Macrum v. Hawkins

• Decision Date: 28 February 1933
• Citation: 261 N.Y. 193,184 N.E. 817
• Parties: MACRUM et al. v. HAWKINS et al.
• Court: New York Court of Appeals Court of Appeals

261 N.Y. 193

184 N.E. 817

MACRUM et al.

v.HAWKINS et al.

Court of Appeals of New York.

Feb. 28, 1933.

Action by Edward K. Macrum and others against Richard W. Hawkins and others. Judgment dismissing the complaint (141 Misc. R. 358, 252 N. Y. S. 546) was affirmed by the Appellate Division (235 App. Div. 370, 257 N. Y. S. 287), and plaintiffs appeal.

Reversed, and judgment granted in accordance with opinion.

Appeal from Supreme Court, Appellate Division, Second Department.

M. E. Harby, of New York City, for appellants.

Joseph Steven Frank, of New York City, and Guy O. Walser of Sayville, for respondents.

KELLOGG, Judge.

The board of supervisors of the county of Suffolk, consisting of ten members, on March 31, 1930, adopted a resolution establishing a county planning board, pursuant to the provisions of article 12-B of the General Municipal Law (Consol. Laws, c. 24 [section 239-b et seq.]), an article newly added thereto by chapter 539, Laws of 1925. The resolution, adopted by a vote of nine to one, named three of the members of the board of supervisors, to wit, Supervisors Warta, Neville, and Hildreth, to constitute the planning board. Prior to March 30, 1931, the three supervisors so named, acting as the planning board, having made their survey of county needs and determined upon plans to meet them, submitted their report to the board of supervisors. The report called for an expenditure by the county of $5,000,000, ‘upon a county wide improvement program.’ The sum of $3,350,000 was proposed to be spent in the construction of bridges and connecting roadways; the sum of $950,000 in dredging certain harbors; the sum of $600,000 on parks and parkways; the sum of $100,000 upon an addition to a county tuberculosis hospital. On March 30, 1931, the board of supervisors met and accepted the report of the planning board. At this meeting it was resolved that the improvements recommended should be made, and that bonds, in the sums and for the several purposes named, should be issued to provide moneys to execute them. Nine supervisors, including Warta, Neville, and Hildreth, voted for the resolutions, and one supervisor voted against. Later, on April 27, 1931, the board of supervisors passed a resolution slightly modifying the amounts allotted to each of the four projects, but not diminishing the total expenditure or total bond issue below $5,000,000, as previously determined upon. Again the vote was nine in favor of the amended project and one against, each supervisor voting as he had before. The appellant taxpayer attacks the legality of the entire bond issue proposed on the ground that the county could not create ‘a funded debt’ unless a resolution to that end were passed by ‘a two-thirds vote of all the members elected to the board’ (General Municipal Law, § 6), and that the resolutions now under attack were not so passed. In making this contention, it reasons that when Warta, Neville, and Hildreth became members of the county planning board they accepted incompatible offices, thereby ceasing to be members of the board of supervisors, so that the resolutions to bond received a vote, not of nine to one, but of six to one, which is not two-thirds of a total membership of ten.

Article 12-B, as originally adopted, provided: ‘Any county or counties and the cities, towns and villages in such county or counties may establish a regional planning board to consist of representatives of such county or counties and of such cities, towns and villages. The members of the board shall receive no salary or compensation for their services as members of such board.’ Section 239-b. The duties of the boards are thus described: ‘Said boards are hereby empowered to and shall study the needs and conditions of regional and community planning in such county or counties and prepare plans adapted to meet such needs and conditions, and shall, through such agencies as it may designate, collect and distribute information relative to regional and community planning and zoning in such county or counties, and the exercise of such powers is hereby declared to be for a public purpose and all moneys expended for such purposes are declared to be for municipal use.’ Section 239-d. The board is required to make a report, on or before January 1st in each year, to the Governor of the state, with its recommendations for legislation, if any. Section 239-d, as amended by chapter 314, Laws of 1927. It was not until 1932 that the article was amended to provide, in section 239-d, subdivision 2, that after adoption of the plans of the planning board by the board of supervisors, the plans should be binding on the latter board, and ‘no expenditure of public funds' should be made ‘except in accordance with such county plan.’ Chapter 137, Laws of 1932.

