Rathbone v. . Wirth

Gray, J. The learned justices, who, at the Special Term and in the Appellate Division, have expressed their views of the unconstitutionality of this act, have done so with such thoroughness as to leave but little to be added to this very important discussion. Mr. Justice Parker, at Special Term, rested his determination of the question upon the ground that the act violates section 1 of article 1 and section 1 of article 13 of the State Constitution; the former of which declares *466 that ci 3STo 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 |j of his peers;” and the second of which declares, that “No' other oath, declaration, or test shall be required as a qualifíca-íj tion for any office of public trust,” than the oath, or affirmaqi tion, prescribed in the Constitution to be taken. Mr. Justice “ Herrick, in the Appellate Division, while expressing his assent to the views which Mr. Justice Parker has so well presented, has devoted the greater part of his opinion to pointing out the respects in which the act is in conflict with section 2 of article 10 of the Constitution of the state; which requires that, “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 vil- i lages, or by some division thereof, or be appointed by such > j authorities thereof, as the legislature shall designate for that ¿1 purpose.” In this view, the majority of the learned justices of the Appellate Division have been able to concur. The discussion of the question exhibits a critical examination of many authorities and its statement of the general principles which underlie our popular form of government and which recognize the existence of a right in the people of the various political subdivisons of the state to self-government, without hindrance from the state government as to the right of choosing or appointing local officers, should command our acquiescence. Without denying force to the objection that1’such legislation violates the spirit, if not the letter, of the constitutional inhibition against the requirement of any other test than is prescribed, I think the main and the insuperable objection consists in the plain attempt to limit, or to control, the: exercise of a power of appointment, which the Constitution? has unqualifiedly conferred upon the local authority to be!) designated. If that be true, there is no occasion to consider other objectionable features; for the question then presented becomes one of surpassing importance to the citizens of the state. The constitutional provision, I repeat, is that “ All city, *467 town and village officers, whose election or appointment is not ‘ provided for by this Constitution, shall * * * be appointed by such authorities thereof, as the legislature shall designate for that purpose.” It is, of course, evident that the ,, provision authorizes the legislature to confer the power of ¡ appointment upon any local authority; but that the power, ; which is to be thus conferred, may be qualified, or hampered , in its exercise, by the legislature, is not only not evident, but such a proposition, in my opinion, threatens what we are bound; to regard as a cardinal principle of our form of government. I refer to the right of local self-government; a right which inheres in a republican government and with reference to which our Constitution was framed. The habit of local self-government is something which we took over, or rather, continued from the English system of government and, as Judge Coolet has remarked with reference to the Constitutions of the states, “ if not expressly recognized, it is still to he understood that all these instruments are framed with its present existence and anticipated continuance in view.” (Constitutional Limitations, *35.) The principle is one which it takes but little reflection to convince the mind of being fundamental in our governmental system and as contributing strength to the national life, in its educational and formative effect upon the citizen. It means that in the local, or political, subdivisions of the state, the people of the locality shall administer their own local affairs, to the extent that that right is not restricted by some constitutional provision. I do not think it can be seriously disputed that the conception of the state is free from the element that it belongs to it to control purely local affairs, and that state interference finds justification only when state policy, or local abuses, demand it. I think that no inference is warranted that ‘ other powers have been conferred by the people upon their legislative body than those which are mentioned in the Constitution, or which are necessary to carry into effect those which are expressly given. In this clause of the Constitution under consideration, we find the express reservation of the right of local self-govern- *468 , ment. The legislature is expressly authorized to designate j the Ideal authority, who shall appoint the local officers, and it ¡ is impliedly prohibited from doing more than that, or from ¡1 placing limitations upon this power of appointment. As it was said in People v. Draper (15 N. Y. 544), “ every poáitive direction contains an implication against anything contrary to it; or which would frustrate, or disappoint, the purpose of ;that provision.” When, therefore, we read in the act under | I consideration that “ no person is eligible to the office of police ; j commissioner unless, at the time of his election, he is a mem- ! ber of the political party or organization having the highest, I or the next highest, representation in the common council,” we must perceive a very clear violation of the Constitution. A right, which is an accompaniment of our political institutions ; which is expressly recognized as such by the Constitution, and the permanency of which is guaranteed therein, is deliberately trenched upon by the legislative body. What becomes of the right of the majority of the people in a locality to manage their own affairs and to appoint their local officers, when that majority can have no advantage in the constitution of the board by numbers, or when the choice is Íimited to the members of a designated class i Is it not clear :hat the legislature has assumed to add to the power to desigrate the appointing authorities