For reasons which seem to me fundamentally sound and which I shall briefly outline, I am constrained to dissent from the decision about to be handed down in this case. *Page 220
The purpose of the amendment to the New York City Charter, as expressed in the petition for submission of the amendment to the electors of the city of New York, was "to reorganize County Government by abolishing the County offices of Sheriff, Register, Register of Deeds and Registrar, creating the offices of City Sheriff and City Register and assigning the functions of the offices hereby abolished to the City Sheriff, the City Department of Correction and the City Register." The amendment was proposed "pursuant to section Eight of Article IX of the Constitution of the State of New York and sections forty-four and forty-five of the New York City Charter." Those sections of the City Charter relate only to the manner of submission of the proposed amendment. Assumed power to so amend the Charter is asserted to be derived exclusively from the provisions of article IX, section 8, of the Constitution.
The amendment (§ 1031) provides that "there shall be a city sheriff who shall be appointed by the mayor after competitive examination conducted by the municipal civil service commission in accordance with the civil service law." Section 1032 provides that the offices of sheriff of the counties within the city are abolished and that the "functions, powers and duties of the said offices are assigned to the city sheriff, except as otherwise provided by sections six hundred twenty-three and nine hundred fifty-five-a of this charter." Section 623 has to do with the functions of the Commissioner of Correction and 955-a (a new section) with the freezing in the new office of all civil service employees of the abolished offices. Section 1051 provides for a City Register to be appointed in a manner similar to the City Sheriff, and section 1052 for abolishing the offices of Register, Register of Deeds and Registrar in the several counties and the assigning of the functions of those offices to the City Register except as otherwise provided in section 955-a. The abstract of submission appearing on the voting machines and furnishing the only information to the electors concerning the proposal to be voted on read: "Shall the *Page 221 proposed amendment to the New York City Charter to reorganize county government by abolishing the county offices of Sheriff, Register, Register of Deeds and Registrar, creating the offices of City Sheriff and City Register, to be filled by appointment after competitive civil service examination, and assigning the functions of the offices thereby abolished to the City Sheriff, the City Register and the City Department of Correction, be approved?"
Article IX, section 8, of the Constitution provides, so far as material, that "In counties in the city of New York the city of New York is hereby vested with power from time to time by local law, to abolish the office of any county officer other than judges, clerks of counties and district attorneys, and to assign any or all functions of such officers to city officers, courts or clerks of counties, and to prescribe the powers, duties, qualifications, number, mode of selection and removal, terms of office and compensation of the persons holding such offices and the employees therein, and to assign to city officers any powers or duties of clerks of counties not assigned by this constitution." That is the only authority claimed for the power to submit the amendment.
That provision in the Constitution had no purpose to provide for the reorganization of county government. Except in the particulars mentioned in article IX, section 8, legislative power to provide for and regulate the organization and government of counties, including that of the five counties wholly included in the city of New York, rests exclusively in the State Legislature (Art. IX, §§ 2, 4). Nothing that could be done by the city under the provisions of article IX, section 8, could effectuate a reorganization of county government or permit a county to continue to function. Its purpose was primarily to enable the city of New York by appropriate legislation to abolish certain county offices as such and to transfer their duties and functions to city officers, courts or clerks of counties, which, as a part of the then existing city and county governments, would absorb and thereafter perform the constitutional and statutory functions of those certain offices in one or *Page 222 more of the five counties embraced within the geographical boundaries of the city of New York. It was a special provision of the Constitution designed to apply only to a special case — an exception to the otherwise universal rule obtaining wherever representative form of government exists in this country and particularly enunciated in our own State Constitution that the legislative power of the state is vested exclusively in the State Legislature (Art. III, § 1) and the provision must, therefore, be strictly construed.
