Could a Rockland County village dissolve its police department on a permissive referendum, or did a 1936 special state law force the question to a mandatory referendum?

Plain-English summary

The Village of Haverstraw, in Rockland County, abolished its police department by local law. By its terms, the local law was subject only to a permissive referendum, the kind that takes effect unless 20 percent of village voters petition for a public vote within 30 days. No petition was filed. The village attorney later asked the AG whether the local law was actually subject to a mandatory referendum, the kind that has to pass a public vote no matter what voters do.

This wasn't a routine question. The general rule under Village Law § 8-800 is that a board of trustees may abolish a police department by local law subject to permissive referendum. But the issue here turned on a special law from 1936, Chapter 524 of that year's session laws, which the Legislature wrote specifically for Rockland County villages. That law required first-, second-, and third-class villages in Rockland to have police departments and authorized fourth-class villages to establish them; if a village later wanted to abolish a Rockland police department, Chapter 524 mandated a referendum approved by a majority of voters.

The AG concluded that Chapter 524 was still in effect and controlled. New York's rules on statutory interpretation strongly disfavor implied repeals of special laws by later general laws. People ex rel. Savory, Inc. v. Plunkett and Horowitz v. Roslyn both state the rule. The Legislature went further than just relying on that interpretive principle; when it recodified the Village Law in 1972 (Chapter 892), it added what is now Village Law § 23-2202, which expressly states that the recodification "shall not be deemed to repeal or otherwise affect the provisions of any special . . . law . . . of any county." That language is as direct a "we are not touching the special laws" statement as the Legislature could write.

Result: the local law abolishing the Haverstraw police department was subject to mandatory referendum, not just permissive referendum. The AG didn't reach what consequence followed from failing to hold one; that was a question for the village (and ultimately a court if anyone challenged the abolition). The clear implication is that the local law had not lawfully taken effect.

Currency note

This opinion was issued in 2005. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Special legislation can be amended or repealed at any time. Anyone advising a Rockland County village today should confirm the current text and status of Chapter 524 of 1936 and any later amendments, as well as the current language of Village Law § 8-800 and § 23-2202.

Common questions

Q: What is the difference between a mandatory and a permissive referendum?
A: A mandatory referendum has to be put to the voters; the local law doesn't take effect unless a majority of voters approve. A permissive referendum is the default-take-effect kind: the local law takes effect unless 20 percent of village electors file a petition within 30 days of adoption demanding a public vote, in which case it goes to referendum.

Q: Why does Rockland County have its own rule for village police departments?
A: The Legislature wrote the Rockland-specific rule in 1935 and put it into what was then Village Law § 188-a. In 1936, the Legislature moved the Rockland provisions out of the Village Law and into the unconsolidated laws to keep the Village Law itself uniform. The substance, including the mandatory-referendum requirement for abolishing a Rockland village PD, stayed the same.

Q: Are there other county-specific village rules out there?
A: Probably. New York's unconsolidated laws and special acts contain many county-specific provisions that survive recodifications. The AG's analysis here would apply the same way to any of them: a 1972 (or later) general Village Law amendment does not impliedly repeal a still-operative special county law, and Village Law § 23-2202 expressly preserves them.

Q: How does Village Law § 23-2202 actually work?
A: It is what statutory drafters call a "savings clause." It tells courts, attorneys, and citizens that the recodification of the Village Law in 1972 was not intended to touch existing special laws applicable to specific counties. So a court reading the post-1972 Village Law next to a pre-1972 special law treats both as live, unless and until the Legislature acts on the special law.

Q: What's the practical effect of an unlawfully abolished police department?
A: The opinion did not address the consequence directly. A court asked to invalidate the abolition would likely find the local law of no force or effect because it did not satisfy the mandatory-referendum requirement. Any acts the village took based on the local law's purported effect (contracts with another agency, layoffs of police personnel) would face follow-on questions, including under the de facto officer doctrine.

Q: Could the village simply hold the referendum now?
A: That's the practical fix. Re-adopt the local law as a clean enactment subject to mandatory referendum, run the referendum, and if voters approve, the abolition takes effect lawfully going forward. The village attorney's request to the AG suggests this is the path the village was preparing to take.

Background and statutory framework

The legislative chain runs back to 1935. In Act of May 16, 1935, ch. 953, § 1, the Legislature amended Village Law § 188-a, the predecessor of today's § 8-800, to add Rockland County provisions: first-, second-, and third-class villages were required to create police departments, fourth-class villages were authorized to do so, and any subsequent abolition by a Rockland village had to clear a mandatory referendum.

In 1936, the Legislature did some housekeeping. Act of May 9, 1936, ch. 479, § 1, removed the Rockland-specific provisions from Village Law § 188-a. Days later, Act of May 11, 1936, ch. 524 placed those same provisions into the unconsolidated laws. The bill jacket for Chapter 524 included a letter from Assembly sponsor Laurens M. Hamilton to Counsel to the Governor Charles Poletti explaining the purpose: "to place in the unconsolidated laws special provisions as to the . . . village police . . . in Rockland County which were enacted last year by Chapter[] 953." Section 1 of Chapter 524 contained a sweeping notwithstanding clause: "the employment of village policemen and the establishment, organization and operation and all matters concerning police or police departments in all villages in the county of Rockland shall be governed by the provisions of this act."

