tions. Therefore, before a law can be declared | political parties of the state, and at the expirainvalid, it must be found to be in conflict with some provision of the organic law. People, Smith, v. Fisher, 24 Wend. 215, 220; Cochran v. Van Surlay, 20 Wend. 365, 382, 32 Am. Dec. 570; Wynehamer v. People, 13 N. Y. 378, 430; Cooley, Const. Lim. 6th ed. 202, 204; Bank of Chenango v. Brown, 26 N. Y. 467, 469; People v. Cannon, 139 N. Y. 32, 42; People, McLean, v. Flagg, 46 N. Y. 401, 404; Rogers v. Buffalo, 123 N. Y. 173, 181, 9 L. R. A. 579. The act under consideration, like every other statute, must be upheld, unless it is in plain and substantial conflict with some particular provision or provisions of the Constitution. People, Rochester, v. Briggs, 50 N. Y. 553, 558; People v. Gillson, 109 N. Y. 389, 397; People, Kemmler, v. Durston, 119 N. Y. 569, 577, 7 L. R. A. 715; People, Carter, v. Rice, 135 N. Y. 484, 16 L. R. A. 836.

two persons for such office. Chapter 515 of the Laws of 1874 related to the election of aldermen in the city of New York, and provided that three should be elected for each ward except the eighth, but that no voter should vote for more than two. The same principle has existed in statutes relating to the appointment of election officers since the organization of our state government, although not protected by any constitutional provision before the amendment of 1894, the obvious purpose of which was to forbid any change in these time-honored laws. The statutes already referred to sufficiently show the course of legislation in this state upon the subject, and render the examination of other statutes quite unnecessary.

son, 55 N. Y. 54. Moreover, if the purpose which induced its passage was improper, still the responsibility is not ours, but rests elsewhere. Unless these provisions of the statute are plainly and clearly in substantial conflict with some particular provision of the Constitution, this court should not declare them void, There should be no reasonable doubt of the unconstitutionality of a statute before it should be annulled by judicial action, and all doubtful questions should be resolved in favor of the validity of the act, or, as was said by Allen, J.. in People, Bolton, v. Albertson, supra: "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 dem

From 1867 to 1896 the legislature has almost yearly passed statutes involving in some form the general principle contained in the statute under consideration, which have been ap proved by the executive and acted upon by the different municipalities without dissent or question. As early as 1867 that principle was applied to the election of fire commissioners in the city of Albany, and in 1872 was applied to the election of police commissioners for that city. Thus for nearly thirty years, notwith

different municipalities, a practical construction has been given to the Constitution, so far as it affects laws containing this principle, to the effect that they are valid, and controlling as to the matters to which they relate. The practical construction given by the legislature to constitutional provisions, for many years acquiesced in and acted upon, unquestioned by the executive and administrative branches of the government, is entitled to controlling weight in its interpretation, and has almost the force of a judicial exposition. People, Williams, v. Dayton, 55 N. Y. 367, 378; People v. Home Ins. Co. 92 N. Y. 328, 337; Re Washington, S. A. & P. R. Co. 115 N. Y. 442, 447; People, Einsfeld, v. Murray, 149 N. Y. 367, 376, 32 L. R. A. 344. As was said by Ruger, Ch. J., in the Home Ins. Co. Case, supra: “It would now seem too late to raise a question of such importance and fraught with such dangerous consequences to those engaged in the enforcement of the laws." I think, as was in effect said by Andrews, Ch. J., in the Murray Case, supra, this legislative policy which has prevailed for so long a period, sanctioned by numerous statutes, never questioned in the

