be chosen or appointed by the "authorities" of the city of Albany. People, Bolton, v. Albertson, 55 N. Y. 50; People, Williamson, v. McKinney, 52 N. Y. 374; People, Townsend, v. Porter, supra; People v. Pinckney, 32 N. Y. 377; People, M'Cune, v. Board of Police, 19 N. Y. 188; People, Wood, v. Draper, supra. The common council of the city of Albany is a body composed of nineteen aldermen elected by the people in the several wards of the city, and can act only as a body at a meeting regularly called or appointed and by a majority of its quorum. Laws 1883, chap. 298, title 3. §§ 2, 7; People, Washington, v. Nichols, 52 N. Y. 478, 11 Am. Rep. 734; United States v. Ballin, 144 U. S. 1, 36 L. ed. 321; Ex parte Willcocks, 7 Cow. 402, 17 Am. Dec. 525; Cincinnati, H. & D. R. Co. v. McKeen, 149 U. S. 259, 37 L. ed. 725. J. L. 622. In construing the language of a Constitution arguments ab inconvenienti cannot be listened to for the purpose of enlarging or contracting its import. People v. Morrell, 21 Wend. 563; Newell v. People, Phelps, 7 N. Y. 1; Gibbons v. Ogden, 22 U. S. 9 Wheat. 188, 6 L. ed. 68; People v. Rathbone, 145 N. Y. 434, 28 L. R. A. 384. gle scheme, permeating the entire act, the whole fails, and it cannot be adjudged good in part and void in part. It must stand or fall together. People, Rochester, v. Briggs, 50 N. Y. 553; People, Angerstein, v. Kenney, 96 N. Y. 294; Re New York & L. I. Bridge Co. v. Smith, 148 N. Y. 540; Cooley, Const. Lim. 4th ed. 215; Sutherland, Stat. Constr. 231; People, Townsend, v. Porter, 90 N. Y. 68, Jones v. Jones, 104 N. Y. 234; Allen v. Louisiana, 103 U. S. 80, 26 L. ed. 318; Poindexter v. Greenhow, 114 U. S. 270, 29 L. ed. 185; Warren v. Charles town, 2 Gray, 99; Slauson v. Racine, 13 Wis. 398; State, Huston, v. Perry County Comrs. 5 Ohio St. 507; Allen County Comrs. v. Silvers, 22 Ind. 491. Gray, J., delivered the opinion of the court: Mr. Wherever the Constitution has unqualifiedly The learned justices who, at the special term conferred the power of appointment to office and in the appellate division, have expressed upon any tribunal, body, or authority, or has their views of the unconstitutionality of this authorized the legislature to confer such power act, have done so with such thoroughness as without qualification, on any tribunal, body, to leave but little to be added to this very imor authority, any attempt by the legislature portant discussion. Mr. Justice Parker, at (1) to authorize the exercise of such power by special term, rested his determination of the a part only of the members composing such tri-question upon the ground that the act violates bunal, body, or authority, or (2) to control,§ 1 of art. 1 and § 1 of art. 13 of the state Conlimit, embarrass, or trammel such tribunal, stitution; the former of which declares that body, or authority in the exercise of such "no member of this state shall be disfranchised, power, is unconstitutional and void. or deprived of any of the rights or privileges Warner v. People, Conner, 2 Denio, 272, 43 secured to any citizen thereof, unless by the Am. Dec. 740; People, Williamson, v. McKin-law of the land or the judgment of his peers;" ney, supra; Menges v. Albany, 47 How. Pr. and the second of which declares that "no 244; Id. 56 N. Y. 374; People, Killeen, v. An- other oath, declaration, or test shall be regle, 109 N. Y. 564; State, Holt, v. Denny, 118 quired as a qualification for any office of pubInd. 449, 4 L. R. A. 65; Clapp v. Eiy, 27 N. lic trust" than the oath or affirmation prescribed in the Constitution to be taken. Justice Herrick, in the appellate division, while expressing his assent to the views which Mr. Justice Parker has so well presented, has devoted the greater part of his opinion to pointing out the respects in which the act is in conflict with 2 of art. 10 of the Constitution of the state, which requires that "all city, town, and village officers, whose election or appointment is not provided for by this Constitution, shall be elected by the electors of such cities, towns, and villages, or by some division thereof, or be appointed by such authorities thereof, as the legislature shall designate for that purpose." In this view the majority of the learned justices of the appellate division have been able to concur. The discussion of the question exhibits a critical examination of many authorities, and its statement of the general principles which underlie our popular form of government and which recognize the existence of a right in the people of the various political subdivisions of the state to self-government, without hindrance from the state government as to the right of choosing or appointing local officers, should command our acquiescence. Without denying force to the objection that such legislation violates the spirit, if not the letter, of the constitutional inhibition against the requirement of any other test than is prescribed, I think the main and the insuperable objection consists in the plain attempt The main object of the statute in question to limit or to control the exercise of a power being unconstitutional, and the other provisions of appointment which the Constitution has unbeing connected therewith, all parts of a sin-qualifiedly conferred upon the local authority The provision in this statute appointing in a certain contingency