Tan Brunt, P. J.:
Tbe question presented by this application for decision seems to be as follows: Is tbe superintendent of pubbe works of this State bound, under tbe Constitution and laws of this State, to make appointments of any persons employed in tbe care and management of tbe canals from tbe ebgible lists certified to him by tbe civil service commission as persons found quahfied for the place upon a competitive examination under tbe statute and rules relating to persons in tbe civil service of tbe State.
[184]*184IJpon the part of the defendants it is urged that among the powers conferred by the Constitution of the State upon the superintendent of public works is the power to appoint certain persons employed in the care and management of the canals, who shall be subject to suspension and removal by him; and that the power of appointment conferred by the Constitution is necessarily interfered with and abridged if the superintendent is limited in his power of appointment to one of the three names certified to him by the commission; or if a soldier appears upon the list, if his power of appointment is limited to this single person pursuant to the requirements of the civil service laws, and that his power of suspension and removal is also abridged or interfered with if, pursuant to the requirements of the statute, he shall be required to retain an appointee for three months in order to give him an opportunity of demonstrating that he is fitted for the position.
It seems to us that to make the superintendent of public works of this State, in his appointments, subservient to the civil service law would be a clear violation of the provisions of the Constitution creating the superintendent of public works, which confers upon such superintendent the absolute power of appointment and removal of certain persons employed in the care and management of the canals. It was evidently the intention of the Constitution that the superintendent of public works should be solely responsible for the care and management of the canals; that he should, therefore, have an undivided authority to choose his own employees. Prior to the adoption of this amendment to the Constitution in 1816, in regard to the superintendent of public works, the power therein conferred upon him was shared and the responsibility divided between various boards and offices. Great abuses had arisen, it was believed, because of this division of power and responsibility; and the object of this amendment was to concentrate this power in and fix the responsibility upon the single head of a department, to be known as the superintendent of public works. If the legislature, either directly or indirectly, have any right to interfere with the superintendent of public works, either in the performance of the duties devolved upon him by the Constitution or in the selection of all his appointees, then the object of this amendment of the Constitution has failed to effectuate the purpose for which it was enacted.
[185]*185The power given, to the superintendent is absolute. No language could confer the power in broader terms. The superintendent alone is to appoint, suspend or remove. He is to determine qualifications. As he is to be solely responsible for the work done, he is not to be allowed to shelter himself behind the excuse that he is not responsible because he could not select his own employees. By the rules of the civil service board the superintendent is bound to select one from three names specified by the civil service com mission; or, if a soldier happened to have passed the examination, then his name alone can be certified; the superintendent’s choice is limited to a single individual, and thus the appointing power becomes the civil service commission, who, if the applicant is a soldier, may certify only one person for appointment, and upon this certificate the superintendent must appoint. The superintendent must simply conform to their selection, and has no will of his own, nor can he exercise any judgment or discretion in respect to the matter. This would seem to take away from the superintendent the very power which the people by the amendment to the Constitution intended to confer upon him.
It is claimed, however, by the counsel for the relator, that the operation of the civil service law, instead of limiting the scope of selection, largely increased it, because the appointing officer himself may not only send for examination persons known to him or recommended to him, but the examination is open to all, and that it is not now necessary that the applicant for office should personally know the appointing officer, or that he should be pressed upon him by politics or personal friends.
In this statement, however, the counsel seems to have forgotten that, under the rules of the civil service commission, of all this host the superintendent is limited in his selection to only three, and in some cases to one, of the qualifications of whom he is not permitted to judge, but must appoint because certified to him by the civil service commission. The power of selection would thus be committed by this law to another body, and the superintendent would be simply the recording officer of their edicts. It may be true that by the operation of the civil service law, public officers are relieved in many instances from great pressure and importunity in the making [186]*186of appointments, but this fact in no way operates to restrict the provisions of the Constitution relating to the powers of the superintendent of public works, nor can this circumstance .modify what was the plain intent of the people in the adoption of the amendment of 1876 to the Constitution referred to.
