Martin, J.
The plaintiff, a taxpayer, brings this action, pursuant to section 51 of the General Municinal Law, to restrain the comptroller from paying to the defendants Goldsmith and Fontanelli any city money as salary as justices of the Municipal Court, appointed pursuant to the provisions of chapter 430 of the Laws of 1929, which added a new section known as section 4-a to the New York City Municipal Court Code (Laws of 1915, chap. 279). The basis for this action, as stated in the complaint, is that the act violates the Constitution of the State of New York and is void and of no effect, and that any acts of the comptroller in paying such salary will be illegal official acts, and a waste of the property, funds and estate of the city of New York.
The appellant contends that chapter 430 of the Laws of 1929 is clearly unconstitutional in its requirement of membership in a [248]*248certain political party. The provision referred to reads as follows: “ Any temporary justice appointed pursuant to the provisions of this section shall be a member of the same political party as the justice to whose office he has been appointed.”
It is also appellant’s contention that this law violates the Constitution in that it restricts the appointing power of the local authorities to the selection of a member of a certain political party.
■ The Constitution in effect forbids a requirement of political party membership as a qualification for such appointment. It provides (Art. 1, § 1) 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.” Article 13, section 3, entitled “ Oath of Office,” after setting forth the form of oath, provides: “ And no other oath, declaration or test shall be required as a qualification for any office of public trust.”
The question whether these provisions of the Constitution are violated by requiring political party membership as a qualification for appointment to public office was fully considered in Rathbone v. Wirth (6 App. Div. 277; affd., 150 N. Y. 459). In that case a statute (Laws of 1896, chap. 427) had been enacted creating a board of four police commissioners for the city of Albany, and providing 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.” The court held that the requirement of membership in a political party as a qualification for public office rendered the statute unconstitutional.
Judge O’Brien, writing for the Court of Appeals in that case, said: “ The Legislature of this State has no power to enact a law which proscribes any class of citizens as ineligible to hold public office on account of political belief or party affiliations, and, consequently, the last clause of the section of the bill in question violates the provisions of the Constitution referred to and is void.”
Judge Bartlett, in a separate opinion, said: “ The effect of this provision is to exclude from eligibility all persons who do not belong to one or the other of the great political parties of the country. This is the practical disfranchisement of a numerous class of citizens and violates the Constituí on.”
This statute not only requires that the appointed justice be a member of a certain political party but it restricts the mayor to the selection of a member of one political party. This restriction on the appointive power is sufficient to render the statute unconstitutional. (Rathbone v. Wirth, supra.)
[249]*249By chapter 430 of the Laws of 1929 power is given to the mayor and the president-justice selected by the mayor
Article 6, section 17, of the Constitution reads in part as follows: “ Justices of the peace, justices of the Municipal Court of the City of New York, and judges or justices of inferior courts not of record, and their clerks, may be removed for cause, after due notice and an opportunity of being heard, by such courts as are or may be prescribed by law.”
The Appellate Division of the Supreme Court has been given authority and jurisdiction under the Constitution of the State to entertain and dispose of charges presented against a justice of the Municipal Court of the City of New York in a proceeding to remove him from office, and the Legislature is without power to deprive said court of such jurisdiction. (Matter of Levy, 192 App. Div. 550; Code Crim. Proc. § 132.) The effect of chapter 430 of the Laws of 1929 is to provide for the removal of Municipal Court justices without notice and without a hearing and not by a court, but by the president-justice and mayor.
As pointed out by the appellant, suppose for example the mayor and his appointee, the president-justice, desire to have a certain justice of the Municipal Court removed, it would be a very simple expedient to urge his poor health as a pretext for his removal. No such power should be given to either the president-justice or the mayor. The consent of the justice or an examination and report from some board or body should be required before a justice should be compelled to relinquish the duties of his office because of disability.
Although it may be argued that the appointment of a temporary justice is for thirty days only, there is nothing to prevent a renewal of the appointment at the end of that time and thus continue such appointment indefinitely. Where such appointments have been allowed as proper, experience has shown that such a course is possible.
