
    The People of the State of New York ex rel. Patrick J. Gleason, Respondent, v. The Town Board of the Town of Hempstead, Appellant.
    
      Cheater New York—middle line of the channel (as it existed in 1894) between Bockaway Beach and Shelter Island is the Hempstead boundary.
    
    The electors of that part of the town of Hempstead, lying to the west of a straight line drawn from the southeasterly point of the town of Flushing through the middle of the channel (as it existed in 1894) between Rockaway beach and Shelter island to the Atlantic ocean, having voted in 1894, as authorized by chapter 64 of the laws of that year, upon the question of consolidation with the Greater Hew York, it must, in view of the settled policy of the State to have the question of incorporation submitted to the voters of the locality, be deemed that the Legislature when it employed the identical language of the act of 1894 to designate the Hempstead boundary of' the new municipality in the Consolidation Act (Chap. 488, Laws of 1896), and in the Charter Act (Chap. 378, Laws of 1897) (which acts take effect January 1, 1898), referred to the channel as it existed at the time of the submission of the question of incorporation to the electors.
    It is, therefore, the duty of the town board of the town of Hempstead, in dividing the town into election districts which shall be wholly within or wholly without the territory of the new municipality, as required by chapter 381 of the Laws of 1897, to base their- division on the channel as it existed in 1894, although it has already shifted three-quarters of a mile to the westward.
    Appeal by the defendant, The Town Board of the Town of Hempstead, from an order of the . Supreme Court, made at the Kings. County Special Term and entered in the office of the clerk of the county of Queens on the 13th day of September, 1897, commanding that an alternative writ of mandamus issue directing the defendant to convene immediately and divide the town of Hemp-stead into.election districts, so that the districts will be respectively wholly within or wholly without the boundary of the Greater New York in that town, and to make such division upon the boundary line shown upon-"a map filed in the county clerk’s office in 1894, and also from an order made at the Kings County Special Term and entered in the office of the clerk of the county of Queens on the 30th day of September, 1897, directing that a peremptory writ of mandamus issue directing the defendant to convene and divide the said town of Hempstead into election districts, as directed in the alternative writ of mandamus.
    
      Townsend Scudder, for the appellant.
    
      Franklin B. Lord and Daniel Lord, for village of Lawrence, intervening with the appellant.
    
      F. H. Van Vechten, for the relator, respondent.
   Goodrich, P. J.:

In order to determine this controversy we must look at the whole scheme creating the new municipality of the city of New York, commonly known as the Greater New York.

In 1894 the Legislature passed an act (Chap. 64, Laws of 1894) providing for the submission of the question of consolidation to the vote of the people within the territory proposed to be included within the Greater New York. The territory, so far as it relates to that town of Hempstead, is described in the act as follows: “ Arid that part of the town of Hempstead which is westerly of a straight line drawn from the southeasterly point of the town of Flushing,, through the middle of the channel between Rockaway Beach and Shelter island to the Atlantic ocean.” This channel has for many years been shifting its location to the westward, apparently at the rate of 1,000 feet per year.

Rockaway beach and Shelter island are long, narrow sand banks thrown up by the action of the ocean and form the outer boundary of what is known as Far Rockaway bay, to the north of which, on the main land, lies the town of Hempstead. In order that the inspectors of election might know whether the voters resident in the election districts of Hempstead were or were not entitled to vote on the question, the. county clerk of Queens county, under the. authority of a resolution passed by the board of supervisors, had a survey made of a line passing through the channel as it existed at that time, and this map and survey were filed in the office of the town clerk.

At the election of 1894 the voters residing to the west of the above-mentioned line voted upon the question of consolidation, and a majority of the voters within the entire territory of the Greater New York voted in favor of consolidation upon the line as above ■defined. In 1896 the Legislature passed another .act (Chap. 488 of the laws of that year) declaring consolidation with the city of New York of the territory named in the act of 1894,. using the defining language of that act identically so far as it- relates to the town of' Hempstead, and provided that this portion, of the act should take effect upon January 1-, 1898. The act further provided for a. commission to draft bydaws and a proposed- charter, and for the election of a mayor and other municipal officers at the general election of 1897.

The charter reported by the commission was adopted by an act of the Legislature in May, 1897 (Chap. 378), the 1st section of which also defined the boundary of the new municipality in the town of Hempstead.in the identical language of the acts of-1894 and 1896, and the act also provided' that the consolidation should take effect" on January 1, 1898. The same Legislature (by chap. 381, Laws of 1897) required the town board of the town of Hempstead, on or before July 1, 1897, to divide the town into election districts. Having met for that purpose, the board was urged to regard as the boundary line of the Greater New York, a line drawn from the - southeast point of the town of. Flushing through the middle of Rockaway channel as it existed at that time, which was about three-quarters of a mile westward of its position in 1894. The board refused' to do this and took the boundary line as it existed'in 1894. On July twelfth, the board reconsidered its action and adopted a resolution to regard as the boundary a line drawn through the channel of Rockaway inlet as it then existed. An order was made at ' • Special Term directing that a mandamus issue commanding the town board of Hempstead to reconvene and- divide the town into election districts of such a character that the several districts should be either wholly within or wholly without the boundary line, and, in making such division, to regard the boundary line as fixed by the channel of Rockaway inlet as it existed in 1894. ' From this order the town authorities appeal.

■ The question, therefore, arises, which of the two lines forms the boundary of' the Greater New York at the present time? It has been the uniform policy of this State since the act providing for the incorporation of villages (Chap. 426, Laws of 1847) to have the question of incorporation submitted to the voters of the locality, and that act provided for the taking of a census and the making of a survey, which were to be filed and made public records. This provision continued in force until 1897, when the revision act for the incorporation of villages was passed (Chap. 414, Laws of 1897). This act provided for the similar submission of the question of incorporation to the voters of the district. Thus the general policy of the law has been that questions of this character should be submitted to the people of the localities .affected.

The act of 1894 providing for the submission of the question of consolidation to the voters of -the districts affected, the act of 1896 providing for consolidation and the Charter Act of 1897 must be considered as parts of a continuous scheme. The voters of the territory embraced within the boundary line as it existed in 1894 have been consulted and, by their votes at the election of 1894 have declared their desire for consolidation upon the lines laid down in the act of 1894. This declaration has been acted upon and confirmed by the subsequent Legislatures of 1896 and 1897, and we cannot resist the conclusion that it was the manifest purpose and intention of the Legislatures- of the latter two years to declare the boundary line of Greater New York, within the town of Hempstead, to be that which was submitted to the people of the entire metropolitan district in 1894. To hold otherwise would be in conflict with the general policy of the State in submitting questions of this character to the localities affected. It cannot be that the eastern line 'was to be shifted at various times in the course of the necessarily long legislation in pursuit of a channel which had no local permanency.

The intention of the Legislature is what we are seeking to ascertain, and we find this in the initial act of the scheme in 1894. As no change was made in any of the subsequent acts, in the use of the language by which the boundary line was defined, we -cannot assume that there was any change in the legislative mind with regard tó the plan originally formulated; and we must believe that, at the last, as at the first, the new municipal district was intended to be the same as that which was submitted to the vote of the people.

It may be that the Legislature may deem it wise to define the present boundary by exact metes and bounds; but until it shall see fit to do so, we can do nothing more than interpret existing legislation in accordance with the manifest intention of the Legislature- and the vote of the people of the territory affected.

It follows that the order must be affirmed.

All concurred.

Order affirmed, with-ten dollars costs and disbursements.  