Rathbone v. . Wirth , 150 N.Y. 459 ( 1896 )

This action was brought by the plaintiffs, who are residents and taxpayers of the city of Albany, to enjoin the common council of that city from proceeding to execute and carry out a statute, passed during the last session of the legislature, which, in effect, removes the present police force from office and provides for the organization of a new one. The act is chapter 427 of the Laws of 1896, and by its title and provisions amends chapter 77 of the Laws of 1870, and also amends or repeals various other statutes relating to the municipal government of that city and to the organization and government of the police force therein. It is alleged in the complaint that this act is in conflict with the Constitution of the state, and, therefore, void, and that proceedings on the part of the common council in execution of its various provisions would be illegal official acts, within the meaning of the statute, which should be enjoined by the courts.

On a trial of the issues at Special Term the action was sustained, and the judgment there pronounced has been affirmed by the Appellate Division of the same court. The controversy involves important principles concerning the right of local self-government in cities and the individual and political rights of the citizen. These questions always open a very wide field of discussion, the materials for which are to be found in abundance in historical and judicial records. The provisions of our Constitution on these subjects, which it is claimed have been violated in the passage of this act, are, as is well known, but the expression, in brief and comprehensive language, of general principles, of remote origin, the development and recognition of which required centuries of discussion and civil strife before they were adopted here as the fundamental law. Hence, when questions arise for determination concerning their true meaning and interpretation, the nature of the case permits a very wide range of discussion based upon historical facts by means of which principles are traced to their source and origin, and their progress and application marked, from time to time, until finally embodied, as they have been, in our written Constitution.

The particular questions presented by this appeal have been illustrated, both at the bar and in the opinion of the court below, by ample materials drawn from this source. We can add little of any value to what has been said upon this feature of the argument in the decision now under review, and we can safely and properly leave that branch of the discussion where it was placed by the learned judge who spoke for the majority in the court below. Assuming, without further argument, that the leading and fundamental principles there stated with respect to individual rights and local self-government are correct — and there is very little if any dispute in this respect between counsel — it remains to apply them to the provisions of this bill. What has been frequently called the political tendency of the Constitution is not always to be found expressed in words, but is to be derived from acknowledged principles of government that existed long before its adoption and are to be implied from the general language and evident purpose and scope of particular provisions.

The principal objections to the bill are founded upon the provisions of the first section, which amends section three of the act of 1870, and reads as follows:

"§ 3. The police board of the city of Albany shall consist of four police commissioners, not more than two of whom shall belong to the same political party or organization, and who shall be chosen and hold office as hereinafter provided. On the first Monday after the passage of this act, the common council shall meet at eight o'clock in the evening in the common council chamber and shall proceed to elect four persons, residents and freeholders in the city as such police commissioners, and for the purpose of such meeting the members attending shall constitute a quorum. Each member of the common council shall be entitled to vote for not more than two of such persons, and the four persons receiving the highest number of votes shall be such police commissioners. The common council shall not transact any other business until the said four police commissioners are elected. The commissioners so appointed shall hold office as such until the first day of February, eighteen hundred and ninety-eight. During the month of January, eighteen hundred and ninety-eight, and in each and every second year thereafter, the common council shall meet and proceed in like manner to elect four police commissioners, who shall hold office for two years from the first day of February following. If a vacancy shall occur in said board of police commissioners otherwise than by expiration of term, 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 the same political party or organization as the police commissioner whose office shall become vacant. No person is eligible to the office of police commissioner 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."

There are some other provisions of the act which will be referred to hereafter, but this section is the basis of nearly all the constitutional objections which have been urged against the bill. At the date of its passage, on the 30th of April, 1896, and at the time of the adoption of the present Constitution, and for a long time before, the common council was the regularly organized legislative and governing body of the city, composed of nineteen aldermen, elected from the different wards by the electors. There was then, and had been for many years, a board of police commissioners, composed of the mayor and four citizens, nominated by him and confirmed by the common council, and upon this board the government of the police force devolved. It is clear that it was the purpose of the act in question to abolish this board and to substitute another in its place and, as will be seen hereafter, to disband the whole police force and to create a new one. We are not concerned so much with the justice or wisdom of this legislation as we are with the methods through which it was to be carried into execution.