If all the various statutes of the state relat-onstrated." ing to the government of cities which contain provisions involving the principle contained in the statute under consideration are to be held void, it must result in a general derangement of the affairs of all the cities in the state, and lead to boundless confusion in matters relating to their government. "An unconstitutional act is as if it had never been passed by the legislature. It can confer no rights and afford no protection." Chenango Bridge Co. v. Paige, 83 N. Y. 178, 190, 38 Am. Rep. 407; Cooley, Const. Lim. 188; Endlich, Interpreta-standing the frequent changes of officers in the tion of Statutes, § 358. Relying upon the validity of this principle, commissions for the police, fire, and other departments of the various cities have been organized under statutes containing the identical principle contained in this, which must be regarded and treated as invalid if this statute is held void for that reason. If the various statutes under which such commissions have been appointed are invalid, it must necessarily follow that all the appointments made by such commissions are also invalid, and, consequently, all the members of the police force, fire and other departments of such cities, and all officers appointed by these various commissions, are without title to their office, are entitled to no compensation, and may be held liable for many acts they have performed in reliance upon the integrity of the provisions of these various statutes. It is to be presumed that this court will adhere to the principle of the decision in this case, and it must apply to every such city in the state, and be regarded as condemning all such provisions in the various statutes under which they were incorporated or by which they are governed. Hence the question of their validity is a farreaching one, and is of great importance, in-courts, and acquiesced in by all departments volving, as it does, the govermental affairs of of the state and municipal governments, is a nearly every city in the state. Therefore it practical construction of the provision now in should not be hastily or inconsiderately held question; and this construction ought not now invalid, whatever may have been the purpose to be disturbed. I had supposed the foregowhich induced the passage of this particular ing to be a well established rule of law, to be act. Its purpose must be presumed to have applied with the same certainty and uniformity been proper, especially in view of the fact that as any other, and not a mere rule of convenithe police and fire commissioners for that city ence. If this supposition is correct, then I were elected nearly thirty years since, under a cannot understand why it should have been statute which included the principle contained applied to sustain the excise law, and the variin this. Not only is every intendment in favor ous other statutes under consideration in the of the validity of statutes, but no motive, pur-cases cited, and not in this. If there was ever pose, or intent can be imputed to the legisla- a case where the principle of practical conture in the enactment of a law other than such struction should be applied, manifestly this is as are apparent upon the face of and gathered one. Every correct principle and proper confrom the law itself. People, Bolton, v. Albert-sideration require it. The confusion, derange

ment, and consequent hardship that must follow the condemnation of all these statutes seem to me to demand the application of that principle in this case, if necessary to uphold this and the various other statutes authorizing the organization of commissions for the management and control of the municipal affairs of a majority of the cities of the state. The principle involved in this class of legislation has been expressly approved by this court. In the case of Rogers v. Buffalo, 123 N. Y. 173, 9 L. R. A. 579, Judge Peckham, who delivered the opinion of the court in that case, fully discussed the question of improving the public service by means of nonpartisan commissions or boards. He in strong terms commended that principle, and as strongly condemned what he termed the semibarbarous system represented by the maxim that "to the victors belong the spoils." In that opinion all the judges of this court concurred, except Ruger, Ch. J., who concurred in the result. Thus to the wisdom and propriety of this class of legislation this court seems fully committed. If the principle there commended is to be now condemned, and this class of statutes is to be held invalid, we shall take a long step backward. It will constitute a positive retreat from the position that the public affairs of the municipalities of the state should be removed from the influence of partisan politics; and, besides, it will be accompanied by the disastrous consequences already indicated, and demoralize and seriously injure the public service.

such is not the case. It provided that in determining who should be elected such commissioners each member of the council should vote for not more than two, the practical effect of which was to carry into execution the provision that no more than two of such commissioners shall belong to the same political party or organization, on the assumption that the members constituting the common council would vote for commissioners who were members of their own party. That the legislature possessed the power to amend the charter of the city of Albany so as to define the duties and prescribe the powers of the common council, and to direct the manner in which it, as the authority of that city, should elect the police commissioners, I have no doubt. It could have provided that there should have been a two-thirds vote, a majority vote, or less. The municipality, the existence of the common council, the duties it shall perform, and all its acts of a governmental character are under the control of the legislature.

