The authority for the legislation that is challenged by this section, if it exists, must be found :
1. In the plenary power of the Legislature over legislative subjects, except as restrained either by the State or the Federal Constitution.
2. In the express grant of po'wer contained in section 2, article 10 of the State Constitution, hereinafter quoted.
If the plenary po'wer of the Legislature over the subject is so restrained by any constitutional provision, other than the section cited, as to withhold the power to pass the statute here under review, then the sole authority for the power must be found in that section.
If it is not so restrained, then that plenary power and the section quoted both concur in justifying the legislation.
First, as to the plenary power of the Legislature. It is nowhere declared in the State Constitution that every qualified elector is eligible to office, whether elective or appointive.
It is declared, article 1, section 1, 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 the judgment of his peers.” It is not claimed that the act disfranchises any one, but it is claimed that it deprives certain members of the State of “ the rights or privileges secured to any citizen thereof,” in that it deprives them of eligibility to the office of police commissioner. Clearly, no citizen of the State has the right or privilege of holding an office until he has secured title to. it. Equally clear is the proposition that no person is eligible to any office unless he *320possesses the essentials of eligibility. Aiid he must possess them, before he can be deprived of them. It may be conceded that it is a fair deduction from various provisions of the Constitution, that every citizen who is qualified to vote “ for all officers that now are or hereafter may be elective by the people ” (Art. 2, § 1), in the absence of further constitutional or competent statutory requirements of eligibility, is eligible to all such elective offices, and also to all appointive offices. If, however, a person possesses neither the constitutional nor the competent statutory requirements of eligibility, ' he is not deprived of eligibility ; he simply has failed to attain to it.
Public offices are not instituted for the benefit of the officeholder, but for the benefit of the State. It follows from this trite proposition that the fitness of a candidate for office is a matter of paramount public concern.. In the majority pf cases, the question of fitness is committed to the care of the electoral , or appointing body, but in a few of' the more important cases the Constitution declares certain persons to be ineligible to certain offices. Thus: “No member of the Legislature shall receive any civil appointment within this State.” (Art. 3, § 7.) “ No person shall be eligible to the Legislature who, at the time of his election, is, or within one hundred days previous thereto has been, a member of Congress, a civil or military officer under the United States, or an officer under any city government.” (Art. 3, § 8.) . Sheriffs “ shall be ineligible , for the next term after the termination of their offices.” (Art. 10, § 1.) Certain requisites of eligibility to the office of Governor are prescribed. (Art. 4, § 2.) And of the State Engineer and Surveyor. (Art. 5, § 1.)
. These instances aré enough to show that the essential of fitness is in some cases so important as to be worthy of constitutional safeguards. The fact that in a few cases the Constitution expressly prescribes certain requisites does not withdraw all other cases from the legislative jurisdiction, because all legislative power not expressly withheld or denied is vested in the Senate and Assembly. Therefore, the Legislature may in proper cases prescribe the requisites of eligibility, or deny eligibility. And it has done so in numerous cases; a conspicuous instance is found in the civil service statutes, and the regulations they authorize. (Rogers v. Common Council of Buffalo, 123 N. Y. 173.) Residence in the locality *321where the officer is to serve is sometimes prescribed. (People v. Platt, 117 N. Y. 159.) An office requiring technical skill shotild not be open to those who have none. That such essentials to fitness may be prescribed by the Legislature, is conceded by counsel upon both sides. A supervisor is ineligible to the office of county superintendent of the poor. (People ex rel. Furman v. Clute, 50 N. Y. 451.) This very act requires that'the persons to be appointed police commissioners shall be freeholders. Counsel urge no objection to-that provision, but, conceding the validity of the provision, concede the matter to be the subject of legislative power. But it is urged that the Constitution (Art. 13, § 1) which after prescribing the oath of office, declares that “No other oath, declaration or test shall be required as a qualification for any office of public trust,” imposes a restraint which nullifies the following provision of the act: “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.”
If by any fair construction of the clause or of the act of which it is a part, it could be made to appear that its purpose or necessary effect is to proscribe any one on account of his political opinions, the provision could not be upheld. It is urged that the persons who are declared ineligible are effectually proscribed, whether such was or was not the intention, but with like effect the limitation of the eligible to freeholders, proscribes the non-freeholders; to residents, the non-resident; to a physician, all who are not physicians, and so on.