Having that cardinal rule of construction in mind, a brief additional, but not all inclusive, analysis will further indicate that the city far exceeded any power conferred by article IX, section 8, in its abortive attempt to reorganize the organization and government of the five counties of the city of New York. It confers power "to abolish the office of any county officer." Assuming, but not conceding, that the necessary legislative action may be taken by direct vote, the constitutional provision confers no power on the city at the same time to abolish functionally different groups of offices in five different counties. It confers no power to permit the voters in any one county unit to abolish county offices in another county unit. For example, the county of Richmond has no office of Register. No authority is conferred on the voters of Richmond county to abolish the offices of Register in the four other counties, even though they are the electors of the city unit for city purposes. It confers no power upon the city to group various county offices of the various counties within the city in such a way that it becomes impossible for electors of one county, which still exists and continues as a separate and distinct unit of government, to decide for themselves whether they desire to abolish a certain office within their own county. It is no answer to say that, if the voters in Kings wish to abolish the office of Register in that county but wish to retain its office of Sheriff, they can rid the county of the office of Register by doing what they do not wish to do by ridding the county of the office of Sheriff. How could any scheme be devised more surely to frustrate the will of the *Page 223 voters or to make more certain that they cannot freely register their will than that devised by the submission here involved? Under the proposal, the voters were required to vote to abolish the offices of Sheriffs and Registers and other offices of five different counties or vote to abolish none of them or to refrain from voting at all on the proposition, which latter, significantly, was the position taken by a large majority (1,517,505 out of a total vote for Mayor of 2,238,947) of the qualified electors of the counties involved aggregating 2,450,868. We may not speculate that all who approved the amendment (507,350) approved of all of its provisions. Rather, it is probable that voters interested only in separate objects may have combined, by necessity, in behalf of all of the different objects. Nor can it be said that those who voted against the proposition (220,092) did so because they wished to defeat all of its objects. That kind of "log rolling" was condemned by this court in Economic Power Constr. Co. v. City of Buffalo (195 N.Y. 286, 296). It is no answer to say that the proposal is solely a scheme for county reorganization as falsely appears in the petition and abstract of submission and thus embraces only one subject since no power is conferred on the city to reorganize counties. Nothing whatever is said in the proposition submitted about one of the cardinal purposes of the amendment which was to transfer all of the civil service employees in the many offices abolished to the two newly created offices and to freeze them into the city service without civil service examination for positions in the new offices. No power is conferred to create new offices, either for the same or different units of government. Otherwise its so-called purpose to effect economy might be entirely frustrated. By its express terms power is given only to transfer functions of the abolished offices to existing "city officers, courts or clerks of counties."
The amendment here embraces more than one subject and is void (State Const. art. III, § 15; City Home Rule Law, § 13, subd. 3; N Y City Charter, § 36). This was the ground upon which the learned justice at Special Term *Page 224 granted judgment for plaintiffs and with his reasoning and excellent opinion I am heartily in accord. An adequate prop cannot be found in Conner v. City of New York (5 N.Y. 285) and Village of Gloversville v. Howell (70 N.Y. 287) to sustain the submission. Neither case is, either directly or by analogy, authority for the point upon which it is cited. In theConner case the purpose of the act was to change the compensation of various officers in a particular governmental unit by legislative act and it dealt with the single subject of compensation of public officers. In the other the pertinent question related to the validity of an act reorganizing and providing a charter for the village of Gloversville which failed to mention specifically a provision for the selling within the village of intoxicating liquors and another provision for punishment for selling without a license (See Harris v.People, 59 N.Y. 599, 601).
