By the Constitution of the State of New York, adopted in 1821, it was provided as follows: "The Governor shall nominate, and, with the consent of the senate, appoint all major-generals." (Art. 4, § 2.) By the Constitution of the State of New York, adopted in 1846, it was also provided, that "The governor shall nominate, and with the consent of the senate, appoint all major-generals." (Art. 11, § 3.) By the second section of the same article, provision is made for the choice of all militia officers, by the votes of the members of the companies or regiments and brigades, from captain of a company to a brigadier-general. Provision is thus made for the selection of all the officers connected with the militia system of the State.
The governor obtains his power of nomination and appointment, under the Constitution, and it is regulated by its provisions. The same instrument makes him the head of the civil authority of the State, and the commander-in-chief of its military and naval forces. He derives his power, in *Page 115 both capacities, from the written Constitution of the State, and, in both capacities, is subject to its restrictions and limitations, express or implied. Thus, when the Constitution provides that captains of companies shall be chosen by the votes of the members of the company, and that field officers of the regiments shall be chosen by the written votes of the commissioned officers of their respective regiments, it is quite unnecessary, that there should be an ordinance, that these officers shall not be appointed by the governor. The implied prohibition is equal to the express one. So, when the Constitution declares that the governor shall nominate, and, with the consent of the senate, appoint all major-generals, it is equivalent to saying, that he can make no such appointment, unless the same is accompanied by the consent of the senate. And this limitation exists, equally, whether he profess to act, as governor of the State, or as commander-in-chief of its military and naval forces. This restriction upon executive powers, as well as the adoption of a system of electing militia officers, is in accordance with the democratic tendencies of the country, and operates with safety, in times of peace. The machinery of election is, however, too slow and cumbrous for a state of actual warfare, when energy, vigor and promptness are in especial requisition. Hence, it is provided that, in time of war, the elective system shall be suspended, and the selection of all that class of commissioned officers, shall be made by executive appointment alone. (Stat., 1862, p. 895, § 59.) The same statute, however, in terms, declares, that all major-generals shall be appointed by the concurrent action of the governor and the senate.
Upon what ground is it claimed, that there is authority for this appointment? Reference is made by the appellant's counsel, to chapter 28 of the Laws of 1849, rather, as I understand, by way of illustrating the argument, in favor of the general policy of authorizing the governor to fill vacancies, than as meeting the present case. That statute provides that, when vacancies shall occur in an office, where no provision is made, by law, for filling the same, the governor shall *Page 116 appoint some suitable person, to execute the duties thereof, until the end of the then political year. It is not necessary to decide, whether this would have fallen within the description of the class spoken of in this statute, for the governor has not assumed to act under it. He has not appointed a person to discharge the duties of the office of major-general, but he has attempted to appoint a new major-general. Indeed, an attempt to appoint a person to do the duties of a military officer, would have been unnecessary, and quite unmilitary. By general military law, there is no such thing as a vacancy in duty, among line officers. Upon the death, or absence, of the higher officer, the command and the entire duty at once devolve upon the officer next in rank, who is present. There may be a vacancy in rank, but none in duty or command. An appointment, therefore, to discharge the duties of a major-general, would have been quite inappropriate.
It is insisted; that the appointment of General Molyneux, was legal, under the provision of the Revised Statutes, chapter 1, title 6, § 42, p. 123. The section enacts that, "The governor may supply all vacancies that may happen, during the recess of the senate, in any office, to which an appointment shall have been made by the governor, with the consent of the senate, except in the office of chancellor, justice of the Supreme Court; * * by granting commissions, which shall expire at the end of twenty days from the commencement of the next meeting of the senate." The appointment of major-general, is, no doubt, an appointment to an office, and it is, certainly, one in which the original appointment is made upon the nomination of the governor, and with the consent of the senate. The answer made to this argument is, that the section in question, although general in its terms, is applicable to civil officers only, and does not include the case of a military officer. Both in the Constitution of the State, and under the statutes, distinct regulations are made for the appointment of military and civil officers, and different rules adopted for each. Thus, in the Constitution, of 1846, *Page 117 article two regulates the right and mode of voting at the election of civil officers, and providing a different standard of qualification for the white man and the colored man. Article ten regulates the election and removal of sheriffs and clerks, of certain county officers, by the board of supervisors, and of certain city and town officers; section five, of this article, provides for filling vacancies in office, in general terms. Immediately following, is article eleven, which is devoted to the subject of the militia of the State, providing for their arming, their discipline, and directing who shall compose it, without distinction of color. Provision is then made for choosing, or appointing, military officers, and, also, for the appointment of all major-generals, and the commissary-general, by the governor and senate, and for certain other military officers, as adjutant-general, and chiefs of staff departments, by the governor, alone. It would be quite unreasonable to hold that these provisions, respecting civil officers, should be deemed applicable to an election, or tenure, under the different system of military office.