The purpose of the legislature was to be attained through a board of police commissioners to be created under the act and composed of two members from each of the political parties having the highest and the next highest representation in the common council, and the last clause of the section declares in terms that no citizen outside these two political organizations is eligible to the office.

The first objection urged against the validity of the act is that it violates section one of article one of the Constitution, which declares 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 also section one of article thirteen, prescribing the oath to be taken by all officers, and providing that "no other oath, declaration or test shall be required as a qualification for any office of public trust."

At the expiration of the term of office of the commissioners created by the act, their places are to be filled by the same process and, in case of a temporary vacancy, it must be filled by the mayor, upon the written recommendation of a majority of the common council belonging to the same political party or organization as the police commissioner whose office shall become vacant. It is plain that the legislature has taken every possible precaution to exclude for all time to come any person from holding the office, either for a full term or to fill a temporary vacancy, who is not a member of one of the political parties designated in the act.

When the validity of such legislation is brought in question it is not necessary to show that it falls appropriately within some express written prohibition contained in the Constitution. The implied restraints of the Constitution upon legislative power may be as effectual for its condemnation as the written words, and such restraints may be found either in the language employed, or in the evident purpose which was in view and the circumstances and historical events which led to the enactment of the particular provision as a part of the organic law. A written Constitution must be interpreted as the paramount law of the land according to its spirit and the intent of its framers, as indicated by its terms. In this sense it is just as obligatory upon the legislature as upon other departments of the government or upon individual citizens. (People ex rel.Bolton v. Albertson, 55 N.Y. 50.)

When the two sections of the Constitution above referred to are read together and all are read in the light of the historical events and notorious abuses of power which led to their insertion in the Constitution it cannot, I think, be doubted that they are broad enough in their terms and that they were in fact intended to prevent the enactment of laws proscribing any class of citizens as ineligible to hold office by reason of political opinions or party affiliations. The section of the Constitution last cited comprehends more than a mere prohibition of test oaths, such as are familiar to the student of English history. It deprives the legislature not only of all power to exact any other oath, but also any other declaration or test as a qualification for office. That the statute under consideration does prescribe a political test as a qualification and makes party adhesion a condition of holding office cannot well be denied. It not only, in effect, requires the four commissioners to be divided equally between the two political parties, but in terms brands every other citizen, except those who are members of the two parties, as ineligible to hold the office. The courts of this state have not passed upon the validity of a statute containing a disqualifying clause like the one in question, but principles have been established which plainly lead to the conclusion that such enactments are destructive of local self-government and individual rights. That is plainly the result of the discussion in the case of Barker v. People (3 Cowen, 686), in which the principles embodied in these clauses of the Constitution were stated and explained.

In other states with constitutional restrictions identical cal in scope and purpose statutes containing similar provisions to these now under consideration were held to be void or inoperative. In the case of the Mayor of Baltimore v. State (15 Md. 379) the court had under consideration a provision of the city charter relating to the police board which provided "that no black Republican or endorser or supporter of the Helper Book shall be appointed to any office under such board." The reasoning of the court in that case sustains the conclusion that the judicial department will not give effect to such disqualifications when interposed by the legislature against the right of any citizen to hold office if conferred upon him by the appointing power. The Supreme Court of Michigan held that a statute providing that the members of a board should be selected in equal numbers from the two political parties represented in the common council was in conflict with a similar provision of the Constitution of that state in that it disqualified all other citizens from holding the office and prescribed party adhesion or attachment to certain political opinions as a test for holding office in addition to the constitutional oath. (People ex rel. v. Hurlbut, 24 Mich. 44; Atty.-Gen. v. Board, etc., ofDetroit, 58 Mich. 213.) The same result was declared by the Supreme Court of Indiana when considering a statute which required positions in the police and fire departments in cities to be filled by selection from the two leading political parties in these cities. (Evansville v. State, 118 Ind. 426.) The vice which the courts found in all these statutes was that they prescribed a test based upon political opinions for appointees to office and disqualified all whose political views did not conform to such test.

