author:
Lehman, Ch. J. Rippey, J.
      Lewis, J.

text:
    The People of the State of New York, Respondent, v. Frank A. Erickson, Appellant.
    Argued March 8, 1940;
    decided May 28, 1940.

      Martin W. Littleton, Irving Goldberg and Richard H. Brown for appellant.
    The People failed to establish that defendant maintained himself, in whole or in part, by gaming. (People v. Forte, 277 N. Y. 440.) The uncontroverted evidence that defendant had ample means of maintenance, independent of his bookmaking business, completely negatived any presumption that he maintained himself, for the most part, by gaming. (People ex rel. Forster v. Warden, 39 Misc. Rep. 700.) Neither the taking of bets on horse races as a bookmaker upon the New York race tracks, nor the acceptance of such bets over the telephone in New Jersey subjected defendant to the penalty of being adjudged a disorderly person under subdivision 5 of section 899 of the Code of Criminal Procedure. (People v. Martin, 77 App. Div. 396; 175 N. Y. 315; People v. Arnstein, 211 N. Y. 585; Harris v. White, 81 N. Y. 532.)

      Charles P. Sullivan, District Attorney (George P. Stier of counsel), for respondent.
    The evidence clearly shows defendant was guilty of violating subdivision 5 of section 899 of the Code of Criminal Procedure. (People v. Zayas, 217 N. Y. 78; People ex rel. Sievers v. McGee, 166 Misc. Rep. 379; People v. Dimitry, 163 Misc. Rep. 279; People ex rel. Van Houten v. Sadler, 97 N. Y. 146; People v. Earing, 71 Misc. Rep. 615; 146 App. Div. 903; Watt v. Malatesta, 262 N. Y. 80; Chapin v. Austin, 165 Misc. Rep. 414; Beach v. Queens County Jockey Club, 164 Misc. Rep. 363.)
   Lehman, Ch. J.

Upon the complaint of an examiner in the Department of Investigation in the city of New York, the defendant has been found to be a “ disorderly person, under the terms of subdivision 5, of section 899, of the Code of Criminal Procedure of the State of New York, in that he has no visible profession or calling, by which to maintain himself, but does so, for the most part, by gaming.”

Pursuant to a public policy embodied in the Constitution of the State and founded firmly, I think, both on old traditions and sound public opinion, the Legislature long ago enacted statutes to punish gambling and to curb professional gamblers or gamesters. The courts may punish or curb only in accordance with those statutes. In the Penal Law, article 88, the Legislature has declared many forms of gambling to be misdemeanors and has provided penalties for those guilty of such offenses. Thus, in section 970, the Legislature has said that a person who conducts himself in manner there specified or who does any of the acts there enumerated “ is a common gambler, and guilty of a misdemeanor.” So, keeping gaming and betting establishments ” (§ 973); “ keeping of place for game of policy ” (§ 974); “ persuading person to visit gambling places ” (§ 980); “ keeping slot machines ” (§ 982); together with other acts and other forms of habitual misconduct specified in the Penal Law, are declared to be misdemeanors and violations of the statute which may be punished by imprisonment. The conduct or acts specified in the Penal Law may, of course, be punished only when the offense was committed within the State and the prosecution must be conducted with the safeguards and subject to restrictions which surround the trial of other penal offenses. The defendant, however, has not been tried or convicted upon a charge of violation of any section of the Penal Law. The charge against him is that he is a " disorderly person ” as defined by section 899, subdivision 5, of the Code of Criminal Procedure. Though conviction upon such a charge does not empower a magistrate to pronounce a sentence of imprisonment if the person charged gives security that he will be of good behavior for the space of one year ” (§§ 901, 902), and though the person charged may be convicted after a summary investigation by a magistrate, yet, it is plain, that there can be no conviction without proof of every essential element of the' charge.

From ancient times law making bodies have recognized that the presence in the community of disorderly persons may constitute a threat to public order or decency. The definition or specification of "who are disorderly persons,” contained in section 899 of the Code of Criminal Procedure, includes nine separate classes. Some persons are included who have committed no offense but who practice callings at which goodly citizens in ages past, and perhaps today, look askance. Thus, under subdivision 6 of the statute: "jugglers, common showmen and mountebanks, who exhibit or perform for profit puppet shows, wire or rope dancers, or other idle shows, acts or feats ” are, without more, declared to be disorderly persons. There we have vestigial remains of old vagrancy statutes, directed against idle and irresponsible persons rather than against vicious persons. Some persons are included who habitually commit offenses which might subject them to punishment under the Penal Law. Thus, under subdivision 4, keepers of bawdy houses or houses for the resort of prostitutes ” are also declared to be disorderly persons. It was in regard to the provisions of that subdivision that this court said that the main purpose of the statute is “to arrest the disorderly practices named, by compelling a disorderly person to give security for his good behavior.” (People ex rel. Van Houton v. Sadler, 97 N. Y. 146, 147.) What was there said applies where the statutes declare that those guilty of the “ disorderly practices named ” are, without more, “ disorderly persons.” Under subdivision 5, however, only those persons are “ disorderly ” who not only “ have no visible profession or calling, by which to maintain themselves, but who do so, for the most part, by gaming.” A charge under that subdivision is not established by proof' that the defendant is engaged in gaming as a business. An essential element of the charge is that the defendant maintains himself by gaming. Very different questions would be here if the charge against the defendant had been that he is a disorderly person under the terms of subdivision 4. The charge against the defendant is made only under subdivision 5 and the only question raised, argued or considered upon the appeal is whether a charge under subdivision 5 has been established by competent evidence.

The People must, of course, prove every essential element of the complaint. We may assume that the People have sufficiently proven by the defendant’s admissions that gambling in this State or other States has been, over a long period of years, his main occupation but habitual gambling is not the gist of the charge. He has not admitted that he is profiting by that occupation and even if we might, without much hazard, venture an opinion that he derived pecuniary profit from his occupation we could, nevertheless, by no logical process, infer that he maintains himself for the most part by such putative profits when it appears conclusively that he is enjoying an income of at least $12,000 from his investments. In the absence of proof of such fact, even though we may have little if any doubt that the defendant has been guilty of habitual conduct which, in the public interest, should be curbed, we are constrained to find that an essential element in the charge has not been established.

The Legislature alone has power to define penal offenses or misconduct which may be curbed or punished by magistrates and courts of criminal jurisdiction. Not even to arrest habitual misconduct which offends public policy or to curb or punish the lawless, may a court disregard or distort the law as formulated by the Legislature.

The judgments should be reversed and a new trial ordered.

Rippey, J.

(concurring). Defendant was adjudged a “ disorderly person within the meaning and intent of subdivision 5 of section 899 of the Code of Criminal Procedure which provides that disorderly persons are “ persons who have no visible profession or calling, by which to maintain themselves, but who do so, for the most part, by gaming ” and was required to furnish an undertaking of $10,000 to be of good behavior for one year (Code Crim. Proc. § 901).

Persons presented as “ disorderly persons under that statute are neither felons nor misdemeanants and are not charged with nor tried for the commission of any crime (People ex rel. Clark v. Keeper of State Reformatory, 38 Misc. Rep. 241; affd., 176 N. Y. 465). The proceeding is anomalous since the defendant is not charged with a specific offense but, rather, with habitual misconduct and the magistrate is authorized to conduct and act upon a summary investigation with no mandate to observe the requirements for trial as in the case of persons charged with the commission of crimes (Hill v. People, 20 N. Y. 363, 368). The person whose conduct is sought to be controlled cannot be charged with the offense of being a common gambler or a bookmaker. Those are included within the purview of article 88 of the Penal Law. Nor can a penalty be imposed on such a person upon conviction on a charge presented under the subdivision of the section under consideration for making, registering or recording “ bets and wagers upon the result of any trial or contest of speed or power of endurance of horses ” taking place upon any New York State race track since section 17 of the racing law (Laws 1934, ch. 233) provides a penalty which is declared to be exclusive of all other penalties for the acts specified therein (People v. Stedeker, 175 N. Y. 57). Though a person may be tried and convicted as a common gambler or a bookmaker under the penal laws or may, upon a proper showing, be subject to the penalty imposed by the racing law, the plea of double jeopardy upon a charge of being a disorderly person under subdivision 5 of section 899 of the Code of Criminal Procedure will not be available to him (Cf. People ex rel. Van Houton v. Sadler, 97 N. Y. 146).

Under the particular subdivision of section 899 under consideration, proof that a person is disorderly in the generally accepted meaning of the term as applied under vagrancy statutes to those who offend against the public peace, good order, good morals and public safety is insufficient as a basis for conviction. To bring a person charged with being a “ disorderly person ” within the terms of subdivision 5 of the statute, it must be shown by the People by legally admissible and adequate evidence not only that he had no visible profession or calling by which to maintain himself but also that he maintained himself for the most part by gaming.

All of the evidence on which the People relied was read into the record, over the objection and exception by defendant, from a transcript of testimony given by defendant before a Commissioner of Investigation of the City of New York. It is unnecessary to consider or pass upon the propriety of admitting that testimony. Assuming for the purposes of this decision that it was properly admitted, the testimony so used consisted of voluntary extrajudicial admissions of defendant as to facts both material and relevant to the charge. That concession does not change the law as to the weight to be given to such admissions nor as to their scope or sufficiency. When admissions are exclusively relied upon in a case of this kind they must possess probative value beyond reasonable doubt as to every element necessary to be proven to establish the charge. Proof by admission of one element essential to the charge does not necessarily raise any inference by way of admission of another separate and distinct element of the charge. Based upon those tests and giving them all the probative value that legally may be assigned to them, admissions made by defendant fail to sustain the charge.

