[Fox v. McDonald.] stand the position to have been taken; namely, that it is inherent in, and necessarily belongs to, the executive department. Under some forms of government, it may be so regarded, but the reason does not apply to our system of checks and balances in the distribution of powers where the people are the source and fountain of government, exerting their will after the manner, and by instrumentalities specially provided in the constitution." In People v. Freeman, 80 Cal. 233, that court again held that the power of appointment to office is not essentially an executive function, and may be regulated by law. Judge Christiancy in People v. Hurlbut, 24 Mich. 44, had under consideration whether the legislature could appoint persons to fill offices created by it; and his purpose was to determine whether such appointment could be treated as a legislative act which it was competent for the legislature to perform; and in discussing the question he says: "Besides the power to make general rules for the government of officers and persons, and regulating the rights and classes of persons or of the whole community, there is a large class of powers recognized as legislative, occupying an intermediate space between those of a judicial character on the one side, and the executive on the other, and which are not, and can not be, marked off from these by any clear line;" and further on he says: "As to this mode of appointment, being the exercise of a power essentially executive in its nature, it is sufficient to say that executive power can not always be defined by any fixed standard in the abstract. What would come within the executive power in our form of government, would fall within the legislative in another, and vice versa. The question here is whether, under our constitution, it is executive or legislative; and as the constitution has not confided the appointment of those or of the like officers to the executive authorities, and has left it to the legislative discretion, whether to create such offices, and how they shall be filled, it can not be truly said that such an appointment is any more in the nature of the exercise of an executive than a legislative power." In harmony with these decisions see State v. Constantine, 42 Ohio St. 441; People v. Woodruff, 32 N. Y. 364. There are decisions to the contrary-Taylor v. Commonwealth, 3 J. J. Marsh. 401; State v. Kennon, 7 Ohio St. 561; Achley's Case, 4 Abb. Pr. 35; [Fox v. McDonald.] State v. Noble, 118 Ind. 350, and other cases from that State. These Indiana cases give the question full discussion, and they appear to be the only well considered cases in support of their doctrine. Mr. Freeman, in an exhaustive note in 13 Amer. St. Rep., on p. 125, reviews all the authorities upon this subject, and states his conclusion from them in the following language: "The truth is, that the power of appointing or electing to office does not necessarily and ordinarily belong to either the legislative, the executive or the judicial department. It is commonly exercised by the people, but the legislature may, as the law making power, when not restrained by the constitution, provide for its exercise by either department of the government, or by any person or association of persons whom it may choose to designate for that purpose. It is an executive function when the law has committed it to the executive, a legislative function when the law has committed it to the legislative, and a judicial function, or at least a function of a judge, when the law has committed it to any member or members of the judiciary." What he has said meets with our approval. It is again objected that the act is unconstitutional in that it denies to the city the right of local self-government. This contention is based on the power given the probate judge to appoint the commissioners, and upon the further assumption that the act empowers him to appoint persons who are not members of the municipality, who do not reside within the city. There is no force in the objection so far as concerns the designation of the probate judge as the appointing power. We have reached the conclusion that the probate judge may lawfully appoint the commissioners. With that act his duties end. He takes no part in administering the city government. The case is exactly the same as if the appointing power had been conferred upon the Governor, instead of the judge of probate, and we apprehend it would not be contended in that case, that the local government of the city was for that reason interfered with. The persons appointed commissioners exercise the functions of government conferred upon them by the act, and not the person who appoints them. But the other proposition may deserve more serious consideration. Upon mature reflection, we do not deem it necessary to decide what the effect upon the act would be, in respect of its constitution [Fox v. McDonald.] ality, if the construction of the act thus assumed be the correct one; for, we reach the conclusion that it was not the intention of the legislature to authorize the appointment of persons who are not members of the municipal corporation for whose use the means of local government were, in part, being provided. The act is not carefully drawn. It is noticeable for the meagreness of its provisions, as well as the indefiniteness of some of those which are inserted. With this character, it is before us for construction. It is an act which relates alone to the local government of the city of Birmingham. Its controlling purpose, as all must know, was to provide an efficient enforcement of the police powers of the city. To this end, the legislature knew and intended that the commissioners to be appointed should be persons familiar with the govermental affairs of the city and the needs and wants of its police system, and who should be identified with the city's interest. The commissioners are required to exercise full direction and control of the officers and members of the police force. They are required to hold meetings at all times when the public interest of