argument upon the proposition that every citizen has a right, which is protected by the Constitution, to be regarded as eligible to hold any office, unless the Constitution has itself prescribed certain qualifications for such holding. He then asserts that the statute in question violates this constitutional right.” The court, after stating that it was not necessary to pass upon the correctness of this general claim, said: “We think his right to be regarded as eligible,to hold office under this statute is fully recognized when he stands on an equal footing with others of his class, all of whom are eligible. * * * It must be remembered that there is nothing in this statute which compels the appointment of even one member of any political party. It simply prevents the appointment of more than two from such party. «- * * Tim purpose of the provision is, of course, plain. It seeks to secure the appointment of persons who are not all of the same political views, and thus to provide for a repre

This reasoning applies with equal force to the case at bar and must be deemed conclusive. The fact that we are dealing now with the police commissioners of a city and that the Rogers case treats of a state commission, does not affect the situation. The question of the authority conferred upon the common council and its legality is not here considered, but will be dealt with later.

I come then to the provision that no person is eligible to the office of police commissioner unless at the time of his election he is a member of the political party or organization having the highest or next highest representation in the common council.

The effect of this provision is to exclude from eligibility all«i persons who do not belong to one or the other of the great W political parties of the country. This is the practical disfran-J| cliisement of a numerous class of citizens and violates thm ■■ Constitution (Art. 1, see. 1). I do not refer to legislative limitations requiring skilled knowledge in the appointee when the duties of the position call for it, as that situation would present a very different question, even if the Constitution was silent as to the qualifications of the officer.

The case at bar presents an instance of the arbitrary and ¡ j unexplained exclusion of a considerable number of the citizens j of Albany from the class eligible to fill the office of police i commissioner. No sufficient reason has been suggested forjji such legislation.

In Barker v. People (3 Cowen, 686) the Court of Errors, in construing the penal provisions of an act to suppress duelling, had occasion to discuss this question of arbitrary exclusion from eligibility to office, and uses this language (page 703) : “ Eligibility to office, therefore, belongs, not exclusively or especially to electors, enjoying the right of suffrage. It belongs equally, to all persons whomsoever, not excluded by

It is further urged on behalf of the plaintiffs that this provision we are considering prescribes a political test in violation of art. 13, sec. 1, of the Constitution. As the provision is void for reasons already stated, it is unnecessary to consider this point in detail, but I am of opinion it is well taken.

We come, then, to the question whether, if this provision is eliminated from the section where it stands, the act will remain complete in itself and be capable of enforcement ?

It cannot be assumed that the main object of the amendatory statute was to provide that the police commissioners should belong to one or the other of the great political parties.

It is rather to be inferred that the legislature was seeking to remove the board from partisan control, and the general legal presumption is that it intended to enact a constitutional measure. So far as providing for eligibility is concerned, section one of the act would be complete and constitutional if permitted to stand with the sole provision that not more than two of the four commissioners should belong to the same j)olitical party or organization.

The general scope and object of the act would not be in any way impaired by this change.

This court has recently reaffirmed the well-settled principle that where the void provisions of an act are separable from those that are lawful, and that which remains is capable of being executed, it may be treated as constitutional. (Matter of N. Y. & Long Island Bridge Co., 148 R. Y. 540, 554.) The application of this principle to the case at bar leads to the elimination of the unconstitutional provision and permits the act to be carried into effect without it.

The next ground of attack upon the act is that certain provisions of section one are violative of art. 10, sec. 2, of the Constitution, which provides that “ All city, town and village officers, whose election or appointment is not provided for by

It was undoubtedly the intention of the legislature to designate the common council, as a body, to appoint the police commissioners under this act in pursuance of the provisions of the Constitution just quoted.

While it does not seem to be seriously questioned that the common council is a city authority under the Constitution, it is insisted that the legislature had no power to direct or restrict its action in the appointment of police commissioners.

As the Constitution authorizes the legislature to impose this new duty of appointing the police commissioners upon the common council, it seems reasonable that it should prescribe the details of procedure, provided it does not deprive the appointing authority of the power to act in the premises. Has the common council in any proper legal sense been deprived of the power conferred upon it by the act in question ?

The plaintiffs insist that it has in several important particulars.

