Rathbone v. Wirth

Decision Date27 October 1896
Citation150 N.Y. 459,45 N.E. 15
PartiesRATHBONE et al. v. WIRTH et al.
CourtNew York Court of Appeals Court of Appeals

OPINION TEXT STARTS HERE

Appeal from supreme court, appellate division, Third department.

Action by John F. Rathbone and George D. Miller against Jacob Wirth, Jr., and others, members of the common council of the city of Albany, to enjoin defendants from electing police commissioners in pursuance of the provisions of Laws 1896, c. 427, on the ground that such statute is unconstitutional. From a judgment of the appellate division, Third department (40 N. Y. Supp. 535), affirming a judgment in favor of plaintiffs, defendants appeal. Affirmed.

This action was brought to obtain a judgment which should perpetually restrain the common council of the city of Albany from electing police commissioners in pursuance of the provisions of chapter 427 of the Laws of 1896. The ground of the action is the unconstitutionality of the act, which was passed to amend chapter 77 of the Laws of 1870 and other acts relating to the police department of that city. The first section of the present act amends section 3 of the previous act, so as to make it read 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 entitle to vote for not more than two of such persons, and the four persons receiving the highest number of votes shall be such police commissioners. The common council shall not transact any other business until the said four police commissioners are elected. The commissioners so appointed shall hold office as such until the first day of February, eighteen hundred and ninety-eight. During the month of January, eighteen hundred and ninety-eight, and in each and every second year thereafter, the common council shall meet and proceed in like manner to elect four police commissioners, who shall hold office for two years from the first day of February following. If a vacancy shall occur in said board of police commissioners, otherwise than by expiration of term, it shall be filled by appointment by the mayor upon the written recommendation of a majority of the members of the common council belonging to the same political party or organization as the police commissioner whose office shall become vacant. No person is eligible to the office of police commissioner unless, at the time of his election, he is a member of the political party or organization having the highest or the next highest representation in the common council. The commissioners shall receive no compersation for any services performed by them under the provisions of this act.’ The other provisions of the act need not be quoted, in the view which is taken by the opinion. The supreme court, at special term and in the appellate division, has upheld the plaintiffs in their demand for an injunction, and certain of the defendants have appealed to this court.

Arthur L. Andrews and J. Newton Fiero, for appellants.

E. Countryman, Matthew Hale, and Albert C. Tennant, for respondents.

GRAY, J.

The learned justices who, at the special term and in the appellate division, have expressed their views of the unconstitutionality of this act, have done so with such throughness as to leave but little to be added to this very important discussion. Mr. Justice Parker, at special term, rested his determination of the question upon the ground that the act violates section 1 of article 1 and section 1 of article 13 of the state constitution; the former of which declares that ‘no member of this state shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers'; and the second of which declares that ‘no other oath, declaration, or test shall be required as a qualification for any office of public trust’ than the oath or affirmation prescribed in the constitution to be taken. Mr. 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 section 2 of article 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 to limit, or to control, the exercise of a power of appointment which the constitution has unqualifiedly conferred upon the local authority to be designated. If that be true, there is no occasion to consider other objectionable features, for the question then presented becomes one of surpassing importance to the citizens of the state. The constitutional provision, I repeat, is that ‘all city, town and village officers, whose election or appointment is not provided for by this constitution, shall * * * be appointed by such authorities thereof, as the legislature shall designate for that purpose.’ It is, of course, evident that the provision authorizes the legislature to confer the power of appointment 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 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 political institutions, which is expressly recognized as such by the constitution, and the permanency of which is guarantied therein, is deliberately trenched upon by the legislative body. What becomes of the right of the majority of the people in a locality to manage their own affairs, and to appoint their local officers, when that majority can have no advantage in the constitution of the board by numbers, or when the choice is limited to the members of a designated class? Is it not clear that the legislature has assumed to add to the power to designate the appointing authorities of the municipality the further power to designate the particular...

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