Rathbone v. Wirth (6 A.D. 277, 1896)

Herrick, J.:

This is an appeal from a judgment entered upon the decision of the Special Term, enjoining and restraining the common council of the city of Albany from electing police commissioners, pursuant to the provisions of chapter 427 of the Laws of 1896, and restraining and enjoining the present police commissioners of the city of Albany from delivering or surrendering up any property belonging to the police department to any person or persons who may claim to be police commissioners, under the provisions of said act.

The act in question is an act entitled “ An act to amend chapter seventy-seven of the Laws of eighteen hundred and seventy, entitled c An act to amend the ‘act to combine into one act the several acts relating to the city of Albany,’ passed April twelfth, eighteen hundred and forty-two, and the several acts amendatory thereof, and also to repeal the ‘ act to establish a capital police district, and to provide for the government thereof,’ passed April twenty-second, eighteen hundred and sixty-five, and the several acts amendatory thereof, in so far as they relate to the city of Albany,’ and the acts amendatory thereof and supplemental thereto, relative to the police department.”

By the provisions of this act the existing police commissioners, and the entire force of policemen, with the exception of one officer, are removed -from office.

The principal portion of the statute brought in question by this action is section 1, being an amendment to section 3 of title 12 of the heretofore existing law (Laws of 1870, chap. 77 and the acts amendatory thereof). Section 1 reads as follows: “ 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 per-. sons, 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. Mo, 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. The commissioners shall receive no compensation for any services performed by them under the provisions of this act.”

It will be observed that the purpose of this act is to make an equal division of the four police commissioners between the two principal political parties, and as a means of accomplishing that purpose, the individual members of the common council are confined to voting for only two of the four commissioners to be selected, and no citizen is eligible or can be elected as a police commissioner unless he is a member of the political party or organization having the highest, or next highest representation in the common council.

Of course, if the object sought can be accomplished in regard to the police department, it can be in relation to all departments of city, village, -county and town governments.

The questions raised by this section are so important and far-reaching in their consequences, and so grave and fundamental in their character, that they cannot be adequately discussed within the ordinary limits of a judicial opinion.

Whether the provisions of an act are wise or vicious is not for the court to discuss, except as it may be pertinent to illustrate its conformity to, or its conflict with, the fundamental law.

A law, particularly a police law, may be exceedingly well calculated for its object. It may be efficient to preserve law and order. It may be well adapted to secure the physical safety of the citizen and insure the protection of his property. And yet it may be enacted by a despotic government and be founded upon principles obnoxious to the spirit of a free people, and contrary to their institutions. So, also, one may be enacted in entire conformity to such spirit and institutions, and be utterly ineffective to accomplish what should be the primary purpose of such a law. We, therefore, cannot determine the validity of a law'by determining whether it is or is not well adapted to accomplish the purpose for which it purports to be enacted. We can only determine whether it violates the fundamental law; if it does not, our duty ends. We cannot correct mere abuses of power not in violation of the Constitution; that must be done by the people.

“ Every act of the Legislature must be presumed to be in harmony with the fundamental law until the contrary is clearly made to appear.” •(People ex rel. Kemmler v. Durston, 119 N. Y. 569-577.)

“ A law which has received the sanction of the Legislature, and the approval of the executive, should only be held void as repugnant to the Constitution, when the repugnancy is clearly demonstrated.” (People ex rel. Bolton v. Albertson, 55 N. Y. 50.)

While great respect should be paid by us to the action of the Legislature, we should also bear in mind that “ Under our form of government the Legislature is not omnipotent, whatever the Parliament of England may be in theory. It is only one of the organs of that absolute sovereignty which resides in the whole body of the people. It has the power, subject to the qualified negative of the Governor, to pass any law which it may deem necessary for the public good, not inconsistent with the first principles of .government, nor contrary to the provisions of the Constitution of this State or of the United States.” (Burch v. Embury, 10 N. Y. 374-392.)