the person who was senior captain on January 1, 1896, to the office of acting chief of police, and giving him power to appoint or assign to duty the entire police force of the city of Albany, is clearly unconstitutional and void. Stuart v. Palmer, 74 N. Y. 183, 30 Am. Rep. 289; Core v. State, 144 N. Y. 396; Gilman v. Tucker, 128 N. Y. 190, 13 L. R. A. 304; Throop, Pub. Off. § 10; People v. Rathbone, supra; Re Hathaway's Will, 71 N. Y. 238; United States v. Germaine, 99 U. S. 508, 25 L. ed. 482; Collins v. New York, 3 Hun, 680; State, Yancey, v. Hyde, 121 Ind 20. The doctrine of practical construction of the constitutional provisions here in question has no application to this case, and is unavailing to the appellants. People, Williams, v. Dayton, 55 N. Y. 367; People v. Home Ins. Co. 92 N. Y. 337; People,, Einsfeld v. Murray, 149 N. Y. 367, 32 L. R. A. 344. nate the appointing authorities of the municipality the further power to designate the particular persons from whom the appointments must be made, and, still further, to place the minority upon an equality with the majority? This is too evident an excess of power to be explained away, or to be excused upon the ground of a political expediency. It is not too much to say of it that it is an attack upon one of those fundamental forms of personal liberty against which the constitutional provision was intended to act as a safeguard. I think it to be as opposed to a safe state policy as to the very letter of the Constitution. to be designated. If that be true, there is no | ical institutions, which is expressly recognized occasion to consider other objectionable fea as such by the Constitution, and the permatures, for the question then presented becomes nency of which is guaranteed therein, is delibone of surpassing importance to the citizens of erately trenched upon by the legislative body. the state. The constitutional provision, I re- What becomes of the right of the majority of peat, is that all city, town, and village offi- the people in a locality to manage their own cers, whose election or appointment is not pro- affairs, and to appoint their local officers, when vided for by this Constitution, shall be that majority can have no advantage in the appointed by such authorities thereof, as the Constitution of the board by numbers, or when legislature shall designate for that purpose." It the choice is limited to the members of a desis, of course, evident that the provision author- ignated class? Is it not clear that the legislaizes the legislature to confer the power of apture has assumed to add to the power to desigpointment upon any local authority; but that the power, which is to be thus conferred, may be qualified, or hampered in its exercise, by the legislature, is not only not evident, but such a proposition, in my opinion, threatens what we are bound to regard as a cardinal principle of our form of government. I refer to the right of local self government; a right which inheres in a republican government, and with reference to which our Constitution was framed. The habit of local self-government is something which we took over, or rather continued from, the English system of government, and, as Judge Cooley has remarked with reference to the Constitutions of the states, "if not expressly recognized, it is still to be understood that all these instruments are framed with its present existence and anticipated continuance in view." Const. Lim. *35. The principle is one which it takes but little reflection to convince the mind of being fundamental in our governmental system, and as contributing strength to the national life, in its educational and formative effect upon the citizen. It means that in the local or political subdivisions of the state the people of the locality shall administer their own local affairs, to the extent that that right is not restricted by some constitutional provision. I do not think it can be seriously disputed that the conception of the state is free from the element that it belongs to it to control purely local affairs, and that state interference finds justification only when state policy or local abuses demand it. I think that no inference is warranted that other powers have been conferred by the people upon their legislative body than those which are mentioned in the Constitution, or which are necessary to carry into effect those which are expressly given. In this clause of the Constitution under consideration we find the express reservation of the right of local self-government. The legislature is expressly authorized to designate the local authority, who shall appoint the local officers, and it is impliedly prohibited from doing more than that, or from placing limitations upon this power of appointment. As it was said in People, Wood, v. Draper, 15 N. Y. 544: "Every positive direction contains an implication against anything contrary to it, or which would frustrate or disappoint the purpose of that provision." When, therefore, we read in the act under consideration 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," we must perceive a very clear violation of the Constitution. A right which is an accompaniment of our polit It ought not to require much of argument to show the importance of this clause in our Constitution, or what its presence means for our