The statutes of the State carry out the same distinction, in detail. Thus, in title one, of the Revised Statutes, the number, location and classification of the public officers of the State, is given, of which the names and number of the several civil officers, is the first subject. Provision is made for the number, and election, and duties, and obligations of legislative, judicial, and administrative officers, in subordination to the Constitution. Oaths of office are provided for, and bonds, and a definition of the duties of various officers. When these subjects are completed, that of the militia and the public defense is taken up, separately, in chapter ten. The persons subject to military duty are defined; the election, and appointment of militia officers, and the tenure of their offices, are provided for, in great detail; the enrollment, the organization of the militia; their uniform, and discipline; the organization of staff departments; parades and rendezvous; the holding of courts of inquiry, and courts martial, are provided for. This, again, is followed by chapter eleven, in which the *Page 118 powers, duties, and privileges of towns, including town meetings; the time, purposes, and manner of holding them; the election and qualification of town officers, and the tenure of their offices, and the general duties of town officers, are provided for.
It is in pursuance of this same system of keeping distinct the statutory regulations, respecting civil and military officers, that section forty-two (§ 42), relied upon by the appellant, which provides that the governor may supply all vacancies that may happen, in the recess of the senate, is placed under a head, designated thus: "Of the public officers of this State, other than militia and town officers, their election, or appointment, their qualifications, and the tenure of their offices." (Chap. 5, title 1, p. 95.) The power of appointing militia officers, is, by this heading, expressly excepted from the effect of this language. It is an explicit declaration, that the authority, thus conferred, does not reach the case of a militia officer. The "First Part" of the Revised Statutes, was adopted, as one entire act, on the 3d day of December, 1827. Its title is, "An act concerning the territorial limits, and divisions, the civil polity, and the internal administration of this State." Incorporated into it, and forming a part of the act, at the time of its passage, are various headings, or inscriptions of chapters and titles. The first chapter is entitled, "Of the boundaries of the State, and its territorial jurisdiction;" the second, "Of the civil divisions of the State;" the third, "Of the census or enumeration of the inhabitants of the State;" the fourth, "Of the rights of the citizens and inhabitants of the State;" the fifth, "Of the public officers of this State, other than militia and town officers, their election, or appointment, their qualifications, and the terms of their offices;" the sixth, "Of elections, other than for militia and town officers;" the seventh, "Of the legislature;" the tenth, "Of the militia, and public defense;" in which last chapter, full provision is made for the appointment and election of all military officers. In volume first of the Revised Statutes, at page 715, is found the following memorandum: *Page 119 "The preceding twenty chapters, constituting the First Part of the Revised Statutes, were finally passed, as one act, by the senate and assembly, on the 3d of December, 1827, and were, on the same day, approved and signed by De Witt Clinton, governor of the State."
The whole of the First Part of the Revised Statutes, including the definitions given at the heads of the chapters, and title to the subject matter following, was a single statute. Those headings are not titles of the acts, but are parts of the statute, limiting and defining their effect. Especially must this be so held, where the question arises upon the application of the section in question (§ 42, p. 123) to a militia office. The difference on these subjects, throughout the Constitution, and the statutes, is too marked to be disregarded.
The judgment should be affirmed, with costs.
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