Johnson v. City of New York , 274 N.Y. 411 ( 1937 )

At the general election held on November 3, 1936, a new charter was adopted for the city of New York previously formulated and recommended for adoption by a Commission appointed and acting pursuant to the authority granted by the Legislature of the State of New York under chapter 867 of the Laws of 1934, as amended by chapter 292 of the Laws of 1935.

Chapter 2 of the charter provides that the legislative power of the city shall be vested in a Council to be elected at the general election in 1937 and each two years thereafter. By the provisions of section 22 (subdivisions [a] and [b]) of that chapter it is provided that the Council shall consist of the President of the Council and of thirty-two other members who are termed Councilmen. Section 22 (b) reads as follows: "b. Councilmen shall be elected one from each of the senate districts as now or hereafter constituted lying wholly within the city; and, until there shall be a readjustment pursuant to the provisions of the constitution of the senate districts as they existed on the first day of January, nineteen hundred thirty-six, three additional councilmen shall be elected at large from the Borough of Brooklyn, three at large from the Borough of the Bronx, three at large from the Borough of Queens and one councilman shall be elected at large from the Borough of Richmond; provided that at all times there shall be at least one councilman elected from each borough." There are nine Senate districts within the borough of Manhattan, eight within the borough of Brooklyn, three within the borough of the Bronx, and two within the borough of Queens. Thus this section creates by legislative act thirty-three constitutional, elective city offices and thirty-three elective officers to be voted for to fill such offices with definite geographically limited units of representation for election purposes along well-defined constitutional lines, and its validity is not here in dispute. The Senate district is established in advance of election by legislative act as the unit of representation for a fixed number of councilmanic offices, as to time and manner similarly created, to be filled by a fixed number of officers similarly provided for in advance, except as to the fixed number of Councilmen at large, allocated to the different boroughs until there shall be a constitutional reapportionment, where the borough is the unit of representation. Thus each qualified elector within the city of New York may vote for all the candidates for members of the Council who are to be elected within his election district. Each qualified elector in the boroughs of Brooklyn, the Bronx and Queens may vote for the President of the Council and four Councilmen, and in the boroughs of Manhattan and Richmond for the President of the Council and one Councilman. This plan for election of the legislative body of a city has been found by this court to be constitutionally sound. (Bareham v. City of Rochester, 246 N.Y. 140.) Councilmen of the city of New York are constitutional officers with State functions (People ex rel. Deitz v. Hogan, 214 N.Y. 216;Needleman v. Voorhis, 254 N.Y. 339), and they must be chosen by the methods fixed by the Constitution and by statutes applicable to all cities alike. Thus methods by which nominations of candidates to be voted for at the general election to fill the offices are duly provided for in harmony with the general election laws of the State. Among other things, at least three months before the general election to be held on November 2, 1937, the City Clerk of the city of New York is required to certify to the Board of Elections each city officer to be voted for at such election.

Chapter 43 of the charter provides for the election of Councilmen by a complicated and cumbersome system, there set up in detail and known as proportional representation. This chapter was proposed with the rest of the charter provisions by the Charter Commission as an alternative for section 22 (b), but no recommendation was made for its adoption. Section 1001 of the chapter provided that it should take effect only in the event that a majority of the electors of the city voting thereon should approve of it when submitted to them for approval, and that, if then approved, subdivision (b) of section 22 should be of no effect. Under the authority of chapter 867, section 5, of the Laws of 1934, chapter 43 was separately submitted at the general election in 1936. The scheme was adopted with about one-half of the qualified electors voting on the question. 2,823,191 votes were cast at the general election for President of the Board of Aldermen; 923,186 votes for adoption of chapter 43; 555,217 votes against its adoption.

An action was brought in the Supreme Court of Kings county for a judgment declaring that chapter 43 is unconstitutional and for other relief, and a decree was granted to that effect. A mandamus proceeding was instituted in New York county to compel the City Clerk of the city of New York to certify pursuant to the provisions of section 69 of the Election Law (Cons. Laws, ch. 17) the officers to be elected under section 22 (b) of the charter, to compel the Board of Elections to take appropriate steps as required by the Election Law for the primary election of candidates to be voted for at the general election and to restrain action under the provisions of chapter 43 of the charter. In this proceeding petitioners were unsuccessful. Appeals directly to this court in both cases under the provisions of section 588, subdivision 3, of the Civil Practice Act bring to us for determination the sole question of the constitutionality of chapter 43.

