(dissenting):
The application of the relator was made under the authority of chapter 35é of the Laws of 1883, and the acts since passed amendatory thereof, and the rules adopted pursuant to this authority by the governor, with the aid of the civil service commissioners, to carry the provisions of the law into effect. By a stipulation entered into between the attorney-general and the attorneys for the relator it has been agreed that the writ is not to be issued unless the court shall hold and decide that the superintendent of public works is bound, under the Constitution and laws of the State, to make appointments to the office or position of collector of canal statistics from the eligible list furnished and certified to him by the civil service commissioners, ,of persons found qualified for the place upon a competitive examination under the statute, and only relating to persons in the civil service of the State. If the superintendent is not bound by law to make the appointments from such list, then the relator hereby expressly waives his demand or claim for a momdamus in this case.
This stipulation has reduced the substantial controversy, therefore, to the question whether the superintendent is required to comply with the statutes relating to the civil service of the State in the appointments made by him to the offices or positions of collectors of canal statistics. That the statutes, as well as the rules adopted under them, include those positions is not a controverted point in the case. Neither can it be, for by sections 6 and 7 of the act of 1883, all subordinate places, clerkships and offices in the public service of the .State are to be filled in the manner prescribed by the statutes. The only exceptions which have been made are those of elective officers, laborers or workmen, and persons whose nomina*191tion for official employment is subject to tbe confirmation of tbe senate. The office of collector of canal statistics is not within either of these exceptions, and to become qualified for such an appointment under the provisions made by the statutes, a preceding examination of the competency and capacity of the applicant has been rendered necessary. By the rules adopted under the statutes three qualified persons are directed to be nominated, or reported to the appointing authority, out of which a selection may be made, and the preference in making the selection has been secured to honorably discharged soldiers and sailors who served in the army or navy of the United States in the late war. The appointing power, however, is not obliged in the first instance to make an absolute appointment, but to select from the persons reported to him a proper individual, in his judgment, for the appointment, who is to serve probationarily for the period of three months before any absolute appointment shall be made. If, during that time, the selection proves to be for any reason unsatisfactory, then provision has been made for certifying other competent persons to the appointing official for his selection in like manner of a probationary candidate for the office. And that is to be from time to time repeated until a suitable selection shall be made by and in the discretion of the appointing officer.
It is not denied but that the legislature possessed ample authority for the enactment of the statutes for supplying official appointments to subordinate positions, when those positions may have been created by or under the authority of the legislature. But the authority of the legislature has been denied, and the statutes themselves are objected to as inapplicable, when by the Constitution of the State the power of appointment to the subordinate office or position has been vested in any officer or tribunal. And section 3 of article 5 of the Constitution is relied upon as having vested in the superintendent of public works this unqualified authority to select and appoint the subordinates in his own department. This section of the article was first made and adopted as a part of the Constitution in 1876. Before that the officials who were charged with the control and management of the canals of the State were three canal commissioners. And by the change made in 1876 their office was abolished and a superintendent of public works was *192directed to be appointed, who was “ charged with the execution of all laws relating to the repair and navigation of the canals, and also of those relating to the construction and improvement of the canals, except so far as the execution of the laws relating to such construction or improvement shall be confided to the state engineer and suri veyor.” It has been further directed in this section, that he should appoint not more than three assistant superintendents, whose duties should be prescribed by him, subject to modification by the legislature. And then follows the general direction, upon the construction and effect of which this application is dependent, that “ all other persons employed in the care and management of the canals, except collectors of tolls and those in the department of the State engineer and surveyor, shall be appointed by the superintendent of public works and be subject to suspension or removal by him.” This power of appointment and removal is urged by way of answer to the application, to be unqualified and absolute, beyond the power, regulation or interference in any respect of the legislature of the State. But this amended section was not inserted in or added to the Constitution to stand entirely unqualified and by itself. It was made a part of article 5 of the Constitution, and placed in the same relation to it as the preceding section, whose place it has taken, was, providing for the offices of the canal commissioners, which were abrogated and discontinued by the adoption of this section. And placing it in tliat position in the Constitution is a circumstance indicating the intention to have been that it should be subject to legislative authority, as the preceding provision was whose place it has now been made to occupy. If that had not been the intention of the amendment, it is fair to presume that it would have been otherwise inserted in the Constitution. And that might very well have been done by assigning to it some other position where its authority or directions would remain free from all additional qualifications. But that was not the disposition which was made of this amendment, but it was adopted as a substitute for the preceding section, occupying the same position in article 5 of the Constitution. And being adopted and placed in that position it was subjected to the qualification contained in section 6 of the same article. No intention has been evinced, either by the object or language of the amendment, to relieve it from this qualification. But by *193placing it in the relation which it has been made to bear to section 6 of the same article, it appears to have been designed that it should be qualified by what has been contained in that section, and that has provided that “ the powers and duties of the several boards and of the several officers in this article mentioned, shall be such as now are, -or hereafter may be, prescribed by law.” This section is in no manner repugnant to anything contained in the amendment, for this amendment has not provided that in the exercise of this authority the superintendent of public works shall be free from the control of all future legislation. Neither has it been declared, or provided by it, that the superintendent in making his appointments shall be at liberty to select the appointees from the citizens of the State at large. It has neither expressly nor by implication declared that the exercise of the appointing power vested in him should be free from or not subject to the qualifications which might afterwards be annexed to its use by judicious legislation. And as the section was not adopted in the form creating this unqualified authority, it must have been the intention to subject this power of appointment to such legislation as might afterwards be prescribed by law. Both the amendment and the other provisions of the Constitution are required to be considered and construed together, and harmonized so far as that may be practically accomplished. And this construction not only harmonizes with the general provisions contained in section 6 of the same article, but nothing has been inserted in the amendment evincing the design to have been that the latter section should not remain applicable to the amendment. And that amendments to the Constitution after their adoption shall be held and considered to be affected by the other provisions contained in it, was held to be true in Gilbert Elevated Company v. Anderson (3 Abb. N. C., 434). It was there said by Allen, J.: “ So, too, the amendments and additions, as adopted from time to time, must be read, interpreted and applied as parts of the entire instrument, and not as isolated provisions. They do not supersede or annul the prior enactments of the Constitution, except as one clause or paragraph is expressly substituted for another.” (Id., 452.) And giving all the authority to this amendment mentioned and described in it, by section 6 of the same article, the exercise of the appointing power could still be regulated by legislation.