And in interpreting the power of the Legislature under the Constitution, we are not confined to the strict letter of that instrument, or compelled to point out the exact article, section, clause or phrase therein which grants or denies the power in question.

There áre some things so contrary to the entire purpose and spirit of the Constitution, that they must be said to be in conflict with it, although it cannot be contrasted with any specific portion of it. The object of its adoption, and its purpose and intent taken as a whole must be considered.

As has been said by one of the most eminent authorities upon constitutional law in this country, Mr. Justice Cooley, “ If this charter of State government, which we call a Constitution, were all there was of constitutional command; if the usages, the customs, the maxims, that have sprung from' the habits of life, modes of thought, methods of trying facts, by the neighborhood, and mutual responsibility in neighborhood interests, the precepts' which have come from the revolutions which overturned tyrannies, the sentiments of manly independence and self-control which impelled our ancestors to summon the local community to redress local evils, instead of relying upon king or Legislature at a distance to do so — if a recognition of all these were to be stricken from the body of our ■ constitutional law, a lifeless skeleton might remain ; but the living spirit, that which gives it force and attraction, which makes it valuable, and draws to it the affections of the people, that which distinguishes it from the numberless Constitutions, so called, which in Europe, have been set up and thrown down within the last hundred years, many of which, in their expressions, have seemed equally fair and to possess equal promise with ours, and have only been wanting in the support and vitality which these alone can give — this living and breathing spirit, which supplies the interpretation of the words of the written charter, would be utterly lost and gone.” (People ex rel. LeRoy v. Hurlbut et al., 24 Mich. 44.)

What has been called “the political tendency of the Constitution ” may be considered in interpreting it. (People ex rel. Townsend v. Porter, 90 N. Y. 68-75.)

The full measure and intent of the instrument is not always to be found in its mere letter. To again quote Justice Coo let: “If we may suppose for an illustration that the Legislature shall provide that, in Detroit, any single person may be chosen, in whom may be vested the whole legislative authority of the city, and all other authority pertaining to local government of every description and nature, not expressly by the Constitution confided to officers specified, it would require unusual boldness in any one who should undertake to defend such a local dictatorship as something within the competency of legislation under a Constitution avowedly framed to guard, protect and defend the local powers ■ and local liberties.” (People ex rel. Bd. of Park Comm. v. Common Council of the City of Detroit, 28 Mich. 228.)

To put another illustration. Under the last clause of section 2 of article 10 of the Constitution, all offices not in existence at the adoption of the Constitution, but that shall thereafter be created' by the Legislature, may be filled by officers- elected by the people, or appointed, as the Legislature may direct.

Suppose the Legislature should see fit to create a new county office, and should provide that, at the general election for the election of State officers, the person for whom the next highest number of ballots should be cast for such office, should thereafter discharge the duties thereof. A new office is created, which the Legislature has a right to create, and also to determine the method oí filling it. There is nowhere any express prohibition against legislation of that character in the Constitution, and yet what man will say that an act of that kind would stand for a moment; not because it is in conflict with any express provision of the Constitution, but because it is repugnant to its whole spirit and intent.

“ A written Constitution must be interpreted and effect given to it as the paramount law of the land, equally obligatory upon the Legislature as upon other departments of government and individual citizens, according to its spirit and the intent of its framers, as indicated by its terms. An act violating the true intent and meaning of the instrument, although not within the letter, is as much within the purview and effect of a prohibition as if within the strict letter ; and an act in evasion of the terms of the Constitution, as properly interpreted and understood, and frustrating its general and clearly expressed or necessarily implied purpose, is as clearly void as if in express terms forbidden. A thing within the intent of a Constitution or statutory enactment is, for all purposes, to be regarded as within the words and terms of the law. A written Constitution would be of little avail as a practical and useful restraint upon the different departments of government, if a literal reading only was to be given it, to the exclusion of all necessary implication, and the clear intent ignored, and slight evasions or acts, palpably in evasion of its spirit, should be sustained as not repugnant to it. The restraints of the Constitution upon the several departments, among Which the various powers of government are distributed, cannot be lessened or diminished by inference and implication, and usurpations of power, or the exercise of power in disregard of the express provision or plain intent of the instrument, as necessarily implied from all its terms, cannot be sustained under the pretence of a'liberal or enlightened interpretation, or in deference to the judgment of the Legislature, or some supposed necessity, the result-of a changed condition of affairs.” (People v. Albertson, 55 N. Y. 50-55.)