In these cases it was fairly shown that legislation of this character is in conflict with the letter and spirit of the constitutional provisions referred to and with the fundamental principles of free government. They can be safely followed in disposing of the same features in this case.

The legislature of this state has no power to enact a law which proscribes any class of citizens as ineligible to hold public office on account of political belief or party affiliations, and, consequently, the last clause of the section of the bill in question violates the provisions of the Constitution referred to and is void.

The learned counsel for the defense contend that this provision, if held to be invalid, may be eliminated from the act and the remainder permitted to stand; but when that provision is exscinded nothing would remain in the bill to require the appointment of adherents of either of the parties named. There would, indeed, be a prohibition against appointing more than two persons from any political party, but nothing whatever to require the appointees to belong to any party. The common council would then be at liberty to make the selections from that class of independent citizens who were not adherents of any party. This, however, would defeat one of the main purposes of the bill. When the several provisions are carefully read together, it is quite manifest that it was the intention to divide the power of the police department and the police force itself equally between the two political parties designated, and the exclusion of all other persons as ineligible to be members of the board was a necessary means to the accomplishment of that end. The principle of a division of the board and the whole police force equally between the two parties is so firmly imbedded in the act, and so inseparably connected with all of its provisions, that it cannot be omitted without frustrating the fundamental purpose which was in view. When the statute is so reduced as to permit the common council to constitute the board from independent citizens, not members of either party, it would not only fail to embody the main purpose of its enactment, but it could not reasonably be asserted that the legislature would have passed it at all in that form. The purpose of the legislature to constitute a board of police commissioners and a police force equally divided between two political parties, is so closely interwoven with all the provisions of the bill, that the disqualifying words at the close of the first section cannot be eliminated without essentially changing the scope and operation of the law and reducing it to a form in which it could not be said that it would have been originally passed. But the essential and operative provisions of this statute are open to still other constitutional objections which will now be considered without reference to the clause referred to. If these objections are valid, as we think they are, then, obviously, there would remain no basis whatever for the contention that any material part of the act could be saved.

It is admitted that police commissioners are city officers within the meaning of article ten, section two, of the Constitution, which reads as follows: "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 villages, or of some division thereof, or appointed by such authorities thereof, as the legislature shall designate for that purpose." The true interpretation, scope and meaning of this section of the Constitution has been frequently passed upon by this court, and it has been uniformly held that its obvious purpose was to secure to the people of the cities, towns and villages of the state the right to have the local offices administered by officers selected by themselves. It was designed to protect and give force and effect to the principle of local self-government which has always been regarded as fundamental in our political institutions, and to be the very essence of every republican form of government. The local government, even in the smallest division of the state, is the preparatory school in which the citizen acquires the rudiments of self-government, and hence these institutions have been justly regarded as the nurseries of civil liberty. (People ex rel. v.McKinney, 52 N.Y. 374; People ex rel. Bolton v. Albertson,55 N.Y. 50; People ex rel. v. Porter, 90 N.Y. 68; People exrel. v. Crooks, 53 N.Y. 648; People ex rel. v. Bull,46 N.Y. 57; People ex rel. v. Foley, 148 N.Y. 682.)

In the case of People ex rel. Bolton v. Albertson (supra), the meaning of this provision of the Constitution was stated in the following comprehensive language: "The purpose and object of section 2 of article 10 of the Constitution, as is very obvious, was to secure to the several recognized civil and political divisions of the state the right of local self-government, by requiring that all county, city, town and village officers, whose election or appointment was not provided for by the Constitution, save those whose offices might thereafter be created by law, should be elected by the electors of the respective municipalities, or appointed by such authorities thereof as the legislature should designate. As to offices known and in existence at the time of the adoption of the Constitution, this provision is absolute in its prohibition of an appointment by the central government or its authority, or by any body other than the local electors, or some local authority designated by law. 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 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."