Section 1 of article 8 of the Constitution of the state authorizes the legislature to create municipal corporations by general or special acts, and to alter or repeal such acts from time to time. In People, Rochester, v. Briggs, supra, Church, Ch. J., said: "A municipal corporation is a part of the governmental machinery of the state, organized, not for the purpose of private gain, like private corporations, but for the purpose of exercising certain functions of government, within a specified locality; and it possesses such powers, and such only, as are conferred upon it by the legislature; and they are to be exercised in such form, mode, and manner, and by such agencies, as the legislature may from time to time prescribe, within the limits of the Constitution. .. Over all its civil, political, or governmental powers the legislature is, in the nature of things, supreme and without limitation, unless restrained by the Constitution." Dillon, in his work on Municipal Corporations, in treating of the power of the legislature over municipal corporations, says: "Over all its civil, political, or governmental powers the authority of the legislature is, in the nature of things, supreme, and without limitation, unless the limitation is found in the Constitution of the particular state."

The question in the Rogers Case arose under the civil service act of 1883, which provided for the appointment of three civil service commissioners, not more than two of whom should be adherents of the same party; and it was held not to be violative of any of the provisions of the state Constitution. We have in that case a direct authority to the effect that the provision of the statute under consideration, which provides that not more than two of the four police commissioners to be appointed shall belong to the same political party or or ganization, is valid. Indeed, it is conceded by the respondents that, if this provision stood alone, the constitutional objections now urged against it could not be sustained. They, how ever, insist that the provision which follows, declaring that each member of the common Assuming, then, as we must, that the legiscouncil shall be entitled to vote for not more lature had the power to provide in what manthan two of such persons, and the four persons ner the common council should discharge its receiving the highest number of votes shall be duties, it had the authority to provide for the such commissioners, is in conflict with the pro- election of police commissioners in the manner visions of the Constitution. The claim now pointed out by the statute. The effect of this most strongly urged is that under the provi- provision was to amend the charter of the city sions of 2 of art. 10 the legislature had the of Albany so far as it related to the manner in power to select the local authority by which which the common council should act. As the appointment should be made, but that, there is no constitutional provision which in having conferred that power upon the common any way prevents the legislature from providcouncil, it must be regarded as conferring the ing the manner in which that body shall act in authority upon that body as such; that it can the selection of officers, it is quite plain, I only act as a collective, official body by the think, that this statute is not in conflict with voice of its majority, and that this provision is the provision of the Constitution under considconsequently void. If by this act the legisla-eration. It is, however, suggested that under ture had selected the common council as the authority by which such appointment should be made, without any provisions as to the manner in which such commissioners should be elected, it might, perhaps, be that it could have acted only in the manner suggested. But

this statute the members of the common council might all vote for only two members of the police commission, and that then their power would be spent, and only two members elected. This suggestion must, I think, be regarded as too speculative and improbable to require dis

566.

quired them to be examined under the provisions of that statute, and under rules to be approved by the civil service commission; but it was held that there was no such limitation upon the rights of the local authorities to appoint such officers as to bring the statute within the condemnation of that provision of the Constitution. It will be remembered that that statute was passed before the amendment to the Constitution.

cussion or serious consideration. But, should that condition arise, there would, at most, be a vacancy in the office of two commissioners which might be filled in the manner pointed out in the statute. Moreover, if the statute is simply defective, it by no means follows that the whole statute must be condemned. It may be observed, in passing, that the question whether the police commissioners to be thus appointed were officers of the city within the meaning of the provisions of § 2 of art. 10 may Again, it is a well-established rule of connot be entirely free from doubt. Fire Depart-struction that before a statute should be ment of New York v. Atlas S. S. Co. 106 N. Y. declared invalid it should appear that it is in plain and substantial conflict with some particular provision of the Constitution. Thus the conflict must not only be plain, but it must be substantial as well. The statute must be affected by the provision of the Constitution relied upon in some substantial and material particular. If that portion of a statute which is relied upon as a basis for its condemnation is not essential to the accomplishment of its general purpose, the statute cannot be said to be in substantial conflict with the Constitution. The fact that a statute may be in conflict with the fundamental law in some slight or unessential particular forms no just basis for its condemnation. In other words, unless the provision of a statute will effect a result which will subvert the object and frustrate the purpose of the Constitution, it should be held valid. "The substance of a thing is the essential or important part; the material thing; that in and for which a thing chiefly exists." See Substance, Abbott, Law Dict.; Anderson, Law Dict.; Rapalje & L. Law Dict.