The defendant admitted that he was and had been for twenty years a bookmaker and commission broker specializing in horse-racing bets, with an office for the past twelve years, up until two months prior to the trial, at 1480 Broadway, New York city; that he took bets on horse races and accepted bets on sporting events including prize fights, football and baseball games; that he had two employees at that location; that his receipts and payments were principally by means of checks; that he kept records including a pay-off sheet; that some of the bets were received by him and some by others; that he was also a bookmaker on the New York race tracks, accepted bets at the New York race tracks and did a wire business as bookmaker outside of the New York city lines, taking bets on the wire in New Jersey, and had bookmaking connections throughout the country; that although he had telephone connections in the New York office, he took no bets at that •office, that he took the bets from his New Jersey office; and that he also was the financial backer of a crap game and roulette in Florida and of the Club Boheme in Hollywood, Fla., where roulette and dice were the gambling activities carried on. He admitted that taking bets on horse races constituted the largest percentage of his business. He was asked by the prosecutor and said: Q. Now, by 'business,’ we understand each other, you are referring to placing bets on horses? A. That’s right. Q. Is that the great bulk of your business? A. Yes, horses. Q. Would you say that 90 to 95 per cent of your business is betting on horses? A. That’s right.” Those admissions, in short, completed the People’s case.

There was no evidence that he was doing business in New York for two months as a bookmaker prior to the trial. No proof or admissions whatever were presented as to the amount of defendant’s business as described in the People’s case, the cash he received or paid out therefrom, or that he derived any financial return whatsoever from the foregoing activities. The mere fact that a person conducts a particular business without more warrants no inference that he is making or losing money in the venture or that he is maintaining himseE from it. If the business which defendant described is “ gaming ” within the meaning of the statute, there was no evidence that from that business he maintained himseE in whole or in part. The magistrate recognized this deficiency in proof but asserted that he felt warranted in construing the facts and circumstances most strongly against the defendant since the defendant, E innocent, might have controverted or explained them. As we have said, being a disorderly person ” is not denominated a crime. Nevertheless, it is in nature quasi-criminal since, under the statute, the offender must either post a bond for good behavior or suffer imprisonment. Defendant was under no obhgation to prove any fact essential to sustain the charge nor to controvert or explain the admissions refied upon and, from the testimony adduced, no presumption arose as to the source of his maintenance.

With the record in the shape above described, the People rested their case and the defendant’s motion to diKmiRR the information was denied. Though entitled to rely upon the deficiencies in the proof of the People for dismissal of the charge, defendant presented evidence to the effect that he had opened a brokerage account on February 9, 1937, by a deposit of $50,000 in cash in which, on May 6, 1939, he owned securities of the market value of $421,833.46 with an equity of $197,413.72. AdditionaEy, he produced in court 1,119 shares of stock of the National City Bank, which were registered and issued in his name on January 10, 1934, and also 850 shares of stock in the Chase National Bank and 865 shares of the stock of the Chemical Bank and Trust Company, registered in his name and issued to him on June 28, 1934. He also showed that he owned $125,000 worth of negotiable bonds. Thus it appeared at the close of the case that the defendant -had a profit in the two years and three months before the case was tried of some $150,000 through his stock trading account, and that he owned upwards of $125,000 worth of negotiable bonds and 2,834 shares-of stock in three of the leading banks of the city of New York from which he had an income of more than twelve thousand dollars per year. The magistrate suggested that the evidence adduced by the defendant could be given no weight since he reached the irresistible inference ” that the defendant’s show of wealth came directly from excessive gambling practices. There was no evidence concerning its source. The source was not material on the charge on which he was being prosecuted. We have pointed out that there was no evidence in the case directly proving or from which any inference could be drawn that defendant had any income from gaming with which to maintain himself. Had there been any such evidence, in the absence of testimony or other proof from which the inference properly could be drawn that from the income so received he maintained himself for the most part, proof of his other income, without more, would have been sufficient to require a dismissal of the charge at the close of the case.

In view of what I have said above, I deem it unnecessary to consider any other questions in this case. In my judgment we should not only reverse the judgment but should dismiss the information and discharge the defendant. Three other members of the court are for reversal but believe that a new trial should be granted. Thus, I find it necessary to adopt their view as to the allowance of a new trial.

The order of the Court of Special Sessions, Appellate Term, and the judgment of the Magistrates’ Court should be reversed and a new trial ordered.

Lewis, J.

(dissenting). I do not share the view of a majority of the court in the decision about to be made. Upon anjnformation filed in the City Magistrates’ Court of the City of New York the defendant has been tried and found guilty of the statutory offense of being a disorderly person — one of a class of Persons who have no visible profession or calling, by which to maintain themselves, but who do so, for the most part, by gaming.” (Code Crim. Proc. § 899, subd. 5.)

The statute thus defining the offense is rooted deep in the public policy of this State. Enacted more than a century ago it has long afforded those charged with the administration of criminal law a means by which may be curbed the insidious influence in society of the man who, as a matter of vocational effort, fosters gambling in its varied forms. When we are told, as has been suggested in support of the defendant’s position, that recent statutory history in this State indicates that anti-gambling laws have been outmoded, it need only be said in answer that both Constitution and statutes — the two sources to which we look first for declarations of public policy — still stand definitely opposed to the gamester in our social order. (Const. art. 1, § 9; Code Crim. Proc. § 899, subd. 5.) Indeed it is an effort to avoid the enforcement of the statute last cited, in circumstances disclosed by the present record, which brings that statute before us for consideration.

In reviewing the record at hand it should be said that the members of the court differ only upon the question whether, with proper regard for applicable rules of law, it may be said that there is evidence sufficient to sustain the defendant’s conviction under the statute invoked against him. Within the terms of the statute our inquiry goes to the question — does the record contain evidence upon which the trier of the facts was legally justified in finding that the defendant has no visible profession or calling, by which to maintain [himself] but [does] so, for the most part, by gaming? ”

Among the first questions addressed to the defendant and answered under oath were the following: “ Q. What is your business or occupation, Mr. Erickson? A. I am a commission broker. Q. In any particular line? A. Specialize in horse racing bets. Q. How long have you been in that business or occupation? A. I have been in that business twenty years.”

When the defendant was asked to “ describe in your own words, * * * just what your business consists of; what the activities of that business include? ” he stated: “ Well, I take bets on race horses * * * fights, football * * * World series in baseball.” Later he was asked: “ Q. Do you know what a bookie is? A. I suppose a bookie is the same as I am. That’s what I am, a bookmaker. * * * Q. You take your time and give us your description. * * * A. I am a bookie. Now, a man that would book other bets and give bets to me where I would get a percentage, I would call him an agent. * * * That’s what I would call him. You see, I am a bookmaker, you understand, and if another man took bets and gave them to me, I would call him an agent. Q. Do you pay anybody commission in New York City? A. I pay some people commission, but I wouldn’t know whether they are in New York or not.” After giving the names of four men he was asked: “ Q. Are those your biggest agents? A. Yes.” When asked whether other bookies would call up,” he stated, “ Yes, bookies from, you know, other bookmakers all over the country call up.” Although it appears that he accepts bets on various types of “ sporting events ” the defendant stated that ninety to ninety-five per cent of his business is “ betting on horses.”

As to the method by which this type of business is conducted by the defendant it appears that for twelve years he had an office on Broadway in New York city with four unlisted telephones. Although the defendant testified at one point that he took no bets in his New York office it appears that he and his cashier took the incoming telephone calls and that it is the cashier who makes the deposits in the bank and sends the checks * * * checks to any customers we have business with * * * 98% of the business is done by check.” In that connection a significant detail of the business also appears from the following testimony: “ Q. Now, when a player wins, where do you pay off the winnings to the players? A. I mail him a check. Q. And where are the checks mailed from? Where are the checks mailed? A. From where? From that office. Q. And they are deposited in the mail in Manhattan? A. Yes. Q. New York County? A. That’s right.” In the New York office the defendant also keeps various records including a “ pay-off sheet ” and a card index on each of which cards is kept “ a proper credit notation.”

In addition to business of the character described above, conducted by the defendant at his New York office, he maintains a “ wire room ” in New Jersey with twelve telephones each bearing a number in the New York City exchange. It also appears that he owns a concession at Hollywood, Fla.— Club Boheme ” — where roulette and dice are “ carried on.”

I thus find proof of a course of conduct by the defendant in which conducting wagers upon sporting events was not an occasional matter in a life spent chiefly in other pursuits. It was a persistent practice continued over a long period of years which the defendant himself admitted was his “ business or occupation ” and which he conducted in a broad field and by methods which give a clear indication of his studied and successful efforts to promote wagering by others on sporting events for his personal gain. I believe this evidence, when considered with legitimate inferences of fact fairly to be drawn therefrom, afforded the trier of the facts a proper and sufficient basis for the judgment of conviction now before us.

“It is not necessary that each particular fact should be proved beyond a reasonable doubt if enough facts are proved to satisfy the jury, beyond a reasonable doubt, of all the facts necessary to constitute the crime charged. In other words, the rule does not require the jury to be satisfied beyond a reasonable doubt of each fink in the chain of circumstances relied upon to establish the defendant’s guilt, nor does it require that the evidence should produce absolute certainty in the minds of the jurors. It is sufficient if the evidence produces a moral certainty to the exclusion of every reasonable doubt. * * *

“ To warrant a conviction on circumstantial evidence it is not esential that no inference or presumption shall be indulged in by the jury, that does not, in their minds, necessarily arise from the circumstances proved. Although circumstantial or presumptive evidence is allowed to prevail, even to the convicting of an offender, still the circumstances must themselves be proved and not presumed. Weight of circumstantial evidence is a question for the jury to determine.” (2 Wharton’s Criminal Evidence [11th ed.], § 922, pp. 1609-1611.) (See, also, People v. Connolly, 253 N. Y. 330, 339, 341.)

