I cannot concur hi the conclusion reached in the opinion of Mr. Justice Bartlett. I do not discuss any matters other than such as compel my dissent.
It is well to remember the fundamental law, so often declared, that the Legislature has all power of legislation which the people of the State of- New York can grant, except as it is expressly or impliedly' restrained from the exercise of particular powers by the Constitution. (Rathbone v. Wirth, 150 N. Y. 459, 470; Koch v. Mayor, 152 id. 72, and cases cited.) We have followed those authorities, in McGrath v. Grout (69 App. Div. 314).
In other words, the Legislature has supreme and absolute authority unless it is fettered by constitutional impediments. It is not altogether fanciful to point out the fact that the Constitution itself recognizes this principle when it specifically provides that the enacting clause of all bills shall be “ The People of the State of New York, represented in Senate and Assembly, do enact as follows.” (Art. 3, § 14.)
A second cardinal rule is'declared in People v. Draper (15 N. Y. 532), where, at page 549, the court said: “ When the court *535declares a law unconstitutional, it in effect declares that the sovereign power of the people has so far been abdicated by themselves. This consideration has led the courts, in all governments which are based on the theory that all power resides in the people, to give a strict construction to compacts which deprive the people of this sovereign power. It will not be presumed that they intended to abdicate their power, unless they have so declared in express terms or by necessary implication. These principles are fundamental, conservative, and cannot be disregarded without infringement upon the reserved rights and power of the people. Hence, the courts have frequently and uniformly declared that they will not adjudicate a law unconstitutional when it is to be made so by inferences or presumptions only, or when the question rests in doubt. Any other rule of construction would bring the legislative and judicial branches of government into collision, to the ruin of one or both.”
We must, therefore, inquire whether there is any express inhibition in the Constitution against the Legislature’s creating the new office of city magistrate, and providing that the manner of election shall be by electors of congressional districts and of the borough of Brooklyn at large. Section 1392 of the revised charter purports to do this. If the Legislature has such power, the section is constitutional ; otherwise not.
The validity of the section depends chiefly upon the construction to be given to sections 17 and 18 of article 6 of the Constitution. Evidently those sections are interdependent. Section 18 authorizes the Legislature to establish inferior local courts of criminal jurisdiction. There can be no possible question that this relates, though not necessarily exclusively, to courts not in existence at the time of the adoption of the Constitution. It then provides: “ Except as herein otherwise provided, all judicial officers shall be elected or appointed at such times and in such manner as the Legislature may direct.” Here is declaratory expression of plenary power in the Legislature to prescribe the manner of the election; and unless its exercise has been curtailed by some other provision, section 1392 is constitutional and within the power of the Legislature.
It is contended by the respondents that such restriction is found in section 17, which, after providing for the election of justices of the peace and district court justices, adds: “ All other judicial *536officers in cities, whose election or appointment is not otherwise provided for in this article, shall be chosen by the electors of such cities, or appointed by some local authorities thereof.”
If it can be said that the last clause of section 17 relates exclusively to existing courts and judicial officers, and that the last clause of section 18 includes courts and officers not existing, there is no lacle of harmony, and the constitutional scheme is evident and consistent and not. redundant. As I read the opinion of O’Brien, J., in the case of Curtin v. Barton (139 N. Y. 505), the Court of Appeals was of opinion that section 18 (now § 17) of article 6 was applicable only to existing courts. (See p. 510.)
Section 17 provides for the election of three classes of judicial officers; first, justices of the peace in towns, who shall be elected by the town electors; second, justices of the peace and district court justices in cities, who may be elected in such manner as is or shall be prescribed by law; and, third, all other judicial officers in cities, who shall be chosen by the electors of such cities, or appointed by some local authorities thereof.