political institutions. Its very presence in the Constitution of the state since 1846 evidences the importance which the people attach to the preservation of this right in the management of their local affairs. It means the right to choose their local officers, in all its reality, or it means nothing. If it does not mean that the people have reserved the right of administering existing local offices by officers of their own choosing, whether it be done directly, through an election, or indirectly, through the method of an appointment by some of their local authorities, I am at a loss to understand its significance or in what consists its peculiar value. This clause was inserted in the Constitution of 1846, and it has been, not infrequently, considered by this court. In People, Williamson, v. McKinney, 52 N. Y. 374, the present chief judge of this court then said of it: 'The obvious purpose of the provision of the Constitution which has been quoted was to secure to the people of the cities, towns, or villages of the state the right to have their local offices administered by officers selected by themselves." Later, in People, Bolton, v. Albertson, 55 N. Y. 50, Judge Allen spoke to the same effect, and used the following language: "Faithfully observed, and effect given to it in its spirit as well as in its letter, it effectually secures to each of the governmental divisions of the state the right of choosing or appointing its own local officers, without let or hindrance from the state government, and none can be deprived of the rights and franchises thus guaranteed to all. The theory of the Constitution is that the several counties, cities, towns, and villages are, of right, entitled to choose whom they will have to rule over them; and that this right cannot be taken from them, and the electors and inhabitants disfranchised, by any act of the 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 inter particularly, consider the provisions of the 1st section. What was it intended to do, and what will it do, if allowed effect? What are its spirit and its purpose? for we must consider them in determining whether the legislative intent may be effectuated. It was passed as an amendatory act, affecting chapter 77 of the Laws of 1870, and the acts supplemental thereto, which related to the police department of the city of Albany. At the time of its passage the board of police commissioners consisted of five persons, viz., of the mayor ex officio and of four persons whom he might appoint. The present statute provided for a board of only four commissioners, "not more than two of whom shall belong to the same political party," who shall be chosen or elected at a prescribed meeting of the common council, and “for the purpose of such meeting the members attending shall constitute a quorum." Each member of the council is restricted in his vote to two persons, and "no person is eligible to the office fered 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." This is strong and significant language. Read in its light, the provision of the act under consideration appears as legislation hostile to that freedom of action which the people of Albany have the right to claim, under the Constitution, in the management of their own affairs. It cannot be denied that legislation of this character has an inimical tendency, and, unless the check of the Constitution is strictly enforced by the courts, it may develop a germ of menace to local self-government, to the presence of which we should not suffer ourselves to be blinded by any partisan considerations: or until it becomes too late to extirpate it. I .. unless, at the time of his election he is believe the principle to be too useful and too a member of the political party or organization healthful a part of our governmental system to having the highest or the next highest represenbe denied its full effect, and, while it is recog- tation in the common council." If a vacancy nized in the fundamental law of the state, the occur in the board, "it shall be filled by appointcourt should not be reluctant to enforce it ment by the mayor upon the written recomwhenever a case fairly involving its efficacy is mendation of a majority of the members of the presented. The judicial power was intended common council, belonging to the same political to stand as a bulwark against all legislation party or organization as the police commissioner which impairs any of the constitutional guar- whose office shall become vacant." These proanties. The legislative power of the state is visions are very radical and peculiar in their vested in the legislature, and it is plenary with character. Whereas, under existing statutes, respect to the state at large, or to any portion the mayor was designated as the appointing authereof, in matters of government, except as thority, unfettered in his choice of men, and restricted by the Constitution. But the people in the board which would result, a majority not only have not consented that the legislative could always act, the legislature, by this act, power shall include the power to control their has undertaken to designate an appointing auselection of local officers; but, fearing to trust thority whose appointees should only be taken the discretion of the legislature not to assume from, and equally divided