There can be no doubt that this provision of the Constitution secured to the people of the city of Albany the right of choosing or appointing their own local officers without let or hindrance from the state government. The only power that the legislature had with reference to a board of police commissioners in that city, was to provide either for their election by the electors, or their appointment by such agencies or authority as the people had selected to administer their local affairs. If the statute now before us, either in form or substance, violates these principles, it cannot and ought not to be upheld. It is conceded that the legislature had no power to appoint the police commissioners, and what it cannot do directly it cannot do indirectly. It cannot extend the term of office of a local officer who has been already elected, for the plain reason that for the extended period of time it is virtually an appointment. A constitutional provision cannot be evaded under color of exercising some other general power which the legislature may possess. In the case at bar the common council was designated as the authority to make the appointment of police commissioners, and so far the legislature acted within its powers. But in making the designation it had no power to so bind and restrict its action as to make that body a mere instrument of its own will. The right of the people to select their local officers cannot be evaded or disregarded by conferring the power of appointment upon some agency of their own selection, coupled with such conditions and restrictions as to make the choice virtually that of the legislature and not of the people. It needs no argument to show that the Constitution may, in that way, be as effectually violated as if the officers to be appointed had been named in the bill, and therein lies the vicious principle which, as it seems to me, pervades the act in question.

The common council of a city, like every other legislative body composed of individual members, acts in its official capacity as a unit through the vote of the majority. While the power to elect or appoint the four police commissioners under the act in question is nominally conferred upon this body or authority, yet the members are, in terms, prohibited from voting for more than two. There is nothing in the bill to prevent the whole body from voting for the first two candidates presented, but, having so voted, their powers are exhausted, and acting in the ordinary way only two members of the board could be elected. But the bill was evidently framed with reference to a known political situation and for the purpose of producing a particular result. It was known that the members of the common council were divided between the two political parties, a majority belonging to one and a minority to the other. How overwhelming in point of numbers the majority may have been or how insignificant the minority, we cannot know from the record, nor are we concerned with that question. What is more important is the fact, which plainly appears upon the face of the bill, that the minority, however feeble in point of numbers, are given the power to elect half the commissioners while the majority are given the right to elect the other half, and this division and distribution of power is carefully perpetuated for all future time by other provisions of the bill. Of course, if such a system can be introduced into all the cities, towns and villages of the state, local self-government must disappear and government by the majority in the legislature will be substituted in its place. It would be difficult to suggest a contrivance better calculated to undermine and destroy the spirit of civic freedom than a statute, enacted by the central authority, conferring powers upon a minority equal to those which can be exercised by the majority.

The question is whether the legislature, while professing to confer power upon the common council to appoint four persons to compose a board of police commissioners, can at the same time and in the same breath empower a minority of the body, whether it be composed of one person or more, to appoint half of them. It would seem to be clear that any attempt on the part of the legislature to divide the appointing power into groups or fragments, each acting independent of the other in such a way as to enable a minority to exercise the same power as the majority, and thus, indirectly, to bring about the same result as the legislature itself would desire if it could act directly, is a violation of the spirit and purpose if not the letter of the Constitution. The two commissioners who under the scheme of this statute are to be elected by a mere minority fragment of the common council would hold their offices, not from the people of the city, but from the legislature. In every substantial sense such officers, thus selected, must be regarded as the creation of the central power of the state rather than the choice of the people, acting directly or through their chosen agencies. If the legislature can lawfully authorize a minority of the common council to appoint one-half the police board, there is no reason why it cannot authorize a tax to be imposed, an ordinance enacted or any other legislative or administrative act to be performed by the same vote. The fallacy of all the reasoning in support of the measure is to be found in the assumption that a single member of the common council, or a minority of the body, is a local city authority within the intent and meaning of the Constitution. When the common council of a city is designated as the appointing power the term is to be understood in its usual ordinary and popular sense, and the authority is to be exercised in the ordinary manner, according to the procedure governing legislative or deliberative bodies. When it is so fettered and cramped in its official action, and its power so divided that the vote of a single member in the minority is made as potential as that of a dozen in the majority, it then ceases to be the common council, or the local authority, in any just or practical sense, and becomes a mere instrument to register the legislative will.