Chapter 524 was amended in 1941 (Act of April 15, 1941, ch. 431) but the mandatory-referendum requirement to abolish a Rockland village PD survived unchanged.

The general Village Law recodification followed in 1972 (Act of June 8, 1972, ch. 892). The repealed § 188-a was replaced with § 8-800, which authorizes the board of trustees to abolish a police department by local law subject to permissive referendum. Section 9-900(1) and § 9-902 supply the mechanics of permissive referendum: the local law is adopted, and if a petition signed by 20 percent of the village electors is filed with the village clerk within 30 days, the law does not take effect unless approved at the referendum.

The interpretive question is whether the 1972 recodification impliedly repealed Chapter 524. The default rule, codified in Statutes § 396 (McKinney's), is that implied repeals are disfavored, and the principle "will apply with particular force when it is claimed that a prior special law has been implicitly repealed by a subsequent general law." People ex rel. Savory, Inc. v. Plunkett, 295 N.Y. 180, 183 (1946); Horowitz v. Roslyn, 144 A.D.2d 639, 641 (2d Dep't 1988).

Village Law § 23-2202 went one step further with an express savings clause: "This chapter shall not be deemed to repeal or otherwise affect the provisions of any special . . . law . . . of any county, it being the intention of the legislature that the same shall continue in full force and effect until and unless otherwise duly amended, repealed or affected." That is express, not implied, and it removes any doubt.

A prior AG opinion (1977 Op. Att'y Gen. (Inf.) 191) had reached the parallel conclusion that the 1972 recodification did not supersede pre-existing village charter provisions enacted by special law. The AG applied the same logic.

Citations and references

Statutes:

• Statutes § 396 (implied repeals disfavored, especially of special laws)
• Village Law § 8-800 (authority to abolish police department by local law subject to permissive referendum)
• Village Law § 9-900 (permissive-referendum procedure)
• Village Law § 9-900(1)
• Village Law § 9-902 (referendum on petition)
• Village Law § 9-902(1) (20% petition triggers referendum)
• Village Law § 23-2202 (savings clause for special county laws)
• L. 1935, ch. 953, § 1 (original Rockland County village police provisions)
• L. 1936, ch. 479, § 1 (removed Rockland provisions from Village Law § 188-a)
• L. 1936, ch. 524 (relocated Rockland provisions to unconsolidated laws; mandatory referendum for abolition)
• L. 1941, ch. 431 (1941 amendment to Chapter 524; did not change mandatory referendum)
• L. 1972, ch. 892 (1972 Village Law recodification; enacted § 8-800 and § 23-2202)

Cases:

• People ex rel. Savory, Inc. v. Plunkett, 295 N.Y. 180 (1946)
• Horowitz v. Roslyn, 144 A.D.2d 639 (2d Dep't 1988)

Prior AG opinions:

• 1977 Op. Att'y Gen. (Inf.) 191 (Village Law recodification did not supersede existing village charter provisions enacted by special law)

Source

• Landing page: https://ag.ny.gov/libraries-documents/opinions/opinions-year
• Original PDF: https://ag.ny.gov/sites/default/files/opinions/I_2005-9_pw.pdf

Original opinion text

STATUTES § 396; VILLAGE LAW §§ 8-800, 9-900, 9-902, 23-2202; L. 1972, CH. 892; L. 1941, CH. 431; L. 1936, CH. 524; L. 1936, CH. 479, § 1; L. 1935, CH. 953, § 1

Local law abolishing village police department was subject to mandatory referendum, pursuant to special legislation not repealed by enactment of Village Law § 8-800.

March 4, 2005

J. Nelson Hood, Sr.
Village Attorney
Village of Haverstraw
Municipal Building
40 New Main Street
Haverstraw, New York 10927

Informal Opinion
No. 2005-9

Dear Mr. Hood:

You have requested an opinion as to whether the local law by which the Village Board abolished the Village's police department was subject to mandatory referendum. You have indicated that the local law, by its terms, was subject to permissive referendum, but no petition was filed, and no referendum was held. Response to your inquiry requires consideration of both Chapter 524 of 1936, which is special state legislation pertaining to police departments in villages in Rockland County, and Village Law § 8-800, which generally authorizes a village board of trustees to create and abolish police departments.

Legislative Background

In 1935, the Legislature amended Village Law § 188-a, the predecessor of the current Village Law § 8-800, which generally authorized the establishment of village police departments, to include provisions specifically directed at villages in Rockland County. Act of May 16, 1935, ch. 953, § 1, 1935 N.Y. Laws 1853. The amendment required the first-, second-, and third-class villages in Rockland County to create police departments, and authorized fourth-class villages to establish police departments if they wished to do so. Id. The amendment further provided that, in the event that the board of trustees of a village in Rockland County subsequently wished to abolish its police department, such proposition be submitted to a mandatory referendum. Id.