between, the two such a power, they have inserted in their Con- political parties dominant in the common stitution an express restriction. We must not council upon a certain date, and provision is forget that a Constitution is the measure of the made that that order of things should not be rights delegated by the people to their govern disturbed in the filling of any vacancy which mental agents, and not of the rights of the might arise later. Then, again, instead of leavpeople. It apportions the powers of governing the designated local authority to act in its ment, with such limitations as are appropriate regular or chartered way, provision is made for to keep their exercise clearly defined. The its action in ways unsanctioned by custom, or judicial power can and should pronounce null by other law than the act itself provides. The all laws which contravene its provisions,-a purpose of the act was to change the personnel feature of our governmental system which De of the board, and taking the appointments from Tocqueville declared to be "one of the strong- the executive power of the city, to place them est barriers ever devised against the tyrannies with its legislative power, under such restricof political assemblies." Vol. 1, p. 129. tions as to choice as to compose a body of four The remarks of Judge Denio, in People, Wood, commissioners, equally divided among two sufv. Draper, 15 N. Y. at page 537, where § 2 of ficiently well-defined political organizations. art. 10 was under consideration, may be quoted The spirit of the legislative act is manifested by in connection with our application of this sec- the attempt to secure the appointment of such a tion: "We must keep in mind that the Con-board at the time fixed therein, by constitutstitution was not framed for a people entering | ing an arbitrary quorum of the body out of any into a political society for the first time, but for a community already organized and fur nished with legal and political institutions adapted to all or nearly all the purposes of civil government; and that it was not intended to abolish these institutions, except so far as they were repugnant to the Constitution then framed." Having in mind this principle of local selfgovernment, as an inherited and pronounced feature in the general governmental system, let us turn to the statute in question, and, more number of members attending. It may also be remarked, as illustrating the spirit of an act which provides for a board whose action may be blocked by a division of the members, that in § 4 provision is made for the discharge upon a certain date of every member of the force from office, "with the exception of the person who was senior captain on January 1, 1896," and, in the event of a failure of the board to appoint a chief of police, "the said senior captain . . . shall act as such," and in case of its failure to appoint the captains and sergeants, "then it shall be the duty of the chief or acting chief to assign members of the force to perform such duties until the board shall make such appointments." Thus "the person who was senior captain on January 1, 1896," is not only protected and kept in office by this act, but, in the very possible contin gency of a tie in the board of commissioners blocking any action, he is invested with extraordinary powers of control. I do not need to comment upon the wisdom or the prudence of the legislative act, for the court is not con cerned with that. Its concern ceases when it determines that the legislature has not transcended the limits of its powers, as they are defined in the Constitution of the state. If it has the right to interfere, to the extent that the act proposes, with the local government and concerns of the city of Albany, then we have only to affirm the constitutionality of its proceeding. If it has exceeded its legislative power, we are bound to say so, and to declare its act null, because unconstitutional. tive power is vested only in the common council, acting by a majority of the body. The minority was not empowered to bind the city, and the legislature cannot give it that power. The provision, therefore, for a quorum, to consist of any number of attending members, is clearly in conflict with the Constitution. In passing upon the validity of an act, we are to consider what is possible and what may be done under its authority, and the vice of the one before us is that it affects the common council's power to act, as designed and created by law to act, that is to say, through the majority of its members; and it authorizes, in a certain contingency, something less or other than that local authority to act. The legis lature could not, constitutionally, deprive the municipal authority, selected for the purpose, of the power to exercise its functions as prescribed by the law of its being,-an indisputable proposition with respect to a law which purports not to amend a municipal charter, but to confer some new power upon a munic ipal authority. We are not confronted here with any question of "minority representation." That is not the purpose of the act. It places the political minority in the legislative body upon an equality with the politeal majority, and in that feature consists the violation of that fundamental principle of our popular form of government, which demands that the