Astwood v. Cohen

• Citation: 291 N.Y. 484,53 N.E.2d 358
• Parties: ASTWOOD v. COHEN et al.
• Decision Date: 06 January 1944
• Court: New York Court of Appeals

291 N.Y. 484

53 N.E.2d 358

ASTWOOD

v.COHEN et al.

Court of Appeals of New York.

Jan. 6, 1944.

Appeal from Supreme Court, Appellate Division, First Department.

Proceeding in the matter of the application of Henry K. Astwood against S. Howard Cohen and others, constituting the Board of Elections of the City of New York, wherein the Patrolmen's Benevolent Association of the City of New York and others intervened. From an order of the Appellate Division of the Supreme Court in the First Judicial Department, 266 App.Div. 957, 44 N.Y.S.2d 315, which affirmed by a divided court an order of the court at Special Term, Shientag, J., granting a motion by petitioner for an order under article 78 of the Civil Practice Act directing the Board of Elections of the City of New York to disregard initiative petitions and a proposed local law amending charter of the City of New York so as to provide for the payment of a salary bonus to the uniformed members of the Police and Fire Departments of said city, and to omit a referendum therefor from the official ballots and voting machines to be used at the general election of November 2, 1943, the interveners appeal.

Affirmed.

LOUGHRAN and DESMOND, JJ., dissenting. James H. Tully, Truman H. Luhrman and Gerald F. Swanton, all of New York City, for Patrolmen's Benevolent Assn. of City of New York and others, interveners, appellants.

Irving H. Saypol, Leo Kotler and Saul Kaplan, all of New York City, for William J. Allsop and others, interveners, appellants.

Daniel Wm. Leider, Nathan Witt and H. I. Cammer, all of New York City, for Greater New York Industrial Union Council, amicus curiae.

Paul Windels, Stewart W. Bowers and David B. Tolins, all of New York City, for respondent.

THACHER, Judge.

On June 2, 1943, there was filed with the City Clerk of the City of New York a petition for submission to the electors of said city of a proposed local law providing for the payment of a salary bonus to every policeman and fireman in said city. Following the provisions of section 19-a of the City Home Rule Law, Consol. Laws, c. 76, the City Clerk transmitted the proposed local law to the City Council, the local legislative body of the city. The City Council refrained from passing the proposed local law and from submitting it to the electors of the city for a period of more than two months, and on August 20, 1943, an additional petition was filed with said City Clerk requiring the submission of the proposed local law to the electors at the general election to be held in the year 1943. Thereafter the City Clerk submitted the proposed local law to the Board of Elections of said city.

This proceeding was commenced under article 78 of the Civil Practice Act to procure an order directing the Board of Electionsnot to print or cause said local law to be printed upon the official stationery, ballots and paraphernalia for use in said general election. Such an order was made at Special Term and affirmed in the Appellate Division, one justice dissenting.

All the formalities prescribed in section 19-a, which authorizes the amendment of a city charter by direct action of the electors, were complied with; there were more than sufficient signatures, both to the original and additional petitions, and neither the authenticity of the signatures nor the qualifications of those who signed is questioned. The procedural steps were taken in accordance with the provisions of section 19-a.

Objection is made by the respondents that the proposed local law, although designated as an amendment to the New York City Charter, was not such within the meaning of section 19-a of the City Home Rule Law. The appellants, however, insist that the proposed local law is an amendment to the New York City Charter within the meaning of this section. Both courts below held that it is not and we affirmed their decision, on October 22, 1943.

Relying upon section 31 of the City Home Rule Law requiring liberal construction of that law, it is argued that the Legislature has by the enactment of section 19-a granted the power to legislate directly concerning any matter which may properly be the subject of a local law. Liberal construction may not, however, ignore the legislative mandate that only amendments to the charter, as distinguished from other laws, may be enacted by the process of initiative and referendum. On the other hand, we do not regard the definition of a city charter in section 2 of the City Home Rule Law as limiting the amendments which may thus be adopted to those which affect structure only. Between these two extremes we must find the pathway of decision, not by generalization, but by application of the statutory test to the facts in each case. The facts which control will be found in the nature of the proposed local law and its relation to the provisions of a particular city charter. The most that can be said is that in the consideration of these controlling facts will be found the basis for determination as to whether in the particular case the proposed law is in truth an amendment of the Charter or is so far unrelated to the Charter as to be an amendment only in name.

