Johnson v. City of New York

• Decision Date: 02 June 1937
• Citation: 274 N.Y. 411,9 N.E.2d 30
• Parties: JOHNSON v. CITY OF NEW YORK et al. BOWE et al. v. COHEN et al.
• Court: New York Court of Appeals Court of Appeals

274 N.Y. 411

9 N.E.2d 30

JOHNSON

v.CITY OF NEW YORK et al.

BOWE et al.

v.COHEN et al.

Court of Appeals of New York.

June 2, 1937.

Action in the Supreme Court in and for Kings County by Loretta F. Johnson against the City of New York and others for a judgment declaring chapter 43 of the new charter of the City of New York, adopted at last election by vote of citizens of City of New York, unconstitutional and for other relief. From a judgment on an order of the Special Term for plaintiff, defendants appeal. Application for peremptory writ of mandamus in the Supreme Court in and for New York county by John E. Bowe and others against S. Howard Cohen, president, and others, as and constituting the Board of Elections of the, city of New York, and another. From an order of the Special Term (-- Misc. --, 294 N.Y.S. 833) in favor of defendants, petitioners appeal.

Decrees in accordance with opinion.

The action was brought by plaintiff, as a taxpayer of the city of New York, to restrain the defendants from carrying into effect the provisions of chapter 43 of the new charter of the city of New York, adopted by the electors of such city on November 3, 1936, providing for the election of city Councilmen by a system of proportional representation and for a judgment declaring such chapter unconstitutional.

The peremptory order of mandamus was sought to compel the defendants to conduct the election in 1937 of Councilmen for the city of New York pursuant to the provisions of section 22, subdivision b of the new charter of the city of New York.

RIPPEY, J., dissenting. Appeal from Supreme Court, Special Term, Kings County.

Appeal from Supreme Court, Special Term, New York County.

Paul Windels, Corp. Counsel, of New York City (William C. Chanler, Frederick V. P. Bryan, and Seymour B. Quel, all of New York City, of counsel), for appellants in action.

Walter M. Weis and Michael Potter, both of New York City, for City Fusion Party, amicus curiae, in action.

Edward S. Moran, Jr., of New York City, for respondent in action.

Abraham S. Gilbert, of New York City, Jackson A. Dykman, of Brooklyn, and Alfred J. Callahan, of New York City, for appellants in proceeding.

William J. O'Shea, John T. Dooling, Francis D. McGarey, Walter A. Lynch, Sydney Rosenthal, and Walter A. Smith, all of New York City, for interveners-appellants in proceeding.

Paul Windels, Corp. Counsel, of New York City (William C. Chanler, Frederick V. P. Bryan, and Seymour B. Quel, all of New York City, of counsel), for defendants, respondents, in proceeding.

A. David Benjamin and Gabriel L. Kaplan, both of New York City, for interveners-respondents in proceeding.

Albert S. Bard, Samuel H. Ordway, Jr., Bertha Rembaugh, Ira S. Robbins, Samuel D. Smoleff, Laurence Arnold Tanzer, Louis Waldman, George H. Hallett, Jr., and Wallace S. Sayre, all of New York City, for Citizens Union of the City of New York and others, amici curiae, in proceeding.

Thomas D. Thacher, of New York City, amicus curiae (David E. Austen, of New York City, of counsel), in proceeding.

CRANE, Chief Judge.

The people of the City of New York, at the general election in 1936, declared by their votes on the question submitted that they wanted proportional representation in the election of councilmen. This was chapter43 of the proposed new charter also approved at said election. This declared will of the people has been challenged as unconstitutional, and so decided by a Special Term of the Supreme Court held in Kings county. A Special Term held in New York county has declared it constitutional.

The proposition before us may be stated in the following way:

Assuming that the borough of Brooklyn is entitled to twelve councilmen, it is conceded by every body that the borough could be divided into twelve districts, and one councilman elected from each district. This would give Brooklyn twelve representatives in the council, and yet the people of Brooklyn had only voted for one out of the twelve. This is said to be legal, and this is the method insisted upon by the opponents of proportional voting. Remove the artificial lines creating the districts, and give Brooklyn the same twelve men in the council, it is said to be illegal if the people can only vote for one of the twelve. What is the magic in these artificial lines that creates such a difference in result with little or no difference in principle? If the borough be divided into districts the people can only vote for one of the twelve; if the district lines be removed they cannot vote for one of the twelve but must vote for all twelve. The only reason pressed upon us for this artificial distinction is that the Constitution says it must be, and this is final. I can find no such command in the State Constitution, and the authorities, so far as the matter has come into court, and the practice in electing supervisors and aldermen, the predecessors of councilmen, in New York City for over thirty years, has been to the contrary.