majority shall govern. The principle of minority representation recognizes the right in the majority to control. It must be the majority who shall appoint the officers of government, and this extends more clearly to the governmental officers of localities, perhaps, than to the af fairs of the state government. Mr. Justice Herrick refers to the only instance of the surrender by the people of the power of the majority to select their officers as being found in the constitutional provision for the passage of a law securing equal representation among the election officers of the two political parties which at the next preceding general election cast the highest and the next highest number of votes (§ 6, art. 2), and he appropri ately observes that "the provision for such equal representation in the one case, by implication excludes it in all others." He reenforced his observation by a reference to the constitutional debates, which resulted in the defeat of propositions authorizing the legislature to provide for minority representation in city governments. That this statute violates the Constitution in its letter, as in its spirit, seems to me an indisputable proposition. It goes beyond the power to designate the local authority who, under the new system, shall appoint police commissioners. It designates the class of persons from whom the selection must be made and excludes all others, and it precludes the majority in the common council from naming the majority of the board. Nor does it confine the designation of an authority to what would be, in fact, such under the charter of the city of Albany; for it attempts to create an appointing body in violation of the provisions of the city charter. At the time of the adoption of the Constitution of 1894 the local authorities of the city of Albany, under its charter, were the mayor as the executive power, and the common council as the legislative power. Laws 1883, chap. 298. The reference, therefore, of the constitutional provision in question was to local authorities as they were constituted by force of existing public laws, for the legal presumption must be that the revisers used those words not only intelligently, but with knowledge of the forms of municipal government and of the rules which guide executive and administrative action. The legislature was, consequently, clearly restricted, in its designation of an appointing authority, to what was a local authority within the meaning of the public laws; and in determining upon the common council it could not go further and reform or re-constitute its powers as a municipal agent or au thority, by this indirect method. Power was not vested in any one member of the common council, but in the aggregate of the members who compose the body, and its action is the action of the body as a whole. United States, v. Ballin, 144 U. S. 1, 36 L. ed. 321. To act validly, the vote of a majority of the members was required, both at common law and under the charter. Ex parte Willcocks, 7 Cow. 402, 17 Am. Dec. 525; Laws 1883, chap. 298, title 3. One alderman, or member of the common council, or a group of members, or anything short of what is required by the charter to constitute a valid meeting of the board, would not be a local authority, competent to perform an act of municipal government. The legisla I will refer to two cases which are deemed to bear upon the discussion of this case. In Rogers v. Buffalo, 123 N. Y. 173, 9 L. R. A. 579, the law provided, as to a board of three civil service commissioners there in question, that "not more than two of whom shall be adherents of the same political party." It was held that "nothing in this statute compels the appointment of even one member of any political party. It simply prevents the appointment of more than two from such party.' Commenting upon the case of Atty. Gen. v. Detroit, 58 Mich. 213, 55 Am. Rep. 675, where the provision was for the appointment of two election inspectors from each of the two leading political parties, Peckham, J., said: "The law recognized but two political parties, and made it a necessity for the appointments to be made from and confined to members of those parties. An individual not a member of either was not eligible to appointment. In the case before us there is not a citizen in the state, otherwise capable, who would not be eligible in the first instance to one of these appointments. There is no provision making it necessary to appoint two from the same party, or making it necessary to appoint someone who has been known up to that time as a member of any particular party." Again he says: "The purpose of the statute is not to arbitrarily exclude any citizen of the state, but to provide that there shall be more than one party or interest represented." The opinion in the Rogers Case seems very strongly to support the view that the act in question now violates the Constitution. The case of People, Woods, v. Crissey, 91 N. Y. 616, cannot be deemed to confuse the present discussion. The act confined the vote of each alderman for police commissioners to one of the two to be chosen, so that the minority would be sure to elect one. The common council had already acted upon the appointments and the court refused to pass upon the restriction in the act. Finch, J., observed, in that connection: "If we assume this