At the time of the adoption of the Constitution of 1894, the first two classes were existing constitutional officers, and the Legislature had no power to abolish them. But the third class includes all other existing local judicial officers throughout the cities of the State, not referred to or specified, for the article speaks of such officers as officers whose election or appointment is not otherwise provided for in article 6. "Tanifestly the use of the verb “ is ” in the present tense excludes all idea of any officers to be thereafter created by the Legislature, else apt words would have'been used to include them. The absence of any such words makes it apparent that the final clause of section 17, “ not otherwise provided for in this article,” points directly to the next section where express power is given to the Legislature to create new courts of civil and criminal jurisdiction and to provide for the manner of election. It seems to me clear that section 17 refers to existing officers, and section 18 includes officers to be thereaftér created by the Legislature. If this construction is correct the section in question is not unconstitutional.
I find confirmation of this view by reference to the Constitution of 1846 and the changes which have been made therein. .The Constitution of 1846, in article 6, section 14, contained a paragraph read*537ing in part: “ Inferior local courts of civil and criminal jurisdiction may be established by the Legislature in cities.” Section 17 provided for the election of justices of the peace in towns, but nothing was therein said about the election of any other judicial officers. Section 18 declared that “ all judicial officers of cities and villages, and all such judicial officers as may be created therein by law, shall be elected at such times and in such manner as the Legislature may ■ direct.”
Thus provision was made for the creation of new courts in cities (§ 14) and the election of justices of the peace in towns (§ 17), and a sweeping provision that all existing judicial officers of cities and villages, and all such officers as might thereafter be created, should be elected in such manner as the Legislature might direct (§ 18). If the collocation had been continued the present question could not have arisen for no distinction was made between the method of electing existing judicial officers, in cities and villages and all such judicial officers as might thereafter be created therein by law.
But the subsequent amendments adopted before the present Constitution changed the order. Section 18 took the place of section 17, and there was added to the former section the provision that “ all other judicial officers in cities, whose election or appointment is not otherwise provided for in this article, shall be chosen by the electors of cities, or appointed by some local authorities thereof; ” while a new section (§ 19) was added embodying the cited part of section 14, and adding the clause, “ except as herein otherwise provided, all judicial officers shall be elected or appointed at such times and in such manner as the Legislature may direct.”
Thus for the first time the provisions for the election of justices of the peace in towns, and all other existing judicial officers in . cities, were segregated into section 18, and provisions for new local courts and the election in such- manner as the Legislature might direct of all judicial officers not already provided for, into section 19. I do not see how there could have been a more distinct differentiation of the purpose and intention of the framérs of the Constitution, between existing officers, whether constitutional or already created by the Legislature, on the one hand, and future courts and their judges on the other hand.
The same collocation occurs in the present Constitution. In section *53817 -are the provisions relative to the election of justices of the peace in towns, district court justices in cities, which were in existence before 1894, and all other judicial officers in cities, whose election or'appointment is not otherwise provided for in this article — that is, article 6—rwhile in,section 18 occur the provisions for the creation of new courts, and, except as otherwise therein provided (which I assume still refers to the whole article 6), for the election of new judicial officers in such manner as the Legislature may direct, in other words, section 17 limits itself to justices, of the peace in towns, and district court justices and all other existing judicial officers in cities, while section 18 includes all other judicial officers of inferior courts to be thereafter created by the Legislature.
The office of city magistrate is not specified in words in any section of the Constitution. The office of city magistrate in the old’ city of Hew York was created subsequently to the ‘ adoption of the present Constitution. The office of city magistrate in the borough of Brooklyn was created by the Greater Hew York charter. As to this new office of city magistrate, the Legislature had supreme power. It could create it, it could abolish it, it could provide the. method and district of election. There is no provision of the Constitution inhibiting the Legislature from carrying out anew or selecting an established political or territorial district in which the new judicial officer shall be elected, provided the principle announced in the Porter Case (infra) is not violated. The Legislature may have unwisely exercised its power, but with that question wé are not-, concerned.
It is said that the Legislature may not provide for the election of a judicial officer by the electors of a district smaller than the entire territory in which he is to exercise his judicial powers, and that to hold otherwise is to disregard the spirit of our institutions. The Constitution expressly provides for the election of justices of the Supreme Court by the electors of the eight judicial districts into which the State is divided, and these justices exercise their powers in any part of the State. Senators, assemblymen, aldermen and supervisors are similarly elected by districts, and yet legislate for the whole State, or for the city or county. Certainly, there is no greater inharmony in the one case than in the other. The point which I desire to make is that there is nothing in the Constitution which prevents the elec*539tion by the electors of one district of an officer who is to exercise his functions in and over a district the electors of which have had no voice in his selection.