The State Constitution of 1821 (art. 2, § 1) did not give free and universal suffrage; neither did the laws preceding this Constitution. There were property qualifications entitling one to vote. This Constitution of 1821 reluctantly let go of this property qualification, as can be readily seen from the record of the debates. The voter was qualified if he had paid a tax assessed upon real or personal property or was exempted by law or had performed military duty or had been assessed to labor upon the public highways, and had performed such labor. Such an one was entitled to vote in the town or ward where he actually resided for all officers ‘that now are, or hereafter may be, elective by the people.’

These restrictions upon voting are to be found in article 2, section 1, of the Constitution of 1821.

The Constitution of 1826 amended this article and section by removing completely all disqualification of voters. The qualifications of being a taxpayer or of rendering public service were removed, the amended section reading as follows: ‘Every male citizen of the age of twenty-one years, who shall have been an inhabitant of this State one year next preceding any election, and for the last six months a resident of the county where he may offer his vote, shall be entitled to vote in the town or ward where he actually resides, and not elsewhere, for all officers that now are or hereafter may be elective by the people.’

No one can read the history of these changes in the early Constitution without realizing that the object of the change in the law made by these two Constitutions was to remove the disqualifications which attached to the person of the voter. Poverty was no longer to disqualify any male citizen over twenty-one years of age who had resided a sufficient length of time within the state and territory where he voted. The special class of electorate was abolished and all were treated on an equality.

This amendment of the Constitution of 1826 remains in the present Constitution of the state, with a few minor changes, as follows: In the Constitution of 1846 the words ‘shall be entitled to vote in the town or ward where he actually resides' were changed to ‘shall be entitled to vote at such election in the election district of which he shall at the time be a resident.’ I may add that the amendments to the Constitution of 1864 and 1874 made no changes in these qualifications. The present Constitution embodies all these changes but adds nothing and takes nothing away from the Constitution of 1826 upon the point which we are considering. It reads:

Article 2, § 1: ‘Every citizen of the age of twenty-one years, who shall have been a citizen for ninety days, and an inhabitant of this state one year next preceding an election, and for the last four months a resident of the county and for the last thirty days a resident of the election district in which he or she may offer his or her vote, shall be entitled to vote at such election in the election district of which he or she shall at the time be a resident, and not elsewhere, for all officers that now are or hereafter may be elective by the people, and upon all questions which may be submitted to the vote of the people.’

So much for the Constitution. The early laws relating to election, so far as pertinent here, may be referred to. Chapter LXI, Laws of 1801, provided: ‘That all elections for governor, lieutenant-governor, senators and members of assembly shall be by ballot, and that such elections shall be held in the cities of New York, Albany, and Schenectady, by wards, and in all other parts of this State by towns. * * *’ This method of voting was changed by the Laws of 1842, chapter 130, title II, section 12: ‘The elections in the several cities and towns shall be by election districts.’ This preceded the change that the voter must live in his election district, made by the Constitution of 1846.

These various provisions of the Constitution were before this court in Spitzer v. Village of Fulton, 172 N.Y. 285, 64 N.E. 957,92 Am.St.Rep. 736, where property qualifications were placed upon the right of a voter to vote upon a proposition to establish a system of waterworks at village expense. The contention was that the statute placing upon the voters these restrictions was unconstitutional because it was in conflict with the provisions of section 1 of article 2 of the State Constitution, which is quoted above. This court said: ‘The obvious purpose of that article was to prescribe the general qualifications that voters throughout the state were required to possess to authorize them to vote for public officers or upon public questions relating to general governmental affairs. But we are of the opinion that that article was not intended to define the qualifications of voters upon questions relating to the financial interests or private affairs of the various cities or incorporated villages of the state, especially when, as in this case, it relates to borrowing money or contracting debts. ...