Constantly keeping in view, then, the rules for constitutional interpretation above set forth, and that respect for co-ordinate branches of the government which requires us to presume' that an act that has been passed by the Legislature and sanctioned by the Governor is in conformity with the Constitution; and that the Legislature and chief executive of the State are absolute judges of the propriety and wisdom of legislation, untrammelled by judicial opinion or interference, so long as such legislation is within the limits of the Constitution ; but also bearing in mind that as to whether such legislation is within constitutional limits, the judiciary are the absolute judges, untrammelled by executive or legislative opinion, and that it is within its power, as it is its duty to declare such legislation void, when it transcends the limits of the Constitution, and that “ It is only by the free exercise of this power that courts of justice are enabled to repel assaults, and to protect every part of the government,' and every member of the community, from undue and .destructive innovations upon their chartered rights.” (1 Kent’s Com. *p. 450), let us proceed to consider the purpose of section 1 of this act, and the means devised for carrying that purpose into effect.

First, as to the purpose of the section.

Prior to the passage of this act, the police commission of the city of Albany consisted of five members; the mayor, of the city ex officio, and four persons appointed by him, without regard to their political affiliations. (Laws of 1870, chap. 77, title 12, § 3, as amended by chap. 99, Laws of 1892, § 1.)

It is obvious that under this law the board could not be equally divided between the leading political parties. If there was no other reason, the number prevents an equal division.

The obvious intent, the expressed purpose of this act, is to divide the police commission equally between the parties having the highest and next to the highest representation in the common council; that is, to place the minority upon an equality with the majority, and to give the majority no more power than the minority.

This is in violation of the fundamental laws of a republican form of government.

A written Constitution presupposes the existence of sovereign and absolute power; it regulates the exercise of that power, and limits and restricts it, but does not create it.

In this country that sovereign and absolute power is the people.

In the language of James Wilson, the most profound lawyer and student of government in the Continental Congress, and in the convention that framed the Federal Constitution, “With us, no prerogative or government can be set up as co-equal with the authority of the people. The supreme power is in them; and in them, even when a Constitution is formed, and government is in operation, the supreme power still remains. A portion of their authority they, indeed, delegate, but they delegate that portion in whatever manner, in whatever measure, for whatever time, to whatever persons, and on whatever conditions they choose to fix.” (Wilson’s Works, vol. 1, p. 439.)

The people receive no power or authority from the Constitution; the authority of the Constitution is derived from them.

The supreme power of the people does not arise from the Constitution or exist by virtue of it; it existed prior to it; it makes and unmakes Constitutions, but is not made by them ; consequently, we are not to look into the Constitution for any grant of power- to the people, or any definition of their powers; they possess all that they have not surrendered by the Constitution.

One of the primary purposes for the adoption of a written Constitution is the protection of minorities and individuals from the exercise of absolute power." (Burlamaqui’s Nat. & Pol. Law, 249.)

For that purpose the people have yielded up some of their powers, but they retain all that they have not restricted themselves from exercising, by the express words of the Constitution, or by necessary implication therefrom.

Under our form of government that supreme power is vested in and exercised by the majority, and for all practical purposes the majority are the people. The principle that the majority shall govern lies at the very basis of our government.

Among the rights of the majority, as a part of its sovereign power, is the right to select officers, either directly by election, or indirectly - by authorities or officers whom they have chosen by election.

