
    The People ex rel. Jeremiah Clancy, Resp’t, v. The Board of Supervisors of Westchester County, App’lt.
    
    
      (Court of Appeals,
    
    
      Filed October 24, 1893.)
    
    1. Constitutional law—Supervisors.
    Chap. 54, Laws 1893, dividing the city of Yonkers into wards and authorizing the electors of each ward to elect a supervisor, is not violative of art. 3, § 18, of the constitution.
    
      2. Same.
    An act adopting or amending a city charter, although it provides for ward supervisors, is not an act “providing for the election of members of the hoard of supervisors,” notwithstanding the fact that under a general law such supervisors become ex officio members of such board.
    Appeal from order of the supreme court, general term, second department, affirming order awarding a peremptory mandamus compelling the board of supervisors to recognize relator as a supervisor of the fourth ward of the city of Yonkers.
    
      Wm. H. Robertson and Wm. Romer, for app’lt; Joseph H. Daly, for resp't.
    
      
       Affirming 53 St. Rep., 328.
    
   Finch, J.

By an act of the legislature amending the charter of the city of Yonkers, Laws of 1892, chap. 54, § 4, it was allowed a supervisor for each ward, to be “ elected by the electors of their respective wards.” At the annual town election in 1892, no supervisor for the whole city was elected, and Jacob Bead, who was chosen the previous year, claimed to hold over, and be and remain the sole supervisor of the city. But on the last Tuesday of March in that year the relator was duly elected supervisor of the fourth ward by virtue of the amendment of the charter allowing a supervisor for each ward. The Bevised Statutes provide, and the County Act of 1892, chap. 686, art. 2, § 10, substantially repeats, that the board of supervisors shall consist of the supervisors of the cities and towns in each county. The relator, therefore, if legally elected a supervisor for the fourth ward of the city, became, under the general statute, a lawful member of the board of supervisors of Westchester county, and entitled to a seat in that body. When the board met, Jacob Bead appeared and claimed to be recognized as the sole supervisor of Yonkers, upon the ground that the charter amendment of 1892, giving supervisors to the several wards, was in violation of the constitution and null and void. The board, acting upon that theory, refused to admit the relator and denied his right to act with them, although he appeared and demanded his seat, and Bead was recognized as supervisor of Yonkers by reason of his holding over in default of a successor duly elected. The relator, therefore, applied to a special term of the supreme court for a peremptory mandamus, requiring the board to recognize him as a supervisor of the city of Yonkers, and permit him to act as a member of the board. The writ was awarded, whereupon the defendant appealed to the general term, which affirmed the order, and the board then took an appeal to this court.

The sole question thus presented is whether the act of 1892, amending the city charter, is constitutional. In defending their position the board rely upon article 3, § 18 of the constitution, which commands that “the legislature shall not pass a private or local bill in any of the following cases,” one of which is “ providing for election of members of the board of supervisors.” It is not altogether easy to understand what this provision was intended to forbid. Members of the board of supervisors are never elected as such, but hold that office and perform its duties under a general law, and by force of their election as supervisors of separate towns or cities. We shall better understand what the prohibition was intended to cover, if we first consider the situation as to supervisors of towns, and then as to supervisors of cities.

The constitution provides (art. 2, § 5) that “ all elections by the citizens shall be by ballot, except for such town officers as may by law be directed to be otherwise chosen.” Here was permission for the legislature to authorize the election of town supervisors, not only by ballot, but after the old town meeting fashion of calling for the ayes and noes, or by a show of hands or other ■division. As to some town officers the statute still permits these ancient methods of choice. The legislature ordained (1 R. S., part 1, chap. 11, art. 1, title S) that the supervisor should be elected by ballot, and also other named town officers, and then the law proceeds thus: “ All other town officers shall be chosen either, 1, by ballot, 2, by ayes and noes, 3, by the rising or dividing of the electors, as the meeting may determine.” So that, under the fundamental law, it was competent for the legislature to permit the election of a supervisor by either one of the three specified methods of voting, so far as towns were concerned.

