(dissenting). The question presented here is whether chapter 430 of the Laws of 1929, entitled “ An Act to amend the New York City Municipal Court Code, in relation to temporary appointments of justices,” is in conflict with the Constitution of the State of New York.
The act, in effect, provides for the temporary appointment for a period not exceeding thirty days of a “ temporary justice ” in the place of a justice who has been certified by the president-justice of the court to be disabled. A provision of the amendment requires that the “ temporary justice ” so appointed “ shall be a member of the same political party as the justice to whose office he has been appointed.”
This provision — -the main basis of attack — is said to violate two sections of the Constitution, to wit, article 1, section 1, and article 13, section 1, in that it imposes, as a condition for appointment to this office, a requirement forbidden by the Constitution, and also restricts the appointing power of the local authorities to the selection of a member of a certain political party, contrary to the provisions of the Constitution (Art. 6, § 17).
*253The constitutional provisions involved in the main question are (1) the one requiring 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; ” and (2) that provision headed “ Oath of Office,” which reads “ and no other oath, declaration or test shall be required as a qualification for any office of public trust.” (Const, art. 1, § 1; Id. art. 33, § 1.)
It was held below (and authority seems to confirm the view) that the provisions in the last sentence of the amendment requiring the appointment of a person of the same political party as the justice to whose office another is appointed, violates the second of these provisions of the Constitution. But it remains to be considered whether the elements of the act in question which are invalid constitute so material a part of the scheme embodied in it that the whole act must fail. If it could be considered that the Legislature would never have provided for these temporary appointees, unless it also hedged the appointment around with a political qualification, then the act would fail, since that portion would so permeate the whole structure of the enactment as to render it totally invalid.
Having in view the rule that the legislative power is unlimited, except as restrained by the Constitution, and that every act of the Legislature is presumed to be in harmony with the Constitution, unless the contrary clearly appears, and that if two constructions be permissible, then the one making the act valid must be adopted, it does not seem to me that we need hold that the final sentence of the section is a necessary part of the legislative enactment, and expresses the legislative intent only if its presence is continued. We may adopt a construction which will uphold the evident intention of the Legislature, which is, in its essence, to provide for emergencies occurring in the districts of the Municipal Court.
The Legislature, in the case of inferior local courts of civil or criminal jurisdiction, has plenary power to establish, regulate or discontinue such courts; and it would seem that, if it has been given this power, as expressed in the Constitution (Art. 6, § 18), it must have the power to provide, in the public interest, for a continuance of the functioning of inferior local courts with temporarily appointed justices to sit in the place of disabled justices.
This statute, when reasonably construed, does not displace the elective justice from the particular office which he holds by the appointment of a temporary justice, since the permanent justice is still left in the office to which he was elected. There is no power of removal or suspension conferred, and no authority to displace *254the elected incumbent. These temporary appointees are under the statute itself new and additional justices; and the plenary power granted to regulate or discontinue the court surely includes the power to provide for temporary appointments for periodic intervals. An election of such temporary justices is not an expedient mode in the nature of the emergent contingency. No apprehension need be felt, as indicated in the prevailing opinion, that elected justices may be displaced on a certificate of disability from their office. The method of certifying disability is a matter for the legislative control; and, if a certificate of a medical board of disability ought to be required, before the president-justice is qualified to determine the disability of a justice, then such regulation is a provision with which the Legislature is concerned, and over which the courts have no control. It is not reasonably to be presumed that a justice, able to act, will sit idly by while he is temporarily displaced by the erroneous certificate of the president-justice and the action of the mayor. The decision as to one’s ability to continue judicial duties must be subject to some control, and that control is vested by the Legislature in his superior judicial officer, who has, presumably, means of determining the question.
The objections to the statute, therefore, that the unconstitutional portion is not severable and, therefore, invalidates the whole statute; that the method of selecting the justices is unauthorized; that the section provides for an unconstitutional removal or suspension of Municipal Court justices, and that it is inval d because it violates the constitutional system of a judicial term of office, recognized under article 6, sections 17 and 19, of the Constitution, are not found to have sufficient validity to overturn the solemn act of the Legislature. “ Only when required by the most cogent reasons, nor, indeed, unless compelled by unanswerable grounds, will a court declare a statute to be unconstitutional.” (People v. Budd, 117 N. Y. 1, pp. 13,14.)
The question is merely one of power — and nothing else. We cannot attribute improper motives to the Legislature, any more than it is proper for the Legislature to attribute improper motives to the courts for judicial action. The motive and purpose of the enactment here was not only legal, but a necessary exercise of the legislative power in the interests of a speedy administration of justice in this court where the disability of a justice might hamper the conduct of the judicial business.
I, therefore, vote for affirmance of the order appealed from.
Order reversed, with ten dollars costs and disbursements, and motion granted. Settle order on notice.