In the face of evidence which tended directly and by legitimate inferences to prove that the defendant has had no visible profession or calling by which he has maintained himself over a period of years and that he did so for the most part by gaming, he chose to offer no evidence except proof that he is possessed of substantial property including bank stocks valued at $120,000 and a brokerage account in which are securities, purchased on margin, and valued at $421,813.46 in which he has an equity ” of $197,413.72. I find nothing in this evidence introduced by the defendant as a defense measure which absolves him from the charge made against him.

It is argued that the law here involved is in character a vagrancy statute and that the proof of defendant’s wealth makes impossible the essential finding under the statute that he maintains himself, “ for the most part, by gaming.” Such an argument, as I view it, disregards the purpose of section 899 of the Code of Criminal Procedure, which this court has held to be “ * * * to arrest the disorderly practices named, by compelling a disorderly person to give security for his good, behavior.” (People ex rel. Van Houton v. Sadler, 97 N. Y. 146, 147.) That ruling gave direction for all inquiries thereafter to be made under section 899 including the one in which we are now engaged. The objective then defined remains as clear today. In the exercise by the Legislature of the State’s self-protecting power, a means is afforded by section 899, subdivision 5, by which may be stopped the sinister practice by which a professional gamester makes his living. In thus testing the conduct of a defendant charged with any one of the offenses listed in the subdivisions of section 899 this court placed the emphasis on “ behavior ” as the controlling factor, not upon the fact stressed by the accused that he possesses independent means sufficient for his maintenance.

The conviction should be affirmed.

Loughran and Sears, JJ., concur with Lehman, Ch. J.; Rippey, J., concurs in separate opinion; Lewis, J., dissents in opinion in which Finch and Conway, JJ., concur.

Judgments reversed, etc. (See 283 N. Y. 774.)


source: Caselaw Access Project

author: Lehman, Ch. J.

license: Public Domain

text:
    New Rochelle Trust Company, Respondent, v. William R. White, as Superintendent of Banks of the State of New York, Appellant, and City of New Rochelle, Respondent.

      Argued April 23, 1940;
    decided May 28, 1940

      John J. Bennett, Jr., Attorney-General (John C. Crary, Jr., and Henry Epstein of counsel), for appellant.
    The powers of banks and the regulation of the business of banking are, by Constitution, statute and character, matters of exclusive State concern. (Adler v. Deegan, 251 N. Y. 467; People v. Utica Ins. Co., 15 Johns. 353; Noble State Bank v. Haskell, 219 U. S. 104; Engel v. O’Malley, 219 U. S. 128; Matter of Morse, 247 N. Y. 290; Shepherd v. Mt. Vernon Trust Co., 269 N. Y. 234; Nassau Bank v. Jones, 95 N. Y. 115; Matter of Union Bank of Brooklyn, 176 App. Div. 477.) The State has exercised its paramount authority over the business of banking by the enactment of complete, general and exclusive provisions for the conduct thereof which exclude any power of banks to give security for the deposit of city funds. (City of Marion v. Sneeden, 291 U. S. 262;
      Nassau Bank v. Jones, 95 N. Y. 115; Gause v. Commonwealth Trust Co., 196 N. Y. 134; State Bank of Commerce v. Stone, 261 N. Y. 175; City of Mt. Vernon v. Mt. Vernon Trust Co., 270 N. Y. 400; Downey v. City of Yonkers, 106 Fed. Rep. [2d] 69.) No power has been conferred on cities by the Constitution, the City Home Rule Law (Cons. Laws, ch. 76) or any other statute to authorize banks to give security for the deposit of city funds. (City of New York v. Village of Lawrence, 250 N. Y. 429; County Securities Co. v. Seacord, 278 N. Y. 34; Adler v. Deegan, 251 N. Y. 467; Browne v. City of New York, 241 N. Y. 96.)

      Albert Ritchie for plaintiff, respondent.
    The city of New Rochelle had ample authority to adopt the local law as a part of its charter. (Matter of Broderick v. Jayne & Mason, 140 Misc. Rep. 861; Matter of Bank of Spencerport, 143 Misc. Rep. 196; Tillinghast v. Merrill, 151 N. Y. 135; Yawger v. American Surety Co., 212 N. Y. 292; Village of Bath v. McBride, 219 N. Y. 92; Matter of Bird v. McGoldrick, 277 N. Y. 492; Browne v. City of New York, 241 N. Y. 96; Bareham v. City of Rochester, 246 N. Y. 140; County Securities, Inc., v. Seacord, 278 N. Y. 34; Robia Holding Corp. v. Walker, 257 N. Y. 431; City of Mt. Vernon v. Mt. Vernon Trust Co., 270 N. Y. 400; McNair v. Knott, 302 U. S. 369; Downey v. City of Yonkers, 106 Fed. Rep. [2d] 69; Mooney v. Cohen, 272 N. Y. 33.) State banks and trust companies, when they desire to become depositories for the public funds of a city, may pledge their assets when that is a condition imposed by any valid law, either adopted by the Legislature or by the local authorities. (Curtis v. Leavitt, 15 N. Y. 1; State Bank of Commerce v. Stone, 261 N. Y. 175; Auten v. United States Nat. Bank, 174 U. S. 125; Wyman v. Wallace, 201 U. S. 230; American Surety Co. v. Philippine Nat. Bank, 245 N. Y. 116; Appleton v. Citizens Central Nat. Bank, 190 N. Y. 417; Dyer v. Broadway Central Bank, 252 N. Y. 430; O’Connor v. Bankers Trust Co., 159 Misc. Rep. 920.)

      Aaron Simmons, Corporation Counsel (A. M. Beach of counsel), for City of New Rochelle, defendant-respondent.
    The city of New Rochelle is authorized under the City Home Rule Law to require by local law that banks designated as depositories of its funds deposit security to protect the deposits of the city. (Browne v. City of New York, 241 N. Y. 96; Adler v. Deegan, 251 N. Y. 467; Matter of Osborn v. Cohen, 272 N. Y. 55; Matter of Mooney v. Cohen, 272 N. Y. 33.) Neither the Banking Law (Cons. Laws, ch. 2) nor any State law prohibits banks or trust companies from pledging their assets to secure public funds. The power to pledge such assets is implied from the general power granted to a bank to do business and is implied from any law authorizing a public body to require security for its deposits. (Matter of Bank of Spencerport, 143 Misc. Rep. 196; Matter of Broderick, Jayne & Mason, 140 Misc. Rep. 861; Hellawell v. Town of Hempstead, 10 Fed. Supp. 771.)

      William H. Emerson, Corporation Counsel (Clarence M. Platt of counsel), for City of Rochester, amicus curiæ.

    The local law was validly enacted under the Constitution and City Home Rule Law. (Scott v. People, 4 Hill, 384.) The plaintiff had the power to pledge a portion of its securities for the purpose of furnishing the city with security for its deposits. (Steinway v. Steinway & Sons, 17 Misc. Rep. 43.)

      James C. Tormey, Corporation Counsel (Arthur M. Beach of counsel), for City of Syracuse, and George W. Lee for First Trust and Deposit Company, amici curiæ.

    The local law authorizing the deposit of city funds only in banks giving collateral security is valid and within the powers of the city to adopt. (Robia Holding Corp. v. Walker, 257 N. Y. 431; County Securities, Inc., v. Seacord, 278 N. Y. 34; Bareham v. City of Rochester, 221 App. Div. 36; 246 N. Y. 140; Adler v. Deegan, 251 N. Y. 467; Matter of Delaney, 256 N. Y. 315; Crawford v. Nassoy, 173 N. Y. 163; O’Connor v. Rhodes, 79 Fed. Rep. [2d] 146; Texas & Pacific Ry. Co. v. Pottoroff, 291 U. S. 245; Assn. for Protection of Adiron

      dacks v. MacDonald, 228 App. Div. 73; 253 N. Y. 234; Matter of Bank of Spencerport, 143 Misc. Rep. 196; Matter of Broderick, Jayne & Mason, 140 Misc. Rep. 861; Hellawell v. Town of Hempstead, 10 Fed. Supp. 771; Barnes v. Arnold, 45 App. Div. 314; 169 N. Y. 611; State Bank of Commerce v. Stone, 261 N. Y. 175; Matter of College of City of New York v. Hylan, 205 App. Div. 372; 236 N. Y. 594; People ex rel. Einsfeld v. Murray, 149 N. Y. 367.)
   Lehman, Ch. J.

The city of New Rochelle adopted a local law, effective, according to its terms, on January 1,1932, which amended or superseded the charter granted by the Legislature (Laws of 1910, ch. 559). The local law (No. 1) contains a provision:

§ 132. Deposits of city funds. City funds shall be deposited by the treasurer only in such banks or trust companies, one or more, as shall have been approved by the council, and the treasurer shall only deposit the city funds in such approved banks or trust companies, one or more, as shall have furnished either surety bonds or other securities (such securities, to be deposited in escrow as security for the protection of the city funds), in kind and amounts under such rules and regulations as may be adopted by the council, but such amounts for each bank or trust company shall not be less than one hundred thousand dollars.”

