206 Misc. 175 | N.Y. Sup. Ct. | 1954
In 1925, the city-manager form of government was adopted by the City of Rochester. On July 1, 1954, a petition was presented to the city clerk, pursuant to section 19-a of the City Home Rule Law, containing a proposed local law for submission to the electors which, among other things, would amend the city charter to abolish the city-manager form of government. The city clerk refused to accept said petition for filing and this proceeding was instituted pursuant to article 78 of the Civil Practice Act, in the nature of an application for an order of mandamus to compel the city clerk to accept said petition for filing.
The power of the People to legislate was conferred by the Constitution upon the Legislature, where it remains except so far as it may have been delegated by the Legislature within constitutional limits (Matter of Lynch v. O’Leary, 166 Misc. 567; Barto v. Himrod & Lovett, 8 N. Y. 483). The City Home Buie Law delegates no power to the People to initiate or adopt by popular vote amendments to city ordinances, resolutions or local laws other than those amending a city charter. The statute excludes ordinances and resolutions from the definition of the term “ local law” (City Home Rule Law, § 2). Section 19-a is expressly limited to local laws amending a city charter. A charter amendment is defined as “ any change in an existing charter presented as such under authority of this chapter or any charter or state statute ” (City Home Rule Law, § 2).
In Matter of Astwood v. Cohen (291 N. Y. 484), it was held that a local law, instituted by petition pursuant to section 19-a, which provided for a salary bonus for policemen and firemen, was not an amendment of the city charter and hence could not be submitted to the voters pursuant to such section. The court there said at page 488: “ Liberal construction may not, however, ignore the legislative mandate that only amendments to the charter, as distinguished from other laws, may be enacted by the process of initiative and referendum.” And again at pages 490-491: “ Section 19-a restricts the use of the initia
In Matter of Lynch v. O’Leary (166 Misc. 567, supra), an initiative petition was filed pursuant to certain provisions of the Rochester City Charter, calling for the adoption of an ordinance. The provisions of the .city charter authorizing such petitions were held invalid and not within the authorization of the City Home Rule Law. It was there noted that section 19-a created an exception only so far as it permitted the initiative of local laws amending city charters.
In Matter of McCabe v. Voorhis (243 N. Y. 401, 413), the court, in discussing the City Home Rule Law, said: “ The power to provide for a referendum must be found in the City Home Rule Act. (Mills v. Sweeney, 219 N. Y. 213.) 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.”
That portion of the proposed local law now under consideration which purports to amend other local laws, ordinances and resolutions of the City of Rochester, is clearly unauthorized by the City Home Rule Law and is invalid and unconstitutional. This is not a situation where the invalid portion can be stricken down and the valid portions, if any, of the proposed local law preserved because under section 19-a the proposed local law as “ set forth in full ” in the petition must be adopted or submitted to the electors “ without change ”. A portion of the proposed local law, therefore, being invalid, renders the entire proposal of which it is a part, invalid.
Two additional objections to the proposed local law may be considered together, viz., that the proposed local law contains no enacting clause and that the title does not properly refer to the subject matter.
