Koster v. Coyne

97 N.Y.S. 433 | N.Y. App. Div. | 1906

Rich, J.:

We are required, in determining the question presented by this appeal, to pass upon the constitutionality of chapter 501 of the Laws of 1905 (amdg. Laws of 1898, chap. 182, § 2). as well as the charter of the city of Yonkers (Laws of 1895, chap. 635). The city of Yonkers is a municipal corporation, acting under chapter 635 of the Laws of 1895 and the acts amendatory thereof. ■ At the time of the passage of that act the city of Yonkers, had a population of less than 50,000 inhabitants. In the year 1904 John II. Coyne was elected an alderman of the city foi; a term expiring on Decem- • ber 1, 1906, and resigned that office on November 13, 1905.

The charter (Laws of 1895, chap. 635, tit. 1, § 2; Id. tit. 2, § 1; Id. tit. 6, §§ 1, 4) provides that the common -council shall consist of fourteen members (a majority of whom shall constitute a' quorum for the transaction of business), and that no tax shall be levied, or assessment confirmed, except by a vote of a majority of all the members in office. In the year 1905 it was determined by the • census, taken pursuant to law, that the city of Yonkers had a population of 61,707, and a certificate of that fact was made by the Secretary of State and filed in the office of the clerk of the city of Yonkers on October 5, 1905. The city of Yonkers thereupon became a city of the second class. (Const, art. 12, § 2; Laws of 1898, chap. 182, § 2, as amd. supra.).

Coyne and six Others were elected aldermen in November, 1904, under provisions of the charter prescribing, among other things, that two aldermen should be elected in each of the seven wards of the city for the term of two years, one td be elected each year, it being provided that seven aldermen should be elected in the city each year. (Laws of 1895, chap. 635, tit. .1, §.2; Id. tit. 2, §§ 1, 2, 6.) The term of office of Coyne and the six others elected at the same ' ¡ time expires on December 1, 1906. This appeal is taken from an ! order restraining the common council from proceeding with an election to- fill the vacancy caused by the resignation of - Coyne for the • term expiring December 1, 1906, which was granted upon. the theory that such an election “ is in violation of law of the State and is a waste bf the public .moneys.” Section 4 of title 2 of the charter of, the city of Yonkers (Laws of 1895, chap. 635) provides as follows: “ Special elections must be held * * * . to fill vacancy -in office: • * * * ■ 2. When a Vacancy shall occur in an elective city office, except of j tistice of the peace, more tlian three months before an annual. city election. * * * 4. Special elections shall be «ordered by the common council within'fifteen days after * * * the vacancy shall occur, and shall be held within fifteen days after such order. Notice thereof shall be published at least five days previous thereto. At the time of ordering any special election the common council shall appoint, a day for registration of voters and publish notice thereof with notice of such special election.” • It is claimed, by counsel for the respondent that this provision of the charter is in violation of section 3 of article 12 of the Constitution of the State of New York, and that, chapter 501 of the Laws of 1905 is also unconstitutional. Chapter , 501 of the Laws of 1905. provides : “. Section 1. Section.two of chapiter one hundred and eiglity-two of the laws of eighteen hundred and ninety-eight is hereby amended so as to read as follows : § 2. Within thirty days after every State, enumeration the Secretary bf - State shall file with the clerk of every city á certificate showing the population of such city, and if it appears therefrom that such city lias since the' prior State enumeration. become a city of the second class, then all the provisions of this act shall-apply to such city on and after the first day.of January thereafter, but the provisions of this' act-shall hot apply to any city that becomes a city of the second class under the enumeration- to be had in" the year nineteen hundred and five until on and after the first day of January, nineteen hun- _ dred and eight-,, except that the officers provided in such'act for such city - as becomes a city bf the second class after such enumeration, shall be elected at the city election to be held on the Tuesday succeeding the first Monday in Noveniber, nineteen hundred and seven.” If this act is constitutional then the operation of the White charter to the city of Yonkers is postponed. The Constitution (Art. 12, § 2) provides among other things: “ Laws relating to the property, affairs or government of cities and the several departments thereof are divided into general and special city laws; general city laws are . those which relate to all the cities of one or more classes ; special city laws are those which relate to a single city or to less than all the cities of a class. Special city laws shall not be passed except in conformity with the provisions of this section. After any bill for a special city law, relating to a city, has been passed by both branches of the _ Legislature, the house in which it originated shall immediately'transmit a certified copy thereof to the mayor of such city, and within fifteen days thereafter the mayor shall return such bill to the house from which it was sent, or if the session of the Legislature at which such bill was passed has terminated, to the Governor, with the mayor’s certificate thereon, stating whether the city has or has not accepted the same.” If chapter 501 of the Laws of 1905 was a special city law then it was unconstitutional and void. Concededly the act was never submitted to any municipal authority of any city.

