People ex rel. Unger v. Kennedy

The imprisonment from which the appellant seeks release by writ of habeas corpus herein arose under the following circumstances:

By chapter 548 of the Laws of 1912, of which the important provisions are summarized in the prefixed statement, the attempt was made to create the county

The important proposition of unconstitutionality of the act is that by the terms thereof the legislature in violation of the Constitution attempted to delegate to the people of the territory within the proposed new county the right by popular vote to determine whether said act should become or remain a law. The provision in the act on which this proposition is based provided that at the general election in November, 1912, there should he submitted to the voters of the borough of Bronx the question, “ Shall the territory within the borough of- the Bronx be erected into the county of Bronx ? ” and that if it should appear “that a majority of the votes cast on said question at said general election were against the erection of the county of Bronx, then this act should (shall) be inoperative and void.”

While it may be possible to dispose of this particular appeal without deciding this question of constitutional

The most forceful way in which the proposition of unconstitutionality can be stated is that adopted by Mr. Justice Ingraham in the prevailing opinion at the Appellate Division. It is there reasoned by him that the Legislature in effect provided that the act creating the new county should take effect at once and then by the provision just quoted enacted that the law might he repealed by or as the result of popular vote, and he assumes, of course with entire accuracy, that no court has ever held that the legislature could delegate to popular vote the right thus to repeal a statute.

That this statute is inartificially drawn there can be no doubt, and amongst its provisions are some which by themselves perhaps tend quite strongly to support the view of provision for repeal thus taken. These are the ones in words of present tense creating the county, providing that the act should take effect immediately and that in case of an adverse vote it should become “ inoperative and void,” and which are supported by the less consequential if more inexplicable ones for the assignment of terms of court and the appointment of a commissioner of jurors within thirty days after the act took effect.

I am inclined to think, however, that under the principles which not only permit but require us to take into account the entire act in construing its various provisions and to so interpret them if possible as to preserve rather than destroy the work of the legislature, we may adopt such construction as will save the act from destruction on the ground now under discussion.

The act itself as of the date of its becoming a law “erected” the county in question, but the meaning and effect of this provision are really little more than to define the county geographically as a basis for other steps. The other provisions of the statute for performance of those substantial acts, such as the election of county officials

The act by its terms provides that it shall take effect at once, but this means that it shall become a law at the date of its passage and does not prevent postponement of operation, as actually provided for, to a future time.

The clause of referendum contains both language which is opposed to the contention considered and also that which is somewhat unnecessarily inapt in its favor. The question to be submitted is, “Shall the territory within the borough of the Bronx be erected into the county of Bronx ? ” referring to the future as the time when the creation is to become effective. The clause giving effect to a vote is that in case of an adverse majority the act “shall be inoperative and void,” which savors somewhat of repeal. Again, however, the real meaning and intent of these provisions are reasonably clear, and are that the voters of the territory involved shall have a right to say whether they favor the erection of a new county, and .that if they do not the act shall not be carried into operation. Grouping together these and the other provisions we have, as I think, an act which may be fairly

By this interpretation we are brought to the broad and fundamental question whether the legislature may by statute intended to be complete and taking effect at once provide for the future erection of a new county and then permit the voters within the proposed territory before the date of actual creation to decide by vote whether the provisions of said statute shall be carried out and become operative.

In passing on this question in this case we are at all times to keep in mind two features of the enactment before us. In the first place the legislature passed a statute which became a law at once and which was complete in a legislative sense, however ambiguous and perhaps defective in details. It did not attempt to delegate to the voters the right and duty to determine whether the proposed enactment should become a law. While the line of distinction between delegating to voters to say whether an enactment shall become a law and delegating to them to say whether a law shall become operative might at times be a narrow one, it is one which is distinctly recognized by the cases hereinafter to be considered. In the second place the statute under consideration is not one of state-wide operation, but it only affects directly and substantially the people of a comparatively small territory, and it was to the voters of this territory most affected that the right was left to determine whether the act should become operative. I do not forget that it is urged in this connection that the people of the entire county of New York were interested in the question