It has been intimated that, while the legislature possesses the power to select and confer upon the authorities of a city the right to appoint all city officers whose election or appointment is not provided for by the Constitution, yet it has no power to in any way limit that right by providing the method in which such appointments shall be made by the city authorities, or the qualifications which such appointees shall possess. In People, Nechameus v. Warden of City Prison, 144 N. Y. 529, 27 L. R. A. 718, the validity of chapter 602 of the Laws of 1892 was considered by this court, and it was held to be constitutional and valid. By the provisions of that act it was made the duty of the mayor of each of the cities of the state to appoint a board for the examination of plumbers of each city, to consist of five persons; two to be master plumbers of not less than ten years' experience, one to be a journeyman plumber of like experience, and the others to be the chief inspector of plumbing and drainage of the board of health, and the chief engineer having charge of sewers in such city. Thus, by that act the legislature in effect prescribed not only the qualifications which the appointees should possess, but, as to some, practically who should be appointed. It is possible that that decision may be sustained upon the ground that those officers fell within the last sentence of that section of the Constitution which provides that all officers whose office may hereafter be created may be elected or appointed, as the legislature may direct, although not placed on that ground. It seems to me, however, that the doctrine of that case bears upon the question, and tends to sustain the validity of the statute under consideration, so far as this immediate question is concerned. In the Rogers Case, supra, it was argued that the civil service act, which was then under examination, was violative of this section of the Constitution. The provisions of that statute required the mayor to prepare certain rules under which the city officers were to be selected, which were to go into effect only when approved by the state civil service conmission, and that no officer or clerk should be appointed, and no person should be permitted to enter or be promoted into the classes established, until he had passed the required examination. It was contended that the power conferred upon the public authorities of the city to appoint a street or health inspector of that city was limited by such requirement, and The respondents also contend that the prohence the act of 1883 was void, as being in con- vision of this statute which declares that no travention of § 2 of art. 10 of the Constitution. person is eligible to the office of police commisThus, by that act, the authority to appoint sioner unless, at the time of his election, he is a city officers was limited to an extent which re-member of the political party or organization

It is manifest from a reading of this statute that the purpose of this provision was merely to carry into effect the former provision that not more than two of the commissioners should belong to the same political party. It was the means devised by the legislature to carry into execution what is conceded to be a valid provision of the statute. The dominant purpose of that provision was to establish for the city of Albany a nonpartisan board of commissioners. Whether the means to secure that result was a provision that each member of the common council should not vote for more than two of such commissioners, or that each member should vote for the four commissioners, only two of whom should belong to the same political party, was at most a mere matter of detail by which to accomplish the chief purpose of the act. If this provision had not been included in the statute, manifestly the latter would have been the plan by which the purpose of the legis lature would have been carried into effect. That the statute has provided a different method to accomplish the same purpose is unessential, and the provision cannot be properly said to be one of substance. Indeed, that the aldermen or members of the common council as such were authorities of the city within the meaning of the Constitution, I have no doubt. People v. Raymond, 37 N. Y. 428, 431; People, Sherwood, v. State Bd. of Canvassers, 129 N. Y. 366, 14 L. R. A. 646.