This power of the majority to select their officers has never been surrendered up by the people, excepting in the one instance where provision is made in the Constitution for the passage of a law which shall secure 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. (Const. § 6, art. 2.)

At the parting of the ways where it is to be determined who constitute the majority, and who the minority, it is eminently proper that the majority and the minority as theretofore existing shall be equally represented.

The provision for such equal representation in this one case, by implication, excludes it in all others. As was stated by Chief Justice Savage, “ The Constitution, by authorizing the appropriation of private property to public use, impliedly declares, that for any other use, private property shall not be taken from one and applied to the use of another.” (Matter of Albany Street, 11 Wend. 148.)

This presumption is strengthened by the fact that propositions by which it was proposed to place in the Constitution provisions under which the Legislature might provide for minority representation, were after a very full discussion voted down. (Debates of Const. Conv. of 1894, 1580-1621.)

Election by plurality vote, where there are several persons voted for for the same office, and no one has a majority of the total vote, but the one receiving the highest number of votes is awarded the office, is neither a violation of, or an exception to, the principle of majority rule, but rather a recognition of the principle; he who. is the choice of" the greatest number of people being recognized as the representative of the people.

This power of the majority to govern, the Legislature cannot take from them. The Legislature exercises the legislative power of the people; it is their agent for that purpose, but.it cannot limit or surrender any of the power or authority of its principals.

But it may be said that the Legislature is composed of the representatives of the people, and that, therefore, their acts are presumed to be the acts of a majority of the people, and that while this act .deprives the majority of the people in one locality of their power, Still it is in accordance with the will of the majority of the people of the whole State, and that thereby the principle of majority government is recognized. There would be force in that suggestion if it was not for another principle of our government recognized by our Constitution, and if the people had not by the Constitution limited their power to override the will of a majority in any locality.

The principle I refer to is the principle of local self-government.

“ The principle of local self-government is regarded as.fundamental in American political institutions. It means that local affairs shall be decided upon and regulated by local authorities, and that the citizens of particular districts have the right to determine upon their • ted in view of a system .of local government, well understood and tolerably uniform in character, existing from the very earliest settlement of the country, never for a moment suspended or disffiaced, and the continued existence of which is assumed; and, second, that the liberties of the people have generally been supposed to spring from and be dependent upon that system. * * ' *

“ The State may mould local institutions according to its views of policy, or expediency, but local government is matter of absolute right and the State cannot take it away. It would be the boldest mockery to speak of a city as possessing municijDal liberty where tbe State not only shaped its government, but at discretion sent in its own agents to administer it; or to call that system one of constitutional freedom under which it should be equally admissible to allow the pjeoffie full control in their local affairs or no control at all.

“ What I say here is with the utmost respect and deference to the legislative department, even though the task I am called upon to perform is to give reasons why a blow aimed at the foundation of our structure of liberty should be warded off. Nevertheless, when • the State reaches out and draws to itself and appropriates the powers which' from time immemorial have been locally possessed and exerT cised, and introduces into its legislation the centralizing ideas of continental Europe, under which despotism, whether of monarch or commune, alone has flourished, we seem forced back upon and compelled to take up and defend the plainest and most primary axioms of free government, as if even in Anglican liberty, which has been gained step by step, through extorted charters and bills of rights, the punishment of kings and the overthrow of dynasties, nothing was settled and nothing established.”

The same principle was reaffirmed in the case of The People ex rel. Bd. of Park Comm. v. Common Council of Detroit (28 Mich. 228); Attorney-General v. Bd. of Councilmen of Detroit (58 id. 213); and see, also, Caldwell v. Justices (4 Jones Eq. [N. C.], 323).