The first point made is, that the common council, in this one instance, is deprived of the power to act as a collective official body in the usual manner. This point refers to the provision

The very obvious reason for this provision as to quorum-was to secure prompt action and prevent obstructive tactics on the part of those aldermen who might be opposed to carrying the act into effect.

Full notice of this meeting appears on the face of the act, and every alderman was at liberty to take part in the action of the common council if he saw fit to attend.

It was competent for the legislature, “ for the purposes of such meeting,” to provide for a special quorum in order to compel full attendance and speedy action. It rested wholly with the aldermen to preserve the old quorum. -

The same line of reasoning justifies the provision that the common council should transact no other business until the police commissioners were elected.

The next point taken against the act is based on the provision of section one, that each member of the common council shall be entitled to vote for not more than two of the four police commissioners. The argument against the validity of this provision loses much of its force by dropping out of section one the unconstitutional provision which limits eligibility to the members of the two great political parties. We then have an act which provides, with the sanction of this court, speaking in the Rogers case ( 123 N. Y. 173 ), that only two of the four police commissioners shall belong to the same political party. If this salutary principle, approved1 by this court, is to be carried out by appropriate legislation, why may not a member of the common council be restricted in his vote to two of the candidates in order to secure that result, precisely as the governor was limited to naming but two adherents of any one political party in making his appointment of civil service commissioners with the approval of this court in the Rogers case ? If the effort to constitute public boards to some extent non-partisan or bi-partisan, by legislation that makes it

W-ith what propriety or logic can it be said in the case at /bar that the common council of the city of Albany, and every member thereof, is vested with the indefeasible legal right to vote for all four of the police commissioners, thereby defeating the will of the legislature as constitutionally expressed, and rendering impossible the creation of a non-partisan board ?

The legislature has not invaded the right of its constitutional agent to appoint this board; with the act stripped of the provision confining eligibility to members of the two great political parties, the common council is free to select its board of police commissioners from the entire body oí .freeholders in the city of Albany, subject only to the constitutional restraints imposed by the act in order to secure a non-partisan board. The appellants have urged the argument of practical construction with great earnestness, and insist that years of legislative interpretation of the Constitution and the practical construction given to a statute by the public officers of the state and acted upon by the people thereof, are decisive in case of doubt. (People ex rel. v. Dayton, 55 N. Y. 367 , 377; People v. Home Ins. Co., 92 N. Y. 337 ; People ex rel. Einsfeld v. Murray, 149 N. Y. 367 .)

I am not able within the reasonable limits of this dissenting opinion to examine the numerous statutes and precedents to which we have been referred, although I do not fail to recognize their persuasive force, but for reasons already stated I think it was competent for the legislature to provide that each member of the common council should be entitled to vote for not more than two of the police commissioners, and in so doing it did not violate the principle of local self-government, but carried out the bi-partisan policy approved by this court.

I will only state my conclusions as to some of the remaining points argued at the bar.

Unless some mode of procedure is provided to maintain the non-partisan character of the board in filling vacancies, the purpose of the act in this regard might easily be defeated. Having that end in view, I see no objection to the provision under consideration.

Attack is made on the provision in section four of the act that in case of a failure of the board to appoint a chief of police, then the senior captain of police on January 1st, 1896, shall act as such and possess all the powers and perform all the duties of the chief of police and receive the salary of chief of police until the board shall make an appointment.

In case of the failure of the board to appoint the captains or sergeants provided for by this act, then it is the duty of the chief or the acting chief “ to assign members of the police force to perform such duties until the board shall make such appointment.”

The plaintiffs claim that when the senior captain is given the power of chief of police he is given new powers and invested with the duties and emoluments of a distinctively new office in direct hostility to the command of the organic law.

This is not the effect of the provision as to the senior captain’s duties in case the board failed to appoint a chief of police; no new office is created; the duties of the chief of j>olice arc devolved upon the senior captain in a certain emergency which might arise in a board consisting of four members, if tied, as to the appointment of a chief of police; the senior captain was to act only during an interregnum, if at all, in order to preserve the efficiency of the force in case the police board failed to act promptly for any reason.

A provision like this, seeking to guard against a mere pos

The point is made that the provision that no person shall be eligible to appointment on the police force who is over forty years of age is in violation of the civil service provisions of the Constitution.

It is a common practice in military and police organizations not to receive new members who are over a certain specified age; this is supposed to conduce to the efficiency of the force, and any reasonable legislation in this direction is valid.