On February 3, 1936, the City Council adopted a resolution designating five banks and trust companies, including the plaintiff trust company, as depositories for city funds and directing the Treasurer of the city to deposit no city funds in any of the banks or trust companies until such bank or trust company shall have deposited approved bonds in the sum of not less than $150,000 as security for deposits made by the city. The plaintiff trust company has pledged such bonds as security for deposits of city funds; the city since then has had on deposit with the plaintiff varying sums of money with an average daily balance of over $300,000.

The Superintendent of Banks has advised the plaintiff that the local law and the resolution adopted pursuant to its provisions do not confer upon the bank authority to pledge its assets as security for deposits of the city of New Roche.lle and that the pledge of the bonds for such purpose should be terminated. The city of New Rochelle and its officers have notified the plaintiff that it will withdraw the moneys deposited with the plaintiff and close its account if the bonds pledged as security are withdrawn. The plaintiff wishes to retain the account of the city. The city and the plaintiff trust company both contend that the local law is valid and confers upon the bank power to make the pledge. The controversy has been submitted to the Appellate Division upon an agreed statement of facts. The Appellate Division decided that the local law is valid and that the. local law and the resolution adopted in conformity therewith affords sufficient authority to the plaintiff to pledge a portion of its assets to secure the deposit of the funds of the said city with it.”

A bank has no power to pledge any of its assets as security for' deposits made with it except as such power may be conferred by statute. The Legislature has not by any statute conferred upon banks such general power. (State Bank of Commerce v. Stone, 261 N. Y. 175.) That is true even where the deposits are made by a municipal corporation. (City of Mt. Vernon v. Mt. Vernon Trust Co., 270 N. Y. 400.) In State Bank of Commerce v. Stone (supra) we pointed out that statutes enacted by the Legislature confer upon banks power to pledge in some cases their securities for deposits of public moneys. Some of the statutes purporting to confer such power are general statutes, other statutes are local and the trust company and the city contend that the local law enacted by the city of New Rochelle confers upon banks in this case the power which the Legislature by local statute decreed that banks should have in other cases.

The section of the local law of New Rochelle which, it is said, confers upon banks a power which the Legislature has withheld does not in express terms purport to confer any power upon the banks or trust companies to pledge their assets as security for deposits of funds of the city of New Rochelle. In terms it is only a restriction imposed upon the treasurer of the city and relates to the government and affairs of the city in the transaction of its business. A local law which does only that is, it is clear, within the field of legislation open to cities under the provisions of former article XII of the Constitution, as amended at the general election of 1923 (popularly known as the Home Rule Amendment) and under the City Home Rule Law (Cons. Laws, ch. 76) adopted by the Legislature to carry out the mandate of the amended Constitution.

The positive restrictions upon the power of the treasurer of the city to make a deposit with a bank or trust company, unless such bank or trust company pledges its securities, confers, it is said, by necessary implication, power upon the banking institution to make the pledge. A power conferred upon a public officer to exact from a bank a pledge to secure a deposit of funds in his custody can, of' course, be exercised only if the bank has the power to give the security. Accordingly, where powers of both city officers and banks are derived from and subject to regulation by the same legislative body, it has been held that a statute conferring upon a public officer power to exact a pledge from a bank confers upon a bank by fair implication the power to make the pledge. (Texas & Pacific Ry. Co. v. Pottorff, 291 U. S. 245, 257, 258; O'Connor v. Rhodes, 79 Fed. Rep. [2d] 146.) Banks derive their powers from and are subject to regulation by the Legislature of the State and the problem in this case is whether the city of New Rochelle could by local law confer upon banks and trust companies, incorporated under the laws of the State of New York, authority, withheld by the Legislature, to make a pledge to secure deposits of moneys of the city of New Rochelle and, if the city has such power, whether the local law was intended to confer such authority upon the banks and trust companies.

We assume that validity of the statute must be determined by the provisions of article IX of the Constitution of the State, as amended in 1938, rather than the provisions of the Constitution in effect when the local law was adopted; for the City Home Rule Law (as amd. L. 1939, ch. 867, § 36) so provides in express terms. That article was unquestionably intended to extend the field in which a city might legislate and to exclude the Legislature from that field. Even so, under no reasonable construction of the new article of the Constitution do we find that the field of local legislation includes laws intended to confer upon the banks of the State a power withheld from banks by the Legislature even though without such power a bank might not be able to co-operate with the city in the transaction of the business of the city in the manner which the city might deem for its best interests.

The State incorporates banks and regulates and supervises the transaction of the business of banking in the interest of all the people of the State. Banks may be incorporated only by general laws, and they derive their powers from the State alone. If powers granted by the State to a bank might be curtailed by the city in which the bank does business or if powers withheld by the State might be conferred upon banks by the city, the control of banking by the State would no longer be plenary. Here, indeed, the city of New Rochelle asserts a right even broader. It asserts the right to confer upon banks, within and without the city, a power to be exercised in the transaction of business with the city, which the State has withheld and which banks cannot exercise in the transaction of business with other cities. The Constitution confers upon the cities the right to regulate by local law matters of local concern subject only to limitations and restrictions contained in the Constitution; so a city may, if it chooses, pass local laws restricting and regulating the power of its treasurer in respect to the care and custody of its funds — but the transaction of the business of a bank is not a matter of local concern, and when a city and a bank do business together the bank cannot exceed the powers conferred upon it by the State, and no local law regulating the transaction of the business of the city can enlarge those powers.

The fact that at times the Legislature has passed statutes which confer upon officers of a particular city power or even duty to exact from banks a pledge to secure deposits and which thus affects the government and affairs of the city, and that, by the same statutes, the Legislature has conferred upon banks, in express terms, a power to give such pledge, does not indicate that conferring or withholding of such power on the banks is, in the opinion of the Legislature, a matter of local concern. Nor does the reference to such statutes in State Bank v. Stone (supra) support a contention that such a power might be conferred upon a bank as part of a local law enacted by a city. The regulation of the powers of the city officers does, of course, come, as we have said, within the field where cities may legislate. The Legislature could not intrude upon that field except by statute enacted in accordance with the Home Rule provisions of the Constitution as adopted in 1923; and when by statutes so enacted it conferred power upon the officers of some cities to exact security, the Legislature exercised, at the same time, also its right to regulate the affairs of banks and conferred upon banks which sought to do business with the cities a power to do such business in the manner provided in the statutes. Whether such statutes are wise or not does not concern the court. In the case cited we were not even called upon to determine the validity of such statutes. Nothing said or decided by the court in that case indicated that the court was of the opinion that the powers of banks might be a matter of local concern.

The judgment of the Appellate Division should be reversed, without costs, and judgment granted declaring that the New Rochelle Trust Company has no power to pledge any of its assets as security for deposits of city funds.

Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ., concur.

Judgment accordingly.


author: Lewis, J. Sears, J.

text:
    In the Matter of Arthur S. Cowen et al., Respondents, against Grace A. Reavy et al., Constituting the Civil Service Commission of the State of New York, Appellants.

      Argued April 25, 1940;
    decided June 4, 1940.

      John J. Bennett, Jr., Attorney-General (Bernard L. Aiderman and Henry Epstein of counsel), for appellants.
    The Civil Service Commission determined upon the qualifications it deemed most appropriate for the position of unemployment insurance referee. Its determination was reasonable and was arrived at after due deliberation had in good faith. Courts will not substitute their judgment for that of the agency duly constituted by law to make a determination even though the courts differ with the agency as to its wisdom so long as the agency’s actions are not arbitrary, capricious or palpably illegal. (Bridgeman v. Cosse, 157 Misc. Rep. 8; 246 App. Div. 632; 271 N. Y. 535; People ex rel. Moriarity v. Creelman, 206 N. Y. 570; People ex rel. Schau v. McWilliams, 100 App. Div. 176; 185 N. Y. 92; Matter of Simons v. McGuire, 204 N. Y. 253; People ex rel. New York & Queens Gas Co. v. McCall, 219 N. Y. 84; 245 U. S. 345; Matter of National Surety Co., 248 App. Div. 111; 272 N. Y. 613; Matter of Sheridan v. Kern, 255 App. Div. 57; Matter of Walker v. Maxwell, 68 App. Div. 196.) The Civil Service Commission acted legally and properly exercised its discretion in providing a relative weight of six out of ten for “ training, experience and general qualifications.” Training and experience bear directly upon qualifications for the position of unemployment insurance referee and constitute a valid competitive test of fitness. (People ex rel. Caridi v. Creelman, 150 App. Div. 746; People ex rel. Braisted v. Municipal Civil Service Comm., 100 App. Div. 240; Matter of Allaire v. Knox, 62 App. Div. 29; 168 N. Y. 642; People ex rel. Buckley v. Roosevelt, 19 App. Div. 431.)

      Charles Gordon for respondents.
    The Civil Service Commission must act legally, properly and reasonably. If it transgresses the bounds of legality, propriety and reasonableness, the courts will intervene to correct its actions and to assure a just result. (People ex rel. Schau v. McWilliams, 185 N. Y. 92; Matter of Sheridan v. Kern, 255 App. Div. 57; Matter of Ryan v. Finegan, 166 Misc. Rep. 548; Kelty v. Kaplan, 205 App. Div. 487; Story v. Craig, 231 N. Y. 33; Matter of Barthelmess v. Cukor, 231 N. Y. 435; Matter of Scahill v. Drzewucki, 269 N. Y. 343.) The announcement does not fix objective standards for rating applicants. (Matter of Fink v. Finegan, 270 N. Y. 356.)