At the outset, it is asserted that this court settled the question of its constitutionality in Matter of Mooney v.Cohen (272 N.Y. 33; 272 N.Y. 597). That was a mandamus proceeding to restrain the submission of the question to the electors of whether or not the proposed charter should be adopted, and the sole matter considered or passed upon was whether the mere matter of its submission by referendum was constitutional. The question here presented might have been considered (Matter of McCabe v. Voorhis, 243 N.Y. 401;Matter of Tierney v. Cohen, 268 N.Y. 464; Matter of Osborn v. Cohen, 272 N.Y. 55), but it was not. Jurisdiction in the proceedings now before the court is discretionary (Bareham v.City of Rochester, 246 N.Y. 140, 143), and we might properly decline to pass on the questions presented until an actual controversy between proper parties litigant concerning some action later taken or refused were presented. Prudence and the public interest, however, impel us to take jurisdiction. Taxpayers as well as electors are interested parties; it is represented that it will cost the taxpayers of the city of New York several million dollars to prepare for and conduct an election under the chapter in suit. If an election should be held under its provisions and the scheme later be declared unconstitutional, great confusion if not much more serious consequences might result. But I expressly limit this opinion to the sole question as to whether the plan upon its face as outlined in chapter 43 is constitutional.

Where the claim is made that a legislative act is unconstitutional, the courts uniformly entertain such contentions with skepticism and extreme caution, and should never invalidate it unless its unconstitutionality is so clear as to leave no room for rational doubt. (Com. v. Smith, 4 Binn. [Pa.] 117, 123;Trustees of Dartmouth College v. Woodward, 4 Wheat. [U.S.] 518, 625; Fletcher v. Peck, 6 Cranch [U.S.], 87, 128; Ogden v. Saunders, 12 Wheat. [U.S.] 213, 270; Sinking-Fund Cases,99 U.S. 700, 718.) This court has said that there must be some specific provision of the Constitution with which it clearly conflicts. (Cleveland v. City of Watertown, 222 N.Y. 159,164.) But when that conflict is found, if no way may be found to avoid the issue, it is the duty of the courts to hold the act violative of the fundamental law.

The complicated and confusing detail of the scheme set up in chapter 43 cannot be fully covered within the proper confines of an opinion. By the provisions of section 1003 of the chapter each borough constitutes a single district for the election of Councilmen which "shall elect one councilman for every seventy-five thousand voters who cast valid votes for councilmen within it. A remainder of fifty thousand such voters or more shall entitle a borough to one additional councilman, and each borough shall be entitled to at least one councilman." Section 1004 provides for nominations. Within one hundred days before election a candidate may be nominated by petition containing the signatures of not less than 2,000 electors who have registered as voters within eighteen months previous to filing of the petition. Thus the maximum number of candidates that may be nominated is the total number of such qualified voters in the borough divided by 2,000. Section 1005 provides for ballots and voting, and the arrangement and shifting of names on the ballots in the several election districts in such a way as to present great difficulty for a voter to find the candidate of his choice. It is provided that "There shall be no indication on the ballot of a definite number of candidates to be voted for" (subd. 4). The voter may indicate on the ballot his choice of candidates in numerical order by placing numbers in the squares opposite their names. Sections 1006 and 1007 provide for the methods by which the validity of the ballots may be determined and for the counting of the votes. A central counting place is to be provided in each borough. Thus the count cannot be made at the polling place as provided in the Election Law. At the close of the polls, ballots from all polling places within the borough must be collected at the central counting place and arranged in the order of similarly numbered election districts (there are 3,799 election districts in the city of New York), then sorted according to the first choices marked on them after the first election district for sorting has been drawn by lot. By designated processes for the determination of the validity of ballots and for shifting and shuffling them between choices and the application of the mathematical processes of addition, subtraction, multiplication and division, the personnel making the count determines how many councilmanic offices have been created by the voters and who they have selected to fill those offices. No matter how many offices of Councilmen have thus been created, no elector is permitted to have his vote counted for more than one candidate and that one candidate is the one on whom the counting personnel determines his choice shall fall. The open and avowed purpose of the scheme is to secure elections by minorities, and to provide for and encourage group voting, the destruction of party government and party responsibility and of the principle of majority rule which basically underlies the American system of representative government. The practical result of its operation is to delegate the constitutional and legislative function of the creation of office to the electorate and the disenfranchisement of duly qualified voters by exclusion of their right to vote and to have these votes counted for candidates of their choice for all offices to be filled or voted on in these several units of representation. The scheme set up in chapter 43 of the charter for the creation of councilmanic offices and election of Councilmen is unconstitutional beyond any rational doubt.

