Burke v. Kern

38 N.E.2d 500, 287 N.Y. 203, 1941 N.Y. LEXIS 1379

• Court: New York Court of Appeals
• Decided: December 10, 1941
• Status: Published

Opinions

Finch, J.

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 elected as above the duly elected officers for the ensuing four years. At Special Term it was held that the amendment was a local law within the meaning of the Constitution (Art. IX, § 8), but the amendment was declared void because in contravention of the State Constitution (Art. Ill, § 15), and of the City Home Rule Law (Cons. Laws, ch. 76, § 13, subd. 3), and of a similar provision in the City Charter (§ 36). The Appellate Division affirmed with one justice dissenting.

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 a local law shall be enacted. It placed upon the Legislature the duty of determining how local laws may be enacted. The Legislature has taken cognizance of this distinction by expressly providing in section 2 of the City Home Rule Law, which implemented the County Reform Amendment, that the term “ local law ” shall include enactment by petition and ratification by popular vote as provided in a city charter. The test of the validity of a local law is whether, within the field of legislation delegated to the city, it has been enacted in accordance with the provisions of the statute. The New York City Charter (§ 44) provides that an amendment to the charter may be adopted either by action of the local legislative body, or by vote of the electors of the city upon the petition of electors of the city, for the purpose of abolishing any elective office, including a transfer of powers to the newly created office or other disposition of such powers. Thus both the Legislature and the Court of Appeals have upheld the validity of this'jprocedure for enacting local laws. (City Home Rule Law, §§ 2, 19-a; N. Y. City Charter, § 44; Mooney v. Cohen, 272 N. Y. 33; Johnson v. Etkin, 279 N. Y. 1.) No difference can be discerned between a local law enacted within the Home Rule Amendment (State Const, art. IX, § 12), and under the County Reform Amendment (State Const, art. IX, § 8). The County Reform Amendment, by providing that in counties of the city of New York the city is vested with power by local law to abolish the office of any county officer, with certain exceptions not here material, and to assign the function of such officers to city officers, is directly applicable in the case at bar. The Sheriff from earliest times has been a county officer (Maitland, Constitutional History of England, p. 41; Matter of Grifenhagen v. Ordway, 218 N. Y. 451); and this is so even though these offices, being county offices, are thereby also state offices. (Finn v. City of New York, 282 N. Y. 153.)

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 City Home Rule Law (§ 13, subd. 3), and the New York City Charter (§ 36), all of which provide in substance that no local bill or law shall embrace more than one subject which shall also be expressed in the title. The purpose of this provision was to prevent concealment and surprise to the members of the Legislature and to the public at large, and to prevent legislative “ logrolling.” (Economic Power & Constr. Co. v. City of Buffalo, 195 N. Y. 286.) This is perhaps best illustrated by the occasion for the creation of this constitutional provision, which was added as a result of the success of Aaron Burr in persuading the Legislature to grant him a charter for a water company which had hidden among its provisions a clause enabling him to found a bank. (Matter of City of New York [Clinton Avenue], 57 App. Div. 166.)

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 going test and the authorities, the subject-matter in the case at bar was county reorganization, which was carried out in detail by the abolition of the county offices involved. This principle has often been applied in unquestioned legislation. An entire city charter or a form of county government may be the subject of a single enactment. An even closer analogy to the case at bar is that in 1912 the Legislature, by a single statute, created the new offices of Sheriff and Register of Bronx county and transferred to those newly-created offices the powers which the Sheriff and Register of New York county had formerly exercised in the territory constituting the new county of Bronx.

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 ents rely upon Matter of Becker v. Eisner (277 N. Y. 143), but there the situation was different. The statute in the Becker case did not abolish any existing agency and transfer its powers to a newly-created agency. On the contrary, the statute attempted to make automatically applicable to a different agency, namely, the Board of Higher Education, all the laws then appliable and which might be enacted in the future with reference to another continuing agency, namely, the Board of Education. In the case at bar, on the other hand, as in Curtin v. Barton (139 N. Y. 505), People ex rel. Board of Commissioners v. Banks (67 N. Y. 568) and other like cases cited, the principle is made applicable that reference to procedure and jurisdiction definitely established is not violative of the constitutional provision.