The other points raised on the briefs have been considered, but will not be discussed.

1 am clearly of opinion that the act under consideration is constitutional and valid, except as to the clause limiting eligibility to the office of police commissioner to membei’ship in the two great political parties, which should be eliminated therefrom.

The judgment appealed from should be reversed, and judgment ordered for defendants in conformity with this opinion.

(dissenting). The only question involved in this case is the constitutionality of chapter 427 of the Laws of 1896. The principal question relates to the validity of section one of that act, which amends section three of title twelve of chapter 77 of the Laws of 1870.

Whether this act was politic or impolitic, wise or unwise, is not to be considered by this court, as the authority to determine those questions is vested in the legislature alone. The power of the legislature to pass such laws as it may, in its discretion, deem proper and for the best interests of the state, or any division thereof, or of the whole or any portion of its inhabitants, has been conferred upon the senate and assembly and is absolute and unlimited, unless in conflict with some provision of the Federal or State Constitution. (Constitution,

The respondents contend that the provisions of this statute which declare that not more than two of the police commissioners shall belong to the same party or organization, that each member of the common council shall be entitled to vote for ¡ not more than two of such persons, and that no person is' eligible to the office unless, at the time of his election, he is a I member of the political party or organization having the highest or next highest representation in the common council,1 are in contravention of the Constitution of this state and, consequently, void.

The general principle contained in these provisions is by no means new. For more than a quarter of a century, the current of public opinion and of Federal and State legislation lias been in the direction of establishing non-partisan boards or commissions for the administration of Federal, State and municipal affairs. Without particularly referring to the various statutes creating boards or commissions for the administration of the affairs of the Federal or State government, but confining our examination to a portion of the cities of the

Thus, in the city of Yonkers four commissioners of police are appointed by the common council by ballot, and each member present can vote for only two. (Laws 1873, ch. 163.) In the city of Utica, the mayor appoints the police and fire commissioners, two of whom are appointed from each of the two principal political parties of the state. (Laws 1874, ch. 314.) In the city of Elmira, such commissioners are appointed by the common council, and such appointments are required to be so made that the two principal political parties represented in the council shall be equally represented. (Laws 1875, as amended, title 8, § 103, subdivision 2.) The charter of the city of Binghamton requires the mayor to appoint four such commissioners, two from each of the two principal political parties of the state, and when a vacancy occurs that the common council shall appoint a successor in the same manner. (Laws 1881, ch. 6, § 1.) An act to establish a board of fire commissioners for the city of Borne provides that the mayor shall appoint four commissioners, two of whom shall be selected from each of the two principal political pa/rties of the state, and at the expiration of the term of any such commissioner, his successor shall be appointed from the political party to which the former belonged. (Laws 1881, ch. 517, §§ 2, 4.) The charter of the city of Lockport provides for the appointment of four police commissioners, two of whom shall be mernbers of each of the two principal political parties. (Laws 1882, ch. 48.) An act to establish a police department in the city of Buffalo provides that the mayor shall appoint two citizens as commissioners of police, one from each of the two principal political parties, and that in all appointments thereafter made, the non-partisan character of the board shall be preserved and maintained. (Laws 1883, ch. 359, § 2.) An act to increase and reorganize the police force in the city of Troy provides that the common council shall appoint two police commissioners of opposite politics, and at the expira

The charter of the city of Syracuse provides for a fire commission, and also for a police commission, and that the commissioners then in office should continue until the expiration of their term, when the mayor is required to appoint as successors to such commissioners persons who shall belong to the same political party as the commissioner whom he is apjDointed to succeed. The provisions as to fire and police commissioners are identical. (Laws 1885, ch. 26, §§ 186,187, 205, 206.) The statute establishing a board of police commissioners for the city of Watertown requires the mayor to appoint four commissioners, i/wofrom, ecbchofthe two principad political parties of the state, and that the successor to any such commissioner shall be a member of the political party to which the commissioner whose office has expired belonged. (Laws 1885, ch. 189, § 19.) Chapter 255 of the Laws of 1870 provides for the election of four police commissioners for the city of Oswego, but that no ballot shall contcdn more than two names. Chapter 46 of the Laws of 1879 contains the same provision as to the election of school commissioners for that city. Chapter 197 of the Laws of 1867 provided for filling vacancies in the board of fire commissioners in the city of Albany, emd that no ballot should contcdn more than one name.