It will be seen that the members of the planning board were not required to take oaths of office or to file bonds; they were not to be appointed for definite terms; they were to receive no commission of office; they were provided with no official seal; they were to receive no pay for services rendered; they were to decide nothing; they were to perform no definite official act. Their only functions were to study ‘needs and conditions,’ to prepare plans to meet them, to collect and distribute information in regard to regional planning, and, finally, to make a report to the Governor of the state. The board of supervisors might have committed the same work of collecting information and reporting plans, required of a planning board, to a committee of its own membership, without establishing such a board. Surely the fact that the supervisors, instead of confiding the work to three of its members, as a committee of itself, chose to appoint the three to constitute a planning board under the statute, in order to do the identical work, did not make them independent public officers, whose functions, as such, were incompatible with the exercise of their functions as supervisors.

The argument that the three supervisors, when appointed to the planning board, accepted independent public offices, would defeat the very purpose sought to be attained. There are many authorities which hold that a member of a public board is not eligible to receive an appointment to an independent office at the hands of such public board. Thus members of a board of supervisors are not eligible to appointment by the board to the offices of drain commissioners: ‘Whether they voted for their own appointment does not affirmatively appear, but they had as much right to do so as the others had to vote for them.’ Kinyon v. Duchene, 21 Mich. 498, 499. The members of a board of health may not appoint one of their own number to the office of quarantine physician: ‘The first question is whether, under the ordinance, the board of health lawfully and properly could elect one of themselves to this office. We are of opinion that they could not.’ Gaw v. Ashley, 195 Mass. 173, 176, 80 N. E. 790, 791, 122 Am. St. Rep. 229. The board of directors of a county infirmary may not appoint one of its members to the superintendency thereof; when the board of directors is given authority to appoint a superintendent this ‘necessarily means that the person appointed shall be different from those who appoint.’ State of Ohio ex rel. Louthan v. Taylor, 12 Ohio St. 130, 134. To the same effect are State ex rel. v. Kearns, 47 Ohio St. 566, 25 N. E. 1027;Meglemery v. Weissinger, 140 Ky. 353, 131 S. W. 40, 31 L. R. A. (N. S.) 575;Wood v. Town of Whitehall, 120 Misc. 124, 197 N. Y. S. 789, affirmed on opinion below, 206 App. Div. 786, 201 N. Y. S. 959. Granted that the three supervisors were not eligible for appointment to the planning board, and that no such board came into existence, the validity of the resolutions of the board of supervisors would not in the least be affected thereby, since their legality was in no wise conditional upon the adoption of plans made by the planning board.

One of the resolutions adopted by the supervisors on April 27, 1931, recited the fact that the board had previously designated for construction ‘with moneys from the State Aid Fund’ certain described roads. One of the roads is described as ‘No. 44. North Haven-Shelter Island Road from a point on County Highway No. 911 running northerly across Shelter Island Sound to a point on County Highway No. 910, a distance of 0.70 miles in the Town of Southampton and 0.80 miles in the Town of Shelter Island.’ The other is described as ‘No. 45. Shelter Island Road from a point on County Highway No. 910 running northerly along Manhasset Road to Hay Beach Point, thence northerly across Gardiners Bay to Shipyard Road at Cleaves Point, thence northerly along Shipyard Road to the Greenport-Orient Point Highway, a distance of 3 miles in the Town of Shelter Island and 0.90 miles in the Town of Southold.’ A reference to the maps appearing in the record will show that road No. 44 was designed to connect Shelter Island, in Gardiners bay, at the easterly end of Long Island, with the mainland of Long Island on the south; that road No. 45 was designed to connect Shelter Island with the mainland on the north. This necessarily would involve, as the chief expense, the construction of two great bridges. Plans for these proposed bridges, which were adopted by the supervisors, are shown in the records. They indicate a bridge for road No. 44, which spans more than 2,000 feet of water, and is suspended from piers, 26 feet wide by 56 feet in height, set in 37 feet of water; for road No. 45, a bridge which spans more than 4,000 feet of water, suspended from piers 33 feet by 77 feet, set in 47 feet of water. The resolution also recites that the necessary cost of constructing road No. 44, including the bridge, will be $1,100,000; that the necessary cost of road No. 45, including the bridge, will be $1,900,000. The resolution then proceeds as follows: ‘Resolved, that in order to raise said amount of $3,000,000 for the above...