Schieffelin v. Hylan

• Citation: 236 N.Y. 254,140 N.E. 689
• Parties: SCHIEFFELIN v. HYLAN, Mayor, et al.
• Decision Date: 13 July 1923
• Court: New York Court of Appeals

236 N.Y. 254

140 N.E. 689

SCHIEFFELIN

v.HYLAN, Mayor, et al.

Court of Appeals of New York.

July 13, 1923.

Action by William J. Schieffelin against John F. Hylan, as mayor of the City of New York, and others. Order of the Special Term (120 Misc. Rep. 512,199 N. Y. Supp. 641) granting plaintiff a preliminary injunction, was affirmed by the Appellate Division (-- App. Div. --, 199 N. Y. Supp. 948), and defendants appeal.

Affirmed, and certified questions answered in the negative.

The following questions were certified:

‘1. Do section 39, Greater New York charter, and section 188, subd. 8, Greater New York charter, authorize expenditures of city money for celebrations, receptions, and entertainments?

‘2. If said sections do so authorize, do they violate article 8, § 10, of the Constitution of the state of New York?

‘3. Was this action prematurely brought?

‘4. Was the publication of the minutes of the board of aldermen in the City Record of March 15, 1923, set forth in Exhibits A and B, annexed to the complaint, a substantial and sufficient compliance with section 30, Greater New York charter?

‘5. Would the appropriation and expenditure of municipal funds for the purpose of a public celebration of the twenty-fifth anniversary of the Greater City of New York, as shown by Exhibits A and B, annexed to the complaint, constitute illegal official acts or waste or injury, within the meaning of section 51 of the General Municipal Law?’

Appeal from Supreme Court, Appellate Division, First Department.

George P. Nicholson, Corporation Counsel, of New York City (John F. O'Brien, John Lehman, and Russell Lord Tarbox, all of New York City, of counsel), for appellants.

Leonard M. Wallstein and Ralph M. Frink, both of New York City, for respondent.

HISCOCK, C. J.

The plaintiff as a taxpayer brought this action to restrain the issue of $400,000 of special revenue bonds, the proceeds whereof were to be used in conducting a celebration of the twenty-fifth anniversary of the creation of the Greater City of New York.

It appears as leading to the litigation that the defendant, John F. Hylan, and others constituting the present administration of the Greater City of New York, conceived the plan of having an elaborate and expensive celebration of the twenty-fifth anniversary of the establishment of that municipality. For the purpose of formulating and carrying out the plains for such a celebration and of spending the moneys which might be appropriated to pay its expenses, a committee of citizens was appointed which has been known as the ‘mayor's committee.’ This committee drafted tentative plans for such celebration, made an estimated budget of the expenses thereof aggregating about $400,000, in addition to $100,000 which had been included in a prior budget and submitted the same to the board of estimate and apportionment for action. That board approved the plans and, in accordance with the charter, requested the board of aldermen to adopt a resolution asking the board to issue special revenue bonds for the purpose of defraying the anticipated expenses. This the board of aldermen did without certain published notices required by the charter, but before the board of estimate and apportionment could act this injunctive order appealed from was obtained.

[1] The plans which were submitted by the mayor's committee set out in very considerable detail the features of the proposed celebration. We do not deem it necessary or desirable to recite at any length these details. Some of them are severely criticised as being frivolous, extravagant, and inappropriate. But whatever we may think of these criticisms of various features, when we consider the scope of the entire program, we think that it must be said that many of its features are to a certain extent educational and instructive and that, in its entirety, it was on which the municipal government in the exercise of its discretion, if it otherwise had the power so to do, could adopt as a form and manner of commemoration and celebration, As we shall have occasion to remark hereafter, if it be granted that such a government has the fundamental power to institute and carry on such a celebration, there must be conceded a wide discretion in respect of methods and details, and the underlying question of this appeal, therefore, is the one whether a municipality has the power to expend a large sum of money in celebrating such an anniversary. Before reaching this question we are, however, required to consider two others of minor importance.