In People ex rel. Burby v. Howland (155 N. Y. 270) the court said: “ Not only is the office itself placed beyond the reach of hostile legislation, but also the term thereof, the method of filling it, and, by implication, the method of removing an incumbent. As was well said by the learned Appellate Division in deciding this case, ‘ when the Constitution has fixed the term of office and prescribed the cause for which and the method by which an incumbent of such [250]*250office may be removed, such cause and method are exclusive, and it is beyond the power of the Legislature to remove or suspend bfm from office for any other cause or in any other method.’ ”
The statute under consideration provides that the president-justice shall make a certificate setting forth the disability of the Municipal Court justice and that the public interest requires a temporary appointment in the place of a justice thus disabled. By this act the president-justice is given the arbitrary power, despite the objection of the elected justice, to say that such justice is temporarily disabled, and temporarily to remove him, by certifying that the public interest requires a temporary appointee to take his place. Such a course disregards the procedure which must be followed for the removal of a Municipal Court justice.
It is beyond the power of the Legislature thus to provide for the removal without cause of a justice who has been elected, before his term of office has expired, or even to replace him temporarily and select another to perform the duties of his office.
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Martin, J.
The plaintiff, a taxpayer, brings this action, pursuant to section 51 of the General Municinal Law, to restrain the comptroller from paying to the defendants Goldsmith and Fontanelli any city money as salary as justices of the Municipal Court, appointed pursuant to the provisions of chapter 430 of the Laws of 1929, which added a new section known as section 4-a to the New York City Municipal Court Code (Laws of 1915, chap. 279). The basis for this action, as stated in the complaint, is that the act violates the Constitution of the State of New York and is void and of no effect, and that any acts of the comptroller in paying such salary will be illegal official acts, and a waste of the property, funds and estate of the city of New York.
The appellant contends that chapter 430 of the Laws of 1929 is clearly unconstitutional in its requirement of membership in a [248]*248certain political party. The provision referred to reads as follows: “ Any temporary justice appointed pursuant to the provisions of this section shall be a member of the same political party as the justice to whose office he has been appointed.”
It is also appellant’s contention that this law violates the Constitution in that it restricts the appointing power of the local authorities to the selection of a member of a certain political party.
■ The Constitution in effect forbids a requirement of political party membership as a qualification for such appointment. It provides (Art. 1, § 1) 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.” Article 13, section 3, entitled “ Oath of Office,” after setting forth the form of oath, provides: “ And no other oath, declaration or test shall be required as a qualification for any office of public trust.”
The question whether these provisions of the Constitution are violated by requiring political party membership as a qualification for appointment to public office was fully considered in Rathbone v. Wirth (6 App. Div. 277; affd., 150 N. Y. 459). In that case a statute (Laws of 1896, chap. 427) had been enacted creating a board of four police commissioners for the city of Albany, and providing 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.” The court held that the requirement of membership in a political party as a qualification for public office rendered the statute unconstitutional.
Judge O’Brien, writing for the Court of Appeals in that case, said: “ The Legislature of this State has no power to enact a law which proscribes any class of citizens as ineligible to hold public office on account of political belief or party affiliations, and, consequently, the last clause of the section of the bill in question violates the provisions of the Constitution referred to and is void.”
Judge Bartlett, in a separate opinion, said: “ The effect of this provision is to exclude from eligibility all persons who do not belong to one or the other of the great political parties of the country. This is the practical disfranchisement of a numerous class of citizens and violates the Constituí on.”
This statute not only requires that the appointed justice be a member of a certain political party but it restricts the mayor to the selection of a member of one political party. This restriction on the appointive power is sufficient to render the statute unconstitutional. (Rathbone v. Wirth, supra.)
[249]*249By chapter 430 of the Laws of 1929 power is given to the mayor and the president-justice selected by the mayor
Article 6, section 17, of the Constitution reads in part as follows: “ Justices of the peace, justices of the Municipal Court of the City of New York, and judges or justices of inferior courts not of record, and their clerks, may be removed for cause, after due notice and an opportunity of being heard, by such courts as are or may be prescribed by law.”
The Appellate Division of the Supreme Court has been given authority and jurisdiction under the Constitution of the State to entertain and dispose of charges presented against a justice of the Municipal Court of the City of New York in a proceeding to remove him from office, and the Legislature is without power to deprive said court of such jurisdiction. (Matter of Levy, 192 App. Div. 550; Code Crim. Proc. § 132.) The effect of chapter 430 of the Laws of 1929 is to provide for the removal of Municipal Court justices without notice and without a hearing and not by a court, but by the president-justice and mayor.
