20 N.Y.2d 417 (1967)

Irwin J. Landes, Appellant, v. Town of North Hempstead, Respondent.

Court of Appeals of the State of New York.

Decided October 26, 1967.

Attorney(s) appearing for the Case

Irwin J. Landes, in person, and Morton H. Rosen for Irwin J. Landes, appellant.

Robert C. Meade, Town Attorney (Arthur W. Block of counsel), for respondent.

Alfred Miller for New York Civil Liberties Union, amicus curiæ.

Judges BURKE, BERGAN, KEATING and BREITEL concur with Chief Judge FULD; Judge VAN VOORHIS dissents and votes to affirm in a separate opinion in which Judge SCILEPPI concurs.

Chief Judge FULD.

The plaintiff, a duly designated nominee of the Democratic party for the office of councilman in the Town of North Hempstead, brings this action against the town for a judgment declaring unconstitutional and void those provisions of sections 23 and 23-a of the Town Law which require a holder of an elective town office to be an owner of record of real property within the town.1 Although the plaintiff owns no property in North Hempstead — it appears that he transferred title of a jointly owned home (in which the family presently lives) to his wife in 1959 — he has resided in the town for about 15 years.

Upon motions by both parties for summary judgment, the court at Special Term granted judgment for the defendant dismissing the complaint on the authority of Matter of Becraft v. Strobel (274 N.Y. 577) where, in 1937, this court upheld the constitutionality of section 23. The plaintiff appeals to us directly, pursuant to CPLR 5601 (subd. [b], par. 2), from the judgment rendered at Special Term.

Recent developments in constitutional law, as well as changes in the pattern of town and suburban living, call for a reconsideration of our 1937 decision in Becraft (274 N.Y. 577, supra)2 and of the constitutionality of the statutes here involved. (Cf., e.g., Municipal Gas Co. v. Public Serv. Comm., 225 N.Y. 89, 95-96; Baker v. Carr, 369 U.S. 186, 254; Nashville, C. & St. L. Ry. v. Walters, 294 U.S. 405, 415.) In our view, the legislation must be held unconstitutional whether we regard it from the viewpoint of the person seeking office or of the individual voter.

Although "the legislature may prescribe qualifications for office * * * it has been settled law from the earliest period in the history of our state that it cannot enact arbitrary exclusions from office." (Matter of Callahan, 200 N.Y. 59, 61; see, also, People ex rel. Devery v. Coler, 173 N.Y. 103, 118; Rogers v. Common Council of Buffalo, 123 N.Y. 173, 188; Barker v. People, 3 Cow. 686.) Qualifications for office must have a rational basis, such as age, integrity, training or, perhaps, residence. (Cf., e.g., Harper v. Virginia Bd. of Elections, 383 U.S. 663, 666.) If a classification is employed in prescribing qualifications, it must be nondiscriminatory and "based on a real and substantial difference having reasonable relation" to the object sought to be accomplished by the legislation. (Quaker City Cab Co. v. Penna., 277 U.S. 389, 402; see, also, Harper v. Virginia Bd. of Elections, 383 U.S. 663, supra; cf. Brown v. Louisiana, 383 U.S. 131, 143; Matter of Madole v. Barnes, 20 N.Y.2d 169; East Meadow Community Concerts Assn. v. Board of Educ., 18 N.Y.2d 129, 133.) The ownership of land, however, as a prerequisite, a condition precedent, to holding elective town office constitutes an "invidious discrimination" against nonlandowners, a sort of economic gerrymandering which runs afoul of the equal protection and due process clauses of both Federal and State Constitutions. (Cf. Harper v. Virginia Bd. of Elections, 383 U.S. 663, supra; Dusch v. Davis, 387 U.S. 112.) As the Supreme Court observed in the poll tax case, involving the qualifications of voters, "Wealth, like race, creed, or color, is not germane to one's ability to participate intelligently in the electoral process. Lines drawn on the basis of wealth or property, like those of race * * *, are traditionally disfavored." (Harper v. Virginia Bd. of Elections, 383 U. S., at p. 668, supra.)

Underlying the Becraft decision that the legislation in question was valid was the rationale that owners of real property "`may be expected to be careful and economical in administering'" town affairs (Special Term opinion of DOWLING, J., 158 Misc. 844, 850). At a time when the taxation of its real property was the chief concern of a town, this reasoning may have had some validity, although we fail to see how it may be said that qualities of carefulness and frugality were ever the monopoly of those owning real property. Indeed, most town problems affect owners and tenants alike: zoning, highways, parks, fire, water and sewage districts, traffic regulations — to name but a few.

