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, *Page 509 art. 3, § 1.) While the people of the state are sovereign and originally possessed the sole power of legislation, yet they have delegated that power to the senate and assembly, except as they are restricted by constitutional limitations. Therefore, before a law can be declared invalid it must be found to be in conflict with some provision of the organic law. (People ex rel. v.Fisher, 24 Wend. 215, 220; Cochran v. Van Surlay, 20 Wend. 365, 382; Wynehamer v. People, 13 N.Y. 378, 430; Cooley on Const. Limitations [6th ed.], 202, 204; Bank of Chenango v.Brown, 26 N.Y. 467, 469; People v. Cannon, 139 N.Y. 32, 42;People ex rel. v. Flagg, 46 N.Y. 401, 404; Rogers v.Common Council of Buffalo, 123 N.Y. 173, 181.) The act under consideration, like every other statute, must be upheld, unless it is in plain and substantial conflict with some particular provision or provisions of the Constitution. (People ex rel. v.Briggs, 50 N.Y. 553, 558; People v. Gillson, 109 N.Y. 389,397; People ex rel. v. Durston, 119 N.Y. 569, 577; People exrel. v. Rice, 135 N.Y. 484.)
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 member of the political party or organization having the highest or next highest representation in the common council, 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 has 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 *Page 510 state, we find that in some form or other this principle exists in the statutes regulating the municipal affairs of a majority of them.
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 twoprincipal 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 thecouncil 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 thestate, 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 Rome provides that the mayor shall appoint four commissioners, two of whom shall be selected from each of the two principalpolitical parties 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 members of each of the two principal politicalparties. (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 eachof 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 twopolice commissioners of opposite politics, and at the expiration *Page 511 of their term the successor of the two whose terms of office shall expire shall be elected by ballot by the common council,but that no member of the council shall vote for more than oneof such commissioners. (Laws 1885, ch. 54, § 1.) Chapter 79 of the Laws of 1877 provided for the reorganization of the fire department of the city of Syracuse, that such commissioners should be elected, but that no ballot should contain more thanone name, and the two persons receiving the highest number of votes should be elected. Chapter 17 of the Laws of 1869 provided for the election of four police commissioners in that city, butdeclared that no ballot should contain more than two names. (Laws 1874, ch. 542.)
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 thesame political party as the commissioner whom he is appointed 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, twofrom each of the two principal 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 shallcontain 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, and that no ballot should contain morethan one name.
Chapter 328 of the Laws of 1880 declared that no member of thecommon council of the city of Troy, in electing police *Page 512 commissioners, should vote for more than one. Chapter 186 of the Laws of 1872 provided for the election of four police commissioners for the city of Albany, but that no voter shouldbe entitled to vote for more than two persons for such office. Chapter 515 of the Laws of 1874 related to the election of aldermen in the city of New York, and provided that three should be elected for each ward except the eighth, but that no votershould vote for more than two.
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 their 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 *Page 513 and other departments of such cities, and all officers appointed by these various commissions are without title to their office, are entitled to no compensation, and may be held liable for many acts they have performed in reliance upon the integrity of the provisions of these various statutes.
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. Not 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 from 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." *Page 514
From 1867 to 1896 the legislature has almost yearly passed statutes involving in some form the general principle contained in the statute under consideration, which have been approved by the executive and acted upon by the different municipalities without dissent or question. As early as 1867 that principle was applied to the election of fire commissioners in the city of Albany, and in 1872 was applied to the election of police commissioners for that city. Thus for nearly thirty years, notwithstanding the frequent changes of officers in the different municipalities, a practical construction has been given to the Constitution, so far as it affects laws containing this principle, to the effect that they are valid and controlling as to the matters to which they relate.
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 ofW.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, Ch. 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, Ch. J., in theMurray 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 *Page 515 the Excise Law and the various other statutes under consideration in the cases cited, and not in this. If there was ever a case where the principle of practical construction should be applied, manifestly this is one. Every correct principle and proper consideration require it. The confusion, derangement and consequent hardship that must follow the condemnation of all these statutes seem to me to demand the application of that principle in this case, if necessary to uphold this and the various other statutes authorizing the organization of commissions for the management and control of the municipal affairs of a majority of the cities of the state.
