I concur in the view that the order should be affirmed. The chief question presented for determination is whether section 18 of the Greater New York charter is constitutional. It is claimed to be unconstitutional upon the ground that the office of alderman of the city of New York is a constitutional office and governed by section 5 of article X of the Constitution. This provision of the Constitution is as follows: "The legislature shall provide for filling vacancies in office, and in case of elective officers, no person appointed to fill a vacancy shall hold his office by virtue of such appointment longer than the commencement of the political year next succeeding the first annual election after the happening of the vacancy." It is clear that this provision applies only to a constitutional and not to a statutory officer (People ex rel. Hatfield v. Comstock,78 N.Y. 356; People ex rel. Ward v. Scheu, 167 N.Y. 292; Matterof Schultes, 33 App. Div. 524), and, therefore, it is necessary to determine whether the office of alderman of the city of New York is a constitutional office. The contention that the board of aldermen is a constitutional body rests entirely upon sections 5 and 26 of article III of the Constitution. Section 5 of that article provides that the apportionment of assembly districts in a county entitled to more than one member must *Page 230 be made by the board of supervisors and in any city embracing an entire county and having no board of supervisors, the common council shall make the apportionment. Section 26 of this article of the Constitution provides as follows: "There shall be in each county, except in a county wholly included in a city, a board of supervisors, to be composed of such members and elected in such manner and for such period as is or may be provided by law. In a city which includes an entire county, or two or more entire counties, the powers and duties of a board of supervisors may be devolved upon the municipal assembly, common council, board of aldermen or other legislative body of the city." That the legislature has complete and absolute power to deprive the board of aldermen of all its functions and powers, other than the right to apportion the counties included in the city into assembly districts, is settled by the decisions of this court. (Long v.Mayor, etc., of N.Y., 81 N.Y. 425; Wilcox v. McClellan,185 N.Y. 9.) The Constitution doubtless requires that there shall be, in every municipality including one or more counties, some local legislative body that shall be capable of performing the function of apportioning the county into assembly districts. When such a local legislative body exists, there is in existence a body capable of performing this constitutional function. The fact that the function to be performed is enjoined by the Constitution does not establish that the person or body who performs such a function is a constitutional officer. (Koch v. Mayor, etc., ofN Y, 152 N.Y. 72.) Unless there is in the Constitution some prohibition against or limitation upon the power of the legislature, the legislature may determine what this local legislative body shall be, and in what manner it shall be elected or appointed. The fact that the Constitution recognizes the existence of such a body is not equivalent to establishing it as a constitutional body, and the fact that it is so recogized does not prevent its abolition by the legislature, provided that *Page 231 there shall be some local legislative body which shall have power to apportion the counties into assembly districts. Thus there is no prohibition in the Constitution, express or implied, which precludes the legislature from abolishing the board of aldermen of the city of New York and devolving its duties upon the board of estimate and apportionment of that city. The board of estimate and apportionment would then be a local legislative body, even to a greater extent than it now is and upon it would devolve the duty of apportioning the several counties included within the city of New York into assembly districts, when it should become necessary to make such an apportionment. It will not I think be questioned that if the legislature abolished the board of aldermen and conferred its power upon the board of estimate and apportionment, that act would be a constitutional exercise of power. The board of aldermen perform a function which must, in conformity to the Constitution, be performed by some local legislative body, but it is not on that account established by the Constitution. The fact, if it be a fact, that for a long period in our history, local legislative bodies charged with the duty of apportionment have been elective, does not establish that they are constitutional officers. If it be true, as asserted by one of the learned counsel for the appellants, that if these officials were not elected it would be "a thing that would be without precedent in the constitutional history of this country," that would of course of itself furnish a very strong reason why the legislature should continue to provide that they should be selected in this manner but it would not prevent the legislature from making different provisions for the manner in which they should be chosen, if in its judgment a different method should be adopted. In this connection it is interesting to notice that under the Constitution of 1846 the whole matter of apportionment was legislative. (Rumsey v. People, 19 N.Y. 41, 47.) There was no restriction upon the legislature as to the *Page 232 manner in which it should make the apportionment. As was said inRumsey v. People (supra): "It is left to the legislative bodies to ascertain the population in the best way they can." It is true that many of the duties performed by boards of supervisors in counties outside of the city of New York and formerly performed by such boards of supervisors in some of the counties now within the city of New York, have been devolved upon the board of aldermen of the city of New York. (Section 1586 of Greater New York charter.) Neither this fact, nor the fact that the Constitution (Article III, section 26) provides for the establishment of boards of supervisors outside of New York city, indicate that the members of the board of aldermen of the city of New York are constitutional officers. The constitutional provision (Article III, section 26) requires that "there shall be in each county, except in a county wholly included in a city, a board of supervisors." Each of the counties within the city of New York is wholly included in a city and, therefore, there is plainly no