Ownership of real property does not render one more interested in, or devoted to, the concerns of the town. In a society such as ours, characterized by its "mobility" and "anonymity" (Cox, The Secular City [rev. ed., 1966], p. 33), a landowner is no more likely to be permanently established in a town — and, by that token, better qualified to govern — than one who is not a property owner. Examples come readily to mind which demonstrate the unrealistic character of the property qualification: an elected town councilman, suddenly compelled by financial reverses to sell his home and move into an apartment, would be required to resign from office; an apartment dweller who owned a taxpayer in town but who commuted to his place of business in, for instance, New York City and took no interest or part in civic affairs would be fully eligible for town office; and an apartment dweller, not owning real property but with a place of business in town and deeply involved in community affairs, would be ineligible. All in all, we suggest that it is impossible today to find any rational connection between qualifications for administering town affairs and ownership of real property.

Turning from the plaintiff as candidate to the plaintiff — along with other residents of the town — as voter, the proscription against nonlandowners as town councilmen amounts to a "dilution" or "debasement" of the vote not unlike that occasioned by the malapportionment which the Supreme Court has held violative of the equal protection clause. (See, e.g., Reynolds v. Sims, 377 U.S. 533; Gray v. Sanders, 372 U.S. 368.) "[T]he right of suffrage", said the court in the Reynolds case (377 U. S., at p. 555), "can be denied by a debasement or dilution of the weight of a citizen's vote just as effectively as by wholly prohibiting the free exercise of the franchise." The plaintiff's right of franchise, as well as that of all other voters, has been equally circumscribed by excluding from their choice for a town elective office those who do not own real property.

The statutory restriction also violates section 1 of article I of the State Constitution which provides that "No member of this state shall be disenfranchised, or deprived of any of the rights or privileges secured to any citizen thereof". Wide latitude in choosing public officers is among the rights secured by this constitutional provision. In effect, it vests electors with the right to choose public officers "on whatever principle or dictated by whatever motive they see fit, unless those motives contravene common morality". (Matter of Callahan, 200 N.Y. 59, 62, supra; see, also, Reynolds v. Sims, 377 U.S. 533, 562, supra.) The denial of such a right to electors on property grounds becomes more egregious today, when a large proportion of the population in many towns, especially in suburban areas, are apartment house dwellers.3 Moreover, we know from experience that it is often the wife who holds record title to a home or other property and that, with increasing frequency, owners of real property have occasion to place the record ownership in real estate investment trusts or syndicates.

In the view thus taken, we find it unnecessary to consider the other arguments advanced by the plaintiff.

The judgment appealed from should be reversed, with costs, and the declaratory judgment sought in the complaint granted.

VAN VOORHIS, J. (dissenting).

The decision about to be rendered seems to me to constitute usurpation by the courts of the powers of the Legislature or the people through constitutional amendment. Prescribing the qualifications of public officers has long been regarded as a function of the Legislature. It was written by Justice WILLIAM F. DOWLING at Special Term in Matter of Becraft v. Strobel (158 Misc. 844, 850, affd. without opn. 248 App. Div. 810, affd. 274 N.Y. 577):

"Section 23 of the Town Law is not obnoxious to either the State or Federal Constitutions. The Legislature `may, in the exercise of its judgment for the public good, limit the number from whom the elector may select, for thus to legislate is within the general and sovereign power of legislation which it constitutionally possesses.' (People ex rel. Furman v. Clute, 50 N.Y. 451, 460; People ex rel. Devery v. Coler, 173 id. 103, 118; Rogers v. Common Council of Buffalo, 123 id. 173, 183, 185; Scott v. Village of Saratoga Springs, 131 App. Div. 347; affd., 199 N.Y. 178.) "The purpose of section 23 of the Town Law is to secure for the position of supervisor in the various towns of the State `persons who are interested and by reason of their interest may be expected to be careful and economical in administering the affairs of the village.' (People ex rel. Worth v. Kanar, 80 Misc. 552, 555, citing Jewell v. Mohr, 136 N. Y. Supp. 273.) A property qualification is not a test within the meaning of article 13, section 1, of the Constitution of the State of New York. Under section 23 of the Town Law, each owner of record of real property in any town of the State `stands on an equal footing with others of his class, all of whom are eligible.' This is all the Constitution guarantees. (Rogers v. Common Council of Buffalo, supra, p. 183.)"