the city may require. They are required to exercise constant supervision of the conduct of the police officers and to prefer accusations against them for wrongs and delinquencies committed by them which would justify their suspension or removal. These duties, which manifest themselves as the moving causes of the enactment, unmistakably imply necessity for the appointment of persons resident in the city and interested in its welfare, and their constant presence therein, without which their duties could not be well performed. Suppose the probate judge had appointed residents of the county of Mobile, for instance, to manage the police affairs of the city of Birmingham, would any one suppose, or could it be legitimately contended, that the legislature intended by this act to confer any such authority? The answer would at once be, No! that the intention was that citizens of the municipality, to be affected by the legislation, be selected to perform these duties. Suppose, again, the legislature should create an office for the exercise of some State governmental function, and provide that the person to fill it should be appointed by the Governor, without providing that he should be a resident of the State, could it be contended that the Governor was em [Fox v. McDonald.] powered to appoint a resident of another State? and would the act be declared unconstitutional upon the assumption that, for that reason, it infringed local self government? We apprehend it would be at once construed that the Governor must appoint a resident of this State. Legislative enactments are always presumed to be of constitutional authority. It must clearly appear that they offend some provision of the constitution before the courts are authorized to set them aside. If a construction may be fairly indulged which will wrest them from the attack of giving offense to a constitutional limitation, that presumption shall be indulged. We are, therefore, of the opinion that the failure of the act to provide in express terms that the commissioners shall be residents of the city is due to legislative oversight, which is supplied by the general intention of the legislature that they shall be such, manifest upon the face of the act itself. It is again objected that the act is unconstitutional because, by its provisions, the terms of the present police officers are cut off, when that object is not expressed in the title. This contention may fairly raise the question whether, upon a proper construction of the act, the tenures of the present incumbents were cut off; but whether so or not, the parties have joined in a request that we construe the act and announce our opinion upon that question. It is a principle self evident, as well as declared in all the authorities upon the subject, that legislative enactments, and each and every provision therein, go into immediate operation, unless by force of some general law, or provision contained in the act itself, the operation is postponed to some future period or event; and the special provision which would create such postponement must be stated in express words to that effect, or in terms so clear and certain as to admit of no other rational interpretation. The principle of this strictness results from the obvious necessity that all men should know with certainty when our laws take effect.-Lane v. Kolb, 92 Ala. 636, 9 So. Rep. 873, and cases cited. Applying this rule to the act in question, and it can not admit of doubt that the act went into effect at least as early as the day of the first regular meeting of the Mayor and Aldermen of Birmingham, in January, 1893—the time fixed in the act for [Fox v. McDonald.] the appointment of the commissioners. There are no provisions which show, with the degree of certainty the rule requires, an intention to further postpone its operation. This is true, not only with respect to the act as a whole, but to each and every provision thereof. The result is, that the power of the commissioners to appoint the police officers immediately arose, and all authority of the Mayor and Aldermen over their appointment and retention in office ceased. The persons in office being in by virtue of the appointive power of the Mayor and Aldermen, the abrogation or withdrawal of that power, and the substitution of a new appointive power in another body, necessarily, ipso facto, annulled the tenures of their appointees, there being nothing in the act retaining them in office.-Lane v. Kolb, supra; State ex rel v. Board, 7 Neb. 42. The rule is analogous to that which obtains in reference to agency. When the authority of an agent, who is empowered to appoint sub-agents, is revoked by the principal, the authority of all existing sub-agents, so appointed, is likewise revoked.-Mechem on Agency, § 270. These principles are so undeniable that it is unnecessary to do more than state them. The conclusion here reached does not determine that the act is unconstitutional upon the ground alleged that the purpose to accomplish such a result is not clearly expressed in its title. The title is, "An act to establish a board of commissioners of police for the city of Birmingham, Alabama." This implies the insertion in the act of all powers reasonably necessary to an efficient administration of the police department of the city by commissioners, which obviously includes power in the commissioners to appoint police officers. Such power, as we have already shown, has the effect, in itself, of cutting off the terms of incumbents. It follows, logically, from these unassailable propositions, that the title of the act was sufficiently comprehensive in the particular in question.-Board of Revenue v. Barber, 53 Ala. 589. The next question arising is, What was the mayor's duty when McDonald presented himself for qualification? . This record shows that it does not admit of serious question that the mayor had most ample notice and knowledge, official and personal, of McDonald's appointment. It was competent and necessary for the commissioners to organize for systematic work, by electing a presiding and |