of the municipality the further oower to designate the particular persons from whom the ippointments must be made and, still further, to place the f minority upon an equality with the majority 1 This is too evident an excess of power to be explained away, or to be excused upon the ground of political expediency. It is not too much to say of it, that it is an attack upon one of those fundamental forms of personal liberty, against which the constitutional provision was intended to act as a safeguard. I think it to be as opposed to a safe state policy, as to the very letter of the Constitution! It ought not to require much of argument to show the importance of this clause in our Constitution, or what its presence means for our political institutions. Its very pres *469 ence in the Constitution of the state since 1846 evidences the importance which the people attach to the preservation of this right in the management of their local affairs. It means the right to choose their local officers, in all its reality; or it means nothing. If it does not mean that the people have reserved the right of administering existing local offices by officers of their own choosing, whether it be done, directly, through an election, or, indirectly, through the method of an appointment by some of their local authorities, I am at a loss to understand its significance, or in what consists its peculiar value. This clause was inserted in the Constitution of 1846 and it has been, not infrequently, considered by this court. In People ex rel. Williamson v. McKinney, (52 N. Y. 314), the present chief judge of this court then said of it: “ The obvious purpose of the provision of the Constitution which has been quoted was to secure to the people of the cities, towns or villages of the state the right to have their local offices administered by officers selected by themselves.” Later, in People ex rel. Bolton v. Albertson, (55 N. Y. 50), Judge Allen spolce to the same effect and used the following language: “ Faithfully observed, and effect given to it in its spirit as well as in its letter, it effectually secures to each of the governmental divisions of the state the right of choosing or appointing its own local officers, without let or hindrance from the state government, and none can be deprived of the rights and franchises thus guaranteed to all. The theory of the Constitution is, that the several counties, cities, towns and villages are, of right, entitled to choose whom they will have to rule over them; and that this right cannot be taken from them and the electors and inhabitants disfranchised by any act of the legislature, or of any or all the departments of the state government combined. This right of self-government lies at the foundation of our institutions, and cannot be disturbed or interfered with, even in respect to the smallest of the divisions into which the state is divided for governmental purposes, without weakening the entire foundation; and hence it is a right not only to be carefully guarded by every department of the government, but *470 every infraction or evasion of it to be promptly met and condemned ; especially by the courts, when such acts become the subject of judicial investigation.” This is strong and significant language. Read in its light, the provision of the act under consideration appears as legislation, hostile to that freedom of action which the people of Albany have the right to claim, under the Constitution, in the management of their own affairs. It cannot be denied that legislation of this character has an inimical tendency and, unless the check of the Constitution is strictly enforced by the courts, it may develop a germ of menace to local self-government, to the presence of which we should not suffer ourselves to be blinded by any partisan considerations; or until it becomes too late to extirpate it. I believe the principle to be too useful and too healthful a part of our governmental system to be denied its full effect and, while it is recognized in the fundamental law of the state, the court should not be reluctant to enforce it whenever a case fairly involving its efficacy is presented. The judicial power was intended to stand as a bulwark against all legislation which impairs any of the constitutional guarantees. The legislative power of the state is vested in the legislature and it is plenary with respect to the state at large, or to any portion thereof, in matters of government, except as restricted by the Constitution. But the people not only have not consented that the legislative power shall include the power to control their selection of local officers; but, fearing to trust the discretion of the legislature not to assume such a power, they have inserted in their Constitution an express restriction. We must not forget that a Constitution is the measure of the rights delegated by the people to their governmental agents and not of the rights of the people. It apportions the powers of government, with such limitations as are appropriate to keep their exercise clearly defined. The judicial power can, and should, pronounce null all laws which contravene its provisions — a feature of our governmental system which de Tocqueville declared to be “ one of the strongest barriers ever devised against the tyran *471 nies of political assemblies.” (Vol. 1, p. 129.) The remarks of Judge Denio, in People ex rel. Wood v. Draper (15 N. Y. at p. 537), where section II of article X was under consideration, may be quoted in connection with our application of this section: “We must keep in mind that the Constitution was not framed for a people entering into a political society for the first time, but for a community already organized and furnished with legal and political institutions, adapted to all or nearly all the purposes of civil government; and that it was not intended to abolish these institutions, except so far as they were repugnant to the Constitution then framed.” Having in mind this principle of local self-government, as an inherited and pronounced feature in the general governmental system, let us turn to the statute in question and, more particularly, consider the provisions of the first section. What was it intended to do and what will it do, if allowed effect % What