Chapter 328 of the Laws of 1880 declared that no member of the common council of the city of Troy, in electing police

The same principle has existed in statutes relating to the appointment of election officers since the organization of our state government, although not protected by any constitutional provision before the amendment of 1894, the obvious purpose of which was to forbid any change in these time-honored laws.

The statutes already referred to sufficiently show the course of legislation in this state upon the subject, and render the examination of other statutes quite unnecessary.

If all the various statutes of the state relating to the government of cities which contain provisions involving the principle contained in the statute under consideration are to be held void, it must result in a general derangement of the affairs of all the cities in the state, and lead to boundless confusion in matters relating to then* government.

“ An unconstitutional act is as if it had never been passed by the legislature. It can confer no rights and afford no protection.” (Chenango Bridge Co. v. Paige, 83 N. Y. 178 ,190 ; Cooley on Constitutional Limitations, 188; Endlich on Interpretation of Statutes, § 358.)

Relying upon the validity of this principle, commissions for the police, fire and other departments of the various cities have been organized under statutes containing the identical principle contained in this, which must be regarded and treated as invalid if this statute is held void for that reason. If the various statutes under which such commissions have been appointed are invalid, it must necessarily follow that all the appointments made by such commissions are also invalid, and, consequently, all the members of the police force, fire

It is to be presumed that this court will adhere to the principle of the decision in this case, and it must apply to every such city in the state and be regarded as condemning all such provisions in the various statutes under which they were incorporated or by which they are governed.

Hence the question of their validity is a far-reaching one, and is of great importance, involving, as it does, the governmental affairs of nearly every city in the state. Therefore, it. should not be hastily or inconsiderately held invalid, whatever may have been the purpose which induced the passage of this particular act. Its purpose must be presumed to have been proper, especially in view of the fact that the police and fire commissioners for that city were elected nearly thirty years since under a statute which included the principle contained in this. Hot only is every, intendment in favor of the validity of statutes, but no motive, purpose or intent can be imputed to the legislature in the enactment of a law other than such as are apparent upon the face and gathered frorri the law itself. (People ex rel. v. Albertson, 55 N. Y. 54 .)

Moreover, if the purpose which induced its passage was improper, still, the responsibility is not ours, but rests elsewhere. Unless these provisions of the statute are plainly and clearly in substantial conflict with some particular provision of the Constitution, this court should not declare them void. There should be no reasonable doubt of the unconstitutionality of a statute before it should be annulled by judicial action, and all doubtful questions should be resolved in favor of the validity of the act, or, as was said by Allen, J., in People ex rel. v. Albertson (supra): “ A law which has received the sanction of the legislature and the approval of the executive should only be held void as repugnant to the Constitution when the repugnancy is clearly demonstrated.”

The practical construction given by the legislature to constitutional provisions, for many years acquiesced in and acted upon, unquestioned by the executive and administrative branches of the government, is entitled to controlling weight in its interpretation, and has almost the force of a judicial exposition. (People ex rel. Williams v. Dayton, 55 N. Y. 367 , 378 ; People v. Home Ins. Co., 92 N. Y. 328 , 337; Matter of W. S. A. & P. R. R. Co., 115 N. Y. 442 , 447; People ex rel. v. Murray, 149 N. Y. 367 , 376.) As was said by Ruger, Cli. J., in the Home Ins. case (supra) : “ It would now seem too late to raise a question of such importance and fraught with such dangerous consequences to those engaged in the enforcement of the laws.”

I think, as was in effect said by Andrews, Oh. J., in the Murray case {supra), this legislative policy which has prevailed for so long a period, sanctioned by numerous statutes, never questioned in the courts and acquiesced in by all departments of the state and municipal governments, is a practical construction of the provision now in question, and this construction ought not now to be disturbed. I had supposed the foregoing to be a well-established rule of law, to be applied with the same certainty and uniformity as any other, and not a mere rule of convenience. If this supposition is correct, then I cannot understand why it should have been applied to sustain

The principle involved in this class of legislation has been expressly approved by this court. In the case of Rogers v. Common Council of Buffalo ( 123 N. Y. 173 ) Judge Peokham, who delivered the opinion of the court in that case, fully discussed the question of improving the public service by means of non-partisan commissions or boards. He in strong terms commended that principle, and as strongly condemned what he termed the semi-barbarous system represented by the maxim that “ To the victors belong the spoils.” In that opinion all the judges of this court concurred, except Euger, Ch. J., who concurred in the result.