As pointed out by the appellant, suppose for example the mayor and his appointee, the president-justice, desire to have a certain justice of the Municipal Court removed, it would be a very simple expedient to urge his poor health as a pretext for his removal. No such power should be given to either the president-justice or the mayor. The consent of the justice or an examination and report from some board or body should be required before a justice should be compelled to relinquish the duties of his office because of disability.
Although it may be argued that the appointment of a temporary justice is for thirty days only, there is nothing to prevent a renewal of the appointment at the end of that time and thus continue such appointment indefinitely. Where such appointments have been allowed as proper, experience has shown that such a course is possible.
In People ex rel. Burby v. Howland (155 N. Y. 270) the court said: “ Not only is the office itself placed beyond the reach of hostile legislation, but also the term thereof, the method of filling it, and, by implication, the method of removing an incumbent. As was well said by the learned Appellate Division in deciding this case, ‘ when the Constitution has fixed the term of office and prescribed the cause for which and the method by which an incumbent of such [250]*250office may be removed, such cause and method are exclusive, and it is beyond the power of the Legislature to remove or suspend bfm from office for any other cause or in any other method.’ ”
The statute under consideration provides that the president-justice shall make a certificate setting forth the disability of the Municipal Court justice and that the public interest requires a temporary appointment in the place of a justice thus disabled. By this act the president-justice is given the arbitrary power, despite the objection of the elected justice, to say that such justice is temporarily disabled, and temporarily to remove him, by certifying that the public interest requires a temporary appointee to take his place. Such a course disregards the procedure which must be followed for the removal of a Municipal Court justice.
It is beyond the power of the Legislature thus to provide for the removal without cause of a justice who has been elected, before his term of office has expired, or even to replace him temporarily and select another to perform the duties of his office. (People ex rel. Buriy v. Howland, supra.)
The Constitution requires that all Municipal Court justices be either elected or appointed, forbidding that they be partly elected and partly appointed. (Const, art. 6, § 17.) In obedience to the constitutional mandate, the Legislature has provided that all justices of the Municipal Court be elected.
This question was before the court in People v. Dooley (171 N. Y. 74). There the court said: “ Assuming that this section of the Constitution applies to the case at bar, we see no escape from the conclusion that the charter amendment of 1901 is unconstitutional. The mandate of the Constitution is that judicial officers in cities, whose election or appointment is not otherwise provided for, shall be chosen by the electors of such cities or appointed by some local authorities thereof. This language is plain and unequivocal. It presents two distinct alternatives. Either may be chosen. It must be one or the other. If the office is to be filled by appointment, the agency by which this is to be accomplished is broadly, yet clearly designated. If the officer is to be elected, the power of appointment is as plainly excluded. If this is not the fair and reasonable construction of this provision of the Constitution then it is within the power of the Legislature to authorize the employment of both methods at the same time, in the same territorial or civil division, or in different divisions, either to suit the caprice of a day or the exigencies of a political condition. If judicial officers of the same grade, performing the same duties in the same local division, may be appointed in part and elected in part at the same time, we shall not have long to wait for such use of the power as will serve [251]*251the selfish ends of the designing few at the expense of the public weal.”
! Although the law requires that justices of the Municipal Court must be elected in a certain district and are entitled to act as such justices for the term elected, this statute permits the president-justice to deprive elected justices of the rights given by such election. The rule has been to have a fixed and definite term of office. That fixed and definite term of office for Municipal Court justices has been provided for by statute. Having been fixed by statute, it is not within the power of the Legislature to interfere therewith in the manner set forth in the statute known as chapter 430 of the Laws of 1929. We are, therefore, of opinion that the provision which gives any such power to the president-justice or mayor violates the provisions of the Constitution.
The order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the motion granted.
Dowling, P. J., and O’Malley, J., concur; Finch and McAvoy, JJ., dissent.
See N. Y. City Mun. Ct. Code, §§ 1, 7, as amd. by Laws of 1928, chap. 614.