Article I, section 1, of the State Constitution reads as follows: "No member of this State shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers."

Article II, section 1, provides that "Every citizen of the age of twenty-one years" within the prescribed residential and literary qualifications, "shall be entitled to vote at such election in the election district of which he or she shall at the time be a resident, and not elsewhere, for all officers that noware or hereafter may be elective by the people." (Italics ours.)

Can there be any doubt concerning the meaning of those words? Does the language mean what is expressly said or does it mean something else that someone would like to have it mean? Do the expressions mean that the elector shall have a right to vote forsome officers only? The answer is too simple and obvious to be open to discussion. Where the words "all officers" are there used they mean "all officers" and not "some officers." Words and phrases in the fundamental law may not be ignored or their ordinary meaning distorted. (Matter of Smith v. Board of Supervisors, 148 N.Y. 187, 193.)

The expression "for all officers" first appears in the Constitution of this State in the Constitution of 1821. The struggle to frame the suffrage provision was not exclusively centered, as has been asserted, in the matter of property qualifications. It was likewise centered on extending and preserving the right of each duly qualified citizen to vote forall elective officers offered in his election district instead of being limited to vote for some or a limited few. During the debates in the Constitutional Convention of 1821 preceding the adoption of article II, section 1, at least ten resolutions or motions brought up that point. There finally emerged the expression now found in article II, section 1, as intended to be comprehensive enough to confer the right to suffrage upon all duly qualified electors to vote for all officers to be elected to all offices for which it was permissible for him to vote withinhis election district.

There is no provision of law in this State and cannot be any such which bars a duly qualified voter from casting his ballot for his candidate for every office for which voting is permissible within his election district. And yet this law says that he can vote for one Councilman and for one only although there may be, under the terms of the act, if he resides in Brooklyn, at least as many as twelve Councilmen to be elected, or if he resides in Manhattan at least as many as nine and all such offices available for his vote within the election district within which he resides. Under chapter 43, no matter how many offices of Councilmen may be created by the voters in any particular unit of representation, the ballot of the elector can be counted for only one candidate for one office. No matter how many choices he may indicate on his ballot, his vote will count, if it counts at all, for only one choice. No matter how sincere may be his desire to vote for a particular candidate for a particular office, his wish may be frustrated by mathematical processes and manipulation. And finally by fiat of law he may be precluded from voting for the office at all.

Where such constitutional guaranties exist, so far as diligent and eminent counsel have been able to show, no court has ever declared that a duly qualified voter may be debarred from voting for a candidate of his choice for every office available for his suffrage. On the contrary, decisions in this and other States uniformly declare that such expressions in the fundamental law mean what they say and include that which may be implied to make the exercise of the right of suffrage effective; they give to the voter the right to vote and to have his vote counted at any election for all officers that may be elective within his unit of representation for every office to be filled and any system of voting like the one here devised which impairs such right is unconstitutional. (Matter of Gage, 141 N.Y. 112; People exrel. Goring v. President of Vil. of Wappingers Falls, 144 N.Y. 616; Matter of Callahan, 200 N.Y. 59; Matter of Hopper v.Britt, 203 N.Y. 144; Brown v. Smallwood, 130 Minn. 492;Maynard v. Board of Canvassers, 84 Mich. 228; Wattles exrel. Johnson v. Upjohn, 211 Mich. 514; McArdle v. Mayor,66 N.J.L. 590; People v. Elkus, 59 Cal.App. 396; Opinion tothe House of Representatives, 21 R.I. 579; Bowden v. Bedell,68 N.J.L. 451; State v. Constantine, 42 Ohio St. 437.) In theGoring Case (supra) Judge GRAY said: "The Constitution confers upon every citizen, meeting the requirements specified therein, the right to vote at elections for all offices that are elective by the people and there is no power in the legislature to take away the right so conferred. The legislature may prescribe regulations for ascertaining the citizens who shall be entitled to exercise the right of suffrage, for that power is given to it by the Constitution. In prescribing regulations for that purpose, or in respect to voting by ballot, it does so subject to and, presumably, in furtherance of the constitutional right and its enactments are to be construed in the broadest spirit of securing to all citizens, possessing the necessary qualifications, the right freely to cast their ballots for offices to be filled by election and the right to have those ballots, when cast in compliance with the law, received and fairly counted. Legislation which fails in such respects and prevents the full exercise of the right as secured by the Constitution is invalid" (p. 620).