Thus to the wisdom and propriety of this class of legislation this court seems fully committed. If the principle there commended is to be now condemned and this class of statutes is to be held invalid, we shall take a long step backwards. It will constitute a positive retreat from the position that the public affairs of the municipalities of the state should be removed from the influence of partisan politics, and besides it will be accompanied by the disastrous consequences already indicated and demoralize and seriously injure the public service.

The question in the Rogers case arose under the Civil Service Act of 1883, which provided 'for the appointment of three civil service commissioners, not more than two of whom should be adherents of the same party, and it was held not to be violative of any of the provisions of the State Constitution. We have in that case a direct authority to the effect

They, however, insist that the provision which follows, declaring that each member of the common council shall be entitled to vote for not more than two of such persons, and the four persons receiving the highest number of votes shall be such commissioners, is in conflict with the provisions of the Constitution. The claim now most strongly urged is that, under the provisions of section 2 of article 10, the legislature had the power to select the local authority by which the appointment should be made, but that, having conferred that power upon the common council, it must be regarded as conferring the authority upon that body as such; that it can only act as a collective, official body by the voice of its majority, and that this provision is consequently void.

If by this act the legislature had selected the common council as the authority by which such appointment should be made, without any provisions as to the manner in which such commissioners should be elected, it might perhaps be that it could have acted only in the manner suggested. But such is not the case. It provided that in determining who should be elected such commissioners, each member of the council should vote for not more than two, the practical effect of which was to carry into execution the provision that no more than two of such commissioners should belong to the same political party or organization, on the assumption that the members constituting the common council would vote for commissioners who were members of their own party.

That the legislature possessed the power to amend the charter of the city of Albany so as to define the duties and prescribe the powers of the common council and to direct the manner in which it, as the authority of that city, should elect the police commissioners, I have no doubt. It could have pro

Section one of article eight of the Constitution of the state authorizes the legislature to create municipal corporations by general or special acts, and to alter or repeal such acts from time to time. In People ex rel. v. Briggs (supra) Church, Ch. J., said: “ A municipal corporation is a part of the governmental machinery of the state, organized not for the purpose of private gain, like private corporations, but for the purpose of exercising cértain functions of government, within a specified locality; and it possesses such powers, and such only, as are conferred upon it by the legislature; and they are to be exercised in such form, mode and manner, and by such agencies as the legislature may from time to time prescribe, within the limits of the Constitution. * * * Over all its civil, political or governmental powers the legislature is, in the nature of things, supreme and without limitation, unless restrained by the Constitution.” Dillon, in his work on Municipal Corporations, in treating of the power of the legislature over municipal corporations, says: “Over all its civil, political or governmental powers the authority of the legislature is, in the nature of things, supreme and without limitation, unless the limitation.is found in the Constitution of the particular state.”

Assuming then, as we must, that the legislature had the power to provide in what manner the common council should discharge its duties, it had the authority to provide for the election of police commissioners in the manner pointed out by the statute. The effect of this provision was to amend the charter of the city of Albany so far as it related to the manner in which the common council should act. As there is no constitutional provision which' in any way prevents the legislature from providing the manner in which that body shall act in the selection of officers, it is quite plain, I think, that this statute is not in conflict with the provision of the Constitution under consideration.

It may be observed, in passing, that the question, whether the police commissioners to be thus appointed were officers of the city within the meaning of the provisions of section two of article ten may not be entirely free from doubt. (Matter of N. Y. Fire Department v. Atlas Steamship Co., 106 N. Y. 566 .)

It has been intimated that, while -the legislature possesses the power to select and confer upon the authorities of a city the right to appoint all city officers whose election or appointment is not provided for by the Constitution, yet it has no power to in any way limit that right by providing the method in which such appointments shall be made by the city authorities, or the qualifications which such appointees shall possess. In People ex rel. v. Warden, etc. ( 144 N. Y. 529 ), the validity of chapter 602 of the Laws of 1892 was considered by this court, and was held to be constitutional and valid. By the provisions of that act it was made the duty of the mayor of each of the cities of the state to appoint a board for the examination of plumbers of each city, to consist of five persons, two to be master plumbers of not less than ten years’ experience, one to be a journeyman plumber of like experience, and the others to be the chief inspector of plumbing and drainage of the board of health, and ,the chief engineer having charge of sewers in such city. Thus, by that act the legislature in effect prescribed not only the qualifications which the appointees should possess, but, as to some, practically who should be