Notice required by section 45 of the Charter and section 18 of the City Home Rule Law of the submission of the amendment was not given. Those provisions of law required the preparation of an abstract of the amendment concisely stating the title, subject, purpose and effect thereof and its transmission to the election officers charged with the duty of publishing the notice of and furnishing the supplies for the election. It was mandatorily required that a sufficient number thereof be printed and delivered with other election supplies and "distributed to theelectors at the time of the registration of voters and at theelection." It may be assumed that a reasonably sufficient number of the abstracts were printed although the total number printed was not much more than one-half the number of electors entitled to vote. All printing and distribution to election boards occurred prior to the first registration day which was more than four weeks prior to the election. The abstract of this amendment was included and buried in the midst of a list of propositions amending both the State Constitution and the Charter. There is no showing that any of such abstracts were distributed to registrants. No copies of the abstract were delivered to the election officials on election day. *Page 225 None of such abstracts were available at the polling places for distribution to or the information of voters on election day. As a substitute for the legal requirement, it is stipulated, "two sample facsimiles of the face of the voting machine * * * were delivered with the other election supplies to each local Board of Elections at the polling place. Each said sample set forth Proposition No. 1 as the same appeared on the voting machines used at said election." What use was made of it at the several polling places does not appear. Though it had been given wide publicity at the voting booths on election day, it was a statement only of the question submitted and gave no information as to the contents of the amendment and could not, on that account alone, satisfy the legal requirement for notice. By the express terms of the amendment, whether true in fact or not, its subject was the reorganization of county government. The purpose of the statutory requirement for availability and distribution of the abstracts on registration and election days was to enable the voters to learn what the proposition upon which they might vote was about. The requirement did not relate alone to having the abstracts available. It was mandatory that they be distributed on those days. Voters were not required to search for them. The notice was insufficient and the amendment, though adopted, must on that account be held void (Town of Cortlandt v. Village ofPeekskill, 281 N.Y. 490, 496). This court unanimously said in that case: "The mere fact that no harm was done, if such be a fact, and that no voters were disfranchised by virtue of the irregular notice and the failure to post any notice whatsoever is not material. When the statutes prescribed methods by which propositions changing the form and structure of government shall be submitted, it cannot be left to the discretion of the court to say that substantially no notice whatever is required or that the specific provisions of the statutes may be overridden. There must be some uniformity in matters of this kind. The question is one of legal notice and not one of actual notice." The controlling effect of that decision *Page 226 cannot be waved aside by any assertion that the application of the rule there laid down was limited to failure only to give notice of the time and place where the election was to be held.
Furthermore, only an amendment to the Charter may be the subject of the process of initiative and referendum (Charter, § 44). But this is concededly not an amendment within the meaning of article IX, section 8. By the terms of the Constitution such a change in governmental structure can be made only by a "local law." Concededly, the making of such change was a legislative act. The framers of the Constitution did not define what was meant by the expression "local law" as used in article IX, section 8, nor lay down any method by which such a law might be enacted. However, the Constitution provides that the legislative power of the State is vested in the Senate and Assembly (Art. III, § 1). What is meant by a "local law" depends upon its definition at the time the Constitution was adopted, not upon some definition later formulated by the Legislature (1 Cooley on Constitutional Limitations [8th ed.], p. 124). We take the words used and give them "not only their ordinary meaning but that which previous acts, measures and reports intended them to have" (People v. Tremaine, 281 N.Y. 1, 12). We may safely look to the City Charter which provides, not alone that all legislative power shall be vested in the Council, but that it has "the sole power to adopt local laws under the provisions of the city home rule law or otherwise" (§ 21). That provision has been authoritatively construed to exclude amendments to the Charter adopted other than as local laws by the Council (Report of New York City Charter Revision Commission, 1936; Tanzer's New York City Charter, pp. 480, 488). Any other method of adopting a legislative act is the exception to the universally basic rule of legislating only by representative action. "Direct legislation in cities must always rest on some constitutional or statutory grant of power" (Matter of McCabe v. Voorhis, 243 N.Y. 401, 413). Nowhere in the Constitution or *Page 227 statutes is found any authority to legislate concerning the matter here involved for the city of New York by "local law" or otherwise by direct action or by any process except by action of the Council.
Many other interesting and important questions are raised and discussed in the exhaustive briefs submitted by counsel but, in view of what has been said above, they need not be considered.
The judgments appealed from should be affirmed, with costs.
LEHMAN, Ch. J., LOUGHRAN, LEWIS and DESMOND, JJ., concur with FINCH, J., RIPPEY, J., dissents in opinion in which CONWAY, J., concurs.
Judgments reversed, etc.