Opinion
May 2, 1967
Appeal from an order and judgment of the Supreme Court, Ulster County, which rejected a plan of reapportionment of the Common Council of the City of Kingston and substituted therefor a plan of reapportionment devised by Special Term. On August 19, 1966 Special Term directed the Common Council to reapportion and redistrict in accordance with the principle of one-man one-vote (see Seaman v. Fedourich, 16 N.Y.2d 94, 104). In conformance with this mandate a plan was devised which provided for 13 single member districts, an alderman at large and eight county supervisors elected at large. This plan was rejected by Special Term on the grounds that the population figures utilized were based on an informal head count rather than the 1960 census and "that the geographical boundaries of existing wards in the City of Kingston are all readjusted. This by necessity disturbs the boundaries of election districts and further confuses the electorate. It is most desirable to continue the integrity of political subdivisions, as well as to maintain compactness and contiguity in legislative districts and to recognize natural or historic boundary lines." Clearly Special Term properly rejected the city's plan on the grounds that its population figures were not based on a Federal census ( Seaman v. Fedourich, supra, p. 104). Seaman, however, does not mandate that it is the decennial census that must be utilized. Any figures from a more recent census conducted and duly certified by the census bureau would not only be usable ( Town of Greenburgh v. Board of Supervisors, 51 Misc.2d 168) but might well be required to be used (see Bannister v. Davis, 263 F. Supp. 202, 208). We cannot concur, however, in Special Term's rejection of the plan on the grounds that it disturbed the boundaries of election districts and further confused the electorate. There would appear to be no difficulty or confusion if the city's plan of electing supervisors from the city at large had been approved by the county, but Ulster County has also adopted a reapportionment plan (approved by Special Term) under which the City of Kingston's eight supervisors would be divided among four multi-member districts. The initial question then is whether the city or the county controls the election districts for the election of supervisors from the city. This we think was decided in favor of the city by the Court of Appeals in Baldwin v. City of Buffalo ( 6 N.Y.2d 168). The rule would appear to be that where, as here, the county has not adopted the charter form of county government (cf. Michl v. Shanklin, 50 Misc.2d 460, affd. 25 A.D.2d 925, mod. on other grounds 17 N.Y.2d 906), the county fixes the number of supervisors allotted to the city but the city sets the boundaries and establishes the districts for the election of such supervisors ( Brairton v. Gillette, 40 Misc.2d 1009, affd. 23 A.D.2d 537; Barzelay v. Board of Supervisors, 47 Misc.2d 1013; but see, Graham v. Board of Supervisors, 51 Misc.2d 942 ). Furthermore, assuming the county controlled the districting of its city supervisors and the county plan did not coincide with the city's districting, while the election process might be adversely affected, we cannot accept that this would justify the courts ordering mandatory conformity. Thus the only basis for rejecting the city's plan is that it used improper population figures in such districting and we do not feel that in this case this is sufficient justification for the court to impose its own plan of redistricting which action is done with reluctance under even more compelling circumstances (e.g., Shilbury v. Board of Supervisors, 25 A.D.2d 688). Accordingly, the case should be remitted to Special Term, to which the city shall promptly return with a plan for districting its common council based on Federal census figures and in conformity with proper standards of distribution (see, e.g., Swann v. Adams, 385 U.S. 440; Kilgarlin v. Hill, 385 U.S. 120.) Order and judgment reversed, on the law and the facts, and case remitted to Special Term for further proceedings not inconsistent herewith, without costs. Gibson, P.J., Herlihy, Reynolds, Aulisi and Staley, Jr., JJ., concur in memorandum by Reynolds, J.