In 1936, the Legislature again amended Village Law § 188-a to, inter alia, remove from the Village Law the provisions relating specifically to Rockland County. See Act of May 9, 1936, ch. 479, § 1, 1936 N.Y. Laws 1200. Just days thereafter, the provisions relating to Rockland County were placed in the unconsolidated laws. See Act of May 11, 1936, ch. 524, § 3, 1936 N.Y. Laws 1256, 1257; see also Letter from Laurens M. Hamilton, Assembly sponsor, to Charles Poletti, Counsel to the Governor (May 5, 1936), reprinted in Bill Jacket for ch. 524 (1936) ("The purpose of [this bill] is to place in the unconsolidated laws special provisions as to the . . . village police . . . in Rockland County which were enacted last year by Chapter[] 953."). Village Law § 188-a continued to regulate the creation and abolition of police departments in villages that were not the subject of special state legislation.

The amendment relocating the Rockland County provisions to the unconsolidated laws ("Chapter 524") did not alter the status of these provisions as special legislation governing only Rockland County or alter the substance of the law relating to the creation and abolishment of village police departments in that county: under the provisions, first-, second-, and third-class villages in Rockland County were still required to establish police departments, while fourth-class villages were authorized to do so if they chose to, and, if the village board of trustees subsequently wanted to abolish the police department, a proposition had to be approved by a majority of the qualified voters voting on the proposition. Act of May 11, 1936, ch. 524, § 3. Section 1 of Chapter 524 provided that, "[n]otwithstanding any other provisions of law, the employment of village policemen and the establishment, organization and operation and all matters concerning police or police departments in all villages in the county of Rockland shall be governed by the provisions of this act." Id. § 1. The operation of the Haverstraw police department, which you have indicated was established in 1929, was thus made subject to Chapter 524.

Section 3 of Chapter 524, governing the establishment and abolition of police departments in villages in Rockland County, was subsequently amended in 1941, but this amendment did not alter the requirement that the abolition of a police department by a village in Rockland County had to be approved by mandatory referendum. See Act of April 15, 1941, ch. 431, 1941 N.Y. Laws 1141, 1142. To the best of our knowledge, and in accord with your representations, we are aware of no other relevant amendments to chapter 524.

In 1972, the Legislature recodified the Village Law, repealing the provisions that remained in section 188-a and enacting section 8-800. See Act of June 8, 1972, ch. 892, 1972 N.Y. Laws 3431, 3507-08. Section 8-800 authorizes the board of trustees of a village to "abolish a police department established pursuant to this section by local law, subject to permissive referendum." Village Law § 8-800.

A provision in the Village Law subjecting an act or resolution of the board of trustees to "permissive referendum" requires the submission of the act or resolution to a referendum on petition as set forth in Village Law § 9-902. Village Law § 9-900(1). If, within 30 days after the adoption of an act or resolution of the village board of trustees subject to referendum on petition, a petition, signed and acknowledged by at least 20% of the village electors, protesting the act or resolution and requesting that it be submitted to referendum is filed with the village clerk, then the act or resolution does not take effect unless it is approved by a majority of the qualified voters of a village voting on the proposition. Id. § 9-902(1).

Analysis

You have asked whether a mandatory referendum, pursuant to section 3 of Chapter 524, or a permissive referendum, pursuant to Village Law § 8-800, was necessary to effect the abolition of the police department in the Village of Haverstraw. We conclude that the local law was subject to mandatory referendum.

Section 3 of Chapter 524 is still in effect unless it was repealed by the enactment of the recodified Village Law in 1972. A general law will not, however, impliedly repeal a special law unless the legislative intent to effect such a repeal is clearly demonstrated. See People ex rel. Savory, Inc. v. Plunkett, 295 N.Y. 180, 183 (1946); Horowitz v. Roslyn, 144 A.D.2d 639, 641 (2d Dep't 1988) ("[T]he principle that repeals by implication are disfavored will apply with particular force when it is claimed that a prior special law has been implicitly repealed by a subsequent general law."); see also Statutes § 396, 1 McKinney's Cons. Laws of N.Y. at 569 (1971).

Recodifying the Village Law, the Legislature was in fact explicit in its intent not to repeal section 3 of Chapter 524: "This chapter shall not be deemed to repeal or otherwise affect the provisions of any special . . . law . . . of any county, it being the intention of the legislature that the same shall continue in full force and effect until and unless otherwise duly amended, repealed or affected." Village Law § 23-2202.

In light of the expressed intent to preserve existing special laws relating to counties upon the re-enactment of the Village Law and the lack of relevant amendment to section 3 of Chapter 524, we are of the opinion that section 3, as otherwise amended, governs the abolition of the Village of Haverstraw's police department, and thus that the local law was subject to mandatory referendum. Cf. 1977 Op. Att'y Gen. (Inf.) 191 (recodification of Village Law did not supersede existing village charter provisions enacted by special law).

The Attorney General issues formal opinions only to officers and departments of state government. Thus, this is an informal opinion rendered to assist you in advising the municipality you represent.

Very truly yours,

KATHRYN SHEINGOLD
Assistant Solicitor General
In Charge of Opinions