In the Rogers case (supra) it was argued that the Civil Service Act, which was then under examination, was violative of this section of the Constitution. The provisions of that statute required the mayor to prepare certain rules under which the city officers were to be selected, which were to go into effect only when approved by the state civil service commission, and that no officer or cleric should be appointed, and no person should be permitted to enter or be promoted into the classes established, until he had passed the required examination. It was contended that the power conferred upon the public authorities of the city to appoint a street or health inspector of that city was limited by such requirement, and, hence, the act of 1883 was void as being in contravention of § 2 of art. 10 of the Constitution. But, by that act, the authority to appoint city officers was limited to an extent which required them to be examined under the provisions of that statute and under rules to be approved by the civil service commission, but it was held that there was no such limitation upon the rights of the local authorities to appoint such officers as to bring the statute within the condemnation of that provision of the Constitution. It will be remembered that that statute was passed before the amendment to the Constitution.

Again, it is a well-established rule of construction that before a statute should be declared invalid it should appear that it is in plain and substantial conflict with some particular provision of the Constitution. Thus, the conflict must not only be plain, but it must be substantial as well. The statute

It is manifest from a reading of this statute that the purpose of this provision was merely to carry into effect the former provision that not more than two of the commissioners should belong to the same political party. It was the means devised by the legislature to carry into execution what is conceded to be a valid provision of the statute. The dominant purpose of that provision was to establish for the city of Albany a non-partisan board of commissioners. Whether the means to secure that result was a provision that each member of the common council should not vote for more than two of such commissioners, or that each member should vote for the four commissioners, only two of whom should belong to the same political party, was at most a mere matter of detail by which to accomplish the chief purpose of the act. If this provision had not been included in the statute, manifestly, the latter would have been the plan by which the purpose of the legislature would have been carried into effect. That the statute has provided a different method to accomplish the same ptirpose is unessential, and the provision cannot be properly said to be one of substance. Indeed, that the aldermen or members of the common council as such were authorities of the city within the meaning of the Constitution, I have no doubt.

The respondents also contend that the provision of this statute which declares that no person is eligible to the office of police commissioner unless, at the time of his election, he is a member of the political party or organization having the highest or next highest representation in the common council, is void under the provisions of the Constitution of the state. Many of the statutes to which we have already referred contain a similar provision, and hence the doctrine of practical construction is applicable, and this provision may be sustained. Independent of that doctrine, I might be inclined to agree with the contention of the respondents. But I do not deem it necessary to determine the question whether that provision is valid or invalid. If the latter, I am of the opinion that it may be eliminated from the act and still the apparent and manifest object and purpose of the legislature be effected by the statute as it would then remain.

It seems to be well settled that where only a part of a statute is unconstitutional, that fact does not authorize the court to declare the remainder void, unless the provisions are so dependent and connected with the -object or purpose of the act that it cannot be presumed that the legislature would have passed it without including such void provision. The fact that the legislature may have erred in a matter of detail does not defeat the whole act where when the unconstitutional portion of the statute is stricken out, that which remains is complete in itself and capable of being executed in substantial accordance with the apparent legislative intent. (People ex rel. v. Bull, 46 N. Y. 57 , 69; Gordon v. Cornes, 47 N. Y. 608 , 617; People ex rel. v. Briggs, 50 N. Y. 553 ; People ex rel. v. Kelly, 76 N. Y. 475 , 489 ; Matter of Village of Middletown, 82 N. Y. 196 ; Duryee v. Mayor, etc., of N. Y., 96 N. Y. 477 ; People ex rel. v. Kenney, 96 N. Y. 294 ; Lawton v. Steele, 119 N. Y. 226 ; Matter of N. Y. & Long Island Bridge Co., 148 N. Y. 540 .)

As has already been suggested, the controlling purpose of this statute is to provide for the appointment of four police commissioners for the city of Albany, only two of whom should belong to the same political party. If the provision that no person is eligible to the office of police commissioner, unless at the time of his election he is a member of the political party or organization having the highest or next the highest representation in the common council, were entirely blotted out, the statute as it would then remain would obviously carry into effect the fundamental and substantial intent and purpose of the legislature.

