Johnson v. Etkin

• Decision Date: 25 October 1938
• Citation: 279 N.Y. 1,17 N.E.2d 401
• Court: New York Court of Appeals Court of Appeals
• Parties: JOHNSON et ux. v. ETKIN, Cith Clerk, etc., et al.

279 N.Y. 1

17 N.E.2d 401

JOHNSON et ux.

v.ETKIN, Cith Clerk, etc., et al.

Court of Appeals of New York.

Oct. 25, 1938.

Action by Edward Johnson and wife against Simon Etkin, as City Clerk and Clerk of the Council of the City of Schenectady, New York, and Edna B. Johnson, his wife, to enjoin the submission of a proposed local law. From a judgment of the Appellate Division, 255 App.Div. 817, 7 N.Y.S.2d 67, entered October 17, 1938, affirming a judgment for defendants entered upon a decision of the court at a trial term without a jury, plaintiffs appeal.

Affirmed.

RIPPEY, J., dissenting. Appeal from Supreme Court, Appellate Division, Third department.

H. E. Blodgett, of Schenectady, for appellants.

James P. Boyle, of Schenectady, for respondent Citizens' Council for Proportional Representation of Schenectady.

Harry G. Coplon, of Schenectady, for respondent Schenectady Taxpayers' Ass'n.

Arlen T. St. Louis, of Schenectady, for defendants Simon Etkin, as City Clerk of Schenectady, et al.

CRANE, Chief Judge.

On November 6, 1934, the city of Schenectady adopted a simplified form of city government, known as Plan C, under chapter 444 of the Laws of 1914, as amended, also known as the Optional City Government Law. Plan C, Unconsol.Laws, § 585 et seq., gives to the city six Councilmen and a Mayor to be elected by the voters of the city. Section 25 of this law (McKinney's Unconsolidated Laws, book 65, p. 85, § 525) reads: ‘Should any one of the plans of government provided for in this act be adopted, the same shall continue in force and effect for the period of at least four years after the commencement of the terms of office of the officials elected thereunder, and no petition proposing a different plan shall be presented during a period of three years and six months after such adoption.’ Section 38, Unconsol.Laws § 538, makes the term of office of the Mayor and members of the Council under any of the plans four years. Section 87, Unconsol.Laws, § 587, reads: ‘All the legislative powers of the city, however conferred upon or possessed by it, are hereby vested in a board to be known as the ‘Council of the city of _____.’ * * * It shall be for all purposes the common council of the city.' Referring back to section 8, Unconsol.Laws, § 508, we find that all existing laws are continued in these words, ‘Except insofar as any of its provisions shall be inconsistent with this act, the charter of the city, and all special or general laws applicable thereto, shall continue in full force and effect, until and unless superseded by the passing of ordinances regulating the matters therein provided for; but to the extent that any provisions thereof shall be inconsistent with this act, the same are hereby superseded.’

The Councilmen, elected pursuant to Plan C adopted, began their term of office January 1, 1936.

The City Home Rule Law (Laws of 1924, ch. 363, § 11, as amended), enacted pursuant to article 12 of the Constitution of the State, provided that the local legislative body of a city shall have power to adopt and amend local laws in relation to the property, affairs or government of the city relating to the powers, duties, qualifications, number, mode of selection and removal, terms of office and compensation of all officers and employees of the city, etc. We held in Mooney v. Cohen, 272 N.Y. 33, 37, 4 N.E.2d 73, that the city legislative body, such as the Common Council in the present case, could amend the charter or revise the charter of the city in respect to these matters specified in the Home Rule Law. While this case dealt with a special act of the Legislature, yet we referred to section 20 of the City Home Rule Law which permitted a new charter to be adopted by the local legislative body of a city. This section reads: ‘A new charter may be adopted by the local legislative body pursuant to the provisions of this chapter, and subject to the procedure prescribed by this chapter. A new charter may also be adopted in any city pursuant to the provisions of this section.’ As this City Home Rule Law was enacted pursuant to power conferred by article 12 of the Constitution of the State, known as the Home Rule Amendment, it cannot be inconsistent with the Optional City Government Law, as amended, and the provisions must be harmonized, if possible.