      Edward Rager for Association of the Bar of the City of New York, amicus curiæ.

      Herman A. Gray and Isidore G. Popik for New York County Lawyers Association, amicus curiæ.

      Joseph Rosch and Emil Peters for New York State Bar Association, amicus curiæ.

      Herman E. Cooper, William Sardell and Charles Barasch for National Lawyers Guild, New York Chapter, amicus curiæ.

   Lewis, J.

In making provision for the administration of the Unemployment Insurance Law (Labor Law [Cons. Laws, ch. 31], art. 18), the Legislature authorized the Industrial Commissioner to appoint, “ subject to the regulations of the civil service,” as many referees as may be necessary to perform duties prescribed by that act. (Labor Law, § 518, subd. 6-a.) Such authorization in due course led to a public notice by the Civil Service Commission of an examination of candidates for vacancies existing in the position of unemployment insurance referee in the competitive class of the civil service. The notice stated that in rating candidates to be examined a credit of forty per cent would be given to the written examination upon the duties of the position and a relative weight of sixty per cent would be accorded to training, experience and general qualifications ” of the applicant. After describing the duties of the position the notice specified the minimum qualifications required. Those minimum qualifications were made applicable to three separate groups and may be fairly summarized as follows:

(a) Applicants who are high school graduates and who have six years full-time, paid employment (at least two years in a supervisory or administrative capacity) in one of the following:

1. Positions in the placement or personnel office of a business or labor organization or an employment agency.

2. Positions involving management or direction of a large staff of personnel.

3. Positions in the Workmen’s Compensation Bureau. 4. Positions in a public or private agency dealing with compliance with labor laws or labor agreements.

5. Positions involving settling insurance claims.

(b) Applicants who are college graduates and have four years of the experience listed in (a) (at least one year in a supervisory or administrative capacity).

(c) Applicants who are graduates from a recognized school of law, who are admitted to the Bar and have had at least five years’ experience in active practice of the law including or supplemented by the following specialized experience:

1. One year full-time paid employment in one of the positions described in (a) which must have been in an administrative or supervisory capacity, or

2. Two years’ satisfactory full-time experience in a public agency or civic organization in drafting legislation, or in formulating rules of procedure affecting contested claims, or

3. Two years’ full-time paid employment in the active conduct of labor or workmen’s compensation cases, or

4. Two years’ experience with a government agency as arbitrator or referee.

The present proceeding under article 78 of the Civil Practice Act was instituted by four petitioners, each of whom is admitted to the Bar of this State and has had an experience of more than five years in active practice of the law. Applications by three of the petitioners for permission to participate in the examination having been rejected and an application to the Commission by the petitioners for a revision of the minimum qualifications having been denied, this proceeding followed.

The Civil Service Commission now appeals as of right from an order of the Appellate Division, affirming an order of Special Term which canceled the civil service examination held pursuant to the public notice mentioned above and directs the Commission to revise the minimum qualifications prescribed for the position of unemployment insurance referee in such a manner as to permit participation in the examination by attorneys admitted to practice in the courts of this State who have had an experience of five years in general practice. The Commission is also ordered to strike from the notice of a new examination, which it is directed to hold, the provision which gives a rating weight of sixty per cent for “ training, experience and general qualifications,” with permission to substitute therefor objective standards in the rating of applicants.

It is a function of the Civil Service Commission to fix a fair and reasonable standard by which may be tested the qualifications of applicants for appointment in the civil service. The exercise of that function may be the subject of judicial review only in the event of a clear showing that in fixing the test of fitness the action by the Commission was arbitrary, capricious or unreasonable. (People ex rel. Sweeney v. Rice, 279 N. Y. 70, 73; Matter of Andresen v. Rice, 277 N. Y. 271, 276, 277; Matter of Barthelmess v. Cukor, 231 N. Y. 435, 443.)

Upon the present record we find the quality of reasonableness lacking in the action by the Commission which gave a relative weight of forty per cent to the written examinations covering the duties of the position of unemployment insurance referee and ascribed sixty per cent to “ training, experience and- general qualifications.” We view such a basis of rating in the light of the constitutional provision which requires that appointment and promotion in the civil service “ * * * shall be made according to merit and «fitness to be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive; * * *.” (State Const. art. V, § 6.) In this statement of public policy and in the statutes enacted to make it effective the emphasis is upon the element of competition. “ The test is not merely examination. The test is competitive examination.” (Matter of Barthelmess v. Cukor, supra, p. 445.) But the mandate for competition becomes futile when, as here, we find that a candidate’s general qualifications ”— wholly subjective to the examiners and unappraised by objective standards of any kind — are made a test of fitness and, with training and experience, are given a rating weight of sixty per cent. “ An examinatian cannot be classed as competitive unless it conforms to measures or standards which are sufficiently objective to be capable of being challenged and reviewed, when necessary, by other examiners of equal ability and experience.” (Matter of Fink v. Finegan, 270 N. Y. 356, 362; Barlow v. Berry, 245 N. Y. 500, 503, 504; Matter of Ottinger v. Civil Service Comm., 240 N. Y. 435; Matter of Barthlemess v. Cukor, supra.)

Passing to a consideration of the minimum requirements which limit the right of lawyers to enter the examinations, the Commission has given notice that such applicants must be graduates from recognized schools of law, admitted to the Bar and have at least five years’ experience in active practice. We regard such a requirement as an unreasonable and arbitrary discrimination against the lawyer who is not a graduate of a recognized school of law but who may have qualified in this State as an attorney and counselor at law by admission to practice in accord with rules authorized by statute (Judiciary Law [Cons. Laws, ch. 30], § 53) and promulgated by this court. (Rules III and IV of the Rules of the Court of Appeals for the Admission of Attorneys and Counselors at Law.)

In addition to graduation from a recognized school of law and admission to the Bar, followed by at least five years of active practice of the law, the minimum qualifications which the Commission has fixed as limiting a lawyer’s _ right to participation in the examination, include an experience varying from one to two years in any one of the .four types of work prescribed in group (c),” subdivisions 1, 2, 3 and 4, of the notice of examination (summarized above). The statutory duties of an unemployment insurance referee are defined as follows: “ It shall be the duty of a referee, under the supervision, direction and administrative control of the appeal board, to hear and decide disputed claims for benefits, to hear and decide cases arising under section five hundred twenty-three hereof and to conduct such other and further hearings in connection with the foregoing as may be required by the appeal board.” (Labor Law, § 518, subd. 6-a, and § 530, added by L. 1939, ch. 662, § 17.) The statute thus makes it clear that the referees to be appointed must be qualified to conduct hearings and to make decisions in controversial matters which may arise in connection with claims for unemployment insurance benefits under article 18 of the Labor Law. Those duties require of a referee the ability to interpret that statute and to apply its provisions to the particular state of facts which give rise to each controversy. Mindful of these requirements — which partake of the judicial function — it is difficult to state a reason why admission to the Bar, followed by five years of active practice of the law, would not be sufficient as a qualification for the performance of those duties. We cannot say, as matter of law, however, upon the present record that the additional minimum qualifications set forth as alternatives in group (c),” subdivisions 1, 2, 3 and 4, of the Commission’s notice of examination, are unreasonable. The question of the reasonableness of such additional minimum qualifications is, in the circumstances present here, one of fact (People ex rel. Sweeney v. Rice, supra, p. 73) and should be made the subject of proof at Special Term.

The order should be modified by remitting the proceeding to the Special Term, there to proceed in accordance with this opinion, and, as so modified, affirmed, without costs.

Sears, J.

(dissenting). In this proceeding the action of the Civil Service Commission in fixing minimum qualifications for admission to an examination to the position of unemployment insurance referee and in formulating rules in respect to the rating of applicants upon the examination is challenged as illegal and invalid. With much contained in the majority opinion I am in accord. To provide, as the Commission has done, that a relative weight of forty per cent only is to be given to the written examination while sixty per cent is given to experience and general qualification is in conflict, as the majority opinion points out, with the constitutional provision that an examination to determine merit and fitness so far as practicable shall be competitive. (Matter of Scahill v. Drzewucki, 269 N. Y. 343.) I am also in accord with the view that the requirement that attorneys and counselors at law admitted to the examination must be graduates from a recognized school of law is unreasonable. There is no rational basis for the distinction between attorneys who qualify for admission to the Bar in this State by presenting a certificate of graduation from a recognized law school and those who qualify themselves by other study under the rules of the Court of Appeals for admission of attorneys and counselors at law. No such single requirement for admission to the Bar as a law school graduation is imposed by the rules of this court, and I do not perceive how additional merit or "fitness can depend on professional graduation as against an adequate substitute such as is provided in the Court of Appeals rules.

When, however, it comes to the qualifications with respect to experience I am in disagreement with the majority. Broad powers are granted to administrative boards. Action 'of such boards within the scope of the powers conferred upon them can only be invalidated when the action is arbitrary or unreasonable, palpably illegal. The Commission need not show the reasonableness of its determination. It is only where the administrative board errs as matter of law by arbitrary,' capricious or unreasonable action that the courts may intervene. The qualifications ‘ of experience may be useful even if not indispensable in securing the type of professional man best fitted for the positions to be filled. The determination rests with the Commission, not with the courts. (People ex rel. Moriarty v. Creelman, 206 N. Y. 570; People ex rel. Schau v. McWilliams, 185 N. Y. 92; Matter of Grade Crossings [N. Y. C. R. R. Co.], 255 N. Y. 320; Matter of Niagara Falls Power Co. v. Water P. & C. Comm., 267 N. Y. 265.)