In applying this statutory test to the New York City Charter it is important to bear in mind that the Legislature has sharply distinguished between the Charter of the city and the Administrative Code. In providing for the preparation and submission of the Charter, the Legislature directed that it should be a short form charter, setting forth the structure of the city government and the manner in which it is to operate. Recognizing the need for codification of the confused mass of laws affecting the city which could not be made a part of the short form Charter for submission to the electors, the Board of Estimate and Apportionment on May 24, 1935, made a special appropriation to the Charter Revision Commission for a study of all these laws and required that such study be kept separate from the work of revising the Charter. Report of Charter Revision Commission, New York City Charter and Administrative Code Annotated, p. x.

In the following year the Legislature created the Board of Statutory Consolidation to take over this work and directed the Board to prepare an Administrative Code which should harmonize with the Charter if a short form Charter should be adopted by a majority of the electors. L.1936, ch. 483. This Board was organized in June, 1936. Report of Board of Statutory Consolidation, New York City Charter and Administrative Code Annotated, p. xxxix. Section 951 of the Charter, approved at the general election in 1936, made provision for continuing all laws affecting the city not inconsistent with the Charter but only until the adoption of the Administrative Code as contemplated by chapter 483 of the Laws of 1936. The Charter took effect January 1, 1938. In December, 1937, the Board of Statutory Consolidation made its report to the Legislature, and on December 30, 1937, the Legislature, by a two-thirds' vote upon an emergency message of necessity, enacted the Administrative Code to take effect on January 1, 1938.

Thus it happened that New York City since January 1, 1938, has been governed by a short form Charter, setting forth the structure of the city government and the manner in which it is to operate, which was adopted by the voters of the city, and by an Administrative Code which was enacted by the Legislature as a codification and restatement of existing law ‘in harmony with and supplemental to the New York city charter’ L.1937, ch. 929. City Home Rule Law, section 19-a, was added by chapter 479 of the Laws of 1937, and the general revision of the City Home Rule Law effected by chapter 867 of the Laws of 1939 changed section 19-a only with respect to the procedure for submission of a ‘local law amending a city charter’ to the electorate.

In applying the statutory test to the proposed local law we must relate the law to the short form Charter of the City of New York and determine whether the law is in truth an amendment of the Charter or is merely labeled as such. The proposed local law in fact amends nothing in the Charter and the provisions of law which are amended are found in the Administrative Code those relating to policemen in section 434a 10.0 and those relating to firemen in section 487a 8.0. Granting a salary bonus to city employees is quite unrelated to any provision of the New York City Charter and the grant proposed in no sense alters or changes any provision contained in the Charter. The Charter makes provision of law for fixing the compensation to be paid to city employees, s 67. It also provides fixed salaries for the members of the Board of Estimate, thus relieving them of the necessity of fixing their own salaries, ss 3, 25, 81, 91. Because it was thought desirable that the Planning Commission should be a body as independent as possible, the salary of the chairman was fixed and the salaries of the members of the Commission could not be reduced during their terms of office. Report of New York City Charter Revision Commission, New York City Charter and Administrative Code Annotated, p. xxii; Charter, s 194. Similar prohibition against salary reductions was made with regard to the members of the Board of Standards and Appeals in order that this quasi-judicial Board should also be independent, s 661, subd. c. A fixed salary of $5,000 was also prescribed in the Charter for members of the City Council, s 25. Except as provided in the Charter or by statute, the power to fix all salaries was vested in the Board of Estimate, s 67. However, salaries fixed by statute may be increased by local law, provided the local law is approved by the Board of Estimate, s 39. These careful provisions were quite obviously designed to transfer to the Board of Estimate the administrative duty of fixing compensation to be paid to employees by the city. Inherently, the duty is administrative.

The proposed local law changes none of these...