It also appears manifest that his power of removal and suspension is trenched upon, if he is obliged to retain a candidate selected upon probation for three months. In fact, Ms power of appointment is limited and his power of suspension and removal restricted both by the provisions of the statute and by the rules and regulations adopted pursuant to the statute. But it is contended, on behalf of the relator, that the sixth section of article 5 of the Constitution must be read in connection with section 3. This section reads as follows : “ The powers and duties of the respective boards, and of the several officers in this article mentioned, shall be such as now are or hereafter may be prescribed by law.” Our attention is also called to a clause in section 18 of article 3 of the Constitution, which, after naming a large number of subjects on which' the legislature shall pass general laws, provides as follows: “And for all other case's which, in its judgment, may be provided for by general laws,” and these provisions, it is claimed, give the legislature discretion to pass general laws on every subject save those expressly excepted by the Constitution.
If this construction is to prevail, then it seems to have been an idle ceremony upon the part of the people, in their amendment of 1876, to have given constitutional powers to the superintendent of public works if such powers can be taken away by legislative action.
The grant of power to the superintendent was extraordinary and unusual. It became part of the orgamc law of the land, such organic law it having been always supposed up to the present time being beyond the reach of mere legislative action. The rule that amendments and additions to the Constitution must be read in connection with the whole instrument, and that they do not supersede any provision to which they are not repugnant, is undoubtedly well established, but the application of this rule in no way aids the position of the relator.
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Tan Brunt, P. J.:
Tbe question presented by this application for decision seems to be as follows: Is tbe superintendent of pubbe works of this State bound, under tbe Constitution and laws of this State, to make appointments of any persons employed in tbe care and management of tbe canals from tbe ebgible lists certified to him by tbe civil service commission as persons found quahfied for the place upon a competitive examination under tbe statute and rules relating to persons in tbe civil service of tbe State.
[184]*184IJpon the part of the defendants it is urged that among the powers conferred by the Constitution of the State upon the superintendent of public works is the power to appoint certain persons employed in the care and management of the canals, who shall be subject to suspension and removal by him; and that the power of appointment conferred by the Constitution is necessarily interfered with and abridged if the superintendent is limited in his power of appointment to one of the three names certified to him by the commission; or if a soldier appears upon the list, if his power of appointment is limited to this single person pursuant to the requirements of the civil service laws, and that his power of suspension and removal is also abridged or interfered with if, pursuant to the requirements of the statute, he shall be required to retain an appointee for three months in order to give him an opportunity of demonstrating that he is fitted for the position.
It seems to us that to make the superintendent of public works of this State, in his appointments, subservient to the civil service law would be a clear violation of the provisions of the Constitution creating the superintendent of public works, which confers upon such superintendent the absolute power of appointment and removal of certain persons employed in the care and management of the canals. It was evidently the intention of the Constitution that the superintendent of public works should be solely responsible for the care and management of the canals; that he should, therefore, have an undivided authority to choose his own employees. Prior to the adoption of this amendment to the Constitution in 1816, in regard to the superintendent of public works, the power therein conferred upon him was shared and the responsibility divided between various boards and offices. Great abuses had arisen, it was believed, because of this division of power and responsibility; and the object of this amendment was to concentrate this power in and fix the responsibility upon the single head of a department, to be known as the superintendent of public works. If the legislature, either directly or indirectly, have any right to interfere with the superintendent of public works, either in the performance of the duties devolved upon him by the Constitution or in the selection of all his appointees, then the object of this amendment of the Constitution has failed to effectuate the purpose for which it was enacted.
[185]*185The power given, to the superintendent is absolute. No language could confer the power in broader terms. The superintendent alone is to appoint, suspend or remove. He is to determine qualifications. As he is to be solely responsible for the work done, he is not to be allowed to shelter himself behind the excuse that he is not responsible because he could not select his own employees. By the rules of the civil service board the superintendent is bound to select one from three names specified by the civil service com mission; or, if a soldier happened to have passed the examination, then his name alone can be certified; the superintendent’s choice is limited to a single individual, and thus the appointing power becomes the civil service commission, who, if the applicant is a soldier, may certify only one person for appointment, and upon this certificate the superintendent must appoint. The superintendent must simply conform to their selection, and has no will of his own, nor can he exercise any judgment or discretion in respect to the matter. This would seem to take away from the superintendent the very power which the people by the amendment to the Constitution intended to confer upon him.
