
    George E. Savatgy et al., Respondents, v. City of Kingston et al., Appellants.
    Argued May 16, 1967;
    decided July 7, 1967.
    
      
      Edwin N. Charnin and Sylvia Kelman for Income Fund Enterprises Corporation, appellant.
    I. The amendment to the City of Kingston Zoning Ordinance was validly passed pursuant to section 83 of the General City Law, there being no statutory basis for requiring that the three-fourths vote required to pass such an amendment be by 'more than three fourths of those present and voting, a quorum being present. (United States v. Ballin, 144 U. S. 1; Matter of Lewis v. Mayor, 35 How. Prac. 162; Matter of Cashmore v. Morris, 253 App. Div. 656, 278 N. Y. 732; Caniff v. Mayor, 4 E. D. Smith 430; Matter of Melita v. Nolan, 126 Misc, 345; Missouri Pac. Ry. Co. v. Kansas, 248 U. S. 276; Aquavella v. Lamb, 25 A D 2d 815, 17 N Y 2d 839.) II. Section 41 of the General Construction Law does not change the voting requirements embodied in section 83 of the General City Law. (Morris v. Cashmore, 253 App. Div. 657, 278 N. Y. 730; Schoepflin v. Calkins, 5 Misc. 159; Matter of Talbot v. Board of Educ., 171 Misc. 974.) III. The provisions of the Kingston City Charter concerning voting cannot amend a statute of general applicability such as the General City Law. (County Securities v. Seacord, 278 N. Y. 34; Nardone v. Ryan, 49 Misc 2d 93; Ellison v. Haverhill, 309 Mass. 350.) IV. Even if the court should find that the majority vote requirements in section 41 of the General Construction Law and/or the voting requirements of the Charter of the City of Kingston are applicable to votes taken under section 83 of the General City Law, there is no necessary conflict between them. (City of Denver v. Rubidge, 51 Col. 224.) V. The rules of statutory construction favor appellant’s position. (Lawrence Constr. Corp. v. State of New York, 293 N. Y. 634; United States v. Ballin, 144 U. S. 1; Parker v. Hoefer, 2 N Y 2d 612; Port of N. Y. Auth. v. Consolidated Edison of N. Y., 27 Misc 2d 45, 20 A D 2d 971; Viscusi v. City of Schenectady, 193 Misc. 732; Merritt v. Village of Portchester, 71 N. Y. 309; Matter of 440 E. 102nd St. Corp. v. Murdock, 285 N. Y. 298; Triborough Bridge & Tunnel Auth. v. 
      Crystal & Son, 2 A D 2d 37, 2 N Y 2d 961.) VI. Legislative intent, insofar as it is discernible, favors appellant’s position. VII. To interpret section 41 of the General Construction Law so that it requires a vote of more than three fourths of the votes cast when section 83 of the General City Law is applied would be to put an impossible burden on the working of local government. (Biancoviso v. City of New York, 285 App. Div. 320; Cluett, Peabody & Co. v. Mays, Inc., 5 A D 2d 140.)
    
      Vernon Murphy, Corporation Counsel, for Francis R. Koenig, appellant.
    I. The majorities required to amend zoning ordinances pursuant to section 83 of the General City Law refer to a percentage of the members present constituting a quorum and not to the members elected. II. Section 41 of the General Construction Law did not modify section 83 of the General City Law and all other similar rules or legislation on every level. (Aquavella v. Lamb, 25 A D 2d 815, 17 N Y 2d 839.) III. The opinions underlying the order appealed from establish a dangerous precedent likely to disrupt the legislative process at all levels.
    
      Charles H. Gaffney for respondents.
    I. The reasoning and decisions as enunciated in the Special Term and Appellate Division opinions based on statutory interpretation, arithmetic certainty, and legislative consistency constitute a sound and logical interpretation of the plain language contained in section 83 of the General City Law. (People ex rel. McEachron v. Bashford, 128 App. Div. 351; Matter of Simmons, 130 App. Div. 350, 195 N. Y. 573; Smith v. People, 47 N. Y. 330; Matthews v. Matthews, 240 N. Y. 28; Matter of McKeon, 26 Misc. 464; Davis v. Supreme Lodge, Knights of Honor, 165 N. Y. 159; Chase v. Lord, 77 N. Y. 1; Hennessy v. Walker, 279 N. Y. 94; Eck v. United Arab Airlines, 15 N Y 2d 53.) II. The precise issue presented herein has previously been determined by this court in the recent case of Aquavella v. Lamb (17 N Y 2d 839, affg. 25 A D 2d 815). (Bissell v. Railroad Cos., 22 N. Y. 258.)
    
      Robert A. Feldman, Corporation Counsel (Thomas W. Petrillo of counsel), amicus curiæ.
    
