Majority
p. 328The People ex rel. Thomas F. McGrath, Resp’t, v. The Board of Supervisors of Westchester Co., App’lt. The People ex rel. Jeremiah Clancy, Resp’t, v. The Board of Supervisors of Westchester Co., App’lt. The People ex rel. William H. McPherson, Resp’t, v. The Board of Supervisors of Westchester Co., App’lt. (Supreme Court, General Term, Second Department, Filed May 8, 1893.)
Headnote
Constitutional law—Supebvisobs.Chapter 54, Laws 1892, dividing the city of Yonkers into wards and authorizing the electors of each ward to elect a supervisor, is not violative of
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article 3, § 18 of the constitution. That provision was designed to limit the legislative power in the manner of electing supervisors by the vote of the electors, and not intended to deprive the legislature of the power to equalize representation by giving a supervisor too a ward of a city.
Appeals from orders of special term awarding peremptory writs of mandamus compelling the board of supervisors to recognize the respondents as supervisors of three wards in the city of Yonkers.
The relators below, the respondents here, seek recognition as members of the board of supervisors of the county of Westchester; the relator, McGrath, as supervisor of the third ward of the city of Yonkers; the relator, Clancy, as supervisor of the fourth ward of the city of Yonkers, and the relator, McPherson, as supervisor of the fifth ward of the city of Yonkers.
The conceded facts in the case are, that the city of Yonkers was incorporated originally in 1872, and its charter was re-enacted in 1881 by chapter 184 of the Laws of that year. The original and the new charter of 1881 gave the city but one supervisor. In 1892 the charter was amended by chapter 54, and the law applicable to this proceeding is § 4 of chapter 54 of the Laws of 1892, and reads as follows:
“ The elective officers of the city shall be a mayor, a city judge, four justices of the peace, who shall be elected by the electors of the city, and an alderman and a supervisor for each ward, who-shall be residents of and elected by the electors of their respective wards."
Under this law, the three political parties in thecity of Yonkers, republican, democrat and prohibition, nominated candidates for supervisor for the various wards in the city, and on March 29th an election was held, and the three relators were elected supervisors of their respective wards, and the result of the election was declared by the common council of the city, and certificates of election awarded to them. After taking the oath of office they presented themselves to the board of supervisors, and were refused admission, the supervisors deciding that the law under which they were incorporated was unconstitutional, and recognized as supervisor Jacob Bead, who had been elected at the town election in 1891, as the supervisor for the entire city. These proceedings were then instituted, and the orders directing a peremptory writ of mandamus issued, from which orders these appeals are taken.
W H. Robertson and Wm. Romer, for app’lt; Joseph F. Daly, for resp’ts.
By chapter 866, Laws of 1872, the legislature incorporated the city of Yonkers. By chapter 184, Laws of 1881, the charter was amended and passed as an entirety. Under each of these laws the city had but one supervisor. By, chapter 54, Laws of 1892, the legislature enacted that each ward of the city should have a supervisor. The relator was elected under this law, and the supervisors refused to receive him. The constitution provides that the legislature shall have no power to pass a private or
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local bill “'providing for the election of the members of the board of supervisors.” A supervisor is not one of the officers to be elected by the people,as provided in the constitution. Such officer could be elected by the towns and villages or of some division thereof, or appointed, as the legislature should direct. The general rule is that supervisors are elected by the people; and while additional supervisors have been provided for in cities, it is equally a general rule that they are elected by the wards or districts created therein by the legislature. The constitutional provision inserted in 1874 was designed to limit tlie legislative power in the manner of electing supervisors by the vote of the electors, and not intended to deprive the legislature of the power to equalize representation by giving a supervisor to a ward of a city. The legistors have acted on this view in numerous cases. The charter of cities has been frequently amended by creating or adding wards to cities and providing for the election of supervisors therein.
The charter- providing for one supervisor could be amended after the constitutional article was inserted without violating the same. Reed v. Schmit, 39 Hun, 223 .
The judgment should be affirmed with costs.
Pratt, J., concurs; Dykman, J., not sitting.