Fisher v. Kelly

In 1927 the city of Buffalo,'in the exercise of powers conferred by the City Home Rule Law (Cons. Laws, ch. 76), adopted, by local law (Local Law No. 4, 1927, pub. in Local Laws, 1932, p. 21), a City Charter superseding its charter which had been enacted by the Legislature (L. 1914, ch. 217.) Article XIY of the new Charter defined the powers of the Department of Health and the powers, duties, qualifications, number, mode of selection and removal, terms of office, etcetera, of the officers and employees of the Department. The Common Council of the city in March, 1942, adopted a local law which purported to “ supersede and repeal ” that article and to “ substitute in place thereof a new article XIV.”

In article XIV of the Charter, as amended by the local law adopted by the Council in 1942, a “ commissioner of health,” appointed by the Mayor, subject to confirmation by the Council, and removable at any time by the Mayor, is substituted for the Board of Health as the head of the Department of Health. His duties are almost identical with the duties of the Board of Health as defined in the Charter of 1927. “ The commissioner of health shall exercise all the powers and be charged with all the duties now or hereafter conferred upon or required of local boards of health or local health officers by the laws of this state so far as the same pertain to cities, except, as limited or extended by the provisions of this act. The commissioner of health shall also possess such powers and perform such duties as may be prescribed by ordinance of the common council, by this local law or otherwise by law.”

The article as amended not only confers upon the Commissioner of Health the powers and duties previously exercised by the Board of Health but it abolishes that Board as previously constituted. It does, however, provide for an “ advisory board ” to be appointed by the Mayor for fixed terms, which is charged with the duty to “ advise the commissioner of health or the mayor upon matters pertaining to public health whenever requested by such commissioner of health or mayor.” In other respects the provisions of the new article XIV are similar to the provisions of the superseded

The Mayor of the city has declined to appoint a Commissioner of Health and to submit his name to the Common Council for confirmation, in accordance with the provisions of the Local Law of March, 1942, contending that the “ said local law is invalid, nugatory and void and beyond the power of the Common Council to enact ” and further that “ even if said local law be declared valid, it is not in effect until approved by the electors of the City of Buffalo after a referendum as required by section 15 of the City Home Rule Law.” The controversy has been submitted to the Appellate Division upon an agreed statement of facts. The court sustained the validity of the local law and held that no approval by the electors after a referendum is required by the City Home Rule Law. One of the justices dissented and voted “ for dismissal of the action on the ground that the local law in question is presumptively valid and that the Common Council is without jurisdiction or authority to institute an action to test the validity of said law.” ( 264 App. Div. 596 , 599).

The parties are seeking a judicial determination of a controversy which affects the government of the city of Buffalo and the protection of the health of the public. The controversy relates solely to the construction of the City Home Rule Law (L. 1924, ch. 363 as amd. by L. 1939, ch. 867) and of the Public Health Law (Cons. Laws, ch. 45; L. 1909, ch. 49), as thereafter amended. It depends upon no facts other than matters of public record, where there is no room for dispute. In the public interest the question should be authoritatively determined and the controversy speedily ended. We do not pause to consider technical objections which, perhaps, might be urged to the procedure and form in which the question has been presented to the Appellate Division, but proceed, as that court did, to consider the question on the merits.

The “ Power of cities to adopt and amend local laws ” is defined by section 11 of the City Home Rule Law. Within the field described in subdivision 1 of that section, “ such local laws may change or supersede any provision of an act of the legislature theretofore enacted which provision does not in terms and in effect apply alike to all cities.” Within the field described in subdivision 2

The Public Health Law is a general statute and relates to a matter of State concern but, like other general statutes relating to matters of State concern, not all of its provisions apply alike in all the subdivisions and to all the municipal corporations of the State. Article 3 of the statute and section 20 of that article are both entitled, “ Local boards of health.” Section 20 provides in part: “ There shall continue to be local boards of health and health officers in the several cities, villages and towns of the state except as hereinafter provided. In cities under fifty thousand population * * * the board shall consist of the mayor of the city who shall be its president, and six other persons * * *. In the cities, except cities whose charters otherwise provide, the board shall appoint, for a term of four years, a competent physician, not one of its members * * * tobe the health officer of the city, * * *. In villages the board of health shall consist of the board of trustees of such village. In towns the board of health shall consist of the town board. * ■* *”

Literal compliance by a city with all the provisions of the statute which we have italicized is possible only where the City Charter provides for a Board of Health with power to appoint and direct a health officer. Under the challenged local law the city of Buffalo will have no such Board. The problem here presented is whether those provisions of section 20, which require such a Board are intended to apply to the city of Buffalo. We are told by the plaintiffs that the words “ boards of health ” as used in the Public Health Law should not be construed literally as a description of a body consisting of several persons but rather as a description of any public health authority, whether a body consisting of several persons or a single officer. So construed it is said that the provisions of sections 20 and 21 of the Public Health Law are not changed or superseded by a local law which substitutes as head of the Department of Health of a city, a single officer appointed by the Mayor in place of a Board of Health with power to appoint and direct an executive health officer.

The words “ Board of Health ” are a descriptive term applicable to an official body consisting of several persons. For many years such an official body, organized in manner prescribed by the Legisture, was the official local health authority in the cities, villages and towns of the State, except where the Legislature in a City Charter provided a special form of organization for the local Health Departments Some cities, including the city of Buffalo, long ago had received charters from the Legislature which provided forms of organization of the Health Department which departed in some respects from the general pattern which the Legislature prescribed for the organization of the other cities of the State. Accordingly, when the Legislature adopted section 270 of the Laws of 1885, it provided in section 1 that: “ It shall be the duty of the common council, upon the nomination of the mayor of every city in this state,

In the Public Health Law as adopted in 1909 the same form of exception, “ except cities of the first and second class,” was again used and since Buffalo was a city of the “ first class ” there could be no possible question about its exclusion from the provisions of sections 20 and 21. Clearly the provisions of those sections, at least after the first sentence of section 20, applied to no cities except those of the third class, i. e. cities with a population of under 50,000 inhabitants.

Though in our opinion the first sentence of section 20, that “ there shall continue to be local boards of health and health officers in the several cities, villages and towns of the state ” is intended to apply to all the cities of the State, including Buffalo;

The form of organization of the Health Department of the City of Buffalo as provided in the local law is, as we have pointed out above, different from the form of organization provided in other portions of sections 20 and 21 of the Public Health Law for those cities which are included in the scope of these provisions. There is here no room for construction concerning the form of organization required in those cities which are included within the scope of these statutory provisions. There must be a board of health with power to appoint and direct an executive health officer. The question we must decide is whether or not these provisions apply to any city except cities with a population of under 50,000.

All cities of the first and second class were, as we have pointed out, expressly excluded from the scope of these provisions until 1929. “ In the cities, except cities of the first and second class, the

Nor does the City Home Rule Law require that the local law be approved by the voters of the city before it becomes effective. A local law which merely changes the form of organization of a department of the city, substituting as head of the department a single officer appointed by the Mayor in place of a board whose members were appointed by the Mayor, does not “ abolish, transfer or curtail ” any power of the Mayor within the meaning of the City Home Rule Law. (§ 15).

The judgment should be affirmed, without costs.

Lotjghran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgment affirmed.