[2][3] Apparently, if the plan for this celebration and for the issue of bonds had prevailed, the proceeds of such bonds were to be turned over to the Mayor's committee for expenditure in carrying out the program proposed by it, with such amendments as it might see fit to make. And, again, the resolution adopted by the board of aldermen requesting the issue by the board of estimate and apportionment of the bonds was not adopted by a unanimous vote and no specific notice of five days of the provisions of the resolution which was adopted was given as required by the charter. There was published, however, more than five days before the adoption of the resolution by the board of aldermen in the appropriate paper a copy of the minutes of the board, which contained a statement of the proceedings before the board of estimate and apportionment.

We think that these facts furnished two reasons for sustaining the present injunction. We know of no law which would permit a municipality to turn over to an unofficial committee public moneys to be expended in carrying on such a celebration as this. In fact we should think it would be very dangerous if it could be done. We shall assume that in carrying out such elaborate plans for a celebration as are here outlined it would be necessary to have the assistance of various committees of citizens and very possibly to use the audit and certificate of such committees as a partial basis for payment by the municipality of expenses. But that is far different than the present proposition, as we understand it, of turning the entire fund over to such a committee to be by it expended without official responsibility or accountability. We also think that the failure to publish in advance for the required time an abstract of the resolution to be presented to the board of aldermen requesting the issue of these bonds was a fatal omission, which was not counteracted or avoided because in some other form there was a publication from which a taxpayer might have gleaned the same information as would be furnished in the regular method prescribed by the charter. Such a provision designed to give to taxpayers notice of a proposed resolution leading to the expenditure of public moneys ought to be construed strictly in favor of the taxpayer. Too often, in all probability, such notice, even when given in accordance with law, becomes a formality and does not receive the attention and scrutiny which it should. But if this be so, the evil certainly will not be lessened by softening the requirements and recognizing substitutes for such notice as is specifically required.

While the conclusions thus reached lead to an affirmance of the order appealed from, the questions which have been certified to us and the public interests which are involved make us feel that we should go further and consider the substantial question presented whether a municipality may spend its funds for such a purpose as was the proposed celebration.

[4] A municipality is created by the state, and, of course, there can be no debate of the proposition, established by innumerable decisions, that, subject to constitutional limitations the Legislature may confer upon it such powers as it sees fit and that the municipality will have the right not only to exercise such express powers but also all other powers which are reasonably incidental thereto. The questions which we encounter on this branch of the appeal, therefore, are the ones whether, first, the Legislature has empowered the city of New York to expend money upon such a purpose as the one before us and, second, whether, if it has done so such grant of power conflicts with any constitutional provision.

[5][6] It seems to us that undoubtedly the Legislature, if constitutionally permitted so to do, has conferred this power upon the municipality. The section which has been relied on as accomplishing this is section 39 of the charter (Laws 1901, c. 466) which provides:

‘* * * No money shall be expended for any celebration, procession, funeral ceremony, reception, or entertainment of any kind or on any occasion, unless by the votes of four-fifths of all the members of the board of aldermen.’

Of course this is a bungling and backhanded method of authorizing any of the things enumerated. Still we think it is the fair interpretation of the section that when it provided that a given thing might not be done unless authorized in a certain way it was the legislative intent that if it was thus authorized it might be done. This principle of interpretation has been applied to another statute very similar in its construction to the present one. Manning, Bowman & Co. v. Keenan, 73 N. Y. 45, 55, 56. Furthermore, we think that there are other statutory provisions apparently overlooked thus far which authorize this municipal action, even if the statute just quoted did not do so. General City Law (Consol. Laws, c. 21) §§ 19, 20, subds. 13, 16, and section 21. Of these, section 20, subd. 16, authorizes a city--

‘To establish and maintain such institutions and instrumentalities for the instruction, enlightenment, improvement, entertainment, recreation and welfare of its inhabitants as it may deem appropriate or necessary for the public interest or advantage.’

[7] Easily reaching this conclusion of authority under statutory enactments, we come to the final and more anxious inquiry whether the latter were prohibited by that provision of section 10...