It is claimed, however, by the counsel for the relator, that the operation of the civil service law, instead of limiting the scope of selection, largely increased it, because the appointing officer himself may not only send for examination persons known to him or recommended to him, but the examination is open to all, and that it is not now necessary that the applicant for office should personally know the appointing officer, or that he should be pressed upon him by politics or personal friends.
In this statement, however, the counsel seems to have forgotten that, under the rules of the civil service commission, of all this host the superintendent is limited in his selection to only three, and in some cases to one, of the qualifications of whom he is not permitted to judge, but must appoint because certified to him by the civil service commission. The power of selection would thus be committed by this law to another body, and the superintendent would be simply the recording officer of their edicts. It may be true that by the operation of the civil service law, public officers are relieved in many instances from great pressure and importunity in the making [186]*186of appointments, but this fact in no way operates to restrict the provisions of the Constitution relating to the powers of the superintendent of public works, nor can this circumstance .modify what was the plain intent of the people in the adoption of the amendment of 1876 to the Constitution referred to.
It also appears manifest that his power of removal and suspension is trenched upon, if he is obliged to retain a candidate selected upon probation for three months. In fact, Ms power of appointment is limited and his power of suspension and removal restricted both by the provisions of the statute and by the rules and regulations adopted pursuant to the statute. But it is contended, on behalf of the relator, that the sixth section of article 5 of the Constitution must be read in connection with section 3. This section reads as follows : “ The powers and duties of the respective boards, and of the several officers in this article mentioned, shall be such as now are or hereafter may be prescribed by law.” Our attention is also called to a clause in section 18 of article 3 of the Constitution, which, after naming a large number of subjects on which' the legislature shall pass general laws, provides as follows: “And for all other case's which, in its judgment, may be provided for by general laws,” and these provisions, it is claimed, give the legislature discretion to pass general laws on every subject save those expressly excepted by the Constitution.
If this construction is to prevail, then it seems to have been an idle ceremony upon the part of the people, in their amendment of 1876, to have given constitutional powers to the superintendent of public works if such powers can be taken away by legislative action.
The grant of power to the superintendent was extraordinary and unusual. It became part of the orgamc law of the land, such organic law it having been always supposed up to the present time being beyond the reach of mere legislative action. The rule that amendments and additions to the Constitution must be read in connection with the whole instrument, and that they do not supersede any provision to which they are not repugnant, is undoubtedly well established, but the application of this rule in no way aids the position of the relator.
It is also a primary rule of constitutional and statutory construction that the intent of the makers of the Constitution or law must [187]*187prevail in its construction, and that for the purpose of ascertaining such intention we may consider the cause or necessity for adopting the Constitution or passing the statute as well as other circumstances. (People ex rel. Wood v. Lacombe 99 N. Y., 43 and cases there cited.)
It has already been seen that the object of the amendment of the Constitution was to concentrate power and responsibility; to put the question of canal care and management beyond legislative control. With this object in view, constitutional powers were given to the superintendent of public works, and the necessary presumption is that, when power is conferred by constitutional 'provisions, with no explicit power of legislative interference, it was intended that there should be no legislative interference with such constitutional powers. The fact that the same instrument contains a general provision as to the powers and duties of the respective boards and of the several officers mentioned in the Constitution, that they shall be the same as they then were or hereafter shall be prescribed by law, in no way militates against this view, even if both clauses were adopted at the same time. But where the provision giving the constitutional power is interpolated by way of amendment, it is manifest that it was not the intention to confer this constitutional power as mere matter of form, which would be the case were it subject to legislative action.