Certain officers are required to give bonds under penalty of forfeiting their offices. Is the poor man who cannot give a bond thereby proscribed % No one will so contend. Every one can see that the real purpose is to secure competent and faithful service.
It is obvious that the intention of this act is to improve the police system of the city of Albany by removing it so far as is practicable, from the distracting influences of rival partisanship in politics, and lifting it above them. The method of making it non-partisan is by means of bi-partisan sources of appointment or election; a method which we need neither approve nor disapprove; we need only recognize it as a legitimate subject of governmental consideration, therefore within the legislative power.
*322To counterpoise one partisan police commissioner by another of opposite partisan proclivities may be the best practicable method of" neutralizing the evils of unilateral partisanship. If so it must be conceded, that the act under consideration seems to be apt for the purpose. It is obvious that one essential of fitness for membership of such a board is party affiliation with one or the other of the rival political parties. But it is found by the trial court that there are several political parties. We assume that there are many competent men so select and peculiar in their views that they have no political associations. The Legislature had to deal with existing conditions, and it is obvious that to secure bi-partisan commissioners a triple or quadruple or multi-partisan board could not be permitted. The policy they adopted required either a limit of inclusion or a rule of exclusion, and it seems to me idle to say that the limit of inclusion is permissible, but the rule of exclusion is not when both come to the same result, notwithstanding the fact that there seems to be respectable authority for this verbal but unsubstantial distinction.
The purpose of the act not being to proscribe or favor any one for opinion’s sake, but simply to prescribe suitable methods to secure the realization of a legitimate scheme of police-government, I do not think the ineligibility clause of the act violates the Constitution.
It is easy to imagine absurd cases, and counsel for the plaintiffs ask what would be thought of a provision declaring none but farmers to be eligible to the office of Governor. In such cases the intent to favor one class and proscribe all others would be apparent at sight. When the letter of the Constitution confuses us, we should seek the light of its spirit. •
But if we should be mistaken in this view, it will be observed that the ineligibility clause is an unnecessary one for the purpose of the act. If it had been omitted, the same result would probably and almost inevitably follow from the first clause of section 3 as amended, namely, “ 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.” In view of Rogers v. Common Council of Buffalo (supra) it is not claimed that this provision is unconstitutional. The ineligibility clause does not require any member of the common council to vote for a commissioner of his own party faith, nor does any other part of the act. *323The scheme rests in part upon the usual habit of partisans. If this clause should be stricken out, the real danger of wrecking the scheme would not be sensibly increased. If, therefore, we should conclude to declare the ineligibility clause unconstitutional, the remainder of the act should stand.
Second. The effect of section 2, article 10, of the Constitution may now be considered.
The section provides that “ 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, 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.”
The city charter confers authority upon the common council as a . body, and it also confers authority upon every member of it. Whether the authority conferred upon each member is only so much as enables him to act as a member of the body, or whether he has additional authority in his several capacity, is immaterial. In either event he has some authority, and is, therefore, included within the term “ authorities ” as used in the Constitution. He, therefore, is of or among the “ authorities ” whom the Legislature may designate for the purpose of appointing police commissioners.
The Legislature in designating the “ authorities ” to make the. appointments in question, confer upon them a power which they did not possess before, and as the Constitution does not prescribe the manner in which this new power is to be exercised by the “ authorities,” and as the manner of exercising it is a proper subject of legislative power, it is, therefore, competent for the Legislature to prescribe the manner in which it should be exercised, in order that the governmental objects contemplated by the Legislature should be accomplished and not thwarted.
The common council is either the appointing body or it is simply an instrumentality to procure the meeting of its attending members at which they are to make the appointments. The attending members really make the appointments, and whether such appointments, *324made in pursuance of the statute, are accurately styled the acts of the common council, is a grammarian’s question and not one of legal significance.
Therefore, whether the common council as a body makes the appointment of police commissioners, or whether the attending members thereof make it, it is not necessary to decide, since in either case the body and the members thereof derive their authority from the statute, and. if the statute in question is not in harmony with previous statutes, it prevails over them in this matter, because it is the latest expression of the legislative will. The fact that the common council and its members are of statutory, not constitutional creation,. and that the statute which defines their usual powers and methods, of procedure may be modified by statute, distinguishes the power-here exercised by the Legislature from that attempted to be exercised in respect to constitutional courts and officers in the cases .cited by the counsel for the plaintiffs.