The first question presented for our determination is whether chapter 501 of the Laws of 1905 is effective as a- legislative act, or whether it is unconstitutional and void. It postponed within 'the city of Yonkers until January 1, 1908, the operation of the “ White Charter,” with the exception of the election of municipal officers in November, 1907, and, if valid, the charter of said city remains effective and in operation. If it be void, the provisions of the White charter are applicable, the municipal officers of the city are governed by it, and its provisions (§ 13, as amd. by Laws of 1901, chap. 133) permit only one alderman for each ward; and, as there is now actually in office an alderman representing the second ward, elected in November, 1905, there is no vacancy in the office to fill by special election, and the order appealed from would necessarily have to be affirmed.

We cannot concur in the construction of the respondent that this statute is a special law. We think it was a general law. At the time of its enactment it did not relate to a single city; it related to all cities of the third class. It became a law before the census of 1905 was taken. It was not known which, or how many, cities of that class would' have a population of 50,000.- If it was necessary to submit it to the municipal authorities of any city of the third-class at the time it became-a law, it was necessary to submit.it to the Authorities' of every city of that class, for neither the Legislature nor the municipal authorities could determine to a certainty in advance of the census which cities would, ás a result thereof,.'become cities of the second class, and tlie legislation must have been intended' fo relate to all cities not having a. population of 50,000 as a class.

Judge Earl has framed a definition of a general law in Matter of New York Elevated R. R. Co. (70 N. Y. 327, 350), where he says: “A law applicable to. all the people of the State, and operating in all parts of.the State, would be most general. But a law may be general without affecting all the people of the State. A law regulating the rights of married women, or of minors, or of adults, or of aliens, would be-general, and it.would be general, although confined to the persons in being at the time of its passage. ■ So, a law conferring new rights-upon all existing insurance companies, or railroad companies, or manufacturing companies, would be general. A law which relates to persons or things as a class is general,'but one. which relates to particular persons or things of a class is special and private.” The law did not undertake -to single out any city of a class, but related to-- all as a class. The application of the White charter -to the city of Yonkers is suspended as provided by the statute. (Laws'of 1898, chap. 182, § 2, as am.d. by Laws of 1905, chap. 501.) •

In regard to respondent’s argument that the defendant ¡Goyne’sterm of office as.alderman was abridged by section 3 of article 12 of the Constitution and expired in December, 1905, we think this Contention is also without merit. The section of the Constitution ■upon .which it is based is- properly divisible into two parts ; the one part containing the clause -abridging the terms, of officers is limited to thosp elected before the 1st day of January, 1895;, in addition to this, cities of the third class, of which, thé city of Yonkers at the • time of Coyne’s election was one, were, by the closing sentence of the section, excluded .from its provisions.

There is no force in the argument that the appellants elected in-1904 have no standing in court upon this appeal because of the fact that the title to their office or the title to -the office of the other aldermen, is not directly challenged in this action. The decision of' this appeal and of the action necessarily determines their official status, in addition to which they are “ aggrieved ” parties within the provisions of section 1294 of the Code of Civil Procedure, because the order from which this appeal is taken interferes with them in the discharge of their duties. It follows, therefore, that the order must be reversed, and the motion for a temporary injunction denied, with costs to the appellants.

Jenks, Hooker and Miller, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied, with costs.