Browne v. City of New York

• Decision Date: 06 October 1925
• Citation: 149 N.E. 211,241 N.Y. 96
• Parties: BROWNE v. CITY OF NEW YORK et al. SCHIEFFELIN v. MILLS.
• Court: New York Court of Appeals Court of Appeals

241 N.Y. 96

149 N.E. 211

BROWNE

v.CITY OF NEW YORK et al.

SCHIEFFELIN

v.MILLS.

Court of Appeals of New York.

Oct. 6, 1925.

Actions by Stewart Browne against the City of New York, and William J. Schieffelin against William W. Mills, as Commissioner of Plant and Structures. From an order of the Appellate Division of the Supreme Court in the First Judicial Department (213 App. Div. 206, 211 N. Y. S. 306) reversing an order of Special Term (125 Misc. Rep. 1, 210 N. Y. S. 786), denying a motion for an injunction pendente lite, and also from an order of Appellate Division, reversing an order of the Special Term granting defendant's motion for dismissal of the complaint, complainant in first entitled action appeals by permission and question certified. From like orders of same Appellate Division reversing like orders of Special Term, complainant in second entitled action appeals by permission and a like question certified.

Orders affirmed.

The following question was certified in both actions: ‘Does the complaint state facts sufficient to constitute a cause of action?’

Appeals from Supreme Court, Appellate Division, First Department.

George P. Nicholson, Corp. Counsel., of New York City (Bainbridge Colby and Frank C. Laughlin, both of New York City, of counsel), for appellants.

Louis Marshall, of New York City, for respondent Browne.

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

Albert Ottinger, Atty. Gen. (C. T. Dawes, of Albany, of counsel), for intervener the People.

Robert C. Cumming and Wm. F. McCormack, both of New York City, for intervener Home Rule Commission.

Frederic C. Rupp, of Buffalo, and Carl Sherman, of New York City, for intervener City of Buffalo.

Albert De Roode, of New York City, for intervener New York State Ass'n, amicus curiae.

CARDOZO, J.

These are taxpayers' actions to enjoin the city of New York and the public officers thereof from disbursing public moneys under the authority of local laws.

The local laws, adopted by the Municipal Assembly, depend for their validity upon the City Home Rule Law, enacted in 1924 by the Legislature of the state (Consol. Laws, c. 76; Laws 1924, c. 363), and this in turn depends upon article XII, §§ 2, 3, 4, 5, and 7, of the state Constitution, as amended at the general election of 1923. The plaintiff Browne maintainsthat the process of amendment was irregular, and hence that the attempted change of the Constitution is to be disregarded as abortive. The plaintiff Schieffelin concedes the validity of the amendment and of the statute passed thereunder, but finds no authority in either for such powers as are claimed by the local legislative body. In this latter position the plaintiff Browne agrees with him. The first line of attack would undermine the power of the locality by force of constitutional limitations. The second would undermine it by the milder weapon of construction. Both forms of assault failed at the Special Term, which denied a motion for an injunction, and dismissed the complaint. Both prevailed at the Appellate Division, which denied the defendants' motion for judgment and granted the injunction.

[1] 1. ‘Any amendment or amendments to this Constitution may be proposed in the Senate and Assembly; and if the same shall be agreed to by a majority of the members elected to each of the two houses, such proposed amendment or amendments shall be entered on their journals, and the yeas and nays taken thereon, and referred to the Legislature to be chosen at the next general election of Senators, and shall be published for three months previous to the time of making such choice; and if in the Legislature so next chosen, as aforesaid, such proposed amendment or amendments shall be agreed to by a majority of all the members elected to each house, then it shall be the duty of the Legislature to submit each proposed amendment or amendments to the people for approval in such manner and at such times as the Legislature shall prescribe; and if the people shall approve and ratify such amendment or amendments by a majority of the electors voting thereon, such amendment or amendments shall become a part of the Constitution from and after the first day of January next after such approval.’ Constitution, art. XIV, § 1.

We are to determine whether the amendment of article XII, approved by the people at the election of 1923, has complied with these requirements.