The order, in my opinion, should be modified so as to remit the matter to the Commission to make new regulations as to the weight to be given to the written examination and to experience in accordance with the constitutional provisions and as to minimum qualifications for attorney applicants in accordance with the foregoing.

Loughban, Rippey and Conway, JJ., concur with Lewis, J.; Seabs, J., dissents in part in opinion, in which Lehman, Ch. J., and Finch, J., concur.

Ordered accordingly.


author: Per Curiam.

text:
    The People of the State of New York ex rel. Syracuse Trust Company, as Trustee and Administrator with the Will Annexed of Katherine M. Simms, Deceased, Appellant, against Joseph L. Matt et al., as Assessors of the City of Utica, et al., Respondents.
    Argued April 18, 1940;
    decided June 14, 1940.

      William H. Harding and A. V. W. Hancock for appellant.
    The reduction in the value of the premises to $550,000 as found by the Special Term was amply justified by the credible evidence. (People ex rel. Luce v. Lewis, 257 App. Div. 724; People ex rel. Powers v. Kalbfleisch, 25 App. Div. 432; 156 N. Y. 678.) The equalization rate was properly applied to the valuation of the premises. (People ex rel. Mayor v. McCarthy, 102 N. Y. 630; Mayor v. Davenport, 92 N. Y. 604; People ex rel. Universal Business Corp. v. Lewis, 267 N. Y. 617; Moore v. City of Albany, 98 N. Y. 396.)

      Bartie Gorman, Corporation Counsel (M. Francis Malone of counsel), for respondents.
    Equalization by the County Board of Equalization so that all towns and cities of Oneida county will bear their just, proportionate share of State and county taxes was never intended to change the Tax Law (Cons. Laws, ch. 60) requiring city assessors to assess at full and true value. (People ex rel. American Mfg. Co. v. Gifford, 134 Misc. Rep. 487; People ex rel. Kellogg v. Wells, 101 App. Div. 600; People ex rel. Haile v. Brundage, 195 App. Div. 745; People ex rel. Stewart v. Feitner, 95 App. Div. 481; Berkshire Life Ins. Co. v. Van Voorhis, 245 App. Div. 592; Tallmadge v. Supervisors of Rensselaer County, 21 Barb. 611; People ex rel. Queens Borough, Gas & Electric Co. v. Woodbury, 67 Misc. Rep. 481; People ex rel. N. Y. C. & H. R. R. R. Co. v. Priest, 150 App. Div. 19; 206 N. Y. 274; People ex rel. Jamaica W. S. Co. v. State Board, 196 N. Y. 39.)
   Per Curiam.

We conclude that the finding of the Special Term in regard to the full true value of the property is in accord with the weight of the evidence. We agree with the Appellate Division in its disposition of the question raised as to the applicability of the equalization rate.

The order of the Appellate Division should be modified in accordance with the above memorandum and as so modified affirmed, without costs.

Lehman, Ch. J., Loughran, Finch, Rippey, Sears and Conway, JJ., concur; Lewis, J., votes to affirm the order of the Appellate Division in its entirety.

Ordered accordingly.


text:
    William E. Lane, Jr., et al., Respondents, v. Ellsworth E. Johnson et al., Appellants.

      Argued June 10, 1940;
    decided July 23, 1940.

      Robert E. Dempsey and E. J. Dimock for appellants.
    The legalizing act (L. 1940, ch. 409) cured the defect, if any, in the town of Cortlandt election. (East v. Brooklyn Heights R. R. Co., 195 N. Y. 409.) The town of Cortlandt election held on November 7, 1939, was a general election. The general election was not affected by chapter 194 of the Laws of 1938. (Salducco v. Etkin, 155 Misc. Rep. 361; People ex rel. Goring v. President of Wappingers Falls, 144 N. Y. 616; People ex rel. Hirsh v. Wood, 148 N. Y. 142; People ex rel. Davies v. Cowles, 13 N. Y. 353.) The eligible voters of the village of Peekskill had the right to vote for the candidates for town officers. Their omission to exercise that right did not invalidate the election in the town of Cortlandt of November 7, 1939. (Scholl v. Bell, 25 Ky. 750; People ex rel. Goring v. President of Wappingers Falls, 144 N. Y. 616; People ex rel. Hirsh v. Wood, 148 N. Y. 142.) Former subdivision 4 of section 26 of article 3 of the New York Constitution has no application to chapter 194 of the Laws of 1938. (Bank of Chenango v. Brown, 26 N. Y. 467; City of New York v. Village of Lawrence, 250 N. Y. 429; Cort v. Smith, 249 App. Div. 1; 273 N. Y. 481; Salducco v. Etkin, 155 Misc. Rep. 361; 268 N. Y. 606; People ex rel. Clancy v. Board f Supervisors, 139 N. Y., 524.)

      E. J. Dimock for Village of Peekskill, amicus curiæ.

    Valid retroactive legislation has cured the defects in the submission of the Peekskill City Charter. (Wrought Iron Bridge Co. v. Town of Attica, 119 N. Y. 204; Cromwell v. MacLean, 123 N. Y. 474; Meigs v. Roberts, 162 N. Y. 371; People ex rel. Dady v. Prendergast, 144 App. Div. 308; 203 N. Y. 1; Dunkum v. Maceck Bldg. Corp., 256 N. Y. 275; Robia Holding Corp. v. Walker, 257 N. Y. 431; City of New York v. Village of Lawrence, 250 N. Y. 429; People ex rel. Dare v. Howell, 174 App. Div. 118; 220 N. Y. 593.) Neither the Peekskill City Charter nor the curative act is invalid as changing the form or composition of the elective body of the county of Westchester within the meaning of subdivision 4 of section 26 of article 3 of the old Constitution, subdivision (d) of section 2 of article 9 of the new Constitution. (People ex rel. Clancy v. Board of Supervisors, 139 N. Y. 524.) The method of adoption of the charter was not invalid as a delegation of legislative power to the electors. (People ex rel. Unger v. Kennedy, 207 N. Y. 533.)

      Clifford Couch for respondents.
    Chapter 194 of the Laws of 1938 having been declared invalid, the election of town officers in the town of Cortlandt on November 7, 1939, was invalid, and, therefore, constitutional rights of suffrage were denied to the electors within the village of Peekskill in voting for town officers. (Matter of Hopper v. Britt, 203 N. Y. 144; Matter of Lauer v. Board of Elections, 262 N. Y. 416; People ex rel. Nichols v. Board of Canvassers, 129 N. Y. 395; People ex rel. Woods v. Crissey, 91 N. Y. 616.) There was no election of town officers on November 7, 1939. (People ex rel. Deitz v. Hogan, 214 N. Y. 216;
      Matter of Mitchell v. Boyle, 219 N. Y. 242.) Chapter 409 of the Laws of 1940 is invalid and void under section 26 of article 3 of the former State Constitution in that it is an attempt to cure or remedy a jurisdictional defect in and with regard to chapter 194 of the Laws of 1938. (Town of Cortlandt v. Village of Peekskill, 281 N. Y. 490; Olds v. City of Jamestown, 280 N. Y. 281; Meigs v. Roberts, 162 N. Y. 371.) Chapter 409 of the Laws of 1940 cannot validate the election of officers for the city of Peekskill held on November 7, 1939. (Town of Cortlandt v. Village of Peekskill, 281 N. Y. 490; Berkerly v. Board of Education, 58 S. W. Rep. 506; Cromwell v. MacLean, 123 N. Y. 474; Olds v. City of Jamestown, 280 N. Y. 281; Santa Cruz Water Co. v. Kron, 74 Cal. 223; Harrison v. Colgon, 148 Cal. 69.)

      William A. Davidson for County of Westchester, amicus curiæ.

    The so-called validating or curative act was an attempted cure of a single deficiency, notwithstanding the other constitutional defects. (Town of Cortlandt v. Village of Peekskill, 281 N. Y. 490; Olds v. City of Jamestown, 280 N. Y. 281; Wingate v. Flynn, 139 Misc. Rep. 779; 233 App. Div. 785; 256 N. Y. 690; Norton v. Shelby County, 118 U. S. 425; People ex rel. McDougal v. Johnston, 6 Cal. 673.) The method of the adoption of the charter, as provided by section 204 thereof, was an invalid delegation of legislative power. (Barto v. Himrod, 8 N. Y. 483; People ex rel. Unger v. Kennedy, 207 N. Y. 533.)
   Lehman, Ch. J.

At the general election held on November 2, 1937, the plaintiff William E. Lane, Jr., was elected Supervisor and the plaintiff S. Allen Mead was elected Town Clerk of the town of Cortlandt. Their terms of office expired on December 31, 1939. At the general election held on November 7, 1939, at which their successors were to be elected, they were not candidates for re-election; but they claim that at that election no other persons were validly elected to the offices they had held and that they may “ continue to discharge the duties of their respective offices after the expiration of the terms for which they have been chosen until their respective successors be chosen and qualified.”

In 1937, when the plaintiffs were elected to offices in the town of Cortlandt, the village of Peekskill, in which they resided, was a part of the town. The village was still a part of the town at the time of the general election held on November 7, 1939; but chapter 194 of the Laws of 1938, entitled An Act to provide a charter for the city of Peeks-kill,” purported to provide a charter for the proposed city which was to become effective on January 1, 1940, if a proposition that the statute should be “ approved ” should be adopted by a majority of the votes cast at the village election of the village of Peekskill to be held on April 12, 1938. A majority of the votes were, in fact, cast at that election for approval. The boundaries of the village of Peekskill were the same as the boundaries of the proposed city of Peekskill.