are its spirit and its purpose; for we must consider them in determining whether the legislative intent may be effectuated. It was passed as an amendatory act; affecting chapter 77 of the Laws of 1870 and the acts supplemental thereto, which related to the police department of the city of Albany. At the time of its passage the board of police commissioners consisted of five persons, viz.: of the mayor ex-offieio and of four persons whom he might appoint. The present statute provided for a board of only four commissioners, “ not more than two of whom shall belong to the same political party,” who shall be chosen or elected at a prescribed meeting of the common council; and “ for the purpose of such meeting the members attending shall constitute a quorum.” Each member of the council is restricted in his vote to two persons and “ no person is eligible to the office * * * unless, at the time of his election, he is a member of the political party or organization having the highest or the next highest representation in the common council.” If a vacancy occur in the board, “ it shall be filled by appointment by the mayor upon the written recommendation of a majority of the members of the common council belonging to *472 f the same political party or organization as the police commishall become vacant.” These provisions under existing statutes the mayor was designated as the appointing authority, unfettered in his choice of men, and in the board, which would result, a majority could always act, the legislature by this act has undertaken to designate an appointing authority, whose appointees should only be taken from, and equally divided between, the two political parties dominant in the common council upon a certain date, and provision is made that that order of things should not be disturbed in the filling of any vacancy which might arise later. Then, again, instead of leaving the designated local authority to act in its regular, or chartered, way, provision is made for its action in ways unsanctioned by custom, or by other law than the act itself provides. The of the act was to change the personnel of the board ing the appointments from the executive power of the place them with its legislative power, under such ons as to choice as to compose a body of four commissioners, equally divided among two sufficiently well-defined political organizations. The spirit of the legislative act is manifested by the attempt to secure the appointment of such a board, at the time fixed therein, by constituting an arbitrary quorum of the body out of any number of members attending. It may, also, be remarked, as illustrating the spirit of an act which provides for a board, whose action may be blocked by a division of the members, that in section four provision is made for the discharge upon a certain date of every member of the force from office, “ with the exception of the person who was senior captain on January 1st, 1896,” and in the event of a failure of the board to appoint a chief of police, “ the said senior captain * * * shall act as such ” and in case of its failure to appoint the captains and sergeants, “then it shall be the duty of the chief or acting chief to assign members of the force to perform such duties until the board shall make such appointments.” Thus, “ the person who was senior peculiar in their character. Whereas *473 •captain on January 1st, 1896,” is not only protected and kept in office by this act; but, in the very possible contingency of a-tie in the board of commissioners blocking any action, he is invested with extraordinary powers of control. I do not need to comment upon the wisdom, or the prudence, of the legislative act; for the court is not concerned with that. Its concern ceases when it determines that the legislature has not transcended the limits of its powers, as they are defined in the Constitution of the state. If it has the right to interfere, to the extent that the act proposes, with the local government and concerns of the city of Albany, then we have only to affirm the constitutionality of its proceeding. If it has exceeded its legislative power, we are bound to say so and to declare its act null, because unconstitutional. That this statute violates the Constitution in its letter, as in its spirit, seems to me an indisputable proposition. It goes beyond the power to designate the local authority, who, under the new system, shall appoint police commissioners. It designates the class of persons from whom the selection must be made and excludes all others, and it precludes the majority in the common council from naming the majority of the board.! Ror does it confine the designation of an authority to what would be, in fact, such under the charter of the city of Albany; for it attempts to create an appointing body in violation of the provisions of the city charter. At the time of the adoption of the Constitution of 1894 the local authorities of the city of Albany, under its charter, were the mayor, as the executive power, and the common council, as the legislative power. (Chap. 298, Laws of 1883.) The reference, therefore, of the constitutional provision in question was to local authorities as they were constituted by force of existing public laws; for the legal presumption must be that the revisers used those words not only intelligently, hut with knowledge of the forms of municipal government and of the rules which guide executive and administrative action. The legislature was, consequently, clearly restricted, in its designation of an appointing *474 authority, to what was a local authority within the meaning of the public laws and, in determining upon the common council, it could not go further and re-form, or re-constitute, its powers as a municipal agent, or authority, by this indirect method. Power was not vested in any one member of the common council, but in the. aggregate of the members, who compose the body, and its action is the action of the body as a whole. (U. S. v. Ballin, 144 U. S. 1.) To act validly, the j|vote of a majority of the members was required; both at conif/mon law and under the charter. (Ex parte Willcochs, 7 Cowen, 402; chap. 298, Laws of 1883, tit. III.) One aider-man, or member of the common council, or a group of meim bers, or