Burke v. Kern

The objections, which are here presented for decision, to the validity of the amendment to the New York City Charter (effective January 1, 1938), will be considered seriatim against the background of the necessary facts.

On July 3, 1941, there was filed in the office of the Clerk of the City pf New York an initiating petition of proposed amendments to the City Charter to be submitted to the voters of the city. The purpose of this petition was to abolish the office of Sheriff and Register in each of the five counties within the city and transfer their duties and functions, except in small part, to new officers to be called the City Sheriff and City Register, who are to be appointed by the Mayor after competitive civil service examination. This initiating petition was signed by approximately 92,000 qualified electors.

In the general election held in the city on November 4, 1941, a proposition known, as Proposition No. 1 appeared in the following form on the voting machine: “ Shall the proposed amendment to the New York City Charter to reorganize county government by abolishing the county offices of Sheriff, Register, Register of Deeds and Registrar, creating the offices of City Sheriff and City Register, to be filled by appointment after competitive civil service examination, and assigning the functions of the offices thereby abolished to the City Sheriff, the City Register and the City Department of Correction, be approved? ” This proposition was adopted by a plurality of slightly less than 300,000 votes. At the same election persons having been duly nominated were elected to the offices which the above proposition was designed to abolish.

The plaintiffs are taxpayers of the city. They seek- to invalidate the above amendment to the New York City Charter, as unconstitutional and otherwise invalid, and bring this action to enjoin the Municipal Civil Service Commission from conducting an examination for the offices of City Sheriff and Register; the Mayor from appointing any persons to those offices; and to declare the officers

We pass at once to the merits of the objections urged.

The first objection urged against the validity of the amendment is failure to conform to the provisions of the State Constitution, in that the proposition was not properly enacted as a local law. The legislative power of the State is vested in the Senate and Assembly (State Const, art. HI, § 1). It may not delegate that authority to any other legislative body or to the electors except where the Constitution authorizes such delegation. Even then it may delegate legislative power only in manner and form permitted by the Constitution.

“ Direct legislation in cities must always rest on some constitutional or statutory grant of power. Government by representation is still the rule. Direct action by the people is the exception.” (Matter of McCabe v. Voorhis, 243 N. Y. 401 , 413.) Therefore, only within the framework provided by this County Reform Amendment (State Const, art. IX, § 8) may the delegated power be exercised. Within that framework, the objection is urged that action may be taken only by means of a local law enacted by the City Council which is the local legislative body. This objection fails to differentiate between a local law and the procedural method adopted for its enactment. This court, in considering what constituted a local law under this Home Rule Amendment, said “ No limitation is here found upon the method by which these local laws shall be adopted * * *.” (Matter of Mooney v. Cohen, 272 N. Y. 33 , 39.) The Constitution of the State does not provide in the Home Rule Amendment,, or the County Reform Amendment how

It is next urged that this amendment is void as embracing more than one subject, and as such violates not only the Constitution (State Const, art.. III. § 15), but also the

In applying the constitutional provision, the courts have formulated various tests, chief among which has been a limitation of the subject-matter to one subject, which, however, may embrace the carrying out of that subject-matter in various objective ways, provided the objectives are naturally connected with the subject-matter and the title could be said to apprise the reader of what may reasonably be expected to be found in the statute. (Conner v. City of New. York, 5 N. Y. 285 ; Village of Gloversville v. Howell, 70 N. Y. 287 .)

In Conner v. City of New York ( 5 N. Y. 285 ) the same objection as here urged was made to an act entitled “ An act in relation to the fees and compensation of certain officers in the city and county of New York.” The act affected the fees and functions of the Surrogate, County Clerk, the Register, and certain other officers named therein. This court held that there was no violation of the one-subject rule. The subject-matter was the change in compensation of these officers from a fee to a salary basis, which was expressed in the title. The objectives were the offices affected in the carrying out of this subject-matter. Separate bills were not required to carry out this subject-matter in reference to each of the offices named. Judged by the fore

Objection is urged to the amendment in that no provision was made for the elector who desired to abolish one office and not the other. The only plan submitted was to effect economy in the manner indicated. If the voter did not approve he disapproved of the plan as a whole.

It is next urged that the amendment in question violates article III, section 16, of the State Constitution, which prohibits the insertion by reference of an existing law rather than including therein the text in full. This objection arises from the fact that the functions, powers and duties of the old officers are assigned to the new. These provisions are similar to provisions invariably employed under like circumstances, which have been held valid by this court. In Curtin v. Barton ( 139 N. Y. 505 ) the purpose of the act was to establish a Municipal Court in the city of Syracuse in place of courts held by justices of the peace within the city, and to make applicable to the new court the jurisdictional provisions previously applicable to the Justices’ Courts. In rejecting the contention that this statute violated the same section of the State Constitution, the Court of Appeals held that all it was necessary to say was that the current of authority in the court has settled the question against the contention, citing People ex rel. Board of Commissioners v. Banks ( 67 N. Y. 568 ), People ex rel. New York Electric Lines Co. v. Squire ( 107 N. Y. 593 ), and People ex rel. Everson v. Lorillard ( 135 N. Y. 285 ). Respond