In the case of The City of Evansville v. The State ex rel. Blend (118 Ind. 427) it was held that the right of local self-government existed prior to the adoption of the Constitution, and was not expressly yielded up or granted to any of the departments of the State government by that Constitution which, on the contrary, was framed with reference to the then existing local governments, and that the right of self-government still belongs to the people of the municipalities of the State. To the same effect, see State ex rel. Jameson v. Denny (118 Ind. 382).

In our own State it seems to me the subject has been placed beyond question. All through our State Constitution this principle of local self-government is recognized. (People ex rel. Townsend v. Porter, 90 N. Y. 68.)

It is emphasized by section 2' of article 12 of the Constitution, which provides that before any bill for a special city law relating to a city can become a law it must, after it has passed both branches of the Legislature, be submitted to the city authorities of such city for their approval or rejection, and cannot become a law in case of rejection by them until it Has again passed both branches of the Legislature and been signed by the Governor; and it culminates in section 2, of article 10, which reads that, “All county officers whose election or appointment is not provided for by this Constitution shall be elected by the electors of the respective counties or appointed by the boards of supervisors, or other county authorities, as the Legislature shall direct. All city, town and village officers whose election or appointment is not provided for by this Constitntion 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.”

Speaking of the same section in the Constitution of 1846, Justice Andrews said : “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.” (People ex rel. Williamson v. McKinney, 52 N. Y. 374-378.)

This section, as it existed under the former Constitution, has been, under consideration upon several occasions. (People ex rel. Wood v. Draper, 15 N. Y. 532 ; People ex rel. McMullen v. Shepard, 36 id. 285; People v. Pinckney, 32 id. 377; People ex rel. Bolton v. Albertson, 55 id. 50.) .

The force of the provisions of the Constitution for the preserva-, tion of local self-government by providing for the election, of local officers by the people of the localities, or for their appointment by local authorities, was recognized, and the validity of the acts then..' in question were, sustained on the ground, in the cases of Draper; and Shepard, that new political divisions of the Stale had .beemcreated, and that, as to such new divisions, the provisions of the Constitution under consideration did not apply; in the case of Pvnckney, that the offices created by the act ■ were new-ones, not in existence at the enactment of the Constitution; that they were public and not local offices, and for both reasons they were not' within the meaning of the statute. But neither the Draper nor. Shepard case, I think, can any longer be considered authority in this: State, since the decision of the case of The People ex rel. Bolton v. Albertson (55 N. Y. 50).

The justice who wrote the prevailing opinion in that case said, in relation to the Draper case, that it was to be hoped that, '“ in the interests of constitutional government by the people, that the occasion to reaffirm its doctrines may never arise. To my mind the dis-' senting opinion of Judge Brown, concurred in by Judge Comstock, presents unanswerable arguments why the decision should have been, different.”

And. the reasons of his opinion, all through, are in direct conflict upon principle with the decisions of both the Dra/per and Shepard cases. This; opinion was concurred in by all of the judges of the court, except one, who based his dissent expressly upon the decisions rendered in the Draper and Shepard cases, thus pointing the concurrence of the other judges in the reasoning and language used by the judge who wrote the prevailing opinion.

In discussing the section of the Constitution now under consideration in the Albertson case, the court said: “ 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 anybody 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 Legis-, lature 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.” (People ex rel. Bolton v. Albertson, 55 N. Y. 50-56.)

The subject is one of rapidly increasing importance. Already the large majority of the people of this State are residents of cities, and the trend of population is more and more to those centers of business and of people. The future success or failure of our present form of government will depend largely upon the. capacity of the inhabitants of cities for self-government; if they are incompetent to manage their own home affairs how can they be expected to be fitted to properly determine those of the State or nation. To obtain and maintain fitness and capacity for self-government it is important that the training schools of local self-government should be maintained in all their force and vigor. Any departure from the principles of local self-government for the purpose of remedying temporary, real or fancied grievances or evils, is both a confession of incapacity on the part of the people to govern themselves, and a means of creating such incapacity, and is sure, sooner or later, to cause greater evils than those sought to be remedied by such departure. In ceasing to exercise power, the capacity to do so is impaired, if not destroyed."