The constitution further provided (art. 3, § 22), in constituting the board of supervisors, that it should be “ composed of such members and elected in such manner and for such period as is or may be provided by law.” That is, what members should constitute the board, the manner of their election and their terms of office were details committed to the discretion of the legislature, and that body could enact laws providing for the election of supervisors by ballot, or ayes and noes, or an actual division, and ■could fix=their terms of office. It could also, as it did, determine the times and places of holding such elections. 1 R. S., pt. 1, ch. 11, title 2, art. 1, §§ 1, 2. Now, all these details could be, as they had been, properly regulated by general laws applicable to all the towns alike, and great mischiefs would result if, by the operation •of local laws, all uniformit\' should be lost,and each town be suffered to go its own independent way. And hence it was that in 1874 the discretion of the legislature in these respects as to the important office of town supervisors, which had been exercised by .general laws, was required to be so exercised in that manner only, and never by mere local bills. The prohibition, therefore, had a wide range of application to town supervisors, and prevented the passage of local bills giving one town power to choose its supervisor by a different mode of voting, at a different dictation of time and place, and for different official terms from other towns ■of the state.

If, then, the constitutional provision related to city supervisors, it would be natural to confine it to a similar class of details ; but I do not think it relates to them at all, because of the manner in which they come into existence. Cities acquire their corporate life by force of special, several and purely local acts of the legislature, which creates and frames them in the regular exercise of governmental functions. They have never been created by gen-oral laws, and cannot easily or prudently be organized in any other method than by special and local enactments. It may be possible to frame some general law under which cities could be organized, but difficulties would spring up in many directions, and the probable result would be some broad and general outline still requiring to be supplemented by more or less of special legislation. Wards would be unequal, and to give a supervisor in all cases to each might in some instances give the city more power in the county than would be just, or more even than was desired, ■ But, conceding the possibility, it had never been realized or attempted to be realized when § 18 of the constitution was adopted,, and cities had always been organized by special charters.

The constitution permitted that mode of organization, for in requiring villages to be chartered 'by general laws and omitting cities it recognized the propriety and necessity of leaving the-latter to be organized by local laws. But that permission must, necessarily extend to and cover all the proper subjects of a city charter, and among them are, undoubtedly, the division into wards and the allowance of a supervisor in each, or in so many as should, be prudent and satisfactory. A charter which left that out and excluded the city from having a supervisor at all would be a. maimed and imperfect exercise of the power of city organization. And a law which so creates and charters and organizes a city is not, within the constitutional meaning, a local law “providing for the election of members of the board of supervisors’ ’ because as-a local law for the organization of a city government, it divides-the municipal area into wards and gives each its own supervisor. Any other view brings, the constitutional provisions into discords and contradiction. To uphold the contention of the defendant, will compel us to say that what the constitution permits to be done by a local law it also forbids to some extent by mere indirection and inference; that its authority to organize city governments is maimed and distorted by a prohibition applying to one-of its necessary and customary details; and that the framers of the constitution meant not only to prevent one group of obvious-evils, but in the process to introduce and set in operation another. A general law for the organization of cities, if possible, would be-quite likely to prove inadequate. A city on the seaboard has necessities widely different from one inland, and the care of a. large population is quite unlike that of a small one. The work is best done by a local charter, and to say that because of that the framers of the constitution, and the people in adopting itr meant to deprive a city of its ward supervisors, and, as a consequence, of adequate representation in the county legislature, and that too, not directly, but through an inference from a prohibition-having its own proper field of operation, is to misapprehend the constitutional intent, and set the instrument in some degree at. war with itself. The legislative and judicial construction has-been very generally in the direction of that which we here adopt-Cities all over the state have been supplied with supervisors by the local, law of their charters, and while consequences should never frighten us from seeking out and declaring the truth, they are sometimes valuable aids in ascertaining what that truth really is. The courts have many times in the construction of § 18 been required to prefer the spirit and3 intent of the law to its rigid and arbitrary letter; and in one case, at least, the necessity of local legislation to accomplish a lawful and useful result was deemed a sufficient reason for holding that the prohibition of § 18 was not intended to apply, and should not apply, to prevent the desired result. In Matter of Application of Union Ferry Co., 98 N. Y., 150.

And so, taking into view all the provisions relating to the general subject, we are of opinion that an act adopting or amending a city charter, although it provides for ward supervisors, is not an act “ providing for the election of members of the board of supervisors,” notwithstanding the fact that under a general law such supervisors become ex officio members of such board.

It follows that the peremptory mandamus was properly allowed, and the order should be affirmed, with costs.

All concur.  