The State Constitution requires that all bills enacted by the Legislature shall contain an enacting clause (N. Y. Const., art. III, § 13). It further provides that no private or local bill shall contain more than one subject and that shall be expressed in the title (N. Y. Const., art. III, § 15). When the City Home Rule Law was adopted, similar provisions with reference to local laws were included therein (City Home Rule Law, § 13, subds. 2, 3). If these provisions apply to local laws amending a charter initiated by petition pursuant to section 19-a, then the proposed local law here under consideration is clearly invalid. It contains no enacting clause. The title to the proposed local law reads as follows: “ Amending generally and supplementing an act constituting the charter of the City of Rochester consisting of Chapter 755 of the Laws of 1907 as amended and supplemented by various statutes and local laws.” This title gives no possible suggestion that the purpose of the proposed local law is to abolish the city-manager form of government under which the City of Rochester has operated for upwards of twenty-five years. It would be interesting to speculate as,to how many signers of the petitions presented to the city clerk read anything beyond the title of the proposed local law. Such a title on a similar legislative enactment would render it unconstitutional. (Greene v. Dunscomb, 281 N. Y. 261; Matter of Dean, 230 N. Y. 1.) When the City Home Rule Law was adopted, it contemplated that all local laws would be enacted by the local legislative body subject to the provisions thereof relating to referendum. The provisions requiring an enacting clause and a title which should refer to the subject matter, were included within section 13 which was entitled
A further consideration lends support to this conclusion. Prior to the enactment of the City Home Buie Law the Legislature was empowered to enact local laws subject however to the two constitutional restrictions mentioned. With the adoption of the City Home Buie Law and the amendments thereto
On April 11, 1951, the following amendment to section 19-a of the City Home Rule Law became effective (L. 1951, ch. 721): “ No such proposed local law requiring the expenditure of money shall be accepted by the city clerk or be adopted or become effective unless there shall be submitted as a part of such proposed local law, a plan to provide moneys and revenues sufficient to meet such proposed expenditures.” One of the objections raised to the proposed local law here under consideration is that it requires the expenditure of money without any plan to provide moneys and revenues sufficient to meet the expenditures. If such objection is valid, the city clerk properly refused to accept the petition for filing (Matter of Hardwick v. Kramer, 200 Misc. 207, affd. 278 App. Div. 1040, affd. 303 N. Y. 605).
The proposed local law, insofar as it purports to be in the nature of a charter amendment, contains the following provision: “ Sec. 38. Fixed Salaries — The annual salary of the Mayor shall be fifteen thousand dollars and the annual salary of the Vice-Mayor shall be two thousand five hundred dollars.” The proposed change in the form of city government would be effective January 1, 1956. The present charter does not fix the salary of the Mayor or vice-mayor but provides that they shall be fixed by the council. The present salary of the Mayor as so fixed is $1,000 per annum and the vice-mayor as such draws no salary. The proposed amendment would therefore call for a fixed annual expenditure of $17,500 per year starting in 1956, which is $16,500 in excess of the present salary expenditures for the same offices.
In spite of this provision, petitioner claims that the proposed local law does not provide for the expenditure of money because, if adopted, it will actually effect a saving to the city. This argument is based on the claim that the office of city manager will be abolished and that the combined annual salaries of the city manager and his deputy as now fixed, not by the charter, but by the council, are $26,750, which is more than the salary of the Mayor and vice-mayor as fixed in the
Whether or not the proposed change in the charter might effect savings sufficient to offset the proposed increase in salary of the Mayor and vice-mayor is a matter which can be determined only after the plan is put in operation. The question of whether the proposed local law calls for the expenditure of money must, however, be determined from the wording of the local law itself and not from mere speculation as to its ultimate effect.
The fact cannot be disputed that the proposed local law by its exact wording calls for the expenditure of $17,500 a year starting in 1956. This brings the proposal within section 19-a of the City Home Rule Law, as amended, which requires that the proposed local law contain a plan to provide moneys and revenues sufficient to meet the proposed expenditures.
Petitioner claims that the proposed law does provide a plan for meeting such increased expenditures. He claims that the increased salaries of the Mayor and vice-mayor can be paid out of what will be saved by not having a city manager and Ms deputy. Even if this could be construed as a plan for providing money within the meaning of section 19-a, the fact remains that the proposed local law contains no such plan and makes no provision for providing money for the new expenditures. Petitioner also points to section 82 of the proposed law as providing the required plan. This section relates to the powers and duties of the Mayor and provides that he shall prepare and submit to the council an annual budget. The mere power to prepare and submit a budget obviously does not meet the requirements of section 19-a.
In Matter of Hardwick v. Kramer (200 Misc. 207, affd. 278 App. Div. 1040, affd. 303 N. Y. 605, supra), a petition was
Other objections have been raised to the proposed local law, all of which have been examined but which in the opinion of the court are not sufficient to invalidate the same.
A further objection was raised upon the ground that the petition did not contain a sufficient number of authenticating signatures of duly qualified electors of the City of Rochester. On the argument it was agreed between counsel and the court that this objection would not be passed upon in the present proceeding but that if this proceeding resulted in an order requiring the clerk to accept the petitions for filing, such objection could within thirty days after such filing be raised pursuant to the provisions of section 16 of the City Home Rule Law. Such objection has not therefore been considered or passed upon.
Application is denied and proceeding dismissed, without costs.