The evident and avowed purpose of the act under consideration is to divide the board of police commissioners equally between the two leading political parties. It absolutely prevents the majority from controlling that department. As stated by me in the beginning of this discussion, if it can be done, in this department, it can be done in every department of municipal government. It strikes at the very foundation of our government. It proceeds- upon the theory that the majority are unfit to govern. It absolutely destroys local self-government; it prevents the majority of the people of a locality from managing their own local affairs, and from selecting their own local officers. It gives the minority the same power as the majority. To enable the people to control under this act, there must be practically a municipal revolution. The common council or board of aldermen of .the city of Albany consists of nineteen members. (Chap. 863, § 2, Laws of 1895.)

If the majority of the people become dissatisfied with the management of the police commissioners and desire to place it under different management, they must be able to elect fourteen out of the nineteen aldermen, otherwise, no matter ' how large their majority in the city may be, if they only elect thirteen aldermen they can only elect two of the commissioners, the small minority elect the other, two, and thus their efforts to control their own local department of government, to stop maladministration or worse, are absolutely nullified.

What I have thus far said is not necessarily in conflict with the principle of minority representation.

Minority representation, and placing the minority upon an exact equality with the majority, are vastly different things. The prin-; ciple of minority representation recognizes the right of the majority to a preponderance.

In representative bodies it seeks representation by parties in proportion to their respective number, but not equality of representation.

In administrative bodies it simply seeks to have the minority placed in a position where it can watch, obtain knowledge of what is being done, see that the majority acts honestly and according to law, protest against bad government or corruption, and. disclose the acts of the majority to the public; the only proper functions of a minority.

Rone of the cases to which my attention has been called or which '. I have been able to find, are inconsistent with the views herein expressed. ...

The case of Patterson v. Barlow (60 Penn. St. 54) is one where the constitutionality of a law providing for the registration of citizens, and for the conducting of ■ elections, was attacked.' The only provision of that law which is at all pertinent to this 'case is that which provided for the appointment of election officers; such appointments were to be made by the board of aldermen, and .pro-, vided for the appointment of a judge and two classes of inspectors; the judge and one inspector of each class to be elected by the majority party, and one of each class to be taken from the party having; the next highest number of votes. ...-.'

The board of aldermen were to appoint the persons so designated: by the electors. As was stated in the opinion: “ The law binds the board of aldermen to appoint the officers of the election, so that the. political party having a majority of the election division shall have a majority of the board. ' It requires the canvassers to be appointed so that each party will be represented in the several boards of canvassers, adding a supervising power in the courts to correct errors. What fair mind can pronounce this an abuse of legislative power so gross, so palpable and so plain as to become an unconstitutional. act?”

In the case of The People ex rel. Grinnell v. Hoffman (116 Ill. 587) the constitutionality of a law came in question which provided for the appointment by the County Court of three election commissioners, and provided that “ two of such commissioners at least shall always be selected from the two leading political parties, one from, each of said parties.”

In the case of Rogers v. Common Council of Buffalo (123 N. Y. 173) the question under discussion was not considered by the court; the law under consideration there simply provided for minority representation, not for equality of representation with the majority.

The Matter of Manning (71 Hun, 236) arose under a statute' which was designed to secure minority representation in the election boards of the different election districts in the city of Albany. The purpose was to give the majority two of the three inspectors of election in the ■ election districts where they were in the majority, and the minority party one. To carry that purpose into effect, a. board of election commissioners was provided for, not more than two of whom were to be of the same political faith, who were to. appoint the inspectors of election. The law then provided that the inspectors of election of the same political faith as the minority member of said board should be selected solely by him.