The proposition that by our Constitution general powers of legislation are conferred exclusively upon the legislature and that this body may not escape its duties and responsibilities by delegating such legislative powers to the people at large, must be regarded as so thoroughly established that it needs no discussion. But because the case of Barto v. Himrod ( 8 N. Y. 483 ) is cited not only as a leading authority for this undoubted principle but also for the proposition that the present statute comes within its condemnation, consideration must be given to that decision for the purpose of bringing before our minds the exact facts involved and, therefore, the necessary limitations upon the scope of its authority.

In that case it appeared that the legislature had adopted an enactment entitled “An act establishing free schools throughout the state,” and had provided by one of the

Starting with and fully accepting the elementary proposition involved in and decided by the Barto case, we find that subsequent decisions have declared that the doctrine of that case should not be pushed beyond the question there involved and that the legislature may pass a statute which is a completed law affecting or conferring rights upon a restricted locality but to. become operative only in the event of an affirmative vote by the people of such locality.

In People v. Fire Ins. Assn. of Philadelphia ( 92 N. Y. 311 , 317), holding that the legislature might pass statutes to take effect upon the arising of a future contingency, it was specifically said that “ This court has steadily declined to push the doctrine of Barto v. Himrod beyond the point which it decided.”

In Bank of Rome v. Village of Rome ( 18 N. Y. 38 ) the court had before it for consideration and affirmed the

In Starin v. Town of Genoa ( 23 N. Y. 439 , 441) the act considered was one authorizing the town officers to borrow money and invest it in the stock of a proposed railroad corporation, with the provision that the officers appointed to do this should have no power to do it unless the written consent of two-thirds of the taxpayers had been obtained. In upholding the constitutionality of the act the court said: “The act * * * by its terms took effect immediately; but parties to be affected by it were at liberty to accept the privileges granted, and incur the burdens and obligations it would impose as their interest or will should dictate: and any one or more of the towns, referred to therein, could take the benefit of it, and make it effective as to themselves. "* * * It was * * * in all its material characteristics entirely different from the school law ” (involved in the Barto case).

In Clarke v. City of Rochester ( 28 N. Y. 605 ) the statute authorized the city of Rochester to subscribe for and become the purchaser of stock in a railroad corporation which was to terminate in the city, but contained the provision that the provisions of the act should not take effect until they should have been submitted to the electors at a special election, and, distinguishing such a statute from the enactment involved in the Barto case, it

In Bank of Chenango v. Brown ( 26 N. Y. 467 ) the court makes it plain that the doctrine of the Barto case is not to be extended and distinctly differentiates between the question there discussed and the one, very nearly akin to the present one, which arises where the legislature creates a municipal charter for a certain territory and then permits the people of that territory to determine whether the act shall take effect, and which latter provision it holds to be constitutional. Judge Emott, writing for the court, after referring to acts of the latter character, says (p. 475): “I perceive no difference whether the statute submits an entirely new charter, or amendments to an existing one, to the constituency to be affected. Either way the legislative action is complete and final, and the vote of the municipality is simply a determination of the expediency of their accepting the result of that action.”

In Stanton v. Board of Supervisors ( 191 N. Y. 428 ), which contains the last declaration of this court on this general subject, a statute was reached for consideration quite similar in its underlying principles to the present one. It was the provision of the County Law (Laws of 1892, chapter 686) relating to the change of site of a county seat, and providing that after such change had been approved by the board of supervisors the question of the proposed removal should be submitted to the electors of the county at the ensuing general election in the manner provided, and that if the majority vote should be in favor of such removal the proceedings of such board of supervisors should .be deemed ratified by the electors and the change made accordingly. In upholding this law the court, through Judge Haight writing the opinion, recognized the difference between enactments pertaining to the whole state and those pertaining

In addition to these and other more or less similar authorities the law is so familiar as to render any review unnecessary that the legislature may delegate to municipalities and restricted localities the right to determine whether they will act under or take advantage of statutes pertaining to such subjects-as municipal government and excise.