The fatal objection to the bill is that, while professing to comply with the Constitution by designating the common council as the appointing authority, it violates it by restrictions upon its action and by the enactment of methods of procedure for a special purpose which, in their practical operation, confers the power to select upon two political groups in the body, each acting independently of the other. The unity and efficiency of the common council as a deliberative body, representing the people, and as an organ of city authority, is thus destroyed by the distribution of its legitimate powers between two unequal groups or fragments of the whole body. City officers selected in this manner are in no just or proper sense either chosen by the people or appointed by the common council, or any other local authority, and nothing less than this will satisfy the letter or the spirit of the Constitution.

The act should not be viewed as an expedient for a day, but a permanent law for all time, and, thus considered, it is obvious that the powers conferred upon the minority may be exercised by a single member. Such a situation is, of course, possible and quite conceivable. To say that the two commissioners, elected under such circumstances, held office and exercised the important powers conferred by the bill, either by the choice of the electors, the common council, or any other city authority, would be to state a proposition so glaringly erroneous as to merit no consideration whatever. Their appointment under such circumstances would manifestly be due to the fact that, by a legislative edict, all the other members of the common council were prohibited from participation in the choice. It would be quite as competent under such conditions for the legislature to omit mere formalities, without substance, and to name the commissioners in the bill. The principle is the same whether the minority consists of one member or more. When the common council is designated as the appointing authority, but the majority of the members are disqualified and debarred from voting and the minority empowered to make the choice, the official organ of the popular will is silenced and, though the real nature of the procedure may be disguised by the observance of forms, yet the appointment in such a case is in substance, the act of the central and not the local authority, and so the Constitution is violated. (Menges v. City of Albany, 56 N.Y. 374; Warner v.People, 2 Denio, 272; People ex rel. v. Angle, 109 N.Y. 564;State ex rel. Holt v. Denny, Mayor, etc., 118 Ind. 449;Clapp v. Ely, 27 N.J. Law, 622.)

This objection affects the most important section of the bill, without which the other provisions can have no practical operation. In this section the principal purpose of the legislature is embodied and declared, and when eliminated the whole act must fail.

If the views here stated are correct they are sufficient to dispose of the appeal. But it may not be improper to notice some other sections of the bill containing important provisions which seem to be equally objectionable in the light of the constitutional enactment last referred to.

Having attempted to create a board, composed equally of members of two political parties, a disagreement or deadlock is anticipated and provided for. In the fourth section power is conferred upon the board to organize an entirely new police force and to appoint a chief of police. It is true that it may in its discretion retain and continue in office members of the present force, but such continuance must be manifested by an affirmative resolution duly passed, which, of course, requires the vote of a majority of the board, and unless the two parties in the board can agree to pass such a resolution, the present force shall cease to exist on the first day of August, 1896. To this sweeping provision, however, a single exception is made in favor of the person who was senior captain on the first day of January, 1896, who, for some reason, is retained by force of the act itself. The section then provides that in case of a failure of the board to agree upon the appointment of a chief of police, this person who was such senior captain at that time shall act as and perform all the duties and possess all the powers and receive the salary of the chief of police until the board shall agree upon an appointment. In case the board cannot agree upon the appointment of the various members of the police force who are designated in the act as captains or sergeants, it is made the duty of the person so acting as chief to assign members of the police force to perform such duties until the board shall agree upon appointments.

But since the present force is disbanded on August first, 1896, with the exception of such members as the board can agree to retain by resolution of the majority, and as there may be no police force in existence after that date, the authority to assign persons to police duty is in substance an authority to organize and create a new police force. Thus it appears that the legislature, having attempted to create a board of police commissioners which is tied politically, has also designated a certain police captain, in a certain contingency quite likely to happen, to be chief of police, with all the duties, powers and emoluments of that office, and, upon a like contingency, he becomes vested with all the powers that the board itself could exercise with respect to the organization and government of the police force of the city. In this way the senior captain is made a new officer, not by appointment of any city authority, but by the direct action of the legislature. The constitutional validity of a law of this character must be determined by the nature, character and scope of the powers attempted to be conferred, whether actually exercised or not. (Stuart v. Palmer, 74 N.Y. 183;Coxe v. State, 144 N.Y. 396; Gilman v. Tucker,128 N.Y. 190.)