Particularly apt are the words of the Michigan Supreme Court in the Wattles Case (supra), where it was called upon to pass on the constitutionality of a provision of the charter of the city of Kalamazoo requiring the election of seven city commissioners in the city at large by a system of proportional representation.

"Each elector," said the court, "had the right to vote for seven candidates, by a vote not only `of equal effect with, and no more than, the vote of every other elector for every officer to be elected,' but of equal potential value as to each of the seven candidates he voted for. As construed in the MaynardCase, the Constitution gave him the right to express his choice by a ballot vote for each of the seven commissioners to be elected; and having done so, he `exhausted his privilege.' The Hare system limits his power to express his preference `in this manner' to but one candidate of the seven, only permitting him to express a second choice for one other, and so on by numerically dwindling and weakening choices until the elector has expressed thus `as many choices as you (he) please.' As said in theMaynard Case, `it is not in the power of the legislature (nor a city adopting a charter under the home rule act) to give his preference or choice, without conflicting with these provisions of the Constitution, more than a single expression of opinion or choice;' and he has the right to express that single choice as to each of the officers to be elected in his district. While each voter can under the Hare system vote for all candidates to express sequential choices as provided, it is evident that his vote is primarily and positively effective for only one candidate" (p. 534).

Furthermore, by the express provisions of the local law, there is an unconstitutional delegation to the voters on election day of the power to create all offices of Councilmen except one for each borough. Chapter 43 neither creates the offices of Councilmen nor fixes their number. In some cases, public offices are expressly created by provisions of the Constitution (Arts. IV and V). Where not so created, they may be created by the Legislature or by the authority it may select (Art. X, § 2; art. XII, § 3). But city offices may be created under the Home Rule Amendment only by a local law (Art. XII, § 3). Power to create the office of Councilman and to fix the number of such offices is a legislative power and lies nowhere else and cannot be delegated to any administrative agency or to the people themselves. (Barto v. Himrod, 8 N.Y. 483; People v. Conover, 17 N.Y. 64,67; Eckerson v. City of New York, 176 N.Y. 609; Meyers v. Mayor, 69 Hun, 291; People ex rel. Percival v. Cram,164 N.Y. 166; People ex rel. Unger v. Kennedy, 207 N.Y. 533, 544;Matter of McCabe v. Voorhis, 243 N.Y. 401; Matter ofLaRocca v. Flynn, 257 N.Y. 5, 16; Bareham v. City ofRochester, 246 N.Y. 140; Matter of Gage, 141 N.Y. 112; Matterof Burke v. Cohen, 265 N.Y. 210; People v. Ryan, 267 N.Y. 133; Panama Refining Co. v. Ryan, 293 U.S. 388, 430.) In theUnger Case (supra) it is said: "The proposition that by our Constitution general powers of legislation are conferred exclusively upon the legislature and that this body may not escape its duties and responsibilities by delegating such legislative powers to the people at large, must be regarded as so thoroughly established that it needs no discussion."

Yet chapter 43 of the New York Charter makes the creation of office of Councilman not a legislative act but the act of the people at the very time that they are voting for officers to fill councilmanic offices created only by virtue of the number of valid ballots that may be cast. Not only do the number of offices to be created and the creation of the specific office depend upon the vote, but the number may be limited by the shifting and shuffling of votes and by the determination of the counting personnel as to their validity.