In the statute then approved there is a provision that from and after January 1, 1940, the town of Cortlandt shall ” consist of all that “ portion of said town not included within the boundaries of the city of Peekskill and the territory embraced within the boundaries of the city of Peekskill as hereinbefore described shall not constitute or be a part of the town of Cortlandt ” (art. II, § 5), and also a provision that the portion of the present town of Cortlandt which * * * lies without-the limits of the present village of Peekskill, and which, after this act goes into effect, is to constitute the whole of the said town of Cortlandt, shall at the election of town officers to be held in nineteen hundred thirty-nine elect town officers to take the place of the said town officers whose terms expire on the thirty-first day of December, nineteen hundred thirty-nine; and no person shall then be nominated or elected to any of said offices who shall at the time of such election be a resident of the village of Peekskill.” (Art. II, § 5-a.) In another section the statute contained analogous provisions for the election in 1939, by residents of the village of Peeks-kill, of city officers of the city of Peekskill, including two Supervisors. If chapter 194 of the Laws of 1938 was a valid exercise of legislative power and the election of April, 1938, at which the voters approved the statute was properly held, then at the general election held in November, 1939, the inhabitants of the territory within the proposed city, including these plaintiffs, were entitled to vote for and elect city officers who would take office on January 1, 1940, but were not entitled to vote for officers of the town of Cortlandt who would take office on the same day.

Accordingly, within the territory of the proposed city, party nominations were made for city offices, as provided in the statute, and on each voting machine, used in the election district within that territory, the name of the candidates so nominated appeared and no vote could be cast upon these voting machines for any other office. Similarly, in the town of Cortlandt, outside the limits of the proposed city, the names of candidates for town offices appeared. The votes were then canvassed and the candidates for city and for town offices, who had received the largest number of votes were declared elected.

Before this election, the town of Cortlandt had brought an action to procure a declaratory judgment decreeing that, even though the Act to provide a charter for the city of Peekskill ” (Laws of 1938, ch. 194) was approved by the voters at the village election in April, 1938, the statute was inoperative and void. The complaint was dismissed -at Special Term and the Appellate Division in October, 1939, had affirmed the judgment. On November 21, 1939, immediately after the election of city officers, this court reversed the judgment and the matter was “ remitted to Special Term to enter judgment declaring that chapter 194 of the Laws of 1938 was not legally submitted to the qualified voters at the election held on April 12, 1938, and that said act, therefore, failed to become effective.” (Town of Cortlandt v. Village of Peekskill, 281 N. Y. 490, opinion by Rippey, J.) The court felt constrained to reach that result because the notice of the election held on April 12, 1938, had not been given to the qualified voters in accordance with statutory requirements. The court rejected the contention that the defect might be disregarded because the qualified voters had actual knowledge of the election acquired in other manner and said in its opinion, The mere fact that no harm was done, if such be a fact, and that no voters were disfranchised by virtue of the irregular notice and the failure to post any notice whatsoever is not material. When the statutes prescribe methods by which propositions changing the form and structure of government shall be submitted, it cannot be left to the discretion of the court to say that substantially no notice whatever is required or that the specific provisions of the statutes may be overridden.”

The effect of the decision was to leave the territorial limits of the town of Cortlandt and the political status of the town and its residents as if the statute had never been enacted. The statute, as we said, “ failed to become effective.” None the less, the inhabitants of the territory and the public officers there, charged with duties in connection with the election of November, 1939, were not at fault in assuming previously that the statute would effectively change the political status after the 1st of January, 1940. The courts below had so instructed them. The result was that the officers of the entire town were elected by the inhabitants of only part of the town. The voters in the territory within the village of Peekskill, and they outnumbered the voters in the remainder of the town, cast their vote for candidates for offices which, under the decision of this court, had not been created. On that ground, the Appellate Division, upon the submission of an agreed statement of facts, has, in the case we now review, sustained the challenge by the plaintiffs and has set aside the election.

Almost 5,000 voters in the territory outside the limits of the village voted for town officers. The effect of the judgment is to render entirely futile the expression of their choice of officers for the political subdivision of the State in which they five and to deprive them of the right to elect the local officers, which is assured to them by the Constitution and the statutes of the State. The law required that an election be held at that time to choose town officers for the term beginning January 1, 1940. The election officials performed their statutory duties in the election districts outside of the village of Peekskill. The votes in those districts were cast in accordance with all legal requirements and the courts must hesitate to refuse to give effect to the properly expressed choice of the voters because in other districts, through error of officials there, the voters were not afforded fair opportunity to exercise their franchise. (Cf. People ex rel. Goring v. President of Village of Wappingers Falls, 144 N. Y. 616.) On the other hand, the error of these officials, though under the circumstances entirely excusable, did result in a substantial denial to the voters in the village of Peekskill of any right to vote for their town officers. (Cf. People ex rel. Deitz v. Hogan, 214 N. Y. 216.) Argument that, in some manner, a voter there should have known that the statute incorporating the city of Peekskill was “ inoperative,” and that a voter, knowing that, might, in some manner, have vindicated his right to vote for town officers, ignores every practical consideration. The Appellate Division was fully justified in holding that, for all practical purposes, there was no election for town officers held in that part of the town of Cortlandt which lies within the boundaries of the village of Peekskill and that the inhabitants of the village had no opportunity to vote for town officers or to be candidates. The serious question which that court was required to decide is whether, on that account, effect should be refused to the votes cast by the voters in the remainder of the town. i

While the appeal from that decision was pending, a statute was enacted intended, as stated in its title, to legalize the submission of a proposition for the approval of chapter one hundred ninety-four of the laws of nineteen hundred thirty-eight * * * at an election of the qualified voters of the territory within the proposed city of Peekskill * * *.” (Laws of 1940, ch. 409.) If the Legislature had power to enact that statute, then by its terms the statute cured the defects in the notice of the election of April, 1938, at which the proposition whether the “ Act to incorporate the city of Peekskill ” should be approved was submitted to the qualified voters. Then, the statute incorporating the city, which until that time was “ inoperative ” under the decision of this court rendered in November, 1939, would be given effect according to its terms as if the voters had given approval at a valid election. The separation of the city of Peekskill from the town of Cortlandt would be complete. The town officers chosen by a majority of the voters in the territory outside of the city would have jurisdiction only in that territory and the reasons which induced the Appellate Division to decide that the election of these officers in November, 1939, was invalid, would then lose all force. We need not determine whether the decision of the Appellate Division was sound under the law as it then was if we find that the Legislature had power to enact the curative statute and to give retroactive effect, in some matters, to a statute previously declared inoperative.” (Cf. People ex rel. Clark v. Gilchrist, 243 N. Y. 173, 180, and cases there cited.) That is the primary problem presented upon this appeal.

It is said that the failure to give the statutory notice of the election of 1938, which, the court pointed out, was mandatory and for want of which the election was without effect, constitutes a jurisdictional defect, which cannot be overlooked or remedied by curative statute.” (Olds v. City of Jamestown, 280 N. Y. 281, 285; Meigs v. Roberts, 162 N. Y. 371.) The Legislature has no power to authorize legal proceedings to divest rights without due process. of law, and there can be no due process without proper notice of the proceedings. Where proceedings are had without proper notice in disregard of the requirements of due process of law, the Legislature has, it is plain, no more power to give sanction and force to what has been done without proper notice than it would have had to authorize in advance such legal proceedings without notice and compliance with the requirements of due process. A notice insufficient to meet the requirements of due process and to confer jurisdiction upon a legal proceeding, can never be made sufficient retroactively in proceedings already complete. Where property has been taken without due process the defect cannot be cured by any fiat of the Legislature. In such cases defect in notice is a “ jurisdictional defect.”

In this case, as we have said, the Legislature chose to decree that the Act to provide a charter for the city of Peekskill ” (Laws of 1938, ch. 194) should become effective only provided that it was approved by the electors at an election for which notice in advance should be given in manner directed by the Legislature. It may be sound legislative policy to leave to the inhabitants of a proposed city the finel decision whether they will accept or reject a charter which the Legislature offers to them, but no provision of the Constitution requires the Legislature to annex such a condition to its statute and no consideration of public policy dictates a particular form of notice of the election, if the Legislature decides that such a condition should be annexed. More than 4,000 qualified electors in the village of Peekskill cast votes at the village election and a substantial majority of the votes were cast in favor of the proposition that the proposed city charter for the village should be approved. Because the Legislature alone has power to determine the conditions upon which a statute should become effective, this court can give no effect to an expression of the will of the qualified voters where notice of the election has not been given to the voters in the manner directed by the Legislature, even though, as we pointed out, actual notice may have been received by all those entitled to vote at the election and it may be the fact “ that no voters were disfranchised by virtue of the irregular notice ” (p. 496). The Legislature, however, is not impotent in such case. Since the Legislature had plenary power to determine whether it would or would not submit its statute to the voters for approval and plenary power, if it did decide to direct such submission, to determine what notice should be given to the electors, irregularity in giving such notice is clearly not a “ jurisdictional ” defect and the Legislature is under no disability which would restrict its power to decree thereafter, as it has done here, that in spite of irrgularity in the election it will incorporate the city of Peekskill as provided in the original statute of incorporation, and thus give effect to the clear expression of the will of the qualified voters ” shown by a substantial majority of the votes cast at the election which had been given wide publicity.” (Cf. People ex rel. Dare v. Howell, 174 App. Div. 118; affd., 220 N. Y. 593, without opinion, and perhaps not on all the grounds stated in the opinion of the Appellate Division; People ex rel. Village of Brockport v. Sutphin, 166 N. Y. 163.)