It is next urged that even though the amendment is not unconstitutional, it was not properly submitted because lacking in a sufficient number of signatures. This objection is based upon the claim that section 19-a of the City Home Rule Law overruled section 44, subdivision b; of the City Charter, and prescribed the only method by which a local law could be initiated by petition and ratified by the electorate. Section 44, subdivision b, of the Charter requires 50,000 signatures and, as already noted, tins petition contained upwards of 92,000. The City Home Rule Law (§ 19-a) provides that signatures must equal ten per cent of the total number of votes cast for Governor in the preceding election. This would require some 213,000. Section 19-a was enacted after the approval, of the Charter containing section 44, subdivision b, and, therefore, to the knowledge of the Legislature this section without further action was to become a law. Section 19-a is a general provision applying to the State as a whole. It, therefore, is subject to the legal principle that a provision applying generally to the State as a whole does not repeal by implication a special provision applying to a particular portion of the State. No expressed repeal of section 44, subdivision b, is contained in section 19-a. Moreover, section 33 of this same City Home Rule Law expressly provides that it was not intended to repeal by implication any existing provision

It is next urged that the amendment was not properly submitted to the voters. Section 45 of the New York City Charter provides that a proposition to amend the charter shall contain the title of the local law or a brief statement of the subject of the amendment, and that the City Clerk, with the advice of the Corporation Counsel, shall prepare an abstract concisely stating the title or subject and the purpose and effect thereof and forthwith transmit such proposition and such abstract to the election officers charged with the duty of publishing the notices and furnishing the supplies for such election.. It is further provided that “ A sufficient number of copies of such abstract shall be printed, delivered with the other election supplies and distributed to the electors at the time of the registration of voters and at the election.”

In the case at bar it is contended that section 45 was not complied with in two respects, (1) that a sufficient number of copies of the abstract were not printed, and (2) that additional abstracts were not delivered to the local boards of election on Election Day. The facts in this regard are stipulated by counsel as follows: Prior to the beginning of registration week, the Board of Elections in the City of New York caused to be printed 1,638,400 copies of the abstract of Proposition No. 1. The contract for printing also provided that further copies were to be furnished to

No additional copies were printed subsequent to the beginning of registration week, and no additional copies were delivered to the local Board of Elections on Election Day. On Election Day two sample facsimiles of the face of the voting machine were delivered with the other election supplies to each Board of Elections at the voting place. Each of these samples set forth Proposition No. 1 as it appeared on the voting machine.

Since in the city of New York personal registration is required of all electors, no elector who sought information lacked an abstract, since no requests went unheeded. For this reason the abstracts could only assist in more intelligent voting on Election Day and not as notice of the time and place of election. Since, however, no requests for these abstracts went unfulfilled, and facsimiles were present in all polling places, and the title of the proposition appeared on all voting machines, without which voting could not be had, it would appear that no further information was

It is. further urged that the amendment may not become operative until the expiration of the terms of the respective officers elected on the 4th of November, 1941. Plaintiffs claim that the officers so elected have the right to serve for four years commencing January 1, 1942. That contention ignores the fact that the amendment abolishing these offices takes effect on January 1, 1942. Article IX, section 8, of the Constitution authorized the city of New York to

Other objections are urged. We have examined them with care but they do not show sufficient merit to require detailed reasons for their rejection.

It follows that the judgments appealed from should be reversed and the complaint dismissed, without costs.

(dissenting). For reasons which seem to me fundamentally sound and which I shall briefly outline, I am constrained to dissent from the decision about to be handed down in this case.

The amendment (§ 1031) provides that “ there shall be a city sheriff who shall be appointed by the mayor after competitive examination conducted by the municipal civil service commission in accordance with the civil service law.” Section 1032 provides that the offices of sheriff of the counties within the city are abolished and that the “ functions, powers and duties of the said offices are assigned to the city sheriff, except as otherwise provided by sections six hundred twenty-three and nine hundred fifty-five-a of this charter.” Section 623 has to do with the functions of the Commissioner of Correction and 955-a (a new section) with the freezing in the new office of all civil service employees of the abolished offices. Section 1051 provides for a City Register to be appointed in a manner similar to the City Sheriff, and section 1052 for abolishing the offices of Register; Register of Deeds and Registrar in the several counties and the assigning of the functions of those offices to the City Register except as otherwise provided in section 955-a. The abstract of submission appearing on the voting machines and furnishing the only information to the electors concerning the proposal to be voted on read: “ Shall the.

Article IX, section 8, of the' Constitution provides, so far as material, that “ In counties in the city of New York the city of New York is hereby vested with power from time to time by local law, to -abolish the office of any county officer other than judges, clerks of counties and district attorneys, and to assign any or all functions of such officers to city officers, courts or clerks of counties, and to prescribe the powers, duties, qualifications, number, mode of selection and removal, terms of office and compensation of the persons holding such offices and the employees therein, and to assign to city officers any powers or duties of clerks of counties not assigned by this constitution.” That, is the only authority claimed for the power to submit the amendment.