The appointment by the legislature of city officers in whatever form, or under whatever guise it may be attempted, is a clear invasion of the right of local self-government secured by the Constitution. The very extensive powers conferred by the fourth section upon a designated individual, who was captain at a certain date, is in substance and effect an appointment by the legislature of this person to discharge the new duties prescribed therein. It cannot be contended that the legislature has power to appoint a chief of police or to authorize a designated person to organize and govern the police force in a city, but the act in question confers such powers, and provides for such an emergency. The powers thus attempted to be conferred indicate quite plainly the general scope and purpose of the bill and enable us to measure the results in case the intention of the law is carried out. The two members of the commission selected by the minority of the common council, whether that minority consists of one member or more, are empowered to disband the whole police force of an important and populous city, the capital of the state. They may do that without any regard to the wishes of the people of the city who pay the taxes, and for whose safety and protection a police force is maintained. It can be accomplished without even any affirmative action on their part. They may remain passive and refuse to vote for the resolution retaining the force or any part of it, and then the statute does the rest, since, in the absence of some affirmative action on the part of the board, on or before the first day of August, 1896, the present organization is completely swept away by force of the statute itself. All this may be done with or without cause, and without charges, trial or investigation of any kind whatever. Moreover, a single man selected by the legislature may organize a new police force, since there is no one else with power to do it in case the two political elements in the board, equally divided, fail to agree.

It seems to me impossible to reconcile a bill so framed and involving such possibilities with the principles of local self-government so plainly expressed in the Constitution.

The last clause of this section requires the board to appoint the requisite number of patrolmen within ten days from August 1, 1896, from the civil service list, and provides that no person shall be eligible who is over the age of forty years.

It is urged that this restriction is in violation of article five, section nine, of the Constitution, which requires appointments and promotions in the civil service of the state and in cities to be made according to merit and fitness, to be ascertained, so far as practicable, by competitive examinations. In a statute which authorizes the discharge of the whole police force of a large city this disqualification, based upon age, is quite significant. The discharged members of the present force might be able to satisfy all the requirements of the civil service regulations as to merit and fitness so completely as to be placed at the head of the list, but none of them could be appointed if over forty years of age. While the legislature has the power to prescribe a qualification based upon age as a condition of admission to the civil service, and particularly to the police force in a city, yet, since the Constitution has made merit and fitness the primary and controlling test, it is obvious that the spirit and purpose of the fundamental law cannot be defeated or evaded by statutory conditions or restrictions, merely arbitrary, or plainly unreasonable. The decision of the legislature that the constitutional test of merit and fitness is not practicable in a particular case, or that still other conditions or qualifications should be attached to the right of appointment, is not conclusive, but is open to the scrutiny of the courts. (In re Keymer, 148 N.Y. 219; In re Jacobs,98 N.Y. 98.)

Whether the age qualification required by this statute is, under the circumstances, a justifiable exercise of power or an arbitrary and unreasonable condition, presents a question which, in view of the preceding discussion, it is not now necessary to decide.

The learned counsel for the defendants has attempted, with much industry and ability, to defend the various provisions of this bill by arguments drawn largely from the legislative interpretation of the Constitution manifested by the creation and operation through a long series of years of bi-partisan boards and commissions, and our attention is called to numerous laws enacted for that purpose, providing sometimes for their appointment and sometimes for their election by the people. None of these statutes, however, contain such provisions as the one now under consideration, and, it should be added, this court has carefully refrained from expressing any opinion as to the validity of provisions which preclude the people or the appointing power from voting for or approving of all the members composing them. (People ex rel. v. Kenney, 96 N.Y. 303;People ex rel. v. Crissey, 91 N.Y. 616; Demarest v. Mayor,etc., 147 N.Y. 203.) It will be found, I think, upon careful examination of the laws creating such boards, that they have been organized with such scrupulous fairness that in every case they can reasonably be considered as the result and outgrowth of local sentiment and local authority. Moreover, they have proved to be, as thus constituted, such useful instruments for the promotion of economy, order and good government as to disarm all opposition on the part of the people in the localities where they are in operation, and to meet with general public approval.

