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RUSSELL D. MEREDITH v. THOMAS M. MONAHAN (09/30/69)

SUPREME COURT OF NEW YORK, SPECIAL TERM, RENSSELAER COUNTY 1969.NY.42948 <http://www.versuslaw.com>; 304 N.Y.S.2d 638; 60 Misc. 2d 1081 September 30, 1969 RUSSELL D. MEREDITH, PLAINTIFF,v.THOMAS M. MONAHAN, JR., ET AL., CONSTITUTING THE BOARD OF ELECTIONS OF RENSSELAER COUNTY, DEFENDANTS McChesney & Kenney for plaintiff. James T. Ronan for Thomas M. Monahan, Jr., and another, defendants. Bartle, McGrane, Duffy & Murray for Frank P. McDonald. John H. Pennock, J. Author: Pennock


John H. Pennock, J.

Author: Pennock

 The plaintiff, a resident taxpayer of the City of Troy, instituted this action for declaratory judgment, and the accompanying proceedings seeking a temporary injunction during the pendency of the primary action to declare as null and void the enactment of a local law by the Common Council, on statutory and constitutional grounds. At the present, an order of this court is prayed for which would stay the Board of Elections of Rensselaer County to place before the electorate a certain local law by printing the same on the ballot for a vote of the people of Troy to advise the Common Council that it should prepare a new charter for the City of Troy replacing the present charter enacted by Local Law No. 3 of the City of Troy for 1959 (published among Local Laws of 1963 at page 638 et seq.) with the approval of the majority of the qualified electors of the City of Troy.

Pursuant to provisions of section 25 of the Municipal Home Rule Law the proposition has been transmitted to the Board of Elections which is charged with the ministerial duty of submitting local laws to the vote of the people.

The plaintiff contends:

1. That the local law provides for an illegal act of the Common Council, as it would authorize the Council to draft a new charter which would be effective without a referendum.

2. That the local law provides for election of municipal officers in the year 1970, other than an odd numbered year as provided by the New York State Constitution (art. XIII, § 8).

The defendant, Board of Elections, claims that,

1. That the board's duty is ministerial and cannot review the substance of the legality of the local law.

2. That if the local law is valid on its face and proper in form it has no duty to go any further.

3. That no wording of the local law is in conflict with the Constitution of the State of New York.

Appearing amicus curiae (a friend of the court), one of the members of the Common Council, Frank P. McDonald, submitted an affidavit which alleges certain facts pertaining to the Council's legislative enactments and some surrounding circumstances. This affidavit shall not be considered by the court, as the question before the court is one of law and not of fact and the court cannot question the intent or wisdom of the legislative procedure.

The question before the court when stripped of all the facade is simply whether a local law may be intercepted by the court when it is contrary to law. Ordinarily the courts refuse to intervene in legislative process but courts have interposed under "unique circumstances" and here we have such circumstances.

The Common Council pursuant to the Troy City Charter is vested with all legislative power and specifically shall have power to amend the city charter by local law in accordance with the provisions of the City Home Rule Law. (Charter of the City of Troy, art. 2, Legislative Branch -- City Council, § 2.12, subd. [b].) The Municipal Home Rule Law (§ 23) provides for a mandatory referendum of a local law, (1) if it provides for a new charter, (2) if it provides in the case of a city, changes in boundaries of wards, or other districts from which ...


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