It will thus be seen that the right of the majority to the pre-. ponderance was recognized. The question of the constitutionality ■ of the law was not raised in that case; it was argued and decided without reference to that question. Hone of these cases or the laws considered in them present the features presented in this act; in all of them the minority were simply given representation; in none of them were they placed upon an equality with the majority, or the. majority deprived off their rightful preponderance.

In City of Evansville v. State ex rel. Blend (118 Ind. 427), a law. for a board of metropolitan police and fire departments in all cities of a certain class, and providing that the officers and patrolmen of such fire and police departments should be selected equally from the two leading political parties of each city, was held to be in violation of the Constitution.

In the case of The Attorney-General v. Board of Councilmen of Detroit (58 Mich. 213), a law which provided for the appointment of a board of commissioners by the mayor of the city, which board should be equally divided between the two principal political parties, who should appoint inspectors to be likewise equally divided between the two principal parties, was held to be unconstitutional.

The question has on several occasions been brought before the courts of this State, but never passed upon by them, for the reason that they would not pass upon a constitutional question unless necessary, for the decision of the case.

In People ex rel. Woods v. Crissey (91 N. Y. 616) it was held that the designation of the common council as the authority to appoint police commissioners was to that extent a lawful enactment; but upon that portion which confined the vote of each alderman to one cut of the two to be chosen, thus making it possible for less than a majority of the quorum to elect one of the commissioners, the court did not pass, because it thought that the case could be decided without doing so. But it is evident from a careful reading of the opinion that the belief of the court was, that such direction by the legislation, as to the method in which the common council should exercise its authority, was in conflict with the Constitution, and, therefore, not binding upon the common council, and that it was to be presumed that the common council in making their choice had done so knowing that such provision was not binding upon them, and had not followed its provisions, the court saying: “ But if we' assume this provision to be unconstitutional, it was a nullity. We are not at liberty to say that the common council did not know it. They are presumed, to have known the law, and had an official legal adviser entirely •competent for their instruction. They must be held then to have voted without restraint. We cannot say that an unconstitutional.law, if indeed it be such, put them under compulsion. A nullity, known < to be such, cannot compel. The aldermen chose to vote, therefore, as they did vote.”

There are other cases in this State where similar questions were brought up, but which the court refused to pass upon, for substantially the same reasons given in the Crissey case, some of which cases I will hereafter refer to in another connection.

No presumption that the common council will ignore the unconstitutional provisions of this act can be indulged in. (Williams v. Boynton, 147 N. Y. 426.)

In addition any such presumption is absolutely negatived in this case.

The plaintiffs in their complaint, among other things, allege: “Sixth. That the defendant John F. Donovan is the president of said common council, and that these plaintiffs are informed and believe, that unless restrained by the order or judgment of this court, the said Donovan, or some other of the defendants who are members of said common council, acting as president or chairman of the said common council, will declare persons to have been elected or appointed as police commissioners who have not received the votes of a majority of the members of the common council, or of a quorum thereof.

“ Seventh. Plaintiffs further charge upon information and belief, that the defendants herein who are members of the common council of the city of Albany as above stated, or some of them, intend and threaten and are about, unless restrained by the order or judgment of this court, to proceed under the said act, and without reference to any nomination to be made by the mayor of said city, to vote for police commissioners, or for two persons as police commissioners, and that the persons who may be elected or appointed, or Who may claim to be elected or appointed, as police commissioners Under the provisions of said act, will claim to constitute the board of police commissioners of the city of Albany.”

The defendants by their pleadings either admit or affirmatively assert that they are going to do the things that in the Crissey case it was presumed they would not do pr had not done.

There are two answers to the complaint, one in behalf of nine of the defendants, eight of whom are members of the common council ; as to the sixth clause or count above set forth, they deny any knowledge or information sufficient to form a belief as to any of its allegations ; as to the seventh count or clause they are silent, and, therefore, must be held to admit its allegations; they also affirmar lively assert the constitutionality of the act. And their legal adviser who appears for them here, we must assume to be entirely sincere in his contention that the act in question is a valid one, and, ■that he has so advised his clients, and will continue to so advise them, and that they wiE be guided by his advice.

