McAneny v. Bd. of Estimate & Apportionment of City of New York

• Decision Date: 17 January 1922
• Citation: 134 N.E. 187,232 N.Y. 377
• Parties: McANENY et al., Transit Commission, v. BOARD OF ESTIMATE AND APPORTIONMENT OF CITY OF NEW YORK.
• Court: New York Court of Appeals Court of Appeals

232 N.Y. 377

134 N.E. 187

McANENY et al., Transit Commission,

v.BOARD OF ESTIMATE AND APPORTIONMENT OF CITY OF NEW YORK.

Court of Appