People v. Kearse

Decision Date17 April 1968
Citation56 Misc.2d 586,289 N.Y.S.2d 346
PartiesThe PEOPLE of the State of New York, Plaintiff, v. Major Henry KEARSE, Walter Moorer and John Lee Smith, Defendants.
CourtNew York City Court

JOSEPH F. FALCO, Judge.

At approximately three P.M. on the 17th day of August, 1967 the Mayor of the City of Syracuse proclaimed a state of special emergency in two separate sections of the city and invoked all of the powers vested in him under Chapter 16, Article 17 of the Revised General Ordinances of the City of Syracuse. He further declared that a curfew was to be imposed under Section 58(d) of said ordinance to commence at eight P.M. on said date and continue until six A.M. on the 18th day of August, 1967. At approximately ten P.M. on the 17th day of August, 1967 the Mayor amended his original declaration and proclaimed a state of special emergency and curfew throughout the entire City of Syracuse to end at six A.M. on the 18th.

At approximately 3:30 P.M. on the 18th day of August, 1967 the Mayor declared a state of special emergency existed city-wide and invoked all of the powers vested in him under Article 17. The curfew under Section 58(d) was to begin at Twelve Midnight on August 18th, 1967 and continue until six A.M. on the 19th.

Sometime during the afternoon of the 19th the Mayor declared a state of special emergency existed city-wide and again invoked all of the powers vested in him under Article 17. The curfew under Section 58(d) was to begin at Twelve Midnight on August 19th, and continue until six A.M. on the 20th.

All of the Defendants were arrested on the public streets of the City of Syracuse for a violation of Section 58(d) of said ordinance. Defendant John Lee Smith was arrested in the eight hundred block of South Salina Street at 12:50 A.M. on the 18th day of August, 1967, Defendant Major Henry Kearse was arrested in the twelve hundred block of South State Street at 12:15 A.M. on the 19th day of August, 1967 and Defendant Walter Moorer was arrested on the sidewalk in the twelve hundred block of South State Street at 2:40 A.M. on the 19th day of August, 1967.

The Defendants now move this court for a dismissal of the information against them on the grounds that the City Ordinance is unconstitutional on its face in that (1) it is an unlawful delegation of legislative authority from the City Council to the mayor, (2) that the city has tried to legislate in an area which has been fully pre-empted by state law, (3) that it denies the Defendants their constitutionally guaranteed liberties, (4) it is overreaching and excessively broad and on the further ground that the ordinance is susceptible to arbitrary enforcement in violation of the Defendants' constitutional rights.

The ordinance in question was enacted by the Syracuse Common Council and became law on June 19th, 1967 and is as follows:

Chapter 16. OFFENSES, MISCELLANEOUS.

Article 17. SPECIAL EMERGENCY.

16--57. Declaration by Mayor.

In the event of a conflagration, storm, flood, earthquake, aircraft accident, enemy attack, power failure, or if the public peace is threatened or life or property may be endangered, the Mayor may, in his discretion, declare a state of special emergency in all or any part or parts of the city.

16--58. Emergency Powers.

Whenever the Mayor declares the existence of a special emergency, and during such period, the Mayor shall have the power to invoke any or all of the following provisions which shall apply only to the part or parts of the city declared to be in a state of special emergency:

(a) Alcoholic Beverages.

No person shall consume any alcoholic beverages on or in a public street, park, square or building.

(b) Weapons.

No person shall carry or possess any rock, bottle, club, brick, incendiary missile, firearm or any instrument of offensive or defensive combat unless in the performance of his official duties or authorized by the Mayor or his duly designated representative.

(c) Restricted Areas.

No person shall enter any such part or parts of the city unless he be a resident thereof, or in the performance of his official duties, or authorized by the Mayor or his duly designated representative.

(d) Curfew.

No person shall enter or remain in any public street, park, square or building in any such part or parts of the city during the hours of the day as may be prescribed by the Mayor. 16--59. Publication of Declaration.

If the Mayor invokes any or all of the provisions of Section 16--58 thereof, he shall immediately distribute a written declaration thereof to the news media in the city accompanied by a written request that each publish or broadcast it as soon as possible.

16--60. Penalty.