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 PECKHAM, 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 RUGER, 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 *Page 516 that the provision of the statute under consideration, which provides that not more than two of the four police commissioners to be appointed shall belong to the same political party or organization, is valid. Indeed, it is conceded by the respondents that if this provision stood alone the constitutional objections now urged against it could not be sustained.
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 provided *Page 517 that there should be a two-thirds vote, a majority vote or less. The municipality, the existence of the common council, the duties it shall perform, and all its acts of a governmental character are under the control of the legislature.
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 certain 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. *Page 518
It is, however, suggested that under this statute the members of the common council might all vote for only two members of the police commission, and that then their power would be spent and but two members elected. This suggestion must, I think, be regarded as too speculative and improbable to require discussion or serious consideration. But should that condition arise, there would at most be a vacancy in the office of two commissioners, which might be filled in the manner pointed out in the statute. Moreover, if the statute is simply defective, it by no means follows that the whole statute must be condemned.
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 YFire 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 exrel. 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 *Page 519 appointed. It is possible that that decision may be sustained upon the ground that those officers fell within the last sentence of that section of the Constitution, which provides that all officers whose office may hereafter be created may be elected or appointed, as the legislature may direct, although not placed on that ground. It seems to me, however, that the doctrine of that case bears upon the question and tends to sustain the validity of the statute under consideration, so far as this immediate question is concerned.
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 clerk 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 *Page 520 must be affected by the provision of the Constitution relied upon in some substantial and material particular. If that portion of a statute which is relied upon as a basis for its condemnation is not essential to the accomplishment of its general purpose, the statute cannot be said to be in substantial conflict with the Constitution. The fact that a statute may be in conflict with the fundamental law in some slight or unessential particular, forms no just basis for its condemnation. In other words, unless the provision of a statute will effect a result which will subvert the object and frustrate the purpose of the Constitution, it should be held valid. "The substance of a thing is the essential or important part; the material thing; that in and for which a thing chiefly exists." (See "Substance," Abbott's Law Dictionary; Anderson's Dictionary of Law; Rapalje Lawrence's Law Dictionary.)
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 purpose 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. *Page 521 (People v. Raymond, 37 N.Y. 428, 431; People ex rel. v.Board of Canvassers, 129 N.Y. 366.)
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.) *Page 522
An examination of these cases discloses the extent to which this court has proceeded in applying that rule to various statutes when they have contained unconstitutional provisions and still have been upheld as to the remainder. In many of them this court seems to have gone further than is required to sustain the statutes in question. Who can say that there is any such connection or dependence between this provision and the remainder of the statute that it must be presumed that the legislature would not have passed it with this provision eliminated, or, in other words, that it cannot be presumed that it would have passed it omitting that provision if it had been regarded as invalid? I do not think it can be reasonably doubted that if the legislature had supposed or understood that this provision was invalid, it would still have passed the statute without it. Nor do I think the other provisions of the statute are so connected with or dependent upon that provision that they cannot be divided without defeating the object and intent of the statute.
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 *Page 523 filling vacancies in office. In People ex rel. v. Snedeker (14 N.Y. 52, 59) it was said: "The effect of this provision of the Constitution, doubtless, was to confer upon the legislature the power to provide for filling vacancies in a different manner from the existing method in case it should be deemed proper."
In the case of Rogers v. Common Council of Buffalo (123 N.Y. 173) 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 an emergency one of its officers should discharge other and added *Page 524 duties, I have no doubt. The authority of the legislature over such a municipality has already been considered, and I think it possessed the power to enact the provision under consideration, and that it is valid.
Nor 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, without 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 *Page 525 a person shall possess to entitle him to be appointed to a particular office.
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 VANN, 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. *Page 526