The opinion
Magie, J.
(dissenting). As I have been unable to reach the conclusion arrived at by my associates, I deem it necessary to express, as briefly as possible, the chief reasons which, in my judgment, justify me in dissenting therefrom.
I entirely concur in the view that, prior to the late amendments of the constitution, it was within the power of the legislature to pass any act prescribing a form of municipal government or delegating municipal powers, to take effect and be exercised only on the acceptance of the act by the municipality affected thereby. But for those amendments, such an act would now be beyond question.
The amended constitution now requiring all legislation respecting municipal affairs to be general, the first question presented, when such legislation comes to be considered, is, Whether it is, in itself, and without reference to the form of the enactment, a general law, within the constitutional meaning. Are acts, the provisions of which are only to be operative in municipalities which accept them, general, or are they special and local?
These amendments to the constitution were plainly designed to establish and maintain uniformity in municipal affairs. The ideal aimed at in adopting these restrictions and requirements was a uniform system of municipal law, which for all municipal corporations, or at least for appropriate classes thereof, should (1) fix therein a form of local government with like officers, selected in the same mode and performing the same duties, and should (2) delegate to such corporations like powers of legislation over specified subjects. Acts producing diversity, in either respect cannot satisfy these requirements.
That the required uniformity may exist, although there may be diversity in use, must be conceded. A municipality need not be compelled to exercise every delegated power. Laws giving authority to municipalities to pave streets, to build sewers, to regulate the sale of dangerous articles, &c., would not lack the required generality because one municipality might exercise, and others might neglect or refuse to exercise, the powers conferred. If the same powers are con *201 ferred to be exercised or not by each municipality, the uniformity intended will exist.
I further concede, that I am not able to perceive a substantial distinction, with respect to uniformity, between the direct delegation to a municipal corporation of powers of the character above indicated, to be exercised or not, and the delegation of the same powers, to be accepted or not, and, if accepted, to be exercised or not, by municipalities.
But legislation which deals with the form of municipal governments, in my judgment, differs widely and substantially from that which merely delegates powers to be exercised by such corporations.
Every existing municipal corporation possesses a form of government, by which the officers who are to exercise therein the delegated powers, the mode of their selection, and their powers and duties are fixed and prescribed. Acts which provide for different officers, or for officers differently selected, or for a different form of government, if operative only where accepted, will not produce uniformity. It is true that uniformity will result if every municipality accepts the proposed scheme, but if only one refuses, diversity continues. . Such acts only give an option to municipalities to retain their old, or to accept the new, scheme. If one act, offering one optional scheme of government, is general, then other acts, each of which offers another optional scheme, or one act, which offers several schemes of government, each to be operative only in the municipality which shall accept it, must also be pronounced general. Under such acts, it is true, that all municipalities might accept one scheme and uniformity would result. But the vice inherent in such legislation, which renders it obnoxious to the constitutional prohibition in question, consists in the option of a choice between an existing and a new scheme, or between one and another new scheme, whereby diversity is not only rendered possible, but provided for.
Let us consider how such acts would appear if, in obedience to the express mandate of the constitution, a general law regu *202 lating the internal affairs of municipalities had been passed, and were now in operation.
Such a law would provide for a uniform system of government for appropriate classes of municipalities, with like officers, selected in like modes and charged with like duties. It would also delegate to each of the class like powers of legislation on certain subjects, to be exercised by the people, or some legislative body representing the people. The law would, in itself, be complete.
Now, if afterward the legislature deemed that another subject ought to be committed to these local governments, an act delegáting to all of the class of municipalities power to legislate thereon would unquestionably be general, although every one of the class might not be required to legislate, and might not, in fact, legislate thereon.
And if a subsequent act conferred on the same class such a power, to be operative only when the voters of any one of the class should accept it, I think it might well be pronounced general, for no diversity of power would be thereby created. In the former case, the delegated powers may be exercised or not, as deemed best by those empowered to exercise them; in the latter case, the power delegated is accepted or not, as deemed best by the voters. Uniformity of power exists; any resulting diversity grows out of the use, or non-use, of the power. If accepted, a new power is added to those previously enjoyed, from which none are taken away. The option is not between one power already enjoyed and another proposed, but is only to accept, or not accept, an additional power.
But if the scheme of government, established by such a general law as we have assumed to have been passed, provided, for example, that the legislative body, and all other officers of the municipality, should be elected by the people; if, thereafter, one act was passed providing that, in each municipality which should accept it, the legislative body should appoint all other officers; and another act was passed providing that, in each municipality which should accept it, the mayor should nominate and appoint all other officers with *203 the advice and consent of the legislative' body ; and another act was passed providing that, in each municipality which should accept it, the mayor should appoint all other officers; or one act was passed comprising all these provisions, could such acts stand the test of this requirement of the constitution? For my part, I can discover no argument which could be made in support of the validity of such acts. They would, manifestly, break the uniformity established by the general law, and would permit and provide for a diversity which the clause in question was plainly designed to prohibit. If invalid under the assumed circumstances, such acts must be equally invalid now.
This conclusion is not at all opposed to the view taken in Paul v. Gloucester. As was lucidly shown in the opinion of Mr. Justice Van Syckel, the law then in question delegated one of the police powers—that of regulating or prohibiting the sale of intoxicating liquors—to political subdivisions of the state, and did not fail of being general because one county might regulate, and another might prohibit, such sale. In this view I entirely agree, but it does not lead me to support legislation which substantially differs in that it leaves to-municipalities an option—not to use, or to decline to use, a delegated power, but to adopt one or another of variant forms of government.
