In re Grenfell , 58 N.Y.S.2d 501 ( 1945 )

Hill, P. J.

(dissenting). Appeal from an order of the Schenectady County Special Term which determined a proposed local law to be illegal and that it should not be submitted to the electors of the city of Schenectady at the coming general election.

The title of the law reads: “A Local Law repealing the simplified form of government known as Plan C, adopted by the City of Schenectady on the sixth day of November, Nineteen Hundred Thirty-four and providing for a return to the form of city government defined and prescribed in the Second Class Cities Law, and for the election of officers of the said city pursuant to said Second Class Cities Law.” The petition for submission described its purpose and intent “ to abolish the Plan C form of government in the City of Schenectady, and to return to the form of city government prevailing in said city prior to the adoption of Plan C and as prescribed and defined in and by the Second Class Cities Law.” The repeal was to be effected under the provisions of chapter 765 of the Laws of 1939 entitled “ An Act to repeal the optional city government law ”. The provisions of the Second Class Cities Law were to supersede the provisions of the city charter which had been amended to comply with the Optional City Government Law, city and ward officers elected as prescribed in the Second Class Cities Law, and all local laws, ordinances and resolutions inconsistent with such law repealed. The petition requested that the question to be submitted to the electors was to be as follows: ‘ ‘ Shall the local law entitled [as earlier quoted herein] * * * be adopted ”.

The Special Term dismissed the petition upon the grounds (1) that the proposal was for a new charter and therefore illegal under the statute, (2) that the Second Class Cities Law had been repealed except as to cities of the State which on December 31, 1923, were cities of the second class and had not superseded or repealed the law, and therefore was not a proper source of derivation of city statutes, (3) that the petition did not “ set forth the new matter to be added to the charter either in italics or underlined and the matter to be deleted therefrom in brackets or with lines drawn through it ”. (City Home Rule Law, § 19-a.)

As to the first ground, the 1944 amendment (ch. 602, § 2) to section 19-a of the City Home Rule Law, “ A local law amending a city charter, however extensively, also may be adopted * * * ”, renders ineffective Matter of Maylender v. Morrison (284 N. Y. 575), and is not a valid ground of objection. The second ground, based upon the reference to the Second Class Cities Law as a source of new statutory provisions following the change proposed in the petition, if adopted, is not sustained by the petition, as it is proposed that the city return “ to the form of city government prevailing in said city prior to the adoption of Plan C and as prescribed and defined in and by the Second Class Cities Law ”. This is only descriptive of the type of city government desired, the

petition providing that the details thereof should be enacted by the officers provided for in the Second Class Cities Law after they had been elected and assumed the duties of their offices. As to the third objection, the requirement as to the italics, underliningv brackets and the like, section 19-a of the City Home Buie Law provides that “ failure so to set forth any provision of the charter which is in fact superseded shall not invalidate the amendment or any portion thereof.” The recent decision in Matter of Steinberg v. Meisser (291 N. Y. 685) involved the submission of a proposed local law entitled “ A Local Law to amend the charter of the City of Long Beach for a city manager appointed and removable by an unpaid city council elected biennially • on a nonpartisan ballot by proportional representation, with other changes appropriate to the efficient operation of a council-manager government.” The Special Term hád dismissed a petition for án order enjoining the submission, which had been affirmed by the Appellate Division, Second Department (266 App. Div. 978). The decision of the Court of Appeals reads: “ Order affirmed, without costs. The proposed local law is nót a new charter but an amendment to the existing charter. We decide no other question.” Two of the judges dissented “ on the ground that the proposed local law changes so essentially the structure of the government of the city as to constitute a new charter.” While the exact import of this decision is not too clear, it seems to indicate a determination that plebiscites addressed to the issue of a change of the form of government of a city shall not be surrounded by too many technicalities and obstructions. This again is reflected.in the most recent legislative amendment to the City Home Rule Law (L. 1944, ch. 602).

Section 19-a of the City Home Rule Law, as amended by the last mentioned chapter, recommends the use of -italics, underlining and brackets, but says that the failure in that regard “ so to set forth any provision of the charter * * * shall not invalidate the amendment or any portion thereof.” In a later portion the section directs the manner and time of submission to the electors of the city if a referendum is required. The purpose of the petition and the notice of .submission is to enlighten the voters on the subject matter of the amendment upon which they are to vote. The argument that the part excusing compliance with the requirement as to form is operative only if an objection to the petition is not filed, is not impressive. An objection would give added publicity to the subject matter involved, making the provision as to form less necessary. The recommendation as to form would be more usual and useful if the amendment was to a single or a limited number of specific but not structural changes than when a general amending of a city charter is proposed. This is now permitted no matter how “ extensively ’ ’ the amendment may affect the charter.

The submission to the electors of the question of whether there shall be a return to the form of government prevailing prior to 1934 as defined in the Second Class Cities Law, is more understandable, and will permit the exercise of the right of franchise with more information as to the subject matter voted upon, than 'a proposed charter made up of italicized, bracketed and underscored parts. The electorate in 1934 were permitted to adopt the untried Plan C with less information of the effect upon their city government than is presented by a proposal to return to the former type of government. An opportunity for expression of the will of the voters as to a return to the former type of city government should not be lightly or capriciously denied.

The order should be reversed on the law, and an order made approving of the validity of the petition.

Heffernan and Lawrence, JJ., concur with Foster, J.; Brewster, J., concurs in result in a separate memorandum; Hill, P. J., dissents in an opinion.

Order affirmed, without costs.

Leave to appeal to the Court of Appeals granted.