anything short of what is required by the charter to constitute a valid meeting of the board, would not be a local authority, competent to perform an act of municipal government. The legislative power is vested only h iV j in the common council, acting by a majority of the j .body. The minority was not empowered to bind the city jy and the legislature cannot give it that power. The provision, therefore, for a quorum, to consist of any number of attending members, is clearly in conflict with the Constitution. In passing upon the validity of an act, we are to consider what is possible and what may be done under its authority and the vice of the one before us is that it affects the common council’s power to act, as designed, and created by law, to act-; that is to say, through the majority of its members, and it authorizes, in a certain contingency, something less, or other, than that local authority to act. The legislature could not, constitutionally, deprive the municipal authority, selected for the purpose, of the power to exercise its functions as prescribed by the law of its being — an indisputable proposition with respect to a law, which purports not to amend a municipal charter, but to confer some new power upon a municipal authority. We are not confronted here with any question of “ minority representation.” That is not the purpose of the act. It places the political minority in the legislative body upon, an *475 equality with the political majority and in that feature con4 j sists the violation of that fundamental principle of our popu-j ¡1 lar form of government, which demands that the majority ijj shall govern. The principle of minority representation recognizes the right in the majority to control. It must be the majority who shall appoint the officers of government and this extends more clearly to the governmental officers of localities, perhaps, than to the affairs of the state government. Mr. Justice Hebrick refers to the only instance of the surrender by the people of the power of the majority to select their officers, as being found in the constitutional provision for the passage of a law securing equal representation among the election officers of the two political parties, which, at the next preceding general election, cast the highest and the next highest number of votes, (Sec. 6, art. II), and he, appropriately, observes that “ the provision for such equal representation in the one case, by implication, excludes it in all others.” He re-enforced his observation by a reference to the constitutional debates; which resulted in the defeat of propositions authorizing the legislature to provide for minority representation in city governments. I will refer to two cases, which are deemed to bear upon the discussion of this case. In Rogers v. Common. Council of Buffalo (123 N. Y. 173), the law provided as to a board of three civil service commissioners, there in question, that “ not more than two shall be adherents of the same political party.” It was held that “ nothing in the law compelled the appointment of even one member of any political party; but that it simply prevented the appointment of more than two from such party.” Commenting upon the case of the Atty.-Genl. v. City of Detroit (58 Mich. 213), where the provision was for the appointment of two election inspectors from each of the two leading political parties, Peckham, J., said : “ The law recognized but two political parties, and made it necessary for the appointments to be made from and confined to members of those parties. An individual not a member of either was not eligible to appointment. In the case before us there is *476 not a citizen in the state otherwise capable, who would not be eligible in the first instance to one of these appointments. * * * There is no provision making it necessary to appoint two from the same party, or making it necessary to appoint some one who has been known up to that time as a member of any particular party.” Again he says: “ The purpose of the statute * * * is not to arbitrarily exclude any citizen of the state, but to provide that there shall be more than one party or interest represented.” The opinion in the Rogers case seems very strongly to support the view that the act, in question now, violates the Constitution. The case of People ex rel. Woods v. Crissey, (91 N. Y. 616), cannot be deemed to confuse the present discussion. The act confined the vote of each alderman for police commissioners to one out of the two to be chosen, so that the minority would be sure to elect one. The common council had already acted upon the appointments and the court refused to pass upon the restriction in the act. Finch, J., observed, in that connection, “ if we assume this provision to be unconstitutional, it was a nullity. * * * They (the common council), are presumed to have known the law, and had an official legal adviser. * * * They must be held then to have voted without restraint.” In the case at bar, however, the appointments remain to be made and the answers either admit that the defendants intend to comply with the provisions of the act; or are silent as to the allegations of the complaint with respect to what is proposed to be done in obedience to the provisions of the act. I perceive no force in the argument that there has been a practical construction of the Constitution, given by the legislature and acquiesced in and acted upon by the executive and administrative departments of the government. The question here is purely one of law: Is the constitutional provision referred to violated by this statute % Is the passage of such a law authorized by the Constitution ? Practical construction of a law is usually accorded force, when it relates to the business conducted by the departments of the state government and when the legislation, depended upon to establish it, has *477 been clear and uniform in character, for a long period of years. But, to use Judge Cooley’s language, “ acquiescence for no length of time can legalize a clear usurpation of power, where the people have plainly expressed their will in the Constitution and appointed judicial tribunals to enforce it.” The question before ns is not one of legislative policy in relation to the business of state government. It is whether