To the cases cited may be added People ex rel. Smith v. Fisher (24 Wend. 215); People ex rel. Henderson v. Snedeker (14 N.Y. 52); Matter of L'Hommedieu v. Board of Regents (276 App. Div. 494, 507, affd. 301 N.Y. 476, affd. sub nom. Adler v. Board of Educ., 342 U.S. 485); Matter of Blaikie v. Power (13 N.Y.2d 134, app. dsmd. 375 U.S. 439).

Although it is true, of course, that the Legislature cannot arbitrarily exclude any class of citizens from the right to hold public office, the authorities cited uphold the power of the Legislature to prescribe qualifications of public officers under a wide variety of circumstances over a period of more than 125 years. The constitutionality of these same sections of the Town Law was sustained as recently as 1937. The proposed New York State Constitution approved by the Constitutional Convention held this year (art. VII, § 1, subd. b) would repeal these property qualifications in sections 23 and 23-a of the Town Law, but the Convention would not have included that provision in the proposed Constitution if it had believed that these sections were already outlawed by existing provisions of the United States and New York State Constitutions.

Home ownership by the citizens of a community has, from time out of mind, been regarded as an important stabilizing factor. Government has recognized and endeavored to foster that kind of stability through the instrumentality of the Home Owners Loan Corporation and similar activities. This is especially true in rural and suburban communities, governed by the Town Law, contrary to what the majority opinion says about people in towns being apartment house dwellers. Taxes upon real property continue to be almost exclusively the source of the revenues that are raised in towns for their own town purposes. It was neither unreasonable nor arbitrary for the Legislature to have determined during these many years, whether in towns or school districts (cf. Education Law, § 2012), that town officers would be more responsible in the administration of town affairs if they, also, were taxpayers.

The statement in the majority opinion that "Ownership of real property does not render one more interested in, or devoted to, the concerns of the town", which is contrary to the views of many social scientists and others qualified to judge, sets up the opinion of the court in contrast to the opinion of the Legislature. It is subject to the same criticism made by Justices HOLMES, BRANDEIS and FRANKFURTER of the courts of an earlier day for imposing their own views of policy in fields within which the legislative body is constitutionally competent to act. This is not the less true because the policies advocated by the court today are different from those of the earlier Judges who were criticized as judicial activists.

There comes a point, of course, where the Congress or a State Legislature may exceed its powers as limited by the Constitution of the State or nation. For so long, however, as there is room for reasonable difference of legislative opinion, the courts may not intervene. One may consider that the property qualifications of public officers in towns or of electors in school districts should be abolished, either by act of the Legislature or by State constitutional change. The tide, today, is running strongly against responsibility in government, and the idea is not favored in certain circles that taxpayers should have any control over the expenditures of their money. If the change is to be made in these sections of the Town Law toward what is regarded as more democratic local government, it should be done by democratic methods through the adoption by the vote of the electorate of a new constitutional provision or through act of the Legislature at which all of the electors have an opportunity to make their influence felt through their elected representatives. The State Legislature has been reapportioned, and any change in the public policy by the Legislature would be enacted by universal suffrage untrammeled by any property limitations. The reapportionment cases, it seems to me, have nothing to do with this case. It should not be accomplished by the undemocratic method of giving effect to the policy views of the judiciary. The end does not justify the means.

I dissent and vote to affirm the trial court.

Judgment reversed, with costs, and matter remitted to Special Term for further proceedings in accordance with the opinion herein.


1. Section 23 of the Town Law recites that: "Every elective officer of the town at the time of his election and throughout his term of office, shall be an elector of the town and shall be the owner of real property in the town"

and section 23-a provides for the forfeiture of the office if the office holder fails or refuses to establish his record ownership of such real property after 15 days' written notice and demand.

2. The parties have not referred us to any other case dealing with the precise subject. Our research has uncovered a few which adhere to the same result as in Becraft but, except for one in Florida (Nichols v. State, 177 So.2d 467 [1965]), they were decided more than 50 years ago. (See, e.g., Vanneman v. Pusey, 93 Md. 686 [1901]; State ex rel. Fletcher v. Ruhe, 24 Nev. 251 [1898]; McMillin v. Neeley, 66 W.Va. 496 [1909].) For what it is worth, it is to be noted that the proposed new State Constitution (art. VII, § 1, subd. b) expressly declares that the "ownership of property" shall never "be made a qualification for" public office or employment. (See, also, Minn. Const., art. I, § 17; N. M. Const., art. VII, § 2.)
3. It is of interest, and perhaps of some significance, that there has never been a property qualification for public office in cities, where apartments were first built and are still more numerous than elsewhere.


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