As the result of these controlling authorities in this state, we have the principle well established that while the legislature may not delegate to the people of the state the right to determine whether an enactment shall become a law, it may in cases like those specified permit the electors of a restricted locality to determine whether the provisions of a completed act passed by the legislature shall become operative or shall be taken advantage of. That is the underlying principle, and the question is whether it should be applied or extended to such a case as the present one. There certainly is no difference in the principle involved in permitting the electors of a city to determine by vote whether they will take advantage of an act allowing the municipality to invest in a railroad, or to the electors of a county whether they will make a given change in the county seat, or to the voters of a specified territory whether they desire that an act incorporating that territory as a municipality shall become operative, and the one before us permitting the electors of a restricted district to determine whether the provisions of an act erecting that territory into a new county shall be carried

Passing from decisions of courts of our own state, the view thus indicated is supported by authorities which while not controlling are still entitled to much consideration.

It has been frequently determined that an act creating or amending a municipal charter or granting municipal powers is not rendered unconstitutional because of a provision that the voters of the territory or municipality involved shall have a right to decide whether the act shall become effective. (Dillon on Municipal Corporations [5th ed.], sec. 69; City of Paterson v. Society, etc., 24 N. J. L. 385 ; State ex rel. Warner v. Hoagland, 51 N. J. L. 62 ; State ex rel. Dome v. Wilcox, 45 Mo. 458 ; Orrick v. City of Fort Worth, 114 S. W. Rep. 677 .)

In Commonwealth v. Judges of Quarter Sessions ( 8

Smith v. McCarthy ( 56 Penn. St. 359 ) seems to me to sustain precisely the principle invoked in the claim of constitutionality of the present act. It was there held that an act prescribing certain boundaries for the city of Pittsburg, which should include three sections of territory, and providing that the citizens- within each section should vote on the question of consolidation, and that only those sections whereof the vote was favorable should be brought into the corporation was not unconstitutional. It was said, “It is not unconstitutional to submit such a question to the people. We do not regard it within the principle which forbids delegation of legislative power. That is applicable to the creation of laws, which the law making power provided by the constitution must not delegate.”

Judge Cooley, in his “Constitutional Limitations” (7th ed. p. 163, etc.), after recognizing fully the general principle that the power conferred upon a legislature to make laws cannot be delegated, nevertheless asserts the constitutional power of a legislature to permit the people of a restricted territory in such a case as the present one to decide whether a completed act affecting them shall become operative. He says (p. 167) “ the question whether a county or township shall be divided and a new one formed, or two townships or school districts formerly one be re-united, * * * is always a question which may with propriety be referred to the voters of the municipality for decision.”

And the following cases, some of them on facts presenting almost the precise question here involved and all of them in opinions broad enough to coyer it, uphold the principle thus stated, some of them going farther than is necessary for that purpose. (Alcorn v. Hamer, 38 Miss.

Reaching the conclusion that the act is constitutional, I next proceed to an attempt to determine the meaning of its provisions with reference to courts and their sessions in and for the territory of the proposed county. Some of these provisions are so framed as to make their interpretation difficult. Starting with the assumption, however, as we are hound to, that the legislature did not intend to create a condition of confusion in judicial proceedings in the territory in question, and taking into account the general purpose of the act and all of its provisions bearing on this subject, a permissible interpretation may be reached which will safeguard the interests of the public.

Some of the provisions bearing on the subject are entirely plain. The status and jurisdiction of certain City Courts in the city of New York are preserved without disturbance or change. The two courts of countywide jurisdiction in the proposed new county, the County Court and the Surrogate’s Court, do not come into existence until January 1, 1914. The terms of various officials who will be essential to the administration of any courts in the new county, the district attorney and the sheriff, as well as the county judge and the surrogate, will not begin until January 1, 1914, and no permanent quarters for the holding of courts can be established in said proposed county until after said date.