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 of law. Since the City Home Rule Law thus negatives any express or implied repeal of section 44, subdivision b, the objection is without merit. In addition, section 36 of the City Home Rule Law provides that all existing charters and local laws, so far as not inconsistent with this chapter, shall continue in force. Moreover, section 19-a, by its very terms, does not set up an exclusive method of enactment, since its opening sentence provides “A local law amending a city charter also may be adopted in the following manner.” The word “ also ” expresses a non-exclusive application. For all these reasons section 44, subdivision b, of the New York City Charter, which has the force and effect of a direct legislative act, is not in conflict with section 19-a of the Ciiy Home Rule Law.

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 the Board of Elections if required. No further copies were ever requested or obtained. On the opening day of registration week, there "were delivered to each local Board of Elections at the voting place hi each election district throughout the city, 400 copies of the abstract, together with instructions that if lacking in any of the above supplies, they were to notify immediately the commanding officer of the police precinct in order that he might send an officer to the borough office of the Board of Elections to obtain the additional supplies needed. Four hundred copies of this abstract were readily available to the electors throughout registration week at each of the polling places. In no case did any local board request additional copies of the abstract during registration week. A total of 12,800 copies of this abstract were delivered to the main office of the Board of Elections and its five borough offices, and kept on hand from the beginning of registration week until after Election Day. As stated in the stipulation, “ Throughout said period, any persons requesting copies of said abstract from said offices received same.”

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 desired. The statute provides merely that a sufficient number of copies of the abstract shall be printed. In view of the fact that only a proportion of the voters desired to exercise then privilege of voting for or against this amendment, namely, some 500,000 out of over 2,000,000 votes, it would appear that the Board of Elections, in printing 1,638,400 copies, or some three times the number of those voting on the proposition, was not negligent in the endeavor to supply a sufficient number of copies. Certain it is that this provision of the statute is directory only and in accordance with the stipulated facts there was substantial compliance with the statute. An election is void where the electors do not receive notice of the time and place of the election, and the Legislature, not the courts, must determine how each notice shall be given. (Town of Cortlandt v. Village of Peekskill, 281 N. Y. 490; Lane v. Johnson, 283 N. Y. 244.) The will of the electors can be expressed only where the electors have received notice of the election, and notice given in manner not authorized by the Legislature is without legal effect. The will of the electors expressed at an election, of which legal notice has been given, may not be defeated by the failure of officials to carry out directions intended to make the machinery of election more effective. The provisions of statutes intended for that purpose are directory rather than mandatory. In such case substantial performance of a statute is sufficient, and in some cases even failure to perform may be disregarded. (Salducco v. Etkin, 155 Misc. Rep. 361; 244 App. Div. 681; 268 N. Y. 606; People ex rel. Goring v. President, Vil. of Wappingers Falls, 144 N. Y. 616.)

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 abolish these offices. Moreover, this constitutional provision expressly designates those incumbents who may serve out their terms despite the action of the city under the provisions of this amendment, namely, the elective county officers who were in office at the time that article took effect. Article IX, section 8, took effect January 1, 1939. (State Const, art. XX, § 1.) Accordingly, the provisions quoted above, as applied, meant that the county officers who were in office on January 1, 1939, were permitted to fill out their then terms. Otherwise, this section vested the city with unconditioned power to abolish these county offices. Since by the amendment the city has chosen to make the abolition of these offices immediately effective on January 1, 1942, it follows that the offices will be abolished upon the taking effect of this amendment. The language used is capable of no other construction. The Legislature has power to determine its own policy with reference to a public office or a public officer. Exercising that right it may shorten or lengthen the term of the office or abolish it altogether, subject only to the restrictions, if any, contained in the State Constitution. (Koch v. Mayor, 152 N. Y. 72; Matter of Gertum v. Board of Supervisors, 109 N. Y. 170.) In accordance with the express language of the County Reform Amendment and the decisions of this court, these officials have no vested right in the respective public offices. They were elected so that, in the event the offices were not abolished, there would be incumbents for the offices.

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.