constitutional requirement for the establishment of a board of supervisors in the city of New York. In reference to a city which includes an entire county, or two or more entire counties, there is a very different provision in the Constitution. In that case it is provided that "the powers and duties of a board of supervisors may be devolved upon the municipal assembly, common council, board of aldermen or other legislative body of the city." The purpose of this differentiation, it seems to me, was to establish as to counties not included in a city a fixed, rigid and constitutional body exercising the powers of local government, whereas in cities which included an entire county or two or more entire counties the powers and duties of a board of supervisors "may be devolved" upon the local legislative body. This differentiation, in my opinion, was designed to accomplish something more than merely a change in the name of the local legislative *Page 233 body. It did not establish as to counties wholly within a city any fixed, rigid and constitutional body, but left the matter of local government free for legislative action provided only thatsome local legislative body should be established. That the Constitution requires the existence of some local legislative body is apparent from the section just referred to (Article III, section 26), and the provision of the Constitution which imposes upon such local legislative body the duty of apportioning the counties wholly within the city into assembly districts. (Article III, section 5.) Further than this the provisions of the Constitution do not go, and outside the field of constitutional restriction and prohibition lies the broad sphere of legislative power. We cannot assume that those who framed the Constitution were unconscious of the reasons for prescribing constitutional requirements for the government of counties outside of a city which would not be applicable to a county wholly within a city. The application of such constitutional restrictions to a county or counties wholly included within a city might result in the unnecessary duplication of public offices and serve to hamper the legislature in the granting of charters which it might see fit to confer upon such municipalities. The distinction which the Constitution makes in this respect between counties not included within a city and counties wholly included within a city seems to be indicative of an intent to leave the legislative authority unhampered, in granting the charters which it might see fit to confer upon municipalities. Experience shows that improvements are constantly being made in the methods of municipal governments, and that of late years a tendency has become manifest to vest the legislative power of municipalities in small representative bodies. It has been believed that this tendency results in more responsible and efficient local government than exists when the local legislative authority is vested in large boards of supervisors or boards of aldermen. The provisions of the charter of *Page 234 the city of New York extending the power of the board of estimate and apportionment of that city is an example of this tendency to which I have referred. All this was recognized and commented upon by this court in Wilcox v. McClellan (185 N.Y. 9), where it upheld the constitutionality of an act of the legislature transferring the power to consent to the granting of franchises, from the board of aldermen to the board of estimate and apportionment. In that case Judge O'BRIEN said: "There can be no doubt that the legislature had the power to repeal the charter in so far as it conferred power upon the board of aldermen to grant franchises. The authority that conferred the power could abolish it or take it away. It makes no difference that this power was exercised by the legislature before the official terms for which the aldermen were elected had expired, since that body had no vested right to the continuance of any of the public powers or duties conferred upon them by the charter. Having abolished or greatly limited the powers of the aldermen with respect to the granting of franchises, the legislature was not compelled to leave this power in abeyance, but might confer it upon any other local authority authorized by the Constitution." (p. 16.) There is no doubt that the board of aldermen are not eo nomine established by the Constitution. They are recognized in, not established by it, and are not beyond the reach of the legislature. If the legislature may abolish the board of aldermen, it may, it seems to me, prescribe the manner in which vacancies in its membership may be filled. This power is not diminished because the board of aldermen may incidentally perform the function of apportionment. In the absence of some constitutional provision which provides that the local body charged with the duty of apportionment shall be elected, there seems to me to be no ground for declaring section 18 of the Greater New charter unconstitutional. The Constitution will be searched in vain for any provision requiring that the *Page 235 members of the board of aldermen shall be elected. On the contrary, article X, section 2, of the Constitution provides that all officers whose election or appointment is not provided for in the Constitution shall be elected or appointed "as the legislature may direct." To hold that the members of this board are necessarily to be elected we must disregard this provision of the Constitution and look outside of the Constitution and find in the practice under which such officials have been elected a prohibition upon the legislative power. The test of constitutionality must be found in the Constitution and not in an indefinite practice or course of conduct which is not prescribed by the Constitution.
I conclude, therefore, that the offices which the members of the board of aldermen hold are statutory and not constitutional offices and that, therefore, section 18 of the Greater New York charter does not offend against any provision of the Constitution.
For these reasons I vote in favor of affirming the order appealed from.
HISCOCK, CUDDEBACK and HOGAN, JJ., concur with WILLARD BARTLETT, Ch. J.; CARDOZO, J., concurs in opinion of WILLARD BARTLETT, Ch. J., in so far as it holds that what happened in November, 1914, was not an election, and concurs in result as to the other matter discussed; SEABURY, J., reads for affirmance on the ground that section 18 of the Greater New York charter is constitutional, and COLLIN, J., concurs with him.
Order in each case affirmed, with costs. *Page 236