Neither do I attach significance to the use of the words “ the electors of such cities,” as indicating that this necessarily means all the electors of the city. Such interpretation is not in. accord with the general plan of the Constitution. The spirit of the provision is observed if the choice of the judicial officer is made by electors of cities in any territorial division thereof.
Neither do I think the point well taken that section 1392 of the revised charter is disapproved by the case of People ex rel. Townsend v. Porter (90 N. Y. 68). In that case the court held unconstitutional an act which assumed to create a Police Court for a district not coterminous with the boundaries of any county, town, city or village. But this is not to say that an inferior local court may not be created for a district coterminous with any other political division of the State.
It is true that the court said that the language of section 19 of the Constitution did not “ authorize the legislature to carve out from the territory of the State a district for judicial purposes not bounded by town or county, city or village lines, and erect therein a local court.” But the controversy before the court did not involve nor bring before it the question whether a congressional district was not, equally with those referred to, a recognized territory or political division which could be taken into consideration by the Legislature in the formation of a new judicial district, and the remark is consequently a mere dictum. That august court has not expressed itself upon the question before us.
The congressional district, while not referred to in the State Constitution, is just as much a political or territorial division of the State as a village, town or city, or a ward in a city. Each is created by act of the Legislature. The States have surrendered to the Federal government control over the method of administering Federal legislative affairs, and the Federal Constitution provides that all legislative powers shall be vested in a Congress, to be partly composed of members chosen by the people of the several States, and apportioned among the States according to a fixed ratio of population. The Legislature has divided the State into congressional *540districts, and in so doing has erected the congressional districts, sometimes by counties and sometimes by wards and assembly districts. (See Laws of 1892, chap. 295.) This power of the Legislature to divide the State into or by congressional divisions other than those enumerated in the Porter case, has never been questioned, so far as I have been able to discover;
So, also, the State Constitution, in dividing the State into senate districts recognizes other divisions than those referred to in the Porter case. Entire wards are sometimes assembled by it into senate districts, and-sometimes new senate districts, as in the case of the districts of the old city of Yew York, are carved out and created without reference to ward lines.
I am constrained, therefore, to believe that the Legislature may just as well create a local court for a district coterminous with a congressional district as one coterminous with the divisions mentioned in the Porter case.
Even if, however, the Legislature is not authorized by article 6 to provide the manner of electing the new judges, it seems to me that such authority is clearly conferred in article 10, section 2, where it is said: “ 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 final clause seems to have been intended as an emphatic declaration of an intention on the part of the convention to confide to the Legislature the power to provide the manner of electing new officers.
This is still further emphasized by section 3 of article 12, which clearly authorizes the election of “ judicial officers of inferior local courts ” in any city or fart of a city. I see no escape from the application of this provision to the city magistrates. It is a clear recognition of the authority of the Legislature, all the more that the final clause restates that the section applies to judges and justices of inferior local courts.
