¶1The only point for consideration on this appeal is, was the governor authorized by law to make an appointment to supply a vacancy in the office of major-general in the National Guards, of the State of New York, during a recess of the senate. It is insisted, on the part of the defendant, that the governor derives such authority from section forty-two, title six, chapter five, part first of the Revised Statutes (1 R.S., 123), which is:
¶2"The governor may supply all vacancies that may happen during the recess of the senate, in any office to which an appointment shall have been made by the governor, with the consent of the senate, by granting commissions, which shall expire at the end of twenty days from the commencement of the next meeting of the senate."
¶3When this section became a law, major-generals of the militia were appointed by the governor, with the consent of the senate. (Constitution of 1821, art. 4, § 2.)
¶4They are so appointed now. (Constitution of 1846, art. 11, § 3; S.L., 1862, 894, § 49.)
¶5It is not questioned, by the counsel for the people, but what the section is still in force, but it is insisted that it does not *120 embrace the office of major-general. That presents the only question on which this case turns.
¶6This section is found in the first part of the Revised Statutes, which consists of twenty chapters, and was passed as one act, by the senate and assembly, on the 3d of December, 1827, and, on the same day, approved and signed by De Witt Clinton, then governor of the State (1 R.S., 715; S.L., 1827, pp. 1 and 2); which act is entitled "An act concerning the territorial limits and divisions, the civil polity, and the internal administration of the State." (1 R.S., 61.) It has the following preamble and enacting clause: "Whereas, it is expedient that the several statutes of this State, relating to its territorial limits, its civil polity, and its internal administration, should be consolidated and arranged in appropriate chapters, titles and articles; that the language thereof should be simplified, and that omissions, and other defects, should be supplied and amended; therefore, the people of the State of New York, represented in senate and assembly, do declare and enact as follows." (1 R.S., 61.)
¶7Then follow the twenty chapters, numbered from one to twenty. Each chapter is separately entitled.
¶8Chapter five is entitled "Of the public officers of this State, other than militia; their election or appointment; their qualifications and the tenure of their offices." (1 R.S., 95.)
¶9In this chapter is found the section under consideration. (1 R.S., 123.)
¶10Chapter ten is entitled "Of the militia and the public defence." (1 R.S., 284.)
¶11In this chapter, a section is found providing that the governor, with the consent of the senate, shall appoint all major-generals. (1 R.S., 287, § 1.) No provision is, however, made for supplying a vacancy in that office. But provision is made for supplying a vacancy in the offices of brigadier-generals and field officers. (1 R.S., 288, §§ 11 and 13.) December 4th, 1827, an act was passed, entitled "An act concerning the Revised Statutes passed at the present meeting of the legislature." (S.L., 1827, 2d session, chap. 9, p. 11.) *121
¶12Section one of that act is as follows: "The act passed at the present meeting of the legislature, entitled `An act concerning the territorial limits and divisions, the civil policy, and the internal administration of this State,' and divided into chapters, entitled as follows (then follows the precise entitling of each chapter), shall be known and distinguished as the first part of the Revised Statutes of this State."
¶13By section two of this act, chapter ten, entitled "Of the militia and public defence," is made to commence and take effect on the 1st of January, 1828.
¶14By section three, chapter five, entitled "Of public officers, other than militia, c.," was made to take effect on the 1st of January, 1829.
¶15It will be borne in mind, this is the chapter in which the section under consideration is found.
¶16December 10th, 1828, an act is passed, entitled "An act concerning the Revised Statutes." (S.L., 1828, chap. 20, p. 19.)
¶17By section five of this act, chapter ten, mentioned above, is declared to have commenced and taken effect on the 1st of January, 1828.
¶18By section eight of this act, chapter five, above mentioned, is made to commence and take effect on the 1st of January, 1830.
¶19It is urged, by the counsel for the people, that these several chapters, having been passed as one act, with the entitling over each, that the entitlings became part of the act, and are to be considered as such.
