In re Grenfell

Foster, J.

On June 26, 1945, there was filed in the office of the Clerk of the City of Schenectady a petition for submission to the electors of the city of a proposed local law amending the charter of the city. The petition purported to be filed under section 19-a of the City Home Rule Law, and for the purposes of this appeal it is conceded that the qualified signers thereof amounted in number to at least 10% of the total number of votes cast for Governor in the city at the last gubernatorial election.

In substance the petition proposes to submit to the voters of Schenectaay a local law to amend the existing form of city government, which is Plan C under the Optional City Government Law (L. 1914, ch. 444 — now repealed), by a repeal of the present system and a return to the former government under the Second Class Cities Law under which the city was governed prior to 1934.

Objections were filed to the petition, and the Supreme Court at Special Term has found the petition illegal and invalid upon three grounds. First, that it proposes a new charter rather than an amendment; second, that a city cannot adopt a new charter merely by reference to the Second Class Cities Law; and third, that the petition is insufficient to comply with the requirements of section 19-a of the City Home Rule Law. Proponent appeals from this decision.

With the first ground assigned by the Special Term we do not agree. True, it was held in Matter of Maylender v. Morrison (260 App. Div. 892, affd. 284 N. Y. 575) that an amendment which was in effect a proposal to create a new city charter could not be submitted under section 19-a of the City Home Rule Law. However, the City Home Rule Law was amended in 1944 in two very significant particulars. The following language was added to the definitions contained in section 2: “ * * * the term * charter amendment ’ means any change in an existing charter presented as such under authority of this chapter or any charter or state statute. A charter amendment may be of any extent and may deal with any number of subjects. A proposal presented as a charter amendment shall not be rejected as such on the ground that it constitutes a new charter.>> (Italics supplied.) The language of section 19-a was also changed to read in part as follows: “ A local law amending a city charter, however extensively, also may be adopted * * * (Italics supplied.) (L. 1944, eh. 602.) The words italicized were added to the former statute. A more direct legislative answer to a judicial decision can scarcely be envisaged, and we are bound to assume therefore that the construction of the former statute as exemplified in the Maylender case is no longer to be followed.

It should also be noted in this connection that section 20 of the City Home Buie Law, which the Special Term held was the only section under which it was proper to submit a new charter, is permissive and not mandatory. Its language so indicates and it has been so construed. (Loening v. Seaman, 290 N. Y. 527.) Moreover, section 31 of the same statute provides in part: “ 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 ”.

We think therefore that an objection to the petition on the ground it proposed amendments so extensive as to constitute a new charter may not be sustained.

However, assuming that amendments so extensive as to practically constitute a new charter may be submitted under section 19-a, we are nevertheless in accord with the Special Term that the petition in controversy is illegal and insufficient under this section. A major intent of the section is clear. The voters are entitled to know precisely the extent and nature of the proposed changes submitted. The proposal here purports to supersede the form of city government under Plan C of the former Optional City Government Law and to substitute therefor the government previously in effect under the Second Class Cities Law. Since the home rule amendments to the Constitution adopted November 6,1923, the Second Class Cities Law has been more or less obsolete, and its provisions continued and saved only for certain purposes. (N. Y. Const., art. IX, § 13; Ponsrok v. City of Yonkers, 254 N. Y. 91.) We agree with the contention of proponent that despite this there is no constitutional or legislative prohibition against the adoption of any or all of the provisions of the Second Class Cities Law as a city charter, but if such provisions are to be adopted under section 19-a of the City Home Buie Law they must be designated specifically in the proposed local law, and otherwise in accordance with the statute. Mere blanket references to the Second Class Cities Law are not sufficient. Voters are entitled to know from the language of the proposal itself precisely what they are called to pass upon, and should not be required by reference to examine the provisions of any statute. The fact that the city of Schenectady was governed under Second Class Cities Law prior to 1934 in no way alters this proposition. It cannot be assumed that because of this fact the voters generally are familiar with- all of the pertinent provisions of such statute. The intent of the Legislature as expressed in section 19-a of the City Home Rule Law to give voters precise information is indicated by its. language: “ Such local law shall set forth the new matter to be added to the charter either in italics or underlined and the matter to be deleted therefrom either in brackets or with lines drawn through it * * *; but failure so to set forth any provision of the charter which is in fact superseded shall not invalidate the amendment or any portion thereof.” This procedure was not followed in the instant proposal. Appellant asserts that this requirement is permissive and hot mandatory. We think to the contrary that it is mandatory in the first instance if timely objection is taken, and such is the case here. In our judgment the requirement is to be overlooked only where the proposed amendment has actually been voted upon and the old charter has in effect been superseded.

For the reasons indicated the order of the Special Term should be affirmed, without costs.'