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MATTER DON J. WICKHAM v. MARION NEWKIRK (09/29/69)

SUPREME COURT OF NEW YORK, SPECIAL TERM, ALBANY COUNTY


September 29, 1969

IN THE MATTER OF DON J. WICKHAM, AS COMMISSIONER OF AGRICULTURE AND MARKETS OF THE STATE OF NEW YORK, PETITIONER
v.
MARION NEWKIRK, AS TOWN CLERK OF THE TOWN OF SAUGERTIES, RESPONDENT

A. Franklin Mahoney, J.

Author: Mahoney

 This is an article 78 CPLR proceeding which seeks to compel the Town Clerk of Saugerties, New York, to issue dog licenses as required by the provisions of article 7 of the Agriculture and Markets Law.

Respondent resists on the ground that a local ordinance, adopted June 1, 1968, prohibits the issuance of dog licenses without proof by the owner that the dog has been vaccinated against rabies. It is the position of respondent that such an ordinance is consistent with the permissive local regulation authorized by section 126 of the Agriculture and Markets Law. This position is untenable.

Section 109-a of the Agriculture and Markets Law provides, "In the event that the commissioner of health shall have issued and order pursuant to the provisions of subdivision one-a of section twenty-one hundred forty-five of the public health law requiring all dogs in a county six months of age or over to be vaccinated to prevent rabies, the clerk at the time of issuing the license, shall require the applicant to present a certificate * * * showing that the dog has been vaccinated to prevent rabies". No such order has been issued by the State Commissioner of Health for Ulster County. In the absence of a requirement in the general law that all dogs be certified as having been vaccinated against rabies, the local law is a nullity and void. All that the Town Clerk can require is set forth in section 109 of the Agriculture and Markets Law. (See Matter of Kress & Co. v. Department of Health, 283 N. Y. 55, 60.)

Next, the respondent urges that an article 78 proceeding cannot be employed to review a legislative act. This is true where the thrust of the 78 proceeding is to review the act so as to seek legislative change. However, where the purpose of the proceeding is to attack administrative action taken pursuant to invalid or void laws, then it is entirely appropriate and the court may treat the proceeding as a plenary action to declare the act attacked as invalid (Matter of Barile v. City Comptroller of City of Utica, 56 Misc. 2d 190). I so declare. The ordinance is an invalid exercise of legislative authority by the Town Board of Saugerties.

The motion is granted and the Town Clerk of Saugerties, Ulster County, New York, is directed to issue dog licenses pursuant to section 109 of the Agriculture and Markets Law.

Disposition

The motion is granted and the Town Clerk of Saugerties, Ulster County, New York, is directed to issue dog licenses pursuant to section 109 of the Agriculture and Markets Law.

19690929

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