McCabe v. Voorhis

• Decision Date: 22 October 1926
• Citation: 153 N.E. 849,243 N.Y. 401
• Parties: McCABE v. VOORHIS et al., Board of Elections of City of New York.
• Court: New York Court of Appeals Court of Appeals

243 N.Y. 401

153 N.E. 849

McCABE

v.VOORHIS et al., Board of Elections of City of New York.

Court of Appeals of New York.

Oct. 22, 1926.

In the matter of the application of Frank J. McCabe for a peremptory writ of mandamus, requiring John R. Voorhis and others, constituting the Board of Elections of the City of New York, to omit from the special ballot a proposition for submission of local law on referendum to electors. Order of Special Term denying the writ was affirmed by the Appellate Division (-- App. Div. --, 218 N. Y. S. --), and applicant appeals by permission.

Orders reversed.

See, also, 126 Misc. Rep. 118, 212 N. Y. S. 523.Appeal from Supreme Court, Appellate Division, First Department.

Louis Marshall and William D. Guthrie, for appellant.

George P. Nicholson, Corporation Counsel (Charles L. Craig and Edgar J. Kohler, Arthur J. W. Hilly, Russell Lord Tarbox, William E. C. Mayer, of counsel), for respondents.

Leonard M. Wallstein, for Citizens' Union of City of New York, amicus curiae.

John Godfrey Saxe, John F. Collins and Edward S. Dore, for Democratic County Committee of New York County, amicus curiae.

POUND, J.

The relator, a resident of the city of New York, instituted this proceeding for a peremptory order of mandamus as a duly qualified and enrolled voter or elector therein, to compel the defendants, the board of elections of the city, to omit from the special ballot for the general election on November 2, 1926, a proposition for the submission on referendum to the electors of the city of a local law adopted by the municipal assembly known as local law No. 16. The purpose of the law as summarized in the title is ‘to prevent an increased fare on rapid transit or street surface railways, without the approval of a majority of the electors of the city of New York.’ The law itself is much broader in its terms, and makes it unlawful for the board of estimate and apportionment ‘to adopt any resolution authorizing, or purporting to authorize any change in any contract or franchise for the operation of any subway, or rapid transit railway, or street surface railway in the city of New York, the purpose or effect of which is to increase the fare of five (5) cents now provided by law, or which grants to any operating company any preferential or bonus, or subsidy, or releases it from any of its obligations to render the service to the public required by any contract or franchise whatsoever * * * unless and until the proposal for the adoption of any such resolution shall have been first submitted to the people of the city upon a referendum, and approved by the affirmative vote of a majority of the qualified voters of such city, such referendum to be had at the first general election, after there has been filed with the city clerk at least ninety days prior thereto, a petition signed and acknowledged by qualified voters of such city in number equal to at least fifteen per centum of the total number of votes cast for Governor at the last gubernatorial election in such city.’

The act became a law on September 17, 1925, but under the provisions of section 15 of the City Home Rule Law (Laws 1924, c. 363), a local law which ‘abolishes, transfers or curtails any power of an elective city officer,’ with exceptions immaterial in this connection, becomes operative only when approved by the affirmative vote of a majority of the qualified electors of such city voting on such proposition. A nonoperative law is an anomaly, but the practice of adopting such legislation has the sanction of the court. Barto v. Himrod, 8 N. Y. 483, 59 Am. Dec. 506;People ex rel. Unger v. Kennedy, 207 N. Y. 533, 545,101 N. E. 442, Ann. Cas. 1914C, 616.

Pursuant to the provisions of section 18 of the City Home Rule Law, the proposition has been transmitted to the board of elections, which is charged with the ministerial duty of submitting local laws to the vote of the people.

The relator challenges the validity of this local law on various grounds hereafter considered. The defendants at the beginning question the right of the relator to maintain the proceeding. They rely on some expressions in the opinion in Schieffelin v. Komfort (212 N. Y. 520, 106 N. E. 675, L. R. A. 1915D, 485), to sustain their position. The ruling there was, however, that a citizen and taxpayer might not bring before the court for review in an action in equity the acts of another department of the state government simply because he is one of many such citizens and taxpayers. People ex rel. Daley v. Rice, 129 N. Y. 449, 29 N. E. 355,14 L. R. A. 643, and other cases which may be taken as typical, hold that a citizen and elector has a sufficient interest to make the application for an order of mandamus to compel the performance by a public officer of a public duty. This distinction is recognized in the Komfort Case and is not disturbed thereby.

[2][3] The question next arises as to the public duty of the board of elections. Unquestionably it must determine for itself whether the law is in form a local law and in fact properly transmitted to the board. It acts, not under the provisions of the local law itself, but under the provisions of the City Home Rule Law. Its authority is limited to the submission of such local laws as are adopted pursuant to that act by the municipal assembly. If what purports to be a local law has not been adopted 60 days before the election; if it appears to have no relation to the ‘property, affairs or government of the city,’ as defined and limited by section 11 of the law; if it is not on its face such a local law as shall be submitted for the approval of the electors under the provisions of section 15 of the law, the board may reject the proposition transmitted to it, and the courts will not compel it to perform an illegal act. A citizen and elector might obtain a mandamus order requiring it to perform its duty in such a case if it disregarded its duty and proceeded to submit such a defective local law to be voted on by the electors. Ordinarily the courts would go no farther. They would not decide the abstract question whether a law which on its face was adopted pursuant to the provisions of the City Home Rule Law was in conflict with the Constitution or some controlling act of the Legislature or in excess of the powers delegated to the municipal assembly. The decision of such questions might properly await an actual controversy between parties litigant over some action thereafter taken or refused. To nip all invalid local legislation in the bud would be a short and summary way of disposing of it, but the hazardous and inconvenient nature of such action, taken in the necessary haste of disposing of pre-election contests, makes it wise and expedient for the courts to refuse to intervene in advance of some threatened action. The rule is, however, one of prudence rather than one of power. Exceptional and extraordinary circumstances of a public nature may exist which would prevent such controversy from arising. So here the board of estimate and apportionment, if the local law were approved at the election, might refuse to permit a controversy to arise by refusing its consent to any change in the contracts or franchises affected, in the exercise of discretion merely which could not be judicially reviewed. If this proceeding is not entertained the question may never arise.

In People ex rel. Hotchkiss v. Smith, 206 N. Y. 231, 99 N. E. 568, the court decided the then abstract and academic question whether certain amendments to the Election Law relative to independent nominations were constitutional although no certificates of nomination had been tendered. The court held in advance of any actual controversy that the amendments were unconstitutional. Why? Because to do otherwise might prevent independent nominations.

Williams v. Boynton, 147 N. Y. 426, 42 N. E. 184, was a case where the board of supervisors illegally adopted a resolution changing a county seat. The illegality consisted in the fact that the resolution was carried by illegal votes. The court restrained the county clerk from submitting the resolution to the people.

Taking into consideration the farreaching consequences of the adoption of the local law in question, the public interests and vast investments, and the difficulty involved of bringing it to the test of validity in any actual controversy after its approval by the electors, it seems proper for the court to consider the questions of validity raised by the relator. The power to provide for a referendum must be found in the City Home Rule Act. Mills v. Sweeney, 219 N. Y. 213, 114 N. E. 65. Otherwise it is unauthorized. 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. The test of validity, therefore, is whether Local Law No. 16 has been adopted as a local law coming within the powers delegated to the city by such law. The power asserted by the city must fail unless the local law squares itself with the restrictions therein contained. Browne v. City of New York, 241 N. Y. 96, 149...