Such is the act before us, for it provides a partial scheme of government, variant from that now existing in cities, and permits each city to determine whether it will retain its old, or adopt the new, form. For this reason, I think the law obnoxious to the constitutional prohibition.
But if this view of the act in question were incorrect, and if the legislature may constitutionally empower municipalities to adopt one or another of variant forms of government, and so retain a diversity which, it was supposed, the constitutional amendments were designed to remove, then a further question is presented, viz., "Whether this act, in other respects, stands the constitutional test, and bears the character of a general law.
*204 There can be no dispute at this day as to what is general legislation under the constitution. All the cases agree on-, these propositions, viz.: that an act respecting municipalities will be general when it operates on all municipal corporations which, with respect to its purposes, have distinguishing char-, acteristics rendering such legislation appropriate to them and inappropriate to others; and that an act which appropriately •operates on some municipal corporations, but excludes from its operations others which have identical characteristics, and to wffiich legislation for the same purpose would be equally appropriate, will not be general, but limited and special.
In dealing with acts of this sort, the generality of which is disputed, the province of the court is to settle whether they apply to and operate upon the whole class of municipal corporations to which such legislation is thus appropriate. Whether the legislation is judicious'or likely to effect its purpose is wholly within the province of the legislature. Thus, if an act proposes a remedy for circumstances which are treated as producing evil results in municipalities, we cannot consider whether the evil is actual or the remedy likely to be effective. But if municipalities,.within which the same circumstances exist, and therefore the like evil (if it be an evil) results, and for which a like remedy is equally appropriate, are excluded from the operation of such an act, then the courts must pronounce it invalid because not general.
The predominant purpose expressed in this act is, to confer authority on the mayor of every city which adopts it to appoint all the principal officers who are now either otherwise appointed or elected by the people.
Let us test the generality of the act by reference to this alleged purpose:
It evidently involves a legislative determination that the present modes of selecting such officers either is in fact, or may be deemed by the voters in such cities to be, an evil, and the appointment of such officers by the sole act of the executive head of the corporation—the mayor—an improved plan.and a remedy for the evil.
*205 The act has therefore two aspects: it gives the power of appointment when the act is accepted, and it gives authority ■to accept. In both aspects it must be general and apply to every city. It must afford to each an opportunity to correct the assumed evil by accepting the new scheme, and securing .the benefit, of the new mode of appointment.
' In dealing with the act in question, it is obvious that we are not concluded by general phrases giving power to all cities to accept its provisions. For if, on examining the act and comparing it with the charters of cities (which are before the court), it is manifest that the act cannot apply, and was intended not to apply, to all cities, then it must be the duty of the court to declare its invalidity, however general its language may seem to be. An express limitation to some cities would unquestionably be fatal to its validity. If a like limitation results from its necessary and inevitable operation, it must be presumed to have been intended, and ought to be equally fatal.
The act before us requires the mayors of the cities which accept it to appoint city comptrollers, treasurers and collectors,, ■three tax commissioners, a corporation counsel, a corporation attorney, three street and water commissioners, four members ■of the board of finance, three commissioners of the sinking fund, three police commissioners, three fire commissioners and overseers of the poor.
The duties of some of these officers are defined in the act with some degree of particularity; the dukes of others are left undefined, except by reference to the duties of such officers in the cities accepting the act, or by inference drawn from the name of the office.
It is obvious, therefore, that the act does not establish a •complete scheme of municipal government. The evident intent is, that the act, wherever accepted, is to be operated with the form of government previously existing and prescribing official duties and functions. It is plain that any city accepting this act must contemplate continuing its municipal existence governed by its previously existing charter as modified *206 by this act. If in any case the terms of the charter and of this act are so incongruous and incompatible that an acceptance would leave no form of government capable of being practically operated, it is absurd to say that a city so situated has an opportunity to avail itself of the remedy provided by this act in respect to the selection of its officers. It is excluded therefrom quite as effectually as if it were excepted from its provisions by name.
I might here take up the details of this act and show what convinces my judgment that its provisions and omissions to provide respecting important and essential offices, place its proposed remedy beyond the reach of some, and render it incompatible with the municipal system of many cities.
But I deem it unnecessary to occupy more space. An examination of the act, and a comparison of its provisions with those of every city charter in the state, discloses that there is but one city which has the line of officers for which this act provides a new mode of appointment. In that city such officers, with identical titles, have powers and duties so defined that if this act is there adopted (as it has been), it makes a complete and congruous body of legislation. Every other city has a variant system, administered by officers having different titles, performing different duties and exercising different powers, and so absolutely incongruous with the system prescribed by this act, that, if adopted, it would be practically incapable of administration and execution therein. It could not, therefore, be adopted in any such city. •
The operation of the act is therefore necessarily limited, so far as its purpose is to give opportunity to cities to adopt the mode of appointment to office therein authorized, to that city alone with the charter of which it is congruous, and in which it is capable of execution, and is excluded from every other city in the state. The act could no more effectually produce his result, if it had openly declared what was plainly intended (and, indeed, openly recognized), that it was designed to operate in that city alone, and to be an amendment to its charter.
*207 Legislation which, couched in general terms, is by its conditions limited in operation to only a part of the class to which it professes to apply, may well be said to “ palter with us in a double sense.” Professedly general, it is. designedly special.
The result is, that I have felt compelled to the conclusion that the act in question is not within the power of the legis- , lature. , <
For affirmance—The Chancellor, Dixon, Garrison, Van Syokel, Brown, Clement, Cole, McGregor, Smith, Whitaker. 10.
For reversal—Magie.