provision to be unconstitutional, it was a nullity. They [the common council] are presumed to have known the law, and had an official legal adviser. They must be held then to have voted without restraint." In the case at bar, however, the appointments remain to be made, and the answers either admit that the defendants intended to comply with the provisions of the act or are silent as to the allegations of the complaint with respect to what is proposed to be done in obedience to the provisions of the act. I perceive no force in the argument that there has been a practical construction of the Constitution given by the legislature, and acquiesced in and acted upon by the executive and admintrative departments of the government. The question here is purely one of law: Is the constitutional provision referred to violated by this statute? Is the passage of such a law authorized by the Constitution? Practical construction of a law is usally accorded force when it relates to the business conducted by the departments of the state government, and when the legislation depended upon to establish it has been clear and uniform in character for a long period of years. But, to use Judge Cooley's language, "acquiescence for no length of time can legalize a clear usurpation of power where the people have plainly expressed their will in the Constitution, and appointed judicial tribunals to enforce it." The question before us is not one of legislative policy in relation to the business of state government. It is whether the legislature has the power to in terfere with the local concerns of a municipal ity, and by arbritrary methods to prevent majority rule in the selection of local officers. In the presence of the constitutional provision, is it not an assumption of a power, neither expressly granted nor to be implied? The question is no less than this: Having a written Constitution, shall we, and may we, disregard one of its commands, and, though the court is set as the people's bulwark against legislation which contravenes constitutional provisions, shall it aid the legislature when overstepping the limits assigned to its action? We cannot dispose of the question as one of legislative discretion; for, if we construe away such an express provision, upon however so plausible a theory, we open the door to future attacks upon the fundamental law, which underlies the structure of the state. It is argued, however, that the objectionable clauses can be stricken out as null and void, and that the statute may remain valid to the extent of conferring power ou the common council to appoint police commissioners. I do not see how that may be done, within any correct or salutary application of a rule which is frequently resorted to to uphold the acts of the legislative department of government. It is only applicable where not only that which is vicious in the law is so distinct as to permit of being severed from the rest, but where, the severance being made, enough remains to ef fectuate the object which the legislature had in view. It will not do, to save legislative enactments from annulment, to strike out provisions which so clearly express the intention of the legislature as to characterize the purpose of the act, and make their presence essential to the existence of the statute. Judge Cooley, in his work on Constitutional Limitations (*178), has so well expressed himself on this point that I will repeat his words: "If its purpose is to accomplish a single object only, and some of its provisions are void, the whole must fail, unless sufficient remains to effect the object without the aid of the invalid portion. And, if they are so mutually connected with and. dependent on each other, as conditions, considerations, or compensations for each other, as to warrant the belief that the legislature intended them as a whole, and, if all could not be carried into effect the legislature would not pass the residue independently, then, if some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected must fall with them." This case falls within the class of cases thus referred to. This is not a new scheme for the creation of a municipal body of police commissioners. This statute was intended to amend the existing law upon the subject of a police commission, and it is perfectly plain, upon its reading, that what was aimed at was to remove from office the present four commissioners and all of their subordinates, except "the person who was senior captain on January 1, 1896," and to compel the substitution, as commissioners, of four persons, who would be representatives of two certain political organizations. If we eliminate the prescribed methods for the accomplishment of this purpose, we emasculate the legislative act, and it cannot seriously be contended that then there would remain any such law as was intended to be enacted by the legislature. In the performance of the duty of endeavoring to uphold the validity of a legislative act the court may not carve out from its provisions such as would make a law, to which the judicial approval might be given, unless the law then be such as can be deemed to have been within the contemplation of the legislature. In other words, the court is not to make a law for the people, but to uphold one which its. representatives have enacted; and its duty in |