It is further to be noticed that a large number of State officers and boards were provided for in this article, including the managers of the canal, and not a word was inserted therein as originally adopted with reference to the powers and duties of any of these officers or boards. The legislature was then given such control of the powers and duties of these boards by said section 6 as was necessary. But when the section creating the office of superintendent of public works was inserted a different policy was pursued and his powers and duties were regulated by constitutional provision, a deviation so marked from the previous condition of constitutional enactment that it must have been adopted for some good and sufficient reason. In support of the claim of the relator, attention is called to the case of Capen v. Foster (12 Pick., 485), in which the constitutionality of laws for the registration of voters and for ascertaining the qualifications of persons entitled to vote were sustained. The Constitu[188]*188tion of Massachusetts fixed the qualifications of voters but did not prescribe how these qualifications should be ascertained. By fixing qualifications to the exercise ef the elective franchise, it was abso-. lutely necessary that the qualification should be ascertained in some way, and the Constitution not having prescribed the method it was clearly within the power of the legislature to formulate the method.
In the case at bar no qualifications are affixed to the power of appointment conferred upon the superintendent of public works. It is absolute and unrestricted. The provisions of article 2, section 2, paragraph 2 of the Constitution of the United States is, in no respect, similar to the one under consideration. It is as follows : “ Congress may by law vest the appointment of such inferior officers as they think proper in the president alone, in courts of law, or in heads of departments.”
By this provision the whole subject is submitted to the legislative action of congress, and being so submitted the subject was under their control. If the provision had given the president alone the power of appointment and removal, then the cases would have been similar, but when the subject by the Constitution is referred to the legislative branch of the government for action, it necessarily confers power to act in the way which best accords with public interests .
By section 2 of article 6 of the Constitution the Court of Appeals is authorized to appoint its reporter, clerk and attendants. It was the evident intent of the framers of the Constitution that the court should be untrammeled in their selection. The appointees were persons coming into immediate contact with the court, charged with important duties and over whom it was necessary that the couid should have absolute and immediate control. Tins the Constitution gives and this the legislature cannot take away. The provision is precisely analogous to that relating to the superintendent of public works. The application of the relator must, therefore, be denied.
Beady, J., concurred.
Beady, J.:
My brethren have elaborately discussed the question presented upon this appeal, but differ in their construction of the constitutional provision involved. Section 3 of article 5, which created the [189]*189office of superintendent of public -works, declares that he shall be “ charged with ” the execution of all laws relating to the repairs and navigation of the canals and also of those relating to the construction and improvement of the canals, except so far as the execution of the laws relating to such construction or improvement shall be confided to the State engineer and surveyor. And further, that, subject to the control of the legislature, he shall make the rules and regulations for the navigation or use of the canals. This imposes upon him imperative duties and personal responsibilities as indicated by the words “ charged with.” The word “ charge ” is defined to be: “ To put upon as .a task or duty ; to overload; to burden; to commission for a certain purpose ; to intrust; to lay on or impose as a load or burden; as a task or duty, or trust.” (Worcester — Webster). His status is thus defined, and in order as well to enable him to discharge these duties as to prevent his shifting the responsibility for any failure in respect to them upon subsordinates appointed by another person, he was empowered to select his assistants and others subject to suspension or removal by him whenever in his judgment the public interest should so require. The section does not by any phrase suggest the control of the legislature over him except as to the rules and regulations for the navigation or use of the canals, which he is required to make.' JEhpressio v/wms est easolMsio alterms. By section 5 of the same article it is provided, it is true, that the powers and duties of the several officers mentioned in the article shall be “ such as now are or hereafter may be prescribed by law.” This must relate to other powers or duties that might be prescribed by law and not expressly conferred by.the Constitution itself. The power to appoint and suspend or remove had been conferred and no legislation on that subject was necessary. It was a gift from the higher law. It was an existing authority and therefore one of “ such as now are ” — prescribed by the organic law if, indeed, the provision has any relation to the power of appointment given him by section 3.
This power was in strict harmony with the intention to put upon him personally a faithful discharge of all the’ duties of his office, to accomplish which he was permitted to select the persons to assist him and to suspend or remove them, if necessary, for the public interest. I think the power is absolute and cannot, therefore, be [190]*190invaded by legislation. If it were otherwise, the superintendent would be held responsible for the defects of persons not chosen by him, in the sense of the Constitution, from the State at large, but from a few selected by others, and practically appointed by them, though indirectly. He cannot select from the applicants, but from those of them certified to him, and who might' or might not be fit for the position acquired, notwithstanding the certificate given.
I concur with the presiding justice.