the legislature has the power to interfere with the local concerns of a municipality and by arbitrary methods to prevent majority ride in the selection' of local officers. In the presence of the constitutional provision, is it not an assumption of a power, neither expressly granted, nor to be implied ? The question is no less than this: Having a written Constitution, shall we, and may we, disregard one of its commands and, though the court is set as the people’s bulwark against legislation which contravenes constitutional provisions, shall it aid the legislature when overstepping the limits assigned to its action 1 We cannot dispose of the question as one of legislative discretion; for, if we construe away such an express provision, upon however so plausible a theory, we open the door to future attacks upon the fundamental law, which underlies the structure of the state. It is argued, however, that the objectionable clauses can be stricken out, as null and void, and that the statute may remain valid to the extent of conferring power on the common council to appoint police commissioners. I do not see how that may be done, within any correct or salutary application of a rule which is frequently resorted to, to uphold the acts of the legislative department of government. It is only applicable, where not only that which is vicious in the law is so distinct as to permit of being severed from the rest, but where, the severance being made, enough remains to effectuate the object which the legislature had in view. It will not do, to save legislative enactments from annulment, to strike out provisions which so clearly express the intention of the legislature as to characterize the purpose of the act and make their.presence essential to the existence of the statute. Judge *478 Cooley in his work on Constitutional Limitations (*p. 178), has so well expressed himself on this point that I will repeat his words: “ If its purpose is to accomplish a single object only, and some of its provisions are void, the whole must fail unless sufficient remains to effect the object without the aid of the invalid portion. And if they are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant the belief that the legislature intended them as a whole, and if all could not be carried into effect, the legislature would not pass the residue independently, then, if some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected, must fall with them.” This case falls within the class of cases thus referred to. This is not a new scheme for the creation of a municipal body of police commissioners. This statute was intended to amend the existing law upon the subject of a police commission and it is perfectly plain, upon its reading, that what was aimed at was to remove from office the present four commissioners and all of their subordinates, except “ the person who was senior captain on January 1st, 1896,” and to compel the substitution as commissioners of four persons, who would be representatives of two certain political organizations. If we eliminate the prescribed methods for the accomplishment of this purpose, we emasculate the legislative act and it cannot seriously be contended that, then, there would remain any such law as was intended to be enacted by the legislature. In the performance of the duty of endeavoring to uphold the validity of a legislative act, the court may not carve out from its provisions such as would make a law, to which the judicial approval might be given; unless the law then be such as can be deemed to have been within the contemplation of the legislature. In other words, the court is not to make a law for the people, but to uphold one which its representatives have enacted, and its duty, in that direction, where provisions are found which are antagonistic to any of the constitutional guarantees, is to see if by their excision the main object of *479 the enactment can be preserved. If that object constitutes an evident interference with constitutional rights; if it can only be effectuated through unconstitutional provisions, then the court' can do nothing and must pronounce its condemnation of the statute as a whole. The recent case of In re New York and Long Lsland Bridge Company (148 N. Y. 540), furnishes an illustration. There the act was in amendment of various acts, the original of which provided for a single scheme to construct a bridge over the East river. The act, however, contained many provisions of an extraordinary nature, and foreign to that single purpose, which empowered the construction of indefinite extensions by way of approaches, connections with railroad companies and consolidations with other corporations. It was held that these were void provisions and, under the rule, separable from those which were lawful and that what remained was capable of being executed as complete in itself. Here, however, one scheme runs through the act and towards its accomplishment provisions have been enacted, which are interdependent and without which the scheme falls. The very language of the first section makes the birth of a new com-1 mission to depend upon a definite and prescribed action being taken and it is not reasonably conceivable that the legislature would ever have passed this statute, without its particular mechanism for the formation of a new police commission from the certain political materials allowed to be used. I quote the language of the present chief judge, in Lawton v. Steele (119 N. Y. at p. 241): “ Where the court can judicially see that the legislature only intended the statute to ' be enforced-in its entirety, and that by rejecting part the general purpose of the statute would be defeated, the court, if compelled to defeat the main purpose of the statute, will not strive to save any part.” The main purpose of this statute was to bring about the appointment of a new police commission in such a way as that its body will be equally composed from two certain political elements dominant for the time in the common council. We cannot assume that the legislature' would have passed this act except as a whole and, therefore, *480 it is our duty, for the reasons assigned, to declare it to be unconstitutional and void. The judgment appealed from should be affirmed, with costs.