The opinion of the court was delivered by
By the act of 1891 (Pamph. L., p. 249; Gen. Slat., p. 465), thе mayors of cities of the first class were directed to appoint five persons as street and water commissioners — one for the term of three years, two for the term of four years and two for the term of five years — аnd, at the expiration of the term of service of each of these commissioners, others were to be appointed in their place for the term of five years. In 1894 (Pamph. L., p. 524; Gen. Stat., p. 465), a supplement to the preceding act was passed, the purpose of the supplement was to make the board elective instead of appointive, to at once end the terms of office of the then members of the board, and to provide for а temporary board until a charter election could be held. The present contest is between those claiming to be members of the board by virtue of an election under the supplement and those claiming by virtue of an appointment by the mayor under the act of 1891. The claim of the latter is asserted upon the ground that the supplement providing for an elective board is unconstitutional. The vice of the supplemental legislation, as it is insisted, is that it is special, in that it will not apply to cities hereafter growing into the first class.
The conclusion thus reached is based upon the аssumption that section 4 applies to all cities of the first class, but it may be further inquired, respecting section 5, whether it exhibits an intention that section 4 shall not apply to all cities of the first class. There can be no doubt that thе language of a void section may be used to ascertain the meaning of any other part of the statute. There is, however, no express language in section 5 which limits or modifies the language of any other section. If аny intention to limit the operation of section 4 can be found in section 5, it must arise by implication. The implication must spring from the presumption that in section 5 the legislature intended to provide for all elections to be held under the act, and therefore, inasmuch as it did not in that section make provision for any election to be held in future cities of the class, it must have intended that no such election should be held. The conclusion to be drawn frоm this implication, it could be argued, is that, in using the words “next charter election” in section 4, the
Having reached the conclusion that the provision for a permanеnt elective system under which the plaintiffs in error were elected is constitutional, we might, I think, stop, for unless it is clear that the legislature would not have passed the section providing for the permanent change if it had known that thе provision for temporary appointments was void, the latter can be regarded as a separable incident of the scheme. Assuming that section 2 (providing for an appointment), section 3 . (defining the powers of the appointed board) and section 6 (providing for the organization of such hoard) are unconstitutional, jet, as the board were to exist only until an election could be held, it is clear that the appointive was a mеre appendage of the primary elective scheme. Had an intention appeared to unnecessarily prolong the appointive period, and so, under color of its being an incidental feature, the legislature had made it a substantial feature of the legislation, it would have presented a very different aspect. The appointive feature was, in my judgment, a separable part of the legislation. This view is strengthened by a glance at the situation existing when the appointive sections are swept away. The original act in the first section provided that the mayor should appoint five persons as members of the board, and that he should fill vacancies. When the terms of the members of the board were
This results in a reversal of the judgment of the Supreme Court. •
For affirmance — None.
For reversal — The Chancellor, Dixon, Garrison, Fort, Swayze, Reed, Bogert, Vredenburgi-i, Vroom, Green, Gray, J.J. 11.