With these provisions in mind we pass to the consideration of section 9, which especially deals with this subject.

By the limitation at the end of the sentence we are expressly authorized to look at the remainder of the section for the purpose of settling this as well as other questions. For purposes of plainness transposing, but not at all altering the language of, these remaining sentences, we have the section providing “ that the several courts within the county of New York and within the first judicial district of the supreme court of the state of New York shall have and retain the jurisdiction of all actions, proceedings and matters that shall have been rightfully commenced in said courts prior to the said first day of January, nineteen hundred fourteen, (and) until the first day of January, nineteen hundred fourteen the said courts of the county of New York and in the said first judicial district shall retain and exercise in all civil and criminal proceedings the same jurisdiction they now have, and the several courts of the county of Bronx having criminal jurisdiction on and after the first day of January, nineteen hundred fourteen, shall have the same jurisdiction of crimes, offenses and misdemeanors that shall have been committed in the said territory that the courts of the county of New York having criminal jurisdiction now have in the county of New York, provided

In the first place, these provisions will bear the interpretation of a legislative intent to place terms of the Supreme Court held in and for the county of New York on the same basis as County Courts in respect of the retention of jurisdiction over the territory of the new county until January 1,1914. The language “ the several courts within the county of New York and within the first judicial district of the supreme court ” shall have and retain jurisdiction, etc., and that “ the said courts of the county of New York and in the said first judicial district shall retain and exercise jurisdiction, etc.,” is of itself broad enough to sustain this interpretation and which is not only in harmony with the general situation created by and existing under said act but as I apprehend may be necessary to the avoidance of great confusion. If the act does not mean that terms of the Supreme Court held in and for the county of New York were thus to, retain jurisdiction it must mean that from the time when the act took effect, whether the date of its passage or of its acceptance by popular vote, the Supreme Court should exercise jurisdiction in the proposed new county through terms of court held in and for said county and that the terms of court held in and for the county of New York would be without jurisdiction. As we are informed by the brief without dispute no terms of the Supreme Court have been assigned or provided for the new county. On the other hand, we can scarcely avoid assuming that between the time when said act took effect and the present time not only civil but criminal matters originating in the territory of the new county since the act took effect have been disposed of at terms of the Supreme

In the second place, passing the question just discussed, I think that the provisions which have been quoted justify the interpretation of the legislative intention that until January 1, 1914, terms of the Supreme Court held in and for the county of New York and what may be termed the County Courts of said county, consisting as far as I am aware of the Court of General Sessions and the Surrogate’s Court, should continue to retain and exercise jurisdiction over matters, actions, proceedings and prosecutions, civil and criminal, arising in, connected with or pertaining to the territory of the proposed new county in the same manner as they possessed and exercised jurisdiction over such actions, matters, proceedings and prosecutions at the time the act in question was passed. The provision that these courts should have arid “ retain ” jurisdiction of all such matters as should have been “rightfully commenced ” in said courts prior to the said 1st day of January, 1914, and that said courts should “retain and exercise in all civil and criminal proceedings the same jurisdiction they now have,” does not sensibly permit of any other interpretation. The power to said courts to ‘‘ retain ” jurisdiction after January 1, 1914, necessarily implies the right until that date to take jurisdiction of matters arising in or pertaining to the territory of the new county, which would naturally be tried or heard by courts sitting in and for said county, for if this jurisdiction was simply exercised on the basis of the county of New York as left after the new county was created, no provision for retention would be necessary. And the provision that the courts,of the new county on and after January 1, 1914, should have jurisdiction of offenses committed in said territory, provided proceedings should not have been rightfully commenced in any of the courts of New York county for the prosecution thereof, necessarily implies that until

It does not seem to me that any trouble arises as suggested through failure of specific provision with reference to grand juries but that it is a necessary implication that where courts in New York county were given continued jurisdiction of offenses, grand juries sitting in the same county would have corresponding jurisdiction. (Code of Crim. Proc. sections 223, 252.)