The other answer is made by fifteen defendants,, eleven of whom are members of the common council, and their answer does not deny any of the allegations of the complaint, but affirmatively ' asserts that they intend, unless restrained by the order of the court, to perform the duties, devolved upon them by the act in question.

'So that this case presents a different state of facts, and one from which entirely different inferences should be drawn than those in the Orissey case, and renders that, if anything, an authority for the contention of the respondents.

What I have here said will also serve as an answer to the objection that the action is prematurely brought.

It is contended, however, that a practical construction has been given to the power of the Legislature to enact a law of this kind by repeated acts of the Legislature, and a long list of statutes is set forth in the appellants’ brief, claimed to be similar to the act in question Rere.

Time will not permit a review of the provisions of each, nor is it necessary; some of them provide simply for minority representation, a subject which is not under discussion here; a few of them ■ provide for an equality of representation between the leading political parties,, but none of them present all the objectionable features present in the act under consideration, and most of them have been -enacted in the last few years. So far as I can discover there is only •one that presents exactly the same questions as are here presented, and that act was passed at the same session of the' Legislature as the one now before us.

Upon these acts, however, the appellants make the point I have suggested. I quote from the very excellent brief of the appellants’ • -counsel:

“ The practical construction of the Constitution given by the Legislature, and acquiesced in and acted upon by the executive and administrative departments of the government accords with the .appellant’s contention.

“ It has been held to be the law for many years that legislative interpretation of the Constitution, and the practical construction given to a doubtful statute by the public officers of the State and acted upon by the people thereof, is decisive, in case of doubt.” (People ex rel. Williams v. Dayton, 55 N. Y. 367-377; People v. Home Ins. Co., 92 id. 337.)

In People v. Dayton (at p. 377) Andrews, J., says : “ The practical construction of the clause in question by the Legislature, commencing witli the adoption of the amendment of 1853, and continued to the present time, which has been acquiesced in and acted upon by the executive and administrative departments of the government, and which, so far as we know, has never before been, questioned, is entitled to- great, and we think controlling weight in its interpretation. It has almost the force of a judicial exposition (Story on Const. § 408), and unless such legislation and practice is manifestly in violation of the words used, the greatest weight should be given to it in construing them.” (Cooley on Const. Lim. 67, and cases cited.)

Then follows the list of statutes I have referred to.

The last expression of the Court of Appeals upon the subject of legislative construction is found in the opinion of Chief Justice Andrews in the case of The People ex rel. Einsfeld v. Murray (149 N. Y. 367).

One of the questions in that case was as to whether the Legislature could by an act passed by-less than two-thirds of its members, appropriate any part of the revenues raised under a general law of the State to any other than State uses.

In his opinion the chief justice says that the provisions of the present Constitution under which the contention is made, has formed a part of the organic law of the State ever since the Constitution of 1821, and that while undoubtedly it would have been competent for the Legislature from the first to have directed all the moneys derived from excise fees or licenses to be paid into the State treasury for general purposes, yet the uniform course of legislation has been to permit the localities where the licenses were granted to retain such license fees, and use them for local purposes; and he proceeds to say: “ Seventy-five years have elapsed since the constitutional provision now in question first became part of the organic law, and during that long period this practice, under statutes which concededly were enacted' without a two-thirds vote, has prevailed, and has never hitherto been challenged as a violation' of the Constitution. * * * ■

“ This legislative policy which has prevailed for so long a period, sanctioned by numerous statutes, never questioned in the courts, and acquiesced in by all departments of the State government, is the practical construction of the constitutional provision now in question, that an appropriation of excise moneys, to the use of towns and cities, under acts passed by a majority vote,, is not an infraction of the Constitution, and this construction ought not now to be disturbed.”

It will be observed in these cases that stress is laid upon the fact that the legislation has been