(dissenting). I am unable to see why chapter 430 of the Laws of 1929 should be held unconstitutional. In any event, the last sentence, requiring the temporary justice to be of the same political complexion as the justice whose place he is taking for the the thirty-day temporary appointment, may be severed and the rest of the statute sustained, as pointed out in the opinion of Mr. Justice McAvoy. In addition, it would seem to me that the provision requiring the temporary incumbent to be of the same political party as the duly elected justice has as its basis the reasonable requirement that the court shall be safeguarded from politics as much as possible and the will of the electorate preserved as far as practical during the interim. Thus is removed the temptation to play politics with the courts under the guise of providing a temporary justice.
No one disputes that the choice of original appointment to office cannot be arbitrarily limited to the members of a political party, as in Rathbone v. Wirth (150 N. Y. 459), for there an original appointment was involved and no one was eligible unless he first was able to become a member of one of two political parties. The choice was thus restricted by an arbitrary limitation and one having no reasonable basis in harmony with our conception of the liberty to be accorded to the individual. But that is not this case. Here, on the contrary, we have a public official chosen by the electorate from any party, and a temporary incumbent to fill a vacancy. In such a case it has always been held reasonable *252to require that the ad’interim official shall be of the same political faith as the duly elected official. (People ex rel. Deitz v. Hogan, 214 N. Y. 216.) The will of the electorate is thereby not changed more than is necessary to meet the exigency arising from the vacancy.
In People ex rel. Deitz v. Hogan (supra) it was assumed that a provision relating to a vacancy similar to that in the case at bar was constitutional, which provision was as follows: “ Any vacancy which may occur among the members elected to the board of aldermen shall be filled by election by a majority of all the members elected thereto, of a person who must be of the same political party as the member whose place has become vacant; * * (Greater New York Charter [Laws of 1901, chap. 466], § 18, as amd. by Laws of 1912, chap. 131.)*
The disability in the case at bar is not of the inevitable character of a vacancy created by death, and hence there is more need for proper safeguards. Also the disability here is real and must be provided for by legislation. The safeguards with which the Legislature has surrounded these provisions have a sufficient basis in reason so as to bring them within the sphere comprised within the judgment of the Legislature, and hence the courts should not declare the statute unconstitutional.
I, therefore, am of the opinion that the act is constitutional and that the order appealed from should be affirmed.
Since amd. by Laws of 1923, chap. 667.— [Rep.