In view of these provisions and the other one that intermediate the election and induction into office of officials of the new county, the county officers of New York county shall continue to have their former jurisdiction, powers and duties in the territory of the new county, it is urged that this act violates the Constitution in providing for the discharge of duties by officials other than .those selected by the people of the territory in question. This objection again does not seem to me to be so serious as some of the others which have been discussed. While the new county was created to the extent of being territorially defined when the act was passed, it is not to become really organized until January 1, 1914. Until that time it will be passing through a process of construction and organization and will have no county officials, judicial or otherwise. Under these circumstances without considering whether it might otherwise be the law, I feel sure that the legislature had the right to provide for the temporary administration of justice in the proposed new county through the officials and courts of the county from which it was to be detached. It is difficult to per

We are all agreed that the act was not of a character which required its submission to the mayor of the city of New York. (McGrath v. Grout, 171 N. Y. 7 .)

In accordance with the views expressed I am led to the final conclusion that the grand jury of the county of New York had jurisdiction to indict, and the Court of General Sessions of said county jurisdiction to try, relator as was done and that his writ was properly dismissed and that the order appealed from should be affirmed.

I vote to affirm the order appealed from. The relator was convicted of murder in the first degree in the Court of General Sessions in October, 1912, and is in the state’s prison awaiting execution under that sentence. He seeks to be released on the ground that, by reason of chapter 548 of the Laws of 1912, entitled “An act to erect the county of Bronx,” passed April 19th, 1912, the General Sessions of the county of New York had no jurisdiction to try and punish him for his offense, which was committed in the territory set off from the county of New York and formed into the county of Bronx. In the determination of this appeal it is not necessary to pass upon the constitutionality of that statute. If the statute is unconstitutional and void, the Court of General Sessions of the county of New York clearly had jurisdiction of his offense, because in law there was no new county of the Bronx, while if the statute is constitutional, equally that court had jurisdiction, for it is expressly provided that until the 1st of January, 1914, the courts of the county of New York and in the first judicial district shall retain and exercise in civil and criminal proceedings the same jurisdiction which they previously had. The statute can

While concurring in the affirmance of the order, I dissent from so much of the opinion of Judge Hiscock, as holds the act of 1912, (Chap. 548), to be constitutional legislation. I think the effect of section 16 of that act was to delegate to the people of a portion of the territory affected a power, exclusively, legislative; namely, the power to declare whether the act of the legislature should be operative as a law. That section provides that, at the general election appointed to be held, the question was to be submitted to the voters: “Shall the territory within the Borough of the Bronx be erected into the County of the Bronx ? If it shall appear that a majority of the votes cast on said question at said general election were against the erection of the County of Bronx, then this act shall be inoperative and void. ” To state the proposition, in its broadest and mildest form, this was a division by the legislature with the people of the territory of a responsibility, with which the former was, exclusively, invested. Under the Constitution of the state, (Art. 3, sec. 1), the legislative power is vested in the senate and the assembly. When exercising that power by the enactment in question, the legislature, in precise terms, in the first section, partitioned off from the county of New York the territory known as the borough of the Bronx and “ erected (it) into the County of the Bronx as a separate and dis

In addition to the views I have expressed, and which need no more extended discussion to carry whatever force they may possess, I think the act is vicious, further, in the respect discussed, that, upon 'the assumption that the legislature might possess the power exercised in the enactment of section 16 of this act, the submission provided for should have been to the electors of the county of New York. The territory is taken from that county and all of the people within its borders are affected. But, if all the people were affected by the passage of the act, why may only a portion decide whether it shall continue to be a law ? Upon what principle, of law, or of politics, can we uphold such discriminative legislation ?

It seems to me that every consideration of wisdom and of sound policy demands that such loose legislation, as this act embodies, should be unsparingly condemned.

Cuddeback, Hogan and Miller, JJ., concur with Hiscock, J.; Willard Bartlett J., concurs with Cullen, Ch. J.; Gray, J., also reads opinion.

Order affirmed.