Burke v. Kern

• Decision Date: 10 December 1941
• Citation: 287 N.Y. 203,38 N.E.2d 500
• Parties: BURKE et al. v. KERN et al. (McGUIRE et al., Interveners).
• Court: New York Court of Appeals Court of Appeals

287 N.Y. 203

38 N.E.2d 500

BURKE et al.

v.KERN et al. (McGUIRE et al., Interveners).

Court of Appeals of New York.

Dec. 10, 1941.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Harold J. Burke and another against Paul K. Kern and others, constituting the Municipal Civil Service Commission of the City of New York, and another, to invalidate an amendment to the New York City Charter, abolishing the offices of sheriff and register of the counties within the City of New York and creating offices of city sheriff and register, and to enjoin the appointment of city sheriff and city register. Eugene J. McGuire and others intervened as defendants. From a judgment of the Appellate Division, 263 App.Div. 834, 31 N.Y.S.2d 1015, affirming a judgment of the Supreme Court, Kings County, Misc. , 32 N.Y.S.2d 303, Mr. Justice Hallinan presiding, entered pursuant to Civil Practice Rule 112, declaring the amendment unconstitutional and void and enjoining the appointment of a city sheriff, the defendants constituting the Municipal Civil Service Commission appeal.

Judgments reversed and complaint dismissed.

RIPPEY and CONWAY, JJ., dissenting. William C. Chanler, Corp. Counsel, of New York City (William S. Gaud, Jr., Seymour B. Quel, and Stanley Buchsbaum, all of New York City, of counsel), for defendants-appellants.

Abram Raff and Reginald S. Hardy, both of Brooklyn, for plaintiffs, respondents.

FINCH, Judge.

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 of 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, s 8, but the amendment was declared void because in contravention of the State Constitution, Art. III, s 15, and of the City Home Rule Law, Consol.Laws, ch. 76, s 13, subd. 3, and of a similar provision in the City Charter, s 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. III, s 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, 153 N.E. 849, 851. Therefore, only within the framework provided by this County Reform Amendment, State Const. art. IX, s 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, 4 N.E.2d 73, 74. 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, s 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 procedure for enacting local laws. City Home Rule Law, ss 2, 19-a; N.Y. City Charter, s 44; Mooney v. Cohen, 272 N.Y. 33, 4 N.E.2d 73;Johnson v. Etkin, 279 N.Y. 1, 17 N.E.2d 401. No difference can be discerned between a local law enacted within the Home Rule Amendment, State Const. art. IX, s 12, and under the County Reform Amendment, State Const. art. IX, s 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, 113 N.E. 516); 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, 25 N.E.2d 966, 127 A.L.R. 522.

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, s 15, but also the City Home Rule Law, s 13, subd. 3, and the New York City Charter, s 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, 88 N.E. 389. 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, 68 N.Y.S. 196.

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. Mayor, etc., of 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.’ Laws 1847, p. 560. 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....