We do not decide or intimate anything against the validity of the laws under which such boards exist. When their particular provisions are questioned or brought regularly before us it will then be pertinent to inquire whether there is not sufficient warrant within the pale of the Constitution for their organization and existence. The construction placed by the legislature upon limitations on its powers expressed in the Constitution, while entitled to respectful consideration, can never, of course, be conclusive. The interpretation of the Constitution is confided to the judicial and not the legislative department. But the argument in this case in favor of legislative construction loses much of its force by the circumstance that the recent convention to revise the Constitution framed and inserted in that instrument an entirely new provision for constituting election boards on the bi-partisan plan. If the argument now made is sound, this provision was unnecessary. But it can scarcely be supposed that such an able and intelligent body, embracing as it did many of the most eminent members of the bar, introduced, debated and passed an entirely new provision intended to confer upon the legislature a power which it already possessed.

It does not follow, however, that laws which merely require the local appointing power to so constitute boards as to be non-partisan or bi-partisan are in conflict with the Constitution. So long as the people have the benefit of the judgment and discretion of the local authority in making the selection from the citizens it may not be a fatal objection that they are restricted from selecting all the appointees from the same party. So long as the appointment is in fact, as well as in form, made by the mayor or common council, as the case may be, and the appointing authority is left free to act in its integrity, the mere fact that they may be prohibited from making the choice from one particular class or political party may not invalidate the statute. There is, we think, a distinction between such a statute and that now under consideration, where the local authority is so divided that its action cannot be said to represent the popular will, but rather the choice of the central authority.

In any case where the selections have been made and the persons selected have qualified and assumed the duties of the office, it may be that their official acts would not be void merely because the power under which they were appointed obeyed a statute, open to some constitutional objection, in making the selection of the appointees. It is unnecessary, however, to consider or decide such questions until they are properly before us. All we mean to say is that the condemnation of this statute does not necessarily vacate the places or invalidate the official acts of city officers holding under statutes to which attention has been called, and which it is claimed are identical with that now under consideration. (Curtin v. Barton, 139 N.Y. 505.)

We are dealing now with the provisions of the bill before us, and with nothing else. Confining the discussion and examination to that alone, we are compelled to hold that, in the particulars pointed out, it is in conflict with the Constitution.

There was nothing decided in the case of Rogers v. CommonCouncil of Buffalo (123 N.Y. 173) which tends to sustain the provisions of this bill. That case involved no question which is really pertinent here. The question there was with respect to the power of the legislature to create the state civil service board. Since it was not claimed that they were in any sense city or local officers, the meaning of that provision of the Constitution which secures local self-government to cities was not involved. It was held that the legislature had the power to provide that not more than two of the members should belong to the same political party, but that is not the question here. The law did not require that any of them should be a member of any party or profess any particular political faith. It proscribed no one and disfranchised no one on account of his political opinions. It simply provided that a state board, the object and purpose of which was to remove the civil service from the conflicts of politics, should not itself be or become a political machine.

The bill now under consideration is framed upon widely different principles. It carefully provides that no one but a partisan shall be appointed or can under any circumstances hold the office. In a board composed of four persons two political parties are each represented by two adherents, and in case of a disagreement, practically certain to occur, the legislature has designated a person to discharge its functions until such time as the members may be able to agree.

We think that the plaintiffs were entitled to maintain the action and that it was not prematurely brought. (Williams v.Boynton, 147 N.Y. 426; Flood v. Van Wormer, Id. 284.)

The judgment should be affirmed, with costs.