The Constitution of 1894, as it was framed by the convention and ratified by the electors, provided in article XII for a slender measure of home rule, by conferring upon the mayors of cities, though under conditions closely limited, a power of suspensive veto. Cities were divided into three classes, dependent upon population. Laws relating to the property, affairs, or government of cities, and the several departments thereof, were divided into general and special city laws. General city laws were those relatingto all the cities of one or more classes, and special city laws those relating to a single city or less than all the cities of a class. When a bill for a special city law had been passed by both branches of the Legislature, a copy was to be transmitted to the mayor of the city affected thereby, who was to return the bill to the house from which it was sent, with or without his acceptance of its provisions. Whenever any such bill was accepted, it became subject, like other bills, to the action of the Governor. Whenever, during the session at which it was passed, the bill was returned without acceptance or within 15 days was not returned, it might nevertheless again be passed by both branches of the Legislature, and then became subject like other bills to the action of the Governor.

Experience taught the need of supplementing these provisions by regulations more precise. A bill was to be returned to ‘the house’ from which it had been sent, but there was no description of the person or official to whom it was to be addressed. To remedy this defect, the Legislature of 1920 adopted a resolution for the amendment of section 2 of article XII, by substituting for the provision that the bill should be returned to the house from which it had been sent, a provision that it should be returned to ‘the clerk’ of such house. No other change was made. The resolution, after being referred to the Legislature of 1921, was adopted again by the Legislature of 1922, and at the election of 1922 it was ratified by the people. If the proceedings leading up to its submission to the electors were regular, it became part of the Constitution on the 1st of January following.

This same Legislature of 1922, which had thus repassed the resolution proposed by the Legislature of 1920, initiated another resolution for the amendment of article XII by establishing a comprehensive system of home rule for the cities of the state, and referred the resolution thus initiated to the Legislature of 1923. The Legislature of 1923 repassed the resolution in the form in which it had been proposed, and at the general election of 1923 it was approved by the electors. By this revision, section 1 of article XII (as amended in 1905) was continued without change, and new sections were adopted numbered 2 to 7, inclusive. We quote them all in full:

‘Article XII.

‘Section 1. It shall be the duty of the Legislature to provide for the organization of cities and incorporated villages, and to restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent abuses in assessments and in contracting debt by such municipal corporations;and the Legislature may regulate and fix the wages or salaries, the hours of work or labor, and make provision for the protection, welfare and safety of persons employed by the state or by any county, city, town, village or other civil division of the state, or by any contractor or subcontractor performing work, labor or services for the state, or for any county, city, town, village or other civil division thereof.

‘Sec. 2. The Legislature shall not pass any law relating to the property, affairs or government of cities, which shall be special or local either in its terms or in its effect, but shall act in relation to the property, affairs or government of any city only by general laws which shall in terms and in effect apply alike to all cities except on message from the Governor declaring that an emergency exists and the concurrent action of two-thirds of the members of each house of the Legislature.

‘Sec. 3. Every city shall have power to adopt and amend local laws not inconsistent with the Constitution and laws of the state, relating to the powers, duties, qualifications, number, mode of selection and removal, terms of office and compensation of all officers and employees of the city, the transaction of its business, the incurring of its obligations, the presentation, ascertainment and discharge of claims against it, the acquisition, care, management and use of its streets and property, the wages or salaries, the hours of work or labor, and the protection, welfare and safety of persons employed by any contractor or subcontractor performing work, labor or services for it, and the government and regulation of the conduct of its inhabitants and the protection of their property, safety and health. The Legislature shall, at its next session after this section shall become part of the Constitution, provide by general law for carrying into effect the provisions of this section.

‘Sec. 4. The provisions of this article shall not be deemed to restrict the power of the Legislature to enact laws relating to matters other than the property, affairs or government of cities.

‘Sec. 5. The Legislature may by general laws confer on cities such further powers of local legislation and administration as it may, from time to time, deem expedient.

‘Sec. 6. All elections of city officers, including supervisors and judicial officers of inferior...