(dissenting); We are constrained to dissent because we believe to do otherwise would, in our view, be tantamount to performing a legislative function rather than a judicial determination of existing law. “ While the courts may interpret doubtful or obscure phrases and imperfect language in a statute so as to give effect to the presumed intention of the legislature, and to carry out what appears to be the general policy of the law, they cannot, by construction, cure a casus omissus, however just and desirable it may be, to supply the omitted provisions.” (McKuskie v. Hendrickson, 128 N. Y. 555, 558; Meltzer v. Koenigsberg, 302 N. Y. 523, 525.)
The legislation in question (L. 1963, ch. 1022) purports to amend article 9 of the Optional County Government Law. That article is a continuation of article 2-A of the County Law of 1909 (L. 1950, ch. 692). It was added thereto by chapter 948 of the Laws of 1935, on May 16, 1935. The Legislature was then free from any constitutional restraint in enacting laws respecting county government, except that the Constitution then required that there be a board of supervisors in each county outside of New York City. “ At the outset it must be borne in mind that the power of the Legislature is unlimited, except as it is restrained by the Constitution ”. (Cort v. Smith, 249 App. Div. 1, 4, affd. 273 N. Y. 481.)
The County Manager form of government in Monroe County came into existence, pursuant to a request therefor contained in a message to the Legislature from the Board of Supervisors, by the signature of Governor Lehman on May 16, 1935. It was approved by the electors on November 5, 1935, and became effective in Monroe County on January 1,1936. When the voters of Monroe County adopted such plan they did so by. a majority of the votes cast in the county as provided in section 7-b of the law, without any notice that future constitutional amendments might be applied retroactively so as to require approval of laws thereafter enacted by a split referendum of the voters of the city, the voters of the towns, and the voters of the entire county.
*347The amendment to section 26 of article III of the Constitution which became effective January 1, 1936 provided in its subdivision 2 that the Legislature should provide by' law alternative forms of government for counties and that counties might adopt such a form by a split referendum, and further provided that after adoption of a form of government pursuant to subdivision 2, no law which changed the voting power should become effective without adoption by the electors.
The issue before us can be simply resolved by the answer to the question — is Monroe County operating under an alternative form of government pursuant to and within the meaning of amended section 26 of article III of the Constitution? If it is not then the petitioners are not entitled to a referendum. The section of the Constitution here construed specifically requires that in order to adopt an alternative form of government it must be by the express consent of the electors by a split or triform referendum. It is conceded that this procedure Monroe County was never required to follow. It adopted a form of government by a simple majority vote and by no interpretation or construction of the Constitution can this be held to be an alternative form.
The amendment expressly provided that nothing therein contained should be deemed to impair or restrict the existing power of the Legislature to enact laws relating to the government of a county, until the adoption of a form of government by such county, pursuant to subdivision 2 thereof. It seems clear to us that a form of government adopted before the amendment took effect, pursuant to a law theretofore enacted, cannot by any process of reasoning be held to have been adopted pursuant to the amendment. It follows that the provisions of subdivision 4 of the amendment which apply only after the adoption of a form of government by a county pursuant to subdivision 2 of the amendment do not apply to Monroe County which theretofore adopted a County Manager form of government. In our view the amendment should be interpreted according to its plain unamibiguous language which clearly, simply and unequivocally states that it applies only to counties which have adopted a form of government pursuant to subdivision 2. We do not think that this plain language may be changed because Monroe County happens to be the only county which adopted a form of government pursuant to article 2-A of the County Law or because 6 counties have adopted forms of government pursuant to other provisions of law or because 50 counties have adopted no alternative form of goverment, and that as to them the power of the Legislature is unlimited because it is unrestrained by the Con*348stitution. It should be noted that if the 1936 amendment to section 26 of article III of the Constitution does not apply to Monroe County, as we believe it clearly does not, the provisions of section 2 of article IX thereof which contain the same provisions as such amendment and apply only “ [ajfter the adoption of an alternative form of government by a county pursuant to this section ” do not apply. The provision of section 7-c of article 2-A of the County Law, which provided that provisions of law not inconsistent with article 2-A should apply to counties adopting an optional form of government thereunder, does not render the amendment applicable to such counties. The amendment is inconsistent with article 2-A. By its terms, it applies only to counties adopting a form of government pursuant to its provisions and the form of referendum for which it provides is entirely inconsistent with the referendum required by article 2-A. Section 7-c is part of a legislative act. The Legislature retained power to repeal or modify it. It was not a restraint upon the Legislature. “ That which the Legislature has given the Legislature can take away ”. (Cort v. Smith, 249 App. Div. 1, 6, supra.)
Neither by express language nor implication can we find any intent expressed in the amendment that it should be given retroactive effect. It expressly provides otherwise. All of its language can be satisfied by confining its operation to the future and its requirements for a referendum are inapplicable to a county which adopted a form of government before the amendment became effective. Under such circumstances, it must be construed to operate prospectively only. (McKinney’s Cons. Laws of N. Y., Book 2, Part 1, Constitution [1954 ed.], Constitutional Interpretation, § 3, pp. 6, 7; Shreveport v. Cole, 129 U. S. 36, 43; Matter of Town of Penfield, 3 App. Div. 30, 37, affd. 155 N. Y. 703.) The rule of construction applicable here was succinctly stated by the Court of Appeals in Matter of Ayman v. Teachers’ Retirement Bd. (9 N Y 2d 119, 125). “ This view is in accord with the general rule of construction that statutes as well as constitutional provisions are to be construed as prospective only, unless a clear expression of intent to the contrary is found [citing cases] ”.
The majority opinion likens the government of Monroe County to an island. True, its form is different from that of other counties. The fact that it is atypical strengthens respondent’s argument that it is not subject to the mandate of the amendment to section 26 of article III" of the Constitution. If Monroe County is an island of itself it is because legislative fiat has made it such. If it is to be annexed to the mainland the only *349method by which this can be accomplished is by action of the Legislature and not by court decision, no matter how desirable it may seem in principle. The Court of Appeals made this crystal clear in its unanimous decision in Bright Homes v. Wright (8 N Y 2d 157, 162) where the court said: “ Courts are not supposed to legislate under the guise of interpretation, and in the long run it is better to adhere closely to this principle and leave it to the Legislature to correct evils if any exist. If harm has been done by the resolution in question there is nothing about it that cannot be corrected by the Legislature.”
In our view Special Term has correctly determined that petitioners are not, under existing law, entitled to a referendum, and we vote to.affirm that determination.
Williams, P. J., and Noonan, J., concur with Bastow, J.; Goldman and Henry, JJ., dissent and vote to affirm in separate opinion.
Order reversed on the law and application granted, without costs of this appeal to any party.