The question presented to us for decision is a simple one. It is whether the local legislative body of a city or a charter commission selected in accordance with the provisions of City Home Rule Law, section 20, subdivision 2, shall determine whether the charter is to be submitted to the electors of the city at a special city election or a general election and which body shall determine, if it be a special city election, the date on which the submission to the electors shall be made. The determination of that question depends in the final analysis upon the construction of the City Home Rule Law, section 31, to which reference will later be made.
The fundamental principles of government applicable here are found in the following quotations from the opinions of this court: "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. The test of validity, therefore, is whether Local Law No. 16 has been adopted as a local law coming within the powers delegated to the city by such law. The power asserted by the city must fail unless the *Page 534 local law squares itself with the restrictions therein contained. (Browne v. City of New York, 241 N.Y. 96.)" (Matter ofMcCabe v. Voorhis, 243 N.Y. 401, 413.)
"The legislative power of the State is vested in the Senate and Assembly (State Const. Art. III, § 1). It may not delegate thatauthority to any other legislative body or to the electors exceptwhere the Constitution authorizes such delegation. Even then it may delegate legislative power only in manner and form permitted by the Constitution.
"`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' (Matter of McCabe v. Voorhis, 243 N.Y. 401,413) * * * The Constitution of the State does not provide in the Home Rule Amendment or the County Reform Amendment how a local law shall be enacted. It placed upon the Legislature the duty of determining how local laws may be enacted. * * * The test of the validity of a local law is whether, within the field of legislation delegated to the city, it has been enacted in accordance with the provisions of the statute." (Burke v.Kern, 287 N.Y. 203, 211.)
The Legislature has defined a local law in City Home Rule Law, section 2. It has provided in section 20, subdivision 2, that a local law for the creation of a commission to draft a new city charter may be adopted upon the petition of a specified number of qualified electors of a city and the affirmative vote of a majority of the qualified electors of such city voting thereon. The grant of power to the electors to act by petition and referendum in the adoption of such local law is a limited one. The petition is to be "for the creation of a commission to draft a new city charter * * *." The proposed local law "shall fix or provide the method of determining the number of members of such commission and shall either name such members or provide for the election or appointment of such members, or the election of some and the appointment of others." (City Home Rule Law, § 20, subd. 2.) The qualified electors have no power under that grant to determine whether the charter shall be voted upon at a special city election or a general city election nor have they the power to determine the date upon which a special city election shall be had. *Page 535
In the same section (§ 20) in subdivision 3 the Legislature has provided "the local legislative body shall provide for such publication or other publicity in respect to the provisions of the proposed charter as it may deem proper, and for itssubmission to the electors of the city at a special city electionor a general election * * *."
The legislative plan is plain. The electors may determine whether there shall be a commission to draft a new city charter and may select the personnel of the commission. Representative government as embodied in the local Legislature must determine whether the charter shall be voted on at a special or general election. The electors are powerless to write into the petition a proposal that there be a special election and that the charter commission to be selected determine the time of that election and an attempt so to do is a nullity.
The wisdom of the Legislature in this instance is evidenced by the fact that the petition was filed and the Local Law adopted when we were not at war. At that time good judgment might have dictated the holding of a special election at which to adopt or reject the proposed charter. Today we are at war. Service men, of whom it is claimed there are one-tenth of the total population of the city, may vote only at a general election. Large numbers of the residents of Glen Cove are employed in defense activities in airplane factories at Bethpage, Farmingdale, Port Washington and other places throughout the country, many returning home infrequently. There may be absentee voting only at a general election. The Election Law provides for a two hour period for working people to vote while the polls are open at a general election. Here the local legislative body, to whom the decision of this question has been confided, has apparently determined that the proposed charter shall be voted on at a general election rather than a special election to be held on June 29th. It seems to us their authority is supreme.
In City Home Rule Law, section 30, entitled "Legislative intent" it is provided: "It is not the intention of the Legislature hereby to abolish or curtail any powers or rights heretofore conferred upon or delegated to a city or cities or to any board, body or officer thereof, unless a contrary intention is clearly manifest from the express provisions of this chapter or by necessary intendment therefrom; * * *." There is *Page 536 here no express provision at all so it cannot be urged that a nonexistent express provision makes anything clearly manifest or has any necessary intendment.
Concededly if the appellants are to find any justification for their position it must be found in the following sentence of City Home Rule Law, section 31: "A permissive procedure authorized by this chapter shall not be deemed to be exclusive or to prohibit the use of any other procedure authorized by any act of the legislature, city charter or local law lawfully adopted but shall be deemed an alternative thereto." Even assuming that Local Law No. 4, subdivision 4, was lawfully adopted, and we have shown under the authorities and the statute (supra) that there was no power in the electors to adopt it, nevertheless this section 31 is of no assistance to appellants. It was mandatory upon the local legislative body to submit the proposed charter to the electors. (City Home Rule Law, § 20, subd. 3, supra.) There was nothing permissive about that requirement. The charter could be adopted in no other way and permission was not granted to any group or body other than the local legislative one to submit the proposed charter to the electors or to determine whether the submission was to be at a special or general city election. The City Home Rule Law contains no such permissive alternative.
The Constitution and the Legislature determine the plan of government under which we live. Courts should preserve that plan and let changes therein come from the people or the Legislature.
The local legislative body on the submission of this controversy under sections 546-548 of the Civil Practice Act has asked for an answer to the following question: "Is it the duty of the defendants [City Council and City Clerk] to submit the proposed city charter to the voters of the City of Glen Cove at a special election to be held on the 29th day of June, 1943?" That question should be answered in the negative.
The judgment appealed from should be affirmed with costs.
LEHMAN, Ch. J., LOUGHRAN, DESMOND and THACHER, JJ., concur with LEWIS, J. CONWAY, J., dissents in opinion in which RIPPEY, J., concurs.
Judgment reversed, etc. *Page 537