A violation of any provision of this article shall be punishable by a fine not exceeding Five Hundred Dollars ($500.00) and not less than Twenty-Five Dollars ($25.00), or by imprisonment not exceeding one hundred eighty (180) days, or both such fine and imprisonment.

16--61. Effect of Invalidity in Part.

If any word, clause, sentence, paragraph, section or other part of this ordinance shall be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not effect, impair or invalidate the remainder thereof, but shall be confined in its operation to the word, clause, sentence, paragraph or section or other part thereof, directly involved in the controversy in which such judgment shall have been rendered. (Added by ordinance adopted June 19, 1967, p. 256)

Let us now look to the first argument that it is an unlawful delegation of legislative authority from the City Council to the Mayor for if this is true the whole ordinance must fall.

Local governmental units are creatures of, and exercise only those powers delegated to them by the State. Seaman v. Fedourich, 16 N.Y.2d 94, 262 N.Y.S.2d 444, 209 N.E.2d 778, Article 3, Section 1, New York State Constitution, Article 9, Sections 9 and 12, New York State Constitution.

Article IV of the Charter of the City of Syracuse, effective January 1st, 1962, (Local Laws, 1960 of City of Syracuse, No. 13) provides as follows in Section 4--101:

Legislative Powers Vested in the Council

All legislative powers heretofore, now or hereinafter vested in the City or exercised by any person or body in connection with any activity within the City shall be exercised by the Council.

We must draw a distinction between the delegation of a power to make the law, which necessarily involves a decision as to what it shall be and the conferring of an authority or discretion as to its execution, to be exercised under and in pursuance of the law. The first cannot be done, but to the latter, no valid objection can be made. Tropp v. Knickerbocker Village, 205 Misc. 200, 122 N.Y.S.2d 350, aff'd 284 App.Div. 935, 135 N.Y.S.2d 618; Municipal Home Rule Law Article 2, Section 10, subd. 4(a). The rule is settled that while the legislature may not delegate its powers to make a law, it may provide that a law will become operative on the happening of a certain contingency or further event. People v. Fire Association of Philadelphia, 92 N.Y. 311, aff'd 119 U.S. 110, 30 L.Ed. 342. Indeed, it has been said that most laws are made to meet future facts, since, although they are 'complete when passed, they sleep until the contingency contemplated sets them in motion.' The law-making branch of government has the right to delegate to some other agency the power to determine facts and conditions on which the operation or suspension of a statute depends. Olp v. Town of Brighton, 173 Misc. 1079, 19 N.Y.S.2d 546, aff'd 262 App.Div. 944, 29 N.Y.S.2d 956.

The ordinance passed by the Common Council of the City of Syracuse was complete in all of its terms and provisions when it left their hands, nothing which was strictly within their legislative function was left to the judgment of the Mayor. It had enacted an ordinance in broad outlines, leaving to the Mayor the duty of arranging the details. This it had the right to do.

Let us now look to the question of pre-emption, for if this in fact is true, again the law may not stand. 39 N.Y. Jurisprudence Municipal Corporations Section 178, in discussing powers reserved to the state has this to say: no municipality can pass a valid local law which transcends the constitution of the state or a general statute. In short, ordinances must not be inconsistent with the laws of the state. Bareham v. Rochester, 128 Misc. 642, 220 N.Y.S. 66, mod. 221 App.Div. 36, 222 N.Y.S. 141. A local ordinance attempting to impose any additional regulation in a field where the state has already acted will be regarded as conflicting with the state law and will be held invalid. Matter of Kress & Co. v. Department of Health, 283 N.Y. 55, 27 N.E.2d 431. The Defendants contend that Section 1903, subdivision (6) of the Penal Law of the State which was in effect on June 19th, 1967 (now Section 400.00 of the new Penal (Law, effective September 1st, 1967), which has to do with the licensing of firearms, states:

'(6) License:

Validity

Any license issued pursuant to this section shall be valid Notwithstanding the provisions of any local law or ordinance * * *' (Italics added) Defendants contend the Council of the City of Syracuse was without power to Prohibit the carrying or possessing of a firearm Legally licensed by the state of New York and no such exception is made in the ordinance. The court is in agreement with Defendants' contention in this regard. Whenever what would be permissible under the state law becomes a violation of local law, the latter is invalid. Wholesale Laundry Board...

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