*194In the same year section 4 of this article was amended by providing for the appointment of a superintendent of State prisons, who was in like manner given authority to appoint certain subor- ■ dinates; and by substituting it for, and giving it the place of, the preceding section of the article and thereby subordinating it to section 6, it was made further manifest that the performance of the powers and duties was intended to be ¡made subject to the action of the legislature. These amendments--were proposed by the legislature, whose members, in adopting--them, must be presumed to have been familiar with and to have, fiad the other sections of the article in mind at the time, and the. effect they might be expected to have upon the construction of the amendments themselves; and from placing the amendments in this part of the article, good reason exists for believing, as a matter of fact, that they were intended to be qualified by what has been provided for by this succeeding sixth section.
No convincing reason is perceived for exempting these appointments from the control of this legislation. Its object has not been to subvert or divest the power of -appointment created by the amendments, but it has been directed to secure such a management or use of the power of appointment as may render it more efficient, competent and promotive of the public welfare than it otherwise might be. The object of this legislation has been to provide a mode for first testing and ascertaining the competency and qualifications of the persons intending to be applicants for appointments to these subordinate .offices or positions mentioned in the statutes, before any selection for either of them shall be made. It has been-no part of the purpose of this legislation, or of the rules adopted in pursuance of it, to divest either the superintendent of public works or the superintendent of the State prisons from exercising -their power of appointment, but its sole object has been to supply the appointing officers with, candidates for selection and appointment, found upon examination to be possessed of qualifications rendering them entirely competent for the discharge of the duties of the offices for which they may be selected. The superintendent still remains vested with the unqualified power of appointment, but the selection of his subordinates has been limited to the persons who, upon examination, are in this way first found to be qualified for *195the positions. These amendments, as well as the other portions of the Constitution, are to be construed according to the import of the language employed in framing, them. The same practical construction is to be given to them as the courts are in the habit of applying to the construction of statutory provisions. The object is to extract the meaning of the language which has been employed. (People ex rel. Jackson v. Potter, 47 N. Y., 375, 379.) And this rule has been followed in the Federal courts when the construction of provisions of the Constitution of the United States have been presented for decision. And it has been held that the “ words are to be taken in their natural and obvious sense, and not in a sense unreasonably restricted or enlarged.” (Martin v. Hunter’s Lessee, 1 Wheaton, 304, 326; Prigg v. Pennsylvania, 16 Peters, 539, 610, 611; Gibbons v. Ogden, 9 Wheaton, 1, 188, 189.)