That provision in the Constitution had no purpose to provide for the reorganization of county government. Except in the particulars mentioned in article IX, section 8, legislative power to provide for and regulate the organization and government of counties, including that of the five counties wholly included in the city of New York, rests exclusively in the State Legislature (Art. IX, §§ 2, 4). Nothing that could be done by the city under the provisions of article IX, section 8, could effectuate a reorganization of county government or permit a county to continue to function. Its purpose was primarily to enable the city of New York by appropriate legislation to abolish certain county offices as such and to transfer their duties and functions to city officers, courts or clerks of counties, which, as a part of the then existing city and county governments, would absorb and thereafter perform the constitutional and statutory functions of those certain offices in one or

Having that cardinal rule of construction in mind, a brief ■ additional, but not all inclusive, analysis will further indicate that the city far exceeded any power conferred by article IX, section 8, in its abortive attempt to reorganize the organization and government of the five counties of the city of New York. It confers power “ to abolish the office of any county officer.” Assuming, but not conceding, that the necessary legislative action may be taken by direct vote, the constitutional provision confers no power on the city at the same time to abolish functionally different groups of offices in five different counties. It confers no power to permit the voters in any one county unit to abolish county offices in another county unit. For example, the county of Richmond has no office of Register. No authority is conferred on the voters of Richmond county to abolish the offices of Register in the four other counties, even though they are the electors of the city unit for city purposes. It confers no power upon the city to group various county offices of the various counties within the city in such a way that it becomes impossible for electors of one county, which still exists and continues as a separate and distinct unit of government, to decide for themselves whether they desire to abolish a certain office within their own county. It is no answer to say that, if the voters in Kings wish to abolish the office of Register in that county but wish to retain its office of Sheriff, they can rid the county of the office of Register by doing what they do not wish to do by ridding the county of the office of Sheriff. How could any scheme be devised more surely to frustrate the will of the

The amendment here embraces more than one subject and is void (State Const, art. III, § 15; City Home Rule Law, § 13, subd. 3; N. Y. City Charter, § 36). This was the ground upon which the learned justice at Special Term

Notice required by section 45 of the Charter and section 18 of the City Home Rule Law of the submission of the amendment was not given. Those provisions of law required the preparation of an abstract of the amendment concisely stating the title, subject, purpose and effect thereof and its transmission to the election officers charged with the duty of publishing the notice of and furnishing the supplies for the election. It was mandatorily required that a sufficient number thereof be printed and delivered with other election supplies and “ distributed to the electors at the time of the registration of voters and at the election.” It may be assumed that a reasonably sufficient number of the abstracts were printed although the total number printed was not much more than one-half the number of electors entitled to vote. All printing and distribution to election boards occurred prior to the first registration day which was more than four weeks prior to the election. The abstract of this amendment was included and buried in the midst of a list of propositions amending both the State Constitution and the Charter. There is no showing that any of such abstracts were distributed to registrants. No copies of the abstract were delivered to the election officials on election day.

Furthermore, only an amendment to the Charter may be the subject of the process of initiative and referendum (Charter, § 44). But this is concededly not an amendment within the meaning of article IX, section 8. By the terms of the Constitution such a change in governmental structure can be made only by a “ local law.” Concededly, the making of such change was a legislative act. The framers of the Constitution did not define what was meant by the expression “ local law ” as used in article IX, section 8, nor lay down any method by which such a law might be enacted. However, the Constitution provides that the legislative power of the State is vested in the Senate and Assembly (Art. Ill, § 1). What is meant by a “ local law ” depends upon its definition at the time the Constitution was adopted, not upon some definition later formulated by the Legislature (1 Cooley on Constitutional Limitations [8th ed.], p. 124). We take the words used and give them “ not only their ordinary meaning but that which previous acts, measures and reports intended them to have ” (People v. Tremaine, 281 N. Y. 1 , 12). We may safely look to the City Charter which provides, not alone that all legislative power shall be vested in the Council, but that it has “ the sole power to adopt local laws under the provisions of the city home rule law or otherwise” (§ 21). That provision has been authoritatively construed to exclude amendments to the Charter- adopted other than as local laws by the Council (Report of New York City Charter Revision Commission, 1936; Tanzer’s New York City Charter, pp. 480, 488). Any other method of adopting a legislative act is the exception to the universally basic rule of legislating only by representative action. “ Direct legislation in cities must always rest on some constitutional or statutory grant of power ” (Matter of McCabe v. Voorhis, 243 N. Y. 401 , 413). Nowhere in the Constitution or

Many other interesting and important questions are raised and discussed in the exhaustive briefs submitted by counsel but, in view of what has been said above, they need not be considered.

The judgments appealed from should be affirmed, with costs.

Lehman, Ch. J., Loughran, Lewis and Desmond, JJ., concur with Finch, J., Rippey, J., dissents in opinion in which Conway, J., concurs.

Judgments reversed, etc.