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, the majority are to rule, and that the principle of local self-government is recognized and protected in the Constitution 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. *Page 500
Section one of the act amends section three of chapter 77, Laws of 1870.
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 *Page 501 declares that no person shall be "deprived of life, liberty or property without due process of law." Still another ground was urged that the act was in conflict with art. 13, sec. 1, as exacting an unlawful test of eligibility for public office.
Judge PECKHAM, 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 Judge PECKHAM'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. * * * The 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 representation *Page 502 in the body so appointed, of different and probably conflicting interests in the state. We cannot believe that the section in question does or was intended to operate so as to prevent the execution of such a purpose so carried out."
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 persons who do not belong to one or the other of the great political parties of the country. This is the practical disfranchisement of a numerous class of citizens and violates the Constitution (Art. 1, sec. 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 unexplained exclusion of a considerable number of the citizens of Albany from the class eligible to fill the office of police commissioner. No sufficient reason has been suggested for 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 *Page 503 the Constitution. I therefore conceive it to be entirely clear, that the legislature cannot establish arbitrary exclusions from office, or any general regulation requiring qualifications, which the Constitution has not required."
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 political 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 N.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 *Page 504 this Constitution, shall be elected by the electors of such cities, towns and villages, or of some division thereof, or appointed by such authorities thereof as the legislature shall designate for that purpose. All other officers whose election or appointment is not provided for by this Constitution, and all officers whose offices may hereafter be created by law, shall be elected by the people or appointed, as the legislature may direct."
Section one of the act provides: "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 two of such persons, and the four persons receiving the highest number of votes shall be such police commissioners."
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 *Page 505 of section one, already quoted, requiring the common council to meet at a time and place designated, and further enacts that, "for the purposes of such meeting the members attending shall constitute a quorum."
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 theRogers case (123 N.Y. 173), that only two of the four police commissioners shall belong to the same political party. If this salutary principle, approved 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 *Page 506 impossible for all the members to belong to one political party or organization, is commendable and approved by this court as constitutional, why are not minor provisions in an act calculated to accomplish the desired result not only necessary but legal?
With 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 of 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. *Page 507
Objection is made to the provision that if a vacancy shall occur in the board of police commissioners, otherwise than by expiration of term, 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 the same political party or organization as the police commissioner whose office shall become vacant.
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 police are 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 possible *Page 508 danger, is in no legal sense an appointment to public office by the legislature. It is no more in legal effect than saying that when a regular officer is disqualified to act in a given case some other official may discharge his duties on that occasion. (Matter of Hathaway, 71 N.Y. 238.)
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.
I 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 membership 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.