Thus, in Menges v. City of Albany (56 N. Y. 374) the Legislature attempted to limit the power of a court of record to appoint commissioners to' ascertain the compensation to be awarded to the owner of private property taken for public use, notwithstanding the fact that the Constitution had clothed the court with full power to make the appointment. The attempt was a failure.- ■
Warner v. The People (2 Den. 272) in one of its features presented an attempt on -the part of the Legislature to provide for the appointment of the clerk of the Court of Common Pleas, otherwise than in the manner prescribed by the Constitution, and in another feature of it the Legislature attempted to exclude from that court, for the purposes of the appointment, some of its constitutional members. Both attempts failed.
The same rule of decision governed in People ex rel. Killeen v. Angle (109 N. Y. 564), namely, the futility of a legislative attempt to contravene a- constitutional provision.
If the common council were the express creation of the Constitution, it might be conceded that the Legislature could not so regulate its procedure as to deprive the body or any of its members, while in session, of the full and untrammelled exercise of their constitutional powers. ■ '
But here neither common council nor any of its members have *325any power in respect to this matter except what this act gives them. And it gives it to them within expressed limitations. Their power is limited, hut their right to exercise such limited power as they have is full and untrammelled.
The other various objections to the attending members making the appointments do not seem to be grave. (1) Such members cannot be ascertained except by their attendance. The answer is, neither the Constitution nor public policy forbids this method of ascertaining them. (2) Each attending member can vote for only two of the four commissioners. The answer is, that no member could vote for even one without legislative authorization ; the Legislature being the fountain of this voting power, can define its extent. (3) The Legislature, and not the attending members, make the appointments. If this were true it would be fatal; it is not true. The most that can be said is that the Legislature designated the authorities who shall make the appointments and so arranged the procedure that all the authorities designated shall have an equal voice in making them, in other words, that the majority party shall not efface the minority party.
It may be that in our government by the people, for the people, the people have unwittingly, by their Constitution, committed themselves to the doctrine that “ to the victors belong the spoils.” I do not think so. I think rather that in the matter of police appointments — and I need here look no farther— the people have reserved to their Legislature the power to provide that the government by the people may represent the largest practicable number of the people, namely, the majority, and. the largest minority.
These views necessarily lead to a result at variance with that expressed in the instructive and able opinion of my brother Hebbick. I find it easy to concur with him in the propositions that,.
1. The principle that the majority shall govern lies at the basis of our government.
, 2. That the principle of local self-government is fundamental in American political institutions.
But I do not agree that our Constitutions exclude all exceptions to the application of these propositions. Nor do. I agree that the people receive no authority from the Constitution. Without a Constitution, written or unwritten, anarchy would prevail. Whatever *326civil rights we have are secured to us under our Constitutions, and without them they would not be realizable. It is true that the people have not delegated to their governments all governmental powei> and what is not delegated is reserved, but what is reserved cannot while reserved be used, since no organized power exists to use it; all that the people can do with it is to so amend or reconstruct their Constitutions as to authorize its use. Otherwise we would have two Constitutions, one written and the other unwritten. Our Constitutions are framed with great regard to the principle of the right of the majority to govern and to the principle of local self-government ; but our people have not been so unwise as to preclude in all cases, especially minor and local ones, resort to a modification of the methods founded upon these principles. I have attempted to show above such modification as justifies the legislation here under review.
As to minority representation, or minority equality with the majority, so far as either is to affect the election of officers by the direct vote of the people, the constitutional provision that every qualified voter shall in his proper election district “ be entitled to vote for- all officers that now are or hereafter may be elective by the people,” presents, I think, an insuperable objection.
As to the appointments authorized by article 10, section 2, of the Constitution, I do not think any such objection exists.
That an appointee vested with governmental power or authority cannot be appointed by an appointee, is, I confess, new to me. I am not convinced that my brother Herrick has made.it clear.
Therefore, without considering whether the plaintiffs have such a standing in court as enables them to present both of the constitutional questions above discussed, I advise that the judgment be reversed, and that judgment be directed for the defendants, with costs here and in the court below.
Judgment affirmed, with costs and disbursements.