We conclude, therefore, that the Council of the city of Schenectady would have power to amend and modify its charter even though Plan C of the Optional City Government Law was in effect, and could adopt the proportional representation scheme for electing its officials. Johnson v. City of New York, 274 N.Y. 411, 9 N.E.2d 30.

The point is raised by the appellant that no local law can operate if it is contrary to an act of the Legislature relating to the property, affairs or government of cities, applying to all cities alike. It is claimed that as the Optional City Government Laws gives to all the cities of the State the right to select any one of seven forms of government, that this is a general law within the meaning of the provision (§ 12, subd. 2) of the Home Rule Law. We do not so consider it. The Optional City Government Law is not binding upon all cities; only eight so far have chosen to come within it. It is optional. It may or may not become part of the city charters and is dependent for operation upon the electors of each city. This is not a general law, immediately effective and operative in all cities alike. It may operate in one city when adopted and not in another. Its effectiveness as a law-its force as a law is not general; it would only become general in effect when adopted by all cities in one form or another.

We, therefore, determine that the attempted amendment of the charter of the city of Schenectady by local law does not run counter to section 12, subdivision 2, of the City Home Rule Law.

By chapter 479 of the Laws of 1937, effective May 20, 1937, a new provision was added to the City Home Rule Law, known as section 19-a. Being too long to quote, I may summarize it by saying that a local law amending a city charter may be adopted in a manner therein provided. Qualified electors of a city in number equal to at least ten per centum of the total number of votes cast for Governor at the last gubernatorial election in such city may file in the office of the City Clerk a petition for the submission to the electors of the city of such a proposed local law to be set forth in full in the petition. The City Clerk shall transmit such proposed local law forthwith to the legislative body of the city. If this body fail to pass it or to submit it to the electors at the next general election, an additional petition may be filed with the Clerk signed by five per cent of the qualified voters who did not sign the original petition. Whereupon, the local law must be submitted to the voters at the next general election. The City Clerk must transmit it to the election officers charged with the duty of publishing the notice of such election. This law was complied with by the electors in the city of Schenectady.

On June 30, 1938, there was filed with the City Clerk a petition, signed by more than ten per cent of the qualified voters, which proposed a local law changing the number of city Councilmen to nine and the method of selecting the Mayor. The terms of these officials were also shortened from four to two years. This proposed local law does not conflict with section 25 of the Optional City Government Law, Unconsol.Laws, § 525, as the present officials will serve the four years under Plan C before the local law will go into effect, if adopted.

The Common Council having rejected the petition, an additional petition containing more than five per cent of the qualified voters was filed pursuant to this new section 19-a of the Home Rule Law, and the City Clerk is now required to transmit the proposed local law to the Election Commissioners of the county of Schenectady for submission at the next general election.

The plaintiffs here are taxpayers and they have brought this action to enjoin such submission, claiming, for the reasons above stated, that this proposed local law is or would be, if adopted, unconstitutional and that it also violates section 25 of the Optional City Government Law in that it has been presented during a period of three years and six months after the adoption of Plan C. As to this latter objection we may say that this period of three years and six months has reference to a petition to change from one of the seven city plans to another, and not to a modification of the charter under the Home Rule Law. Furthermore, Plan C we hold was adopted at the election of November 6, 1934, and the time of three years and six months commenced to run from that date. The plaintiffs say that it commenced to run from the time the officials took office, January 1, 1936, but it will be noted that when the Legislature had reference to such date, it so stated; the four years, for instance, during which the officials shall hold office under Plan C is ‘for the period of at least four years after the commencement of the terms of office of the officials elected thereunder.’ L.1914, ch. 444, § 25, Unconsol.Laws, § 525. This objection, therefore, made by the plaintiffs regarding the time limit is without validity.

For these reasons the judgment below should be affirmed, without costs.

RIPPEY, Judge (dissenting).

On June 30, 1938, under the assumed authority of the provisions of section 19-a of the City Home Rule Law (Laws of 1924, ch. 363, as amended by Laws of 1937, ch. 479), a petition was filed with the City Clerk of the city of Schenectady, for submission to and adoption by the Council of that city of a local law to amend the charter of that city ‘to provide for electing the Council by proportional represenation, and for that purpose defining the method and manner of nomination and election of Councilmen, the number of Councilmen, and their terms, and changing the method of...