    I. Construction of the phrase “ three-fourths vote of the Council ” in section 83 of the General City Law presents this court with a matter of first impression in this State. (Aquavella v. Lamb, 17 N Y 2d 839.) II. The Court of Appeals, in affirming without opinion, affirms only the result and not the reasoning of the court affirmed. (Rogers v. Decker, 131 N. Y. 490; Adrico Realty Corp. v. City of New York, 250 N. Y. 29; Commissioner of Welfare of City of N. Y. v. Jackson, 265 N. Y. 440; American Fid. & Cas. Co. v. Indemnity Ins. Co. of North America, 308 F. 2d 697.) III. An amendment to a city zoning law, following protest, is validly enacted pursuant to section 83 of the General City Law by a vote of three fourths of the members present. (United States v. Ballin, 144 U. S. 1; Harroun v. Brush Elec. Light Co., 152 N. Y. 212; Matter of Lewis v. Mayor, 35 How. Prac. 162; Matter of Melita v. Nolan, 126 Misc. 345; Missouri Pac. Ry. Co. v. Kansas, 248 U. S. 276; National Prohibition Cases, 253 U. S. 330.) IV. The rules of statutory construction favor defendants-appellants ’ position. (Matter of Tonis v. Board of Regents, 295 N. Y. 286; Bright Homes v. Wright, 8 N Y 2d 157; Matter of Herle, 165 Misc. 46; Matter of Bailey, 265 App. Div. 758.) V. The Legislature never intended that a statute should be interpreted in a way which might cause a local government to become incapacitated. (Matter of Town of Smithtown v. Moore, 11 N Y 2d 238.)
   Van Voorhis, J.

Defendant Income Fund Enterprises Corporation, pursuant to section 83 of the General City Law, petitioned the Common Council of the City of Kingston to reclassify its property to permit construction of garden-type apartments. Neighboring property owners protested and, such a protest haying been made, section 83 of the General City Law required a three-fourths vote of the council to pass the amendment requested. Eleven members of the 13-inember council were present when the amendment was voted upon. Nine voted for the amendment and 2 against it. In this action by property owners, the plaintiffs maintained that the amendment was not passed by a three-fourths vote of the whole council as required by section 83 of the General City Law.

Both Special Term and the Appellate Division have recognized that the common-law rule is that a quorum consists of the legislative members present, and that legislative action can be taken by a majority of the members present át a meeting at which a quorum is present (e.g., United States v. Ballin, 144 U. S. 1; Missouri Pac. Ry. Co. v. Kansas, 248 U. S. 276; Morris v. Cashmore, 253 App. Div. 657, affd. without opn. 278 N. Y. 730). The rule is otherwise where it has been changed by statute or Constitution. The irresponsibility of legislative action taken a-t meetings attended by a small proportion of the membership has sometimes been subject to criticism, and, therefore, many changes in the common-law rule have been made by Constitution or statute so as to require a stated percentage of all of the members of the common council or other legislative body, stated in those words or by some equivalent expression. Our attention has been called to some 42 different occasions where these expressions are used in the Constitution, County Law, Second Class Cities Law, Legislative Law, General Municipal Law, Local Finance Law or Municipal Home Rule Law. This indicates widespread change in policy from the common-law rule and bespeaks an accumulated experience at variance with the contention of appellants that such a requirement would disrupt local legislative action by illness or some other kind of enforced absence of members. The prevailing constitutional and legislative policy is that this is less to be feared than the fortuitousness or irresponsibility of legislative action taken at meetings which are not truly representative of the electorate.

One of these statutory departures from the common law of what, constitutes a quorum for legislative acts of municipal common councils is contained in section 35 of the Second Class Cities Law, which, except as modified by its charter, governs the City of Kingston, This statute states: “ The passage of an ordinance shall require the affirmative vote of at least a majority of all the paemhers of the common council.”

The Kingston City Charter (L. 1896, ch. 747, tit. XI, as amd.) provides (§ 115): - • A majority shall be a quorum for the transaction of business, but no tax, assessment or ordinance of a legislative character shall be passed, except by a vote of a majority of all the members in office ’ ’.

A legislative policy is further expressed by section 41 of the General Construction Law which states that whenever three or more public officers are given any power or authority, or three or more persons are charged with any public duty to be performed or exercised by them jointly or as a board or similar body, “ a majority of the whole number of such persons or officers * * * shall constitute a quorum and not less than a majority of the whole number may perform and exercise such power, authority Or duty. For the purpose of this provision the words 1 whole number ’ shall be construed to mean the total number which the board, commission, body or other group of persons or officers would have were there no vacancies and were none of the persons or officers disqualified from acting.”

Special Term relied upon all three of these provisions. The Appellate Division stressed section 41 of the General Construction Law. All of them plainly define legislative policy.

Appellants say that Morris v. Cashmere (supra) states that section 41 of the General Construction Law does not apply to local legislative bodies. That is hardly true. The opinion of the Appellate Division in Morris v. Cashmore points out that the City Charter took precedence over section 41 of the General Construction Law and that section 34 of the New York City Charter provided that “No local law or resolution shall be passed except by at least the majority affirmative vote of all the councilmen.” At issue in Morris v. Cashmore was the election of a vice-chairman and adoption of rules for the proeeedings of the council. The Appellate Division’s opinion said (p. 660): “ Obviously, the election of a vice-chairman, or the adoption of rules) are not matters requiring the passage of a local law. Nor do they appear to be matters required to be carried out by resolution.” Here we are concerned with the adoption or amendment of a zoning ordinance^ which clearly falls within the coverage of both section 35 of the Second Class Cities Law and section 115 of the Kingston City Charter.