Argument is made that even if the Legislature had power, by statute in 1940, to declare effective chapter 194 of the Laws of 1938 which, without such new statute, was and would have remained inoperative — yet it could not by its fiat declare that a statute which was inoperative until that time, shall be treated as if it had been operative earlier and thus give effect retroactively to an election previously conducted which would otherwise be void. If the Legislature may do that then, it is said, the source of the right to office of persons chosen at the election, which is inoperative and void without the subsequent curative ” statute, would be the legislative will and act, not the suffrage of the voter. The legislative act would then, it is said, be, in effect, an appointment to office prohibited by article 9, section 7 (formerly article 10, section 2), of the Constitution of the State of New York.

That section can have no application to the facts in this case. The defendants were elected officers of the town of Cortlandt at a general election in November, 1939, by the qualified electors residing within the boundaries of the town as fixed by chapter 409 of the Laws of 1940. Though at the time that the election was held the village of Peekskill was still a part of the town of Cortlandt, the inhabitants of the village of Peekskill did not vote for officers of the town of Cortlandt but for officers of the city of Peekskill, which it was assumed would not be part of the town of Cortlandt after January 1, 1940. Our decision in Town of Cortlandt v. Village of Peekskill (supra) authoritatively determined that the assumption was erroneous, at the time of the election; but chapter 409 of the Laws of 1940 became a law April 12, 1940, and from that date the town of Cortlandt no longer included the territory within the boundaries of the city of Peekskill; and the election held for town officers within the town boundaries was no longer subject to challenge on the ground that the proposed city was part of the town and that the election for town officers should have been conducted in the whole town. The Legislature did not choose the local officers of the town or city when by “ curative ” statute they incorporated the city and changed the boundaries of the town. They merely destroyed from April 12, 1940, the only ground upon which the right to offices of the candidates chosen by the electors of the territory within the town and city could be challenged. After that date no reason existed why the will of the electors in city and town expressed at an election held for that purpose should be thwarted. That is not an attempt to substitute an election by the Legislature for one by the qualified town electors.” (People ex rel. Dare v. Howell, supra, p. 122.)

We have so far discussed only the power of the Legislature to pass a “ curative ” statute giving effect to chapter 194 of the Laws of 1938, in spite of the defects and irregularities in the election, which this court held had prevented the statute from becoming operative. The validity of the original statute had been challenged in this court, also, on many other grounds which, we said, it was not necessary for us to consider at that time. The same challenge is now directed against the statute and we must now pass upon that challenge.

It was urged in the case of Town of Cortlandt v. Village of Peekskill (supra), and is again urged now, that “ the provisions of the new charter for the proposed city, are so indefinite, inconsistent and uncertain that it is impossible to determine the meaning of its provisions or to put them into practical operation ” (p.498). Unskillful draftsmanship is no ground for declaring a statute void. The Legislature determines both the form and content of the charter and the courts are not intrusted with authority to criticize the work of the Legislature or to refuse to give effect to a statute which by reasonable construction may be made to function in practical manner. We do not analyze in detail the specification of alleged defects by the defendants. The alleged inconsistencies may be reconciled or are unimportant and alleged indefiniteness may be removed by construction of provisions which might, perhaps, have been expressed more precisely, and our attention has not been called to any alleged defect which would render it impossible for the municipal government established by the charter to function. Defects which may impede the efficient operation of the government may be cured hereafter by legislative action. Objection that chapter 194 of the Laws of 1938 disregards provisions of the Constitution restricting the power of the Legislature require more extended consideration.

The most serious objection is that the statute violates article III, section 26, subdivision 4, of the Constitution of the State in effect in 1938 when the statute was enacted, or, at least, that under that subdivision the statute would not become effective until approved upon submission to the voters of the county. Subdivision 1 of that section provided that There shall be in each county * * * a board of supervisors, or other elective body, to be composed of such members and elected in such manner and for such period as is or may be provided by law.” Subdivision 2 of the same section provides, among other things, that “ The legislature shall provide by law for the organization and government of counties and shall provide by law alternative forms of government for counties * * * and for the submission of one or more such forms of government to the electors residing in such counties.” The county of Westchester adopted a form of government submitted in accordance with the provisions of subdivision 2 of that section. Subdivision 4 of that section was intended to restrict change, by special or local law of the form of government of a county after it had adopted a form of government submitted to the voters in accordance with the earlier subdivisions of that section.

Subdivision 4 provided: After the adoption of a form of government by a county pursuant to subdivision two of this section, the legislature shall not pass any law relating to the property, affairs or government of such county, which shall be special or local either in its terms or in its effect, but shall act in relation to the property, affairs or government of any such county only by general laws which shall in terms and in effect apply alike to all such counties except on message from the governor declaring that an emergency exists and the concurrent action of two-thirds of the members of each house of the legislature and no law, special or local in its terms or in its effect, which abolishes or creates an elective office or changes the voting or veto power of or the method of removing an elective officer, changes the term of office or reduces the salary of an elective officer during his term of office, abolishes, transfers or curtails any power of an elective officer, changes the form or composition of the elective body of such county, or provides a new form of government for such county, shall become effective without adoption by the electors of such county in the manner prescribed in subdivision two of this section for the adoption of a form of government for such county pursuant thereto. Nothing herein contained shall impair or restrict the power of the legislature to enact laws relating to matters other than the property, affairs or government of such county.”

The proposed charter for the city of Peekskill provides: “ Article IV. * * * § 8. City officers. City officers, under this act, shall include all persons elected or appointed to any office of the city created or authorized by this act or otherwise by law.

“ § 9. Elective officers. There shall be a mayor, six (6) councilmen, two (2) supervisors, and comptroller elected by the electors of the city at large, and such other officers as may be provided by law.”

The two Supervisors, though city officers, become, when elected, members of the Board of Supervisors of the county; for the County Law (Cons. Laws, ch. 11), article III, section 10, provides that “ The supervisors of the cities and towns in each county, when lawfully convened, shall be the board of supervisors of the county.” The plaintiffs now argue that since chapter 194 of the Laws of 1938 is a special or local law and creates offices of two Supervisors of the city of Peekskill, it both creates new elective offices and changes the form or composition of the elective body ” of Westchester county in manner not authorized by former article III, section 26, subdivision 4, of the Constitution.

Article XII of the Constitution (before it was amended in manner formulated by the Constitutional Convention of 1938) dealt with the organization, powers and immunities of cities. Section 1 of that article provided, among other things, that it shall be the duty of the Legislature to provide for the organization of cities and incorporated villages. In proper case and upon compliance with conditions specified in the Constitution, the Legislature might still provide by special or local law a charter for a city seeking incorporation. Article III, section 26, on the other hand, applied only to the form of government of counties. Restrictions contained in that section upon the legislative power to provide a form of government of counties or to change that form after a county had adopted a form of government submitted to it by the Legislature was not intended to hamper exercise by the Legislature of its power to provide for the organization of cities. Indeed, subdivision 7 of section 26 of article ITT expressly provides that “ nothing contained in this section shall be construed to impair the provisions of article twelve of this constitution.”

The Supervisors of the city of Peekskill will be city officers. They are so described in the proposed charter and “ supervisors ” are included in the enumeration of “ city officers ” contained in article XII, section 6 of the Constitution. Reference in article III, section 26, subdivision 4, to a statute which creates an elective office ” refers, it is plain, to an elective office in a county, not an elective office in a city. It is true, as we have said, that a Supervisor becomes a member of the Board of Supervisors of the county, but, as this court long ago pointed out, 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.” (People ex rel. Clancy v. Supervisors, 139 N. Y. 524, 527.) A city charter might contain no provision for a city Supervisor but then the city would have no representation on the Board of Supervisors of the county and this court said in the Clancy case that “ 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.”

In view of what was said in that case and giving effect to the provision of the Constitution that the restrictions upon the power of the Legislature to create or change the form of county governments shall not impair the provisions of article twelve of this constitution,” it seems clear that the provisions of article III, section 26, subdivision 4, were not intended to give to the voters of each county power to veto an exercise by the Legislature of its powers to incorporate by special or local law a new city or to restrict the Legislature to a “ maimed and imperfect exercise of the power of city organization.”

The general law which provides that the supervisors of the cities and towns in each county, when lawfully convened, shall be the board of supervisors of the county ” (County Law, § 10), fixes the form and composition of the Board. The Legislature may not without a referendum change by special or local law the form of county government or the form or composition of its elective body after the county has adopted a form of government submitted by the Legislature in accordance with the mandate of the Constitution. It has not by the special or local law, here challenged, changed in any manner any provision of law which fixes the form of county government of Westchester or the form or composition of any elective body. It has merely exercised its power to incorporate a city and by force of the provisions of the general law which determines the form or composition of the Board of Supervisors, city officers become members of the Board of Supervisors and thus the number of members of the Board of Supervisors is increased. A construction of the Constitution which would give to the voters of the county a veto upon the incorporation of a new city because under the terms of a general law defining the form and composition ” of the Board of Supervisors, the Supervisor or Supervisors of the new city would become members of the county board, would extend too far the scope of the constitutional restriction and disregard the limitation upon its scope contained in the same section.

Other objections have been raised to the validity of the statute as a whole. We have rejected them after careful consideration. Analysis of each of such objections would unreasonably extend this opinion.

The judgment should be reversed, without costs, and judgment granted dismissing the complaint.

Loitgkran, Finch, Rippey,c Seahs and Conway, JJ., concur; Lewis, J., taking no part.

Judgment reversed, etc.