The respondents also contend that the provision of the statute for filling vacancies by which the mayor is permitted to appoint commissioners upon the written recommendation of a majority of the members of the council belonging to the same political party or organization as the police commissioner whose office is vacant, is also in conflict with section two of article ten of the Constitution. Section five of article ten of the Constitution provides that the legislature shall provide for

In the case of Rogers v. Common Council of Buffalo ( 123 N. Y. 113 ) chapter 354 of the Laws of 1883 was under consideration. That statute contained a provision that any vacancy in the position of commissioner should be so filled by the governor, by and with the advice and consent of the senate, as to conform to the conditions for the first selection of such commissioner. The spirit of that provision is practically identical with that contained in the act under consideration, and that case should, I think, be regarded as an authority to the effect that such a provision is valid.

I am unable to discover any provision of the Constitution with which this portion of the statute is in conflict. It is simply the means adopted by the legislature to carry into effect and continue the principal purpose of the act that no more than two of the commissioners should at any time belong to the same political party. The latter provision being confessedly valid, I think the means provided to continue the condition thus created were also valid.

I am unable to find in the Constitution any provision which renders void that portion of the act which provides that in case of a failure by the board of police commissioners to appoint the chief of police, the senior captain should act as such until the board should make an appointment. The purpose of this provision clearly was to provide for an emergency that might arise, and thus prevent the city from being without a chief of police until such appointment should be made.

Its effect was to confer temporarily upon a city officer added powers and impose upon him other duties which he would be required to discharge while the emergency continued. That the legislature possessed the power to amend the charter of the city of Albany so as to provide that in such au emergency one of its officers should discharge other and added

Hor do I think the provisions of section four of the act, which provide that no person shall be eligible to appointment as patrolman of the city who is over the age of forty ’ years, violate the provision of section nine of article five of the Constitution, which declares: “ Appointments and promotions in the civil service of the state, and of all the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive; provided, however, that honorably-discharged soldiers and sailors from the army and navy of the United States in the late civil war, who are citizens and residents of this state, shall be entitled to preference in appointment and promotion, witho'ut regard to their standing on any list from which such appointment or promotion may be made.” That provision of the statute would seem to be a proper and useful one, as it is manifest that the office of patrolman is one which requires a degree of activity, vigor and endurance that does not usually exist in older persons. Moreover, the value of the services, of a patrolman increases by experience, and, hence, the necessity of appointing at the outset young men to that position. The provision seems to be one that is not only proper but necessary to secure the best service in that department. It is found in many of the charters of the cities in this state, and is not, I think, in conflict with the provision of the Constitution referred to. The purpose of that provision was to secure appointments according to merit and fitness, and not to interfere with proper provisions of statute in regard to the qualifications that a particular officer should be required to possess, notwithstanding that provision, I think the legislature still has the power, when necessary or proper, to provide the qualifications, such as age, residence, business and profession, which

The only remaining ground upon which it is claimed that this statute is invalid is that it does not strictly comply with the provisions of section two of article twelve of the Constitution which require the insertion after the title of such an act of the words: “ Passed without the acceptance of the city.” The precise words required by the Constitution were not inserted after the title in this act, but the words “ not accepted by the city ” were inserted and were manifestly intended to be in compliance with the requirements of the Constitution. While the language first stated is in terms required, still I do not think that the omission to use the precise words mentioned makes a statute invalid when, as in this case, words which are equivalent to those provided for are used. Such a construction of this provision would be too narrow and technical. The words used were within the spirit of the provision, although not within its letter, and were, I think, sufficient.

These considerations lead me irresistibly to the conclusion that the judgment in this action should be reversed, and, hence, I am unable to concur in the result reached by a majority of the court.

Gray and O’Brien, JJ., read for affirmance.

Andrews, Ch. J.', and Yann, J., concur in that result on the grounds:

1st. That a minority of the common council is not a city authority within the meaning of section 2 of article 10 of the Constitution.

2d. That the clause prescribing the qualification of the police commissioners is so connected with the purpose of the act and the object in view, that it cannot be said that it was not an essential part of the scheme of the act and may, therefore, be rejected, leaving the remainder of the act to stand.

Bartlett and Martin, JJ. (with whom Haight, J., concurs), read for reversal.

Judgment affirmed.