Hurd v. City of Buffalo

• Decision Date: 27 March 1974
• Citation: 34 N.Y.2d 628,311 N.E.2d 504,355 N.Y.S.2d 369
• Parties: , 311 N.E.2d 504 Bradley J. HURD et al., Respondents, v. CITY OF BUFFALO, Appellant.
• Court: New York Court of Appeals Court of Appeals

Page 369

355 N.Y.S.2d 369

34 N.Y.2d 628, 311 N.E.2d 504

Bradley J. HURD et al., Respondents, v. CITY OF BUFFALO, Appellant.

Court of Appeals of New York.

March 27, 1974.

Anthony Manguso, Corp. Counsel, Buffalo (John B. Walsh, Buffalo, of counsel), for appellant.

John Van Voorhis, Rochester, for respondents.

Louis J. Lefkowitz, Atty. Gen. (Jean M. Coon and Ruth Kessler Toch, Albany, of counsel), in his statutory capacity under section 71 of the Executive Law.

John D. Doyle, Corp. Counsel, Rochester (James T. Townsend, Rochester, of counsel), for City of Rochester, amicus curiae.

PER CURIAM.

Because on argument it was suggested that a parallel exists between this case and Taylor v. Sise, 33 N.Y.2d 357, 352 N.Y.S.2d 924, 308 N.E.2d 442, so recently decided, an added comment is merited, in addition to the views expressed by the Appellate Division, 41 A.D.2d 402, 343 N.Y.S.2d 950, in this case.

The Taylor case involved separate grants of governmental power. One involved the selection of Justices of the Supreme Court by popular election (N.Y.Const., art. VI, § 6). But that was only part of a variegated constitutional arrangement for judicial selection providing in some instances for selection by appointment and in others by popular election. Another grant involved the selection of Judges for the Court of Claims by appointment of the Governor with the advice and consent of the Senate, and and power in the Legislature to increase the number of Judges in that court (Id., art. VI, § 9). The Constitution does not reflect a commitment, therefore, to any single mode for the selection of Judges. Still another grant of power to the Appellate Divisions concerned the unqualified transfer of Judges from certain courts to other courts as the business of the courts might require (Id., art. VI, § 26).

These several powers collectively did not reflect a single overriding purpose or plan. Thus, this court, in the Taylor case, concluded that these powers were not qualified or limited by the diverse historical purposes which had stimulated their creation, and that they did not represent a unified, intermeshing plan of the different methods for the selection of Judges.

The constitutional provisions involved in the present case, on the other hand, do involve a unified and interdependent plan to control the taxing and debt- contracting power of the subdivisions of the State. A disregard of this overall purpose by accepting specious devices to evade them would nullify their effect. Most important, the overall purpose is evident from within the four corners of the Constitution as well as the constitutional history which brought them into being. The plan made express in the Constitution, and sustained by the historical antecedents reflecting purpose, must therefore be treated as a limitation of the exercise of the powers to the extent, and perhaps only to the extent, that measures to evade are palpably in violation of the plan and purpose. That is the situation in this case.

To the extent that the rationales expressed in Cherey v. City of Long Beach, 282 N.Y. 382, 26 N.E.2d 945, and Bugeja v. City of New York, 24 A.D.2d 151, 266 N.Y.S.2d 80, affd. 17 N.Y.2d 606, 268 N.Y.S.2d 564, 215 N.E.2d 684, may appear broader than that upon which this holding rests, they should be considered limited.

As for the element for futurity suggested in the dissenting opinion, to be sure such an element is present in a retirement system or in any funded pension plan. The point is that no retirement or pension plan is actuarially sound unless the annual amortization reflects the current burden in disbursements and in reserves for future payments. The current burden is satisfied or exhausted whichever way one would analytically phrase it by the annual payment. A contrary view which is perhaps verbally appealing is economically and actuarially unsound. Otherwise, the theory of annual leveling payments would hardly be justified, because a current tax-paying generation should not bear a burden other than one that is appropriate to it, or shift to future generations a burden not appropriate to them. Indeed, the tax and debt-contracting limitations of the Constitution for the State and its subdivisions have that very purpose.

Accordingly, the order should be affirmed on the opinion of Mr. Justice Reid S. Moule at the Appellate Division, with costs to respondents.

JASEN, Judge (concurring).

I concur for affirmance for the reasons stated in the opinion of Justice Moule at the Appellate Division. I would merely add that, as reasoned in the Per Curiam opinion, to exempt ordinary periodic pension payments on the theory that their usefulness outlives the fiscal year simply evades the letter and spirit of the constitutional restrictions on the taxing and debt-contracting powers of the State's civil divisions. (Cf. Taylor v. Sise, 33 N.Y.2d 357, 352 N.Y.S.2d 924, 308 N.E.2d 442 (Jasen, J., dissenting).)

JONES, Judge (dissenting).

Section 10 of article VIII of the Constitution provides that the amount to be raised by tax on real estate in any fiscal year by the City of Buffalo (in addition to provision for the payment of interest and principal on indebtedness) shall not exceed 2%. By co-ordinate provision of subdivision (b) of section 11 of the same article the taxes required for certain appropriations are expressly excluded from this 2% limit: 'Whenever any county, city * * * provides by direct budgetary appropriation for any fiscal year for the payment in such fiscal year or in any future fiscal year or years of all or any part of the cost of an object or purpose for which a period of probable usefulness has been determined by law, the taxes required for such appropriation shall be excluded from the tax limitation prescribed by section ten of this article unless the legislature otherwise provides.'

By chapter 1105 of the Laws of 1969 paragraph 42--a was added to subdivision a of section 11.00 of article 2 of the Local Finance Law. By that means the Legislature determined that the 'period of probable usefulness' of amounts paid by a city in the population bracket within which Buffalo falls for pension or retirement liabilities shall be three years. The intent of this legislative enactment was to exclude from the 2% tax limitation the taxes required to meet direct annual budgetary appropriations for the pension and retirement liabilities of Buffalo and certain other cities and school districts.

The question before us is whether this legislative determination is unconstitutional. If so, taxes to meet the city's pension and retirement obligations are still subject to the 2% ceiling. I would conclude that the legislation is constitutional and that such taxes are accordingly excluded from the limitation.

In my reading, the constitutional provisions are unambiguous and entail no internal conflict. Section 10 sets a 2% real property tax limitation; subdivision (b) of section 11 authorizes the Legislature to provide for exclusions from that limitation--by statutorially determining a period of probable usefulness with respect to the object or purpose to be excluded. In my view, the Legislature has properly exercised the authority constitutionally granted to it under the latter provision.

It is not for the judiciary, however persuasively it may be importuned, to second-guess the Legislature as to the wisdom or appropriateness of this fiscal determination. The respondents urge on us the unwisdom of paragraph 42--a. Such arguments, however sound or appealing, must be addressed to the Legislature and not to the courts.

I would agree that the authority granted to the Legislature is not wholly unrestricted. The only restriction I find in subdivision (b), however, is that the Legislature's determination that the object or purpose for which the excluded taxes are to be raised has a ...