It is true that section 83 of the General City Law, which is the pertinent zoning enabling act, states that upon the filing of a protest to an amendment to the ordinance, as was done in this instance, “ such amendment shall not be passed except by a three-fourths vote of the council.”

It is contended that this entails a reversion to the old rule and refers to three fourths of the councilmen present at a meeting attended by a quorum. Since there are 13 members of the council, a quorum would be 7 and, if the old common-law rule were reintroduced, it would mean that an amendment could be carried by 6 votes if a protest had been filed but would require 7 in the absence of any protest. Realizing this difficulty, which was pointed out in Special Term’s opinion herein, appellants argue for a construction that would permit the adoption of an amendment against a protest by not less than 7 votes. In other words, if 9 members were present at a meeting, 7 votes would be all that would be needed to carry an amendment both with or without the filing of a protest. It could hardly have been intended by the Legislature that under any set of circumstances there would be no difference in the amount of votes -required regardless of whether a protest were made. The obvious intention of the statute is that, under any circumstances, a larger vote should be necessary if a protest is filed than would otherwise be the case.

Special Term and the Appellate Division have agreed unanimously on this construction. We see no escape from it. To hold that a majority of all of the members is necessary if there is no protest but that only three fourths of those present is needed in the presence of a protest would be confusing- and would'violate what appears to have been the legislative intent. The Fourth Department thought likewise in deciding Aquavella v. Lamb (25 A D 2d 815, affd. without deciding this question 17 N Y 2d 839) in which it was said unanimously that “ A three-fourths vote of the entire membership of the Common- Council of the City of Rochester was required to enact the amendment to-the ordinance in question here to effect compliance with the provisions of section 83 of the G-eneral City Law.”

The order appealed from should be affirmed, with costs.

Burke and Keating, JJ.

(dissenting). In our opinion the enactment of the amendment of the zoning ordinance by the vote of 9 to 2 by the council members present and voting met the requirement of section 83 of the General- City Law; for ‘ ‘ a three-fourths vote of the council.” The 11 members present consti-• tuted a quorum, and the quorum constituted the Common Council on that day. The absence of two members made no difference. (See Matter of Lewis v. Mayor, 35 How. Prac. 162)

Had the Legislature intended section 83 of the General City Law to require a vote of three fourths of all the members of the Common Council, it would have so provided. Under the doctrine of “ expressio unius est exclusio alterius ”, the absence of such a requirement is significant and should be controlling. 'The following are illustrations of statutes in which the Legislature did so provide:

Second Class Cities Law:

“ § 34. Powers. * * * no expulsion shall take place and no vacancy on account of absence be declared except by the vote of three-fourths of all the members of the common council * * *.

“ § 35. Legislative acts. * * * The passage of an ordinance shall require the affirmative vote of at least a majority of all the members of the common council.

“ § 37. Disposition of real estate; franchises. No ordinance shall be passed making or authorizing a sale or lease of city real estate or of any franchise belonging to or under the control of the city except by vote of three-fourths of all the members of the common council.”

Optional County Government Law:

“ § 301 * * * (4) * * * shall be passed except by at least the majority affirmative vote of the total voting power of the board of supervisors.”

Municipal Home Rule Law:

“ § 20 * • * * 4 * * * total voting power of the [local] legislative body.”

Charter of the City of Rochester:

; “ § 71 * * * no member [of the council] may be expelled and no vacancy be declared on account of absence, except by the vote of three-fourths of all the members of the council ’ ’.

Section 83 of the General City Law makes no mention of all the members of the council or “total voting power” — the majority of the court reads these words into the statute.

Accordingly, the amended zoning ordinance approved by the Common Council of the City of Kingston (by three fourths of the members present) should be. upheld as having been validly adopted.

Chief Judge Fuld and Judges. Scileppi, Bergan and Breitel concur with Judge Van Voorhis; Judges Burke and Keating dissent and vote to reverse in a memorandum.

Order affirmed. 
      
       N. Y. Const., art. III, §§ 14, 20, 23; art. IV, § 7; art. IX, § 2, subd. (b), par. (2); General Municipal Law, § 99-e, subd. 1; §§ 119-o, 711, 72-a, 103, subd. 5; §§ 239-m, 404; County Law, §§ 222, 226, 227, 233, former § 304, subds. 4, 5, former §§ 342, 828; Second Class Cities Law, §§ 32, 34, 35, 37, 38, 40, 43, 101, 120; Legislative Law, §§ 40, 44; General City Law, § 23, subd. 2, par. b; Local Finance Law, § 33.00, subd. a; § 40.00, subd. d; § 102.00, subd. g; Municipal Home Rule Law, § 20, subds. 1, 4; §§ 21, 40.
     