Shilbury v. Board of Sup'rs of Sullivan County

• Citation: 54 Misc.2d 979,284 N.Y.S.2d 124
• Parties: Kurt M. SHILBURY, Plaintiff, v. The BOARD OF SUPERVISORS OF the COUNTY OF SULLIVAN, the State of New York, the Town of Liberty, Sullivan County, New York, and the Town of Fallsburgh, Sullivan County, New York, Defendants.
• Decision Date: 25 August 1967
• Court: United States State Supreme Court (New York)

Page 124

284 N.Y.S.2d 124

54 Misc.2d 979

Kurt M. SHILBURY, Plaintiff, v. The BOARD OF SUPERVISORS OF the COUNTY OF SULLIVAN, the

State of New York, the Town of Liberty, Sullivan

County, New York, and the Town of

Fallsburgh, Sullivan County,

New York, Defendants.

Supreme Court, Sullivan County.

Aug. 25, 1967.

Kurt M. Shilbury, in pro. per.

Carl P. Goldstein, County Atty. of Sullivan County, Monticello, for defendant Board of Supervisors of the County of Sullivan.

Louis J. Lefkowitz, Atty. Gen. of the State of New York (Robert W. Imrie, Asst. Atty. Gen., Albany of counsel), for defendant State of New York.

Alfred H. Beck, Liberty (Stephen L. Oppenheim, Monticello, of counsel), for defendant Town of Liberty.

Monroe R. Davis, Woodridge (Stephen L. Oppenheim, Monticello, of counsel), for defendant Town of Fallsburgh.

Nellie Childs Smith, Monticello, for Town of Neversink, amicus curiae.

LAWRENCE H. COOKE, Justice.

In response to a direction, 46 Misc.2d 837, 260 N.Y.S.2d 931, that it submit a constitutionally valid plan of reapportionment, defendant Board of Supervisors has offered a proposed local law providing, among other things: that a County Board of Legislators shall be the elective governing body of the County; that the designation of the Sullivan County Board of Supervisors shall cease to exist as of January 1, 1968; that fifteen County Legislators, one from each town, shall be elected at general elections on odd numbered years, the first to be at the general election of 1967; that all supervisors of the towns in the County shall be eligible to be elected as members of the County Board of Legislators; and that said local law shall become effective only if approved by the affirmative vote of a majority of the qualified electors voting upon said law at the general election of November 7, 1967.

Section 411 of the County Law, entitled 'Holding more than one elective office', states clearly:

'No county judge, family court judge, surrogate, district attorney, sheriff, county clerk or any elective county officer shall be eligible to hold at the same time any other elective county or town office, or that of city supervisor.'

In Knauf v. County Legislature, Monroe, 27 A.D.2d 440, 441, 280 N.Y.S.2d 15, 18, affirming 53 Misc.2d 917, 280 N.Y.S.2d 440, the Appellate Division, Fourth Department, held:

'A town supervisor is an elective town officer (Town Law, § 20(5)). Under the provisions of County Law, § 411 plaintiff is not eligible to hold the office of town supervisor at the same time that he is the county legislator.'

However, it is argued substantially on behalf of the Board that section 411 of the County Law is not a general law and, there being no applicable statutory restriction, a local law may be enacted relating to the qualifications of county officers pursuant to section 2 of article IX of the State Constitution and section 10 of the Municipal Home Rule Law. Overlooking the obvious problem created by the proposal's provision that County Legislators shall be elected at the same general election at which the passage and effectiveness of the local law is to be determined, said argument is based on the erroneous premise that section 411 of the County Law is special and not general.

As used in said article IX of the Constitution, a 'General law' is 'A law which in terms and in effect applies alike to all counties, all counties other than those wholly included within a city, all cities, all towns or all villages' and a 'Special law' is 'A law which in terms and in effect applies to one or more, but not all, counties, counties other than those wholly included within a city, cities, towns or villages' (N.Y.Const., art. IX, § 3; cf. Municipal Home Rule Law, § 2).

It is well settled that a statute need not apply to all persons or places in the State in order to be deemed general in nature; it may be limited in its application according to specified conditions which are common to a class and reasonably related to the subject matter (Matter of Culter v. Herman, 3 N.Y.2d 334, 338, 165 N.Y.S.2d 449, 450, 144 N.E.2d 353, 354; Matter of New York Elevated R.R. Co., 70 N.Y. 327, 350; Wholesale Laundry Bd. of Trade v. City of New York, 43 Misc.2d 816, 818, 252 N.Y.S.2d 502, 505, affd. 22 A.D.2d 762, 252 N.Y.S.2d 955, affd. 15 N.Y.2d 604, 255 N.Y.S.2d 265, 203 N.E.2d 652). Section 411 of the County Law does not apply to all persons in the state but it does relate to a class of persons and is applicable to said class and all in said class in each and every county of the state. It does not relate to particular persons in the class. It is a general law.

Despite the defect arising from the prohibition of section 411 of the County Law and because of the urgency of the situation, further discussion is required and the parties are entitled to an indication as to the validity of the basic feature of the proposed local law. In Iannucci v. Bd. of Supervisors of Washington County and Saratogian, Inc. v. Bd. of Supervisors of Saratoga County, 20 N.Y.2d 244, 282 N.Y.S.2d 502, 229 N.E.2d 195, involving 'adjusted weighted voting' and 'fractional weighted voting' plans, the Court of Appeals held that it was not readily apparent on its face whether either of the plans met the constitutional standard, that it was incumbent upon the respective Board of Supervisors to come forward with the requisite proof that its plan was not defective and, since this was not done, that the courts below correctly determined that the plans were invalid. The Court held (pp. 251--252, 282 N.Y.S.2d pp. 507--508, 229 N.E.2d pp. 198--199):

'The significant standard for measuring a legislator's voting power * * * is not the number or fraction of votes he may cast but, rather, his 'ability * * *, by his vote, to affect the passage or defeat of a measure' * * *.

'The principle of one man--one vote is violated, however, when the power of a representative to affect the passage of legislation by his vote, rather than by influencing his colleagues, does not roughly correspond to the proportion in his constituency. * * * Ideally, in any weighted voting plan, it should be mathematically possible for every member of the legislative body to cast the decisive vote on legislation in the same ratio which the population of his constituency bears to the total population. Only then would a member representing 5% Of the population have, at least in theory, the same voting power (5%) under a weighted voting plan as he would have in a legislative body which did not use weighted voting--e.g., as a member of a 20-member body with each member entitled to cast a single vote. This is what is meant by the one man--one vote principle as applied to weighted voting plans for municipal governments. A...