*541There is another fatal objection to the claims of the respondents. Section 1547 of the Greater New York charter provides that every person who shall be appointed to any office under the city government, shall receive a certificate of appointment, designating the term for which such person has been appointed. The complaint sets out in full the mayor’s certificates of appointment of the four answering defendants. They state that the mayor has appointed the several defendants as city magistrates “ for a term commencing this day (May 15, 1901) and ending December 31, 1901.” The answer admitted the language of the certificates, but alleged that, notwithstanding the statute as to the duration of the term, the appointment was for the term of ten years specified in section 1394 of the charter. In People ex rel. Bridgeman v. Hall (104 N. Y. 170) the matter under consideration was an appointment by the mayor of the city of Troy of a chamberlain in place of Church, who had absconded. The mayor appointed Hall “ to discharge the duties of the office of chamberlain during the absence ” of Church. The claim was that the mayor,- under the charter, had no power to make a temporary appointment, but had power to nominate for a full term, and no other. The charter authorized the mayor to nominate to the common council a chamberlain for the term of three years, and in the event of the absence of the chamberlain to appoint a person to discharge his duties during such absence. The court, Judge Andrews writing, said that the appointment of Hall plainly indicated on its face that it was an attempt to exercise the power conferred by this latter provision, and that, it was not intended as a nomination for a full term; that the mayor supposed he had the power and undertook to execute that power and that alone. The court quoted with approval the language of Lord Coke (Co. Litt. 258a): “Regularly it is true that when a man doth less than the commandment or authority committed to him, then the commandment or authority being not pursued, the act is void. And when a man doth that which he is authorized to do and more, that is good for that which is warranted, and void for the rest. Yet both these rules have divers exceptions and limitations.” It was held that there were very strong reasons, founded in public policy, against permitting a person to hold public office against the intention, and through the mere mistake of the appointing power. *542The court added: “It might very well he that the'public interests would, in the judgment of the Mayor and Common Council, require a different appointment for a full term than for a temporary period. The restrictive words in the appointment cannot be disregarded without changing the essential character of the appointment. They constitute an integral part of the transaction and cannot be separated from the prior words without subverting the whole intention of the appointing power. We conclude, therefore, that if the power to make a temporary appointment could not, under the circumstances, be exercised, the appointment' of Hall was void and did not enure as an appointment for a full term.”
In the case at bar, according to the contention of the respondents, the mayor exercised less than his authority. It was clearly his intention to appoint the respondents only for the remainder of the year 1901, and that appointment is a nullity and void. The respondents have no valid title or appointment to office for the year 1902,. and are not in office and cannot, as prayed for by them, be adjudged lawfully entitled to hold office for the term of ten years from the date of their appointment.
Meither do I agree with the conclusion that the provisions in regard to the two magistrates at large are so interwoven with the entire scheme of the section-as to be indivisible from it, and that all the legislation on the subject of city magistrates for the borough of Brooklyn must stand or fall together.
•In Duryee v. Mayor (96 M-. Y. 477) the court said (at p. 491): “ It is Only when the various enactments of a legislative body are plainly dependent upon each other, and so inseparably connected in matter and design that they cannot be divided without defeating the object of the statute, that the invalidity of one provision will entail that of those remaining. If effect can consistently with the general legislative intent be given to such parts of a statute as are not in conflict with paramount authority and are within the authority of the body enacting them, it is the duty of a court, while rejecting its unconstitutional and unauthorized parts, to enforce the remaining provisions, of a law which are within the legislative power of its authors. When part only of a statute or a section -is unconstitutional, that part only is void, unless the other provisions are so dependent and connected with that which is void, that it cannot be *543presumed that the legislature would have enacted the one without the other.” (Citing Sedg. Stat. Const. 413; Commonwealth v. Hitchings, 5 Gray, 482.) In the Hitchings case the Supreme Court of Massachusetts said: “ The constitutional and the unconstitutional provisions may even he contained in the same section, and yet be perfectly distinct and separable, so that the first may stand, though the last fall. The point is not whether they are contained in the same section, for the distribution into sections is purely artificial, but whether they are essentially and inseparably connected in substance.”
In the light of this authority I do not see why the part of section 1392 of the revised charter which provides for the election of two magistrates at large is not severable from the remainder. The part of the section which we are to construe reads as follows: “ At the general election to be held in the borough of Brooklyn in the year nineteenhiundred and one, there shall be elected [in each congressional district, as then constituted in said borough, one city magistrate, and] in the territory constituting the borough of Brooklyn [there shall be elected] two city magistrates at large.” Striking out the parts in brackets the rest of the sentence is complete in and by itself. It provides a system for the election of two magistrates which is clearly not open to the objections urged as to the election of magistrates by the electors of congressional districts, that is, by all the electors of a city which was in existence when the Constitution was adopted. Under it the electors of the whole borough have elected two city magistrates, the defendants Durack and Ingersoll, and the will of the electors thus expressed ought not to be defeated unless the legislation is clearly unconstitutional and unless such uneonstitutionality is beyond rational doubt. (People v. Draper, supra.)
For these reasons I think that the judgment should be reversed.