The fact that legislative and charter commissions as well as constitutional conventions for more than fifty years and our courts have held that any scheme for proportional representation or minority representation in local government could not be adopted without an amendment to article II, section 1, of the Constitution should be given the greatest weight. (People exrel. Einsfeld v. Murray, 149 N.Y. 367, 376; Story v.Craig, 231 N.Y. 33; Matter of LaRocca v. Flynn, supra.) In addition to the authorities above cited, Judge EARL, in 1884 inPeople ex rel. Angerstein v. Kenney (96 N.Y. 294) pointed out (at p. 303) the gravity of the question of the constitutionality of any statute permitting limited voting. In 1877 a Legislative Commission appointed to devise a plan for city government (Assembly Document No. 68 [1877], p. 47) and a New York City Charter Commission in 1922 each reported that such a plan was constitutionally unsound. The Constitutional Convention of 1894 discarded a proposal for proportional election of members of city legislative bodies by minority representation. By common consent in this State over a period of more than half a century, a scheme of that kind has been considered unconstitutional. What strange thing has suddenly occurred to bring it within the limits of our constitutional provisions? It is asserted that article XII, section 3, of the Constitution, in effect since January 1, 1924, and the City Home Rule Law (Cons. Laws, ch. 76) authorize the enactment of chapter 43. The contrary clearly appears. By express terms no city has power to adopt a local law inconsistent with the Constitution and laws of the State.

It is asserted that the proposed method of voting has been approved and adopted in this State and held valid, and cited as proof for that statement is the fact that Boards of Supervisors or Aldermen are elected by districts. Thereby, all electors in the county or of the city are not permitted to vote for all Supervisors to be elected in the county or all Aldermen to be elected in the city. Nevertheless there the elector within the town or ward votes for all candidates that may be on the ballotin the election district in which he votes. For example, each elector living in any election district in a ward in a selected city may vote at the general election to be held in November, 1937, for candidates for Associate Judge of the Court of Appeals, for justice of the Supreme Court, for Member of Assembly, for Sheriff, for District Attorney, for Surrogate, for Supervisor, for five City Councilmen at Large and for Constable. His governmental unit for election of Supervisor for the county is the ward. At the same time, he votes for candidates for State, county and city office because they are all candidates to be voted for in his election district as required by article II, section 1, of the Constitution. But what would be said if he should be denied the right to vote within that election district for four of the five City Councilmen, or for Sheriff, or Member of Assembly? Would a scheme so provided be declared constitutional? The answer is obvious. No one has ever had the temerity to even suggest it.

There is no doubt that, if Brooklyn were entitled to twelve members of the Council, the borough could be divided up into twelve districts and one Councilman elected from each district. A division by Senate districts is set up in section 22 (b). Such a division was declared constitutional in Bareham v. City ofRochester (supra). So also can a county having a board of forty-three Supervisors be divided into forty-three towns and/or wards and one Supervisor elected from each unit. But that is no ground for holding that chapter 43 is constitutional. In the cases cited only one candidate for Councilman or Supervisor, as the case might be, is offered to the elector inthe election district in which he votes. This is strictly within the letter of article II, section 1, of the Constitution and is quite different from placing the names of twelve Councilmen or forty-three Supervisors on the ballot in the election districtin which the elector casts his vote and then prohibiting him from voting for more than one. It must also be remembered that whatever limited voting existed in New York city was constantly under attack and was finally discarded in 1887. The opinion of Judge EARL in People ex rel. Angerstein v. Kenney (supra) was written in 1884 and the question of the constitutionality of limited voting was held to be academic and was not passed upon, as the possible term of office of the relators had long since expired. Judge EARL said, however, "The constitutional question which the plaintiffs sought to raise by the commencement of this action is a very grave and interesting one, and should not be decided in any case unless it is properly presented, and necessarily involved." There was no evidence in that case, as stated by Judge EARL, that any voter was denied the right to vote for all candidates on the ballot in the election district where he voted.

Ours is a constitutional democracy — a government of law in which majorities rule. When the mandate of the law is plain, it is the duty of the court to follow. Courts must decide cases upon the law as written — not upon what some may think it ought to be or wish it might be to conform to fancy or theory. The courts may not usurp the legislative function or permit its unlawful delegation or override the plain and unambiguous mandate of the Constitution. The Constitution and the law permit of no such experiment as is attempted here.

The judgment appealed from in the Johnson case should be affirmed, with costs. The order appealed from in the Bowe case should be reversed, with costs, and the matter remitted to the Special Term with directions to enter an order for the relief prayed for.

HUBBS, LOUGHRAN and FINCH, JJ., concur with CRANE, Ch. J.; LEHMAN, J., concurs in result in separate opinion; O'BRIEN, J.; concurs in result on the ground that chapter 43 of the charter providing for proportional representation is not so clearly in conflict with article II, section 1, of the Constitution as to require a declaration of invalidity; RIPPEY, J., dissents in opinion.

Judgment in Kings county case reversed and order in case of county of New York affirmed.