¶20He also insists that the entitling, over chapter five, showed clearly that said section forty-two does not embrace the office of major-general. As acts are usually entitled, the titles are no part of the act. In the Constitution of 1821, which was in force when this section became a law, there is nothing said in regard to the title of an act. In the Constitution of 1846, an enacting clause is required. (Art. 3, § 14.) Section 16, of the same article, provides, "That no private or local bill, which may be passed by the legislature, shall embrace more than one subject, and that shall be expressed in the title." This relates only to private and local bills, and does not *122 affect general acts. It is merely descriptive of the act, and entitled to no consideration, in construing the act, except in cases of doubt. In cases of doubt, and ambiguity, it may be referred to, in ascertaining the intention of the law makers. (Smith's Com., p. 698, §§ 556, 557, 558; 1 Kent's Com., 460, 461;United States v. Fisher,2 Cranch, 386.)
¶21The character of an act is determined by its provisions and not by its title. (The People v. McCann, 16 N.Y.R., 58.)
¶22It can hardly be said, that the titles to each of these chapters were enacted and became a part of the acts themselves, because they were placed and stood at the head of those chapters when the act was passed. They were placed there as titles, in the usual form, not as parts of the act. They stood there as descriptive of the several chapters embraced in the act. They did not purport to be, and were not, framed as parts of the act. They were, what they were intended to be, appropriate titles, having the same force, and effect, as titles to other acts. There is nothing in the act indicating an intention to give them any other force or effect.
¶23In the act of the 4th of December, 1827 (S.L. of 1827, chap. 9, p. 11), those titles are treated as descriptive of those acts, not as parts. It says: "An act concerning the territorial limits, …, divided into chapters, entitled as follows, …, shall be known," c. It does not say, the acts and titles shall be known, but says, "the act thus entitled shall be known." These titles, therefore, must be regarded as ordinary titles to acts. The title to the act, embracing the twenty chapters, is not inconsistent with the defendant's construction of this section in question, but the title to chapter five is. That indicates that such section has no reference to a military office.
¶24The section is not, of itself, ambiguous. The import of its language is obvious, but, when the body of this whole act is read together, a doubt is created; an uncertainty arises as to what this section embraces. Chapter five, in all its sections, (without referring to this one), refers to civil matters, and has no reference to military matters. Chapter ten relates exclusively *123 to military matters, and constitutes a complete militia system; provides for the election or appointment of all its officers; provides for the appointment of major-generals, with the consent of the senate; provides for supplying a vacancy in the office of brigadier-general, the next in rank below major-general, and does not provide for supplying a vacancy in the office of major-general. It is true, the office of brigadier-general was not filled by appointment of the governor, with the consent of the senate, and, therefore, did not come within this section.
¶25There is no commingling of civil and military affairs together, in these two chapters. They are as if drawn by different hands. It cannot be denied that a doubt arises, as to this section, in the body of this act. In that case, within well settled principles, it is proper to call in the aid of the title to this chapter, and read this section by its light. From that, we conclude, this section does not embrace this office. The fact, that chapter ten was made to take effect January 1st, 1828, and, chapter five, January 1st, 1830, also indicates that there was no relation between the subjects of the two chapters. I do not think it was an accidental omission. I think it was designed, and grew out of the popular fear, then existing, of placing too much military power in the hands of one man. Chapter 28 of the Laws of 1849, does not apply to this office. (People v. Snedeker, 14 N YR., 52.)
¶26The office of governor is a constitutional office. His powers and duties are prescribed by the Constitution and laws of the State. He is commander-in-chief, of the military forces of the State, made so by the Constitution and laws. The Constitution and laws prescribe what inferior officers there shall be; how they shall be elected, or appointed. He cannot create another or different office; he cannot appoint or cause to be elected, otherwise than therein prescribed.
¶27If I am correct in these views, the judgment should be affirmed, with costs.
¶28All the judges for affirmance. Judgment affirmed, with costs. *124