The entire legislative authority of the State has been vested by the Constitution in the legislature. (Bank of Chenango v. Brown, 26 N. Y., 467, 469.) And no act or acts of the legislature are to be disregarded and declared void as in conflict with constitutional authority unless a clear and substantial inconsistency shall be found to justify their condemnation. (Matter of Bayard, 25 Hun, 546, 547, 548.) There must be a clear repugnancy between the two, as there must be between earlier and later legislative acts, to entitle the later. act to supersede or repeal the earlier. Hankins v. Mayor, etc. (64 N. Y., 19, 22), and Matter of Thirty fourth Street R. R. Co. (102 id., 343), where it was said in the course of the opinion of Andrews, J., that “ It needs no citation of authorities to sustain th.e postulate that, except as restrained by the Constitution, the legislative power is untrammeled and supreme, and that a constitutional provision which withdraws from the cognizance of the legislature a particular subject, or which qualifies or regulates the exercise of legislative power in respect to a particular incident of that subject, leaves all other matters and incidents under its control.” (Id., 350.) And this was again repeated by Allen, J., in Gilbert Elevated Company v. Anderson (supra), ,in which the principle was declared and enjoined that “ In the interpretation of the Constitution, all restrictions upon the legislative power in matters affecting the general public affairs of the State — such matters as come within the general scope of ordinary legislation, having respect *196to tlie general interests and the governmental policy of the State — are to be strictly construed, and are not to be extended by implication or inference to matters not clearly within the tei’ms of the restricted clauses. It will not be presumed that the people intended to derogate from the general powers of the legislature farther than they have in express terms declared. All legislative power is expressly committed to the senate and assembly, and any limitation of or withdrawal of such power must be express; and if ambiguous language is employed in the imposition of restrictions, all doubts must be solved in favor of the general powers of the legislature, and the limitations must be confined within the terms employed.” (Elevated R. R. Co. v. Anderson, sufra ; 3 Abb. N. C., 452.) And the assertion of this general principle certainly met with no denial on the part of either of the members of the court, but it was apparently sanctioned and approved; and it is not giving it too much effect to say that it maintains the legislation now in controversy. Both these statutes and this amendment of the Constitution, providing for the appointment and authority o£ a superintendent of public works, can well stand and subsist together, for the superintendent will still have the power of appointment which the amendment has created, and the power of removal, also, even though he may be obliged, in exercising the former, to make his selections for subordinate positions from the persons certified to him to be competent and qualified for these appointments. There is no such hostility or conflict between the two as, under the well settled rules adopted in this manner by the courts, will justify the conclusion that these statutes cannot be applied to the selection of these subordinates by the superintendent of public works, without abridging his constitutional authority.
An argument opposed to this construction has been made by fhe attorney general from that part of section 2 of article 6 of the Constitution which provides that the Court of Appeals shall have the appointment, with power of removal, of it reporter and clerk, and all such attendants as may be necessary. But this power of appointment has not been qualified, as the power now in controversy has, by section 6 of article 5 of the Constitution. It has been given in absolute and unqualified terms to the judges of the Court of Appeals, and has not been made subject to such regulations as may *197be prescribed by law, as the appointing power of tbe superintendent of public works has. The same answer is as complete and effectual to the effect ot the case of Menges v. City of Albany (56 N. Y., 374); for the power of appointing the commissioners of appraisement was given to the court by the Constitution, without subjecting it to any legislative qualification, and for that reason the legislature could not restrain or interfere with the exercise of that authority. That, however, which has been vested in the superintendent of public works is not of this unqualified description, but it has been created subject to the future action of the legislature, so far as that action shall not divest him of his power of appointment, but merely regulate its exercise in such a manner as shall be deemed by the legislature to be more consistent and certain to secure the appointment of qualified and competent subordinates. That is all that the legislature has undertaken to provide for. It is to regulate and prescribe the qualifications of the persons who are to be appointed, and that regulation has been expected and designed to secure the appointment of a better qualified class of incumbents than might be selected by the superintendent without the aid and assistance of the preceding examination the law has required to be made. So far as its enactments have extended, it has not abridged the authority of the superintendent, but it has supplied the means which, in the judgment of the legislature and executive, are best adapted for certainly securing a competent and faithful class of incumbents.
It appears that one of the members of the civil service commission resigned his office before the application for this writ was made, and no person has been appointed by the governor to fill the vacancy. And it has been contended by the attorney general that the two remaining commissioners are incapable of executing the provisions of the law required to be observed and carried into effect by their board. But this argument appears to be opposed to section 15 of chapter 354 of the Laws of 1883, by which it has been enacted that, “A majority of the members of said board shall constitute a quorum, but a less number may adjourn from day to day.” One object of this provision was to vest the majority ivith the power, when there should be no third commissioner or when he should be unable to act with them, to execute the authority of the statute. And having been invested with that power it has not been abro*198gated by tbe resignation of tbe other member .of the commission, and the omission to the present time of supplying his office by appointment. This general subject has been further provided for by the Revised Statutes. It was there enacted that “ Whenever any power, authority or duty is confided by law to three or more persons, and whenever three or more persons or officers are authorized or required by law to perform any act, such act maybe done and such power, authority or duty may be exercised and performed by a majority of such persons or officers upon a meeting of all the persons or officers so intrusted or empowered, unless special provision is otherwise made; and whenever a duty has been or shall be enjoined by law upon three or more persons or officers, and one or more of them shah have died, or have become mentally incapacitated to act, or shall refuse or neglect to attend a meeting of such persons .upon reasonable personal notice thereof, then the action of a majority of the whole number appointed shall be binding and effectual for ■all the purposes for which they were appointed, unless special provision is otherwise made in existing laws.” (3 R. S. [6th ed.], 862> § 29.) And this case is within the spirit and intent of this section, for after the resignation of the third commissioner there was no person to be invited to meet with the other two, or, in fact, to meet with them, and their power to act accordingly became unqualified. And this authority also has the sanction of People ex rel. Kingsland v. Palmer (52 N. Y., 83, 87, 88.) There is nothing in the nature of the power vested in the commissioners necessarily requiring on their part the action and concurrence of more than a majority of the members of the board. The examinations provided for may be completely made under their authority, and they are entirely competent to certify the result to the officers authorized to make selections and appointments. And as the statutes which have been considered do not appear to be in conflict with the constitutional amendment, the motion for the mandamus should be allowed to prevail.
Application denied.