having the highest or next highest representa- I would then remain, would obviously carry into tion in the common council, is void under the effect the fundamental and substantial intent provisions of the Constitution of the state. and purpose of the legislature. Many of the statutes to which we have already referred contain a similar provision, and hence the doctrine of practical construction is applicable, and this provision may be sustained. Independent of that doctrine, I might be inclined to agree with the contention of the respondents. But I do not deem it necessary to determine the question whether that provision is valid or invalid. If the latter, I am of the opinion that it may be eliminated from the act, and still the apparent and manifest object and purpose of the legislature be effected by the statute as it would then remain. It seems to be well settled that where only a part of a statute is unconstitutional that fact does not authorize the court to declare the remainder void, unless the provisions are so dependent and connected with the object or purpose of the act that it cannot be presumed that the legislature would have passed it without including such void provision. The fact that the legislature may have erred in a matter of detail does not defeat the whole act where, when the unconstitutional portion of the statute is stricken out, that which remains is complete in itself, and capable of being executed in substantial accordance with the apparent legislative intent. People, Fowler, v. Bull, 46 N. Y. 57, 69, 7 Am. Rep. 302; Gordon v. Cornes, 47 N. Y. 608, 617; People, Rochester, v. Briggs, 50 N. Y. 553; People, Murphy, v. Kelly, 76 N. Y. 475, 489; Re Middletown, 82 N. Y. 196; Duryee v. New York, 96 N. Y. 477; People, Angerstein, v. Kenney, Id. 294; Lawton v. Steele, 119 N. Y. 226, 7 L. R. A. 134; Re New York & L. I. Bridge Co. v. Smith, 148 N. Y. 540. An examination of these cases discloses the extent to which this court has proceeded in applying that rule to various statutes when they have contained unconstitutional provisions and still have been upheld as to the remainder. In many of them this court seems to have gone further than is required to sustain the statutes in question. Who can say that there is any such connection or dependence between this provision and the remainder of the statute that it must be presumed that the legislature would not have passed it with this provision eliminated, or, in other words, that it cannot be presumed that it would have passed it omitting that provision, if it had been regarded as invalid? I do not think it can be reasonably doubted that, if the legislature had supposed or understood that this provision was invalid, it would still have passed the statute without it. Nor do I think the other provisions of the statute are so connected with or dependent upon that provision that they cannot be divided without defeating the object and intent of the statute.

As has already been suggested, the controlling purpose of this statute is to provide for the appointment of four police commissioners for the city of Albany, only two of whom should belong to the same political party. If the provision that 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, re entirely blotted out, the statute, as it

The respondents also contend that the provision of the statute for filling vacancies by which the mayor is permitted to appoint_com│missioners upon the written recommendation of a majority of the members of the council belonging to the same political party or organization as the police commissioner whose office is vacant, is also in conflict with § 2 of art. 10 of the Constitution. Section 5 of art. 10 of the Constitution provides that the legislature shall provide for filling vacancies in office. In People, Henderson, v. Snedeker, 14 N. Y. 52, 59, it was said: "The effect of this provision of the Constitution, doubtless, was to confer upon the legislature the power to provide for filling vacancies in a different manner from the existing method in case it should be deemed proper." In the case of Rogers v. Buffalo, 123 N. Y. 173, 9 L. R. A. 579, chapter 354 of the Laws of 1883 was under consideration. That statute contained a provision that any vacancy in the position of commissioner should be so filled by the governor, by and with the advice and consent of the senate, as to conform to the conditions for the first selection of such commissioner. The spirit of that provision is practically identical with that contained in the act under consideration; and that case should, I think, be regarded as an authority to the effect that such a provision is valid. I am unable to discover any provision of the Constitution with which this portion of the statute is in conflict. It is simply the means adopted by the legislature to carry into effect and continue the principal purpose of the act that no more than two of the commissioners should at any time belong to the same political party. The latter provision being professedly valid, I think the means provided to continue the condition thus created were also valid. I am unable to find in the Constitution any provision which renders void that portion of the act which provides that, in case of a failure by the board of police commissioners to appoint the chief of police, the senior captain should act as such until the board should make an appointment. The purpose of this provision clearly was to provide for an emergency that might arise, and thus prevent the city from being without a chief of police until such appointment should be made. Its effect was to confer temporarily upon a city officer added powers, and impose upon him other duties, which he would be required to discharge while the emergency continued. That the legislature possessed the power to amend the charter of the city of Albany so as to provide that in such an emergency one of its officers should discharge other and added duties, I have no doubt. The authority of the legislature over such a municipality has already been considered, and I think it possessed the power to enact the provision under consideration, and that it is valid.

Nor do I think the provisions of § 4 of the act. which provide that no person shall be eligible to appointment as patrolman of the city who is over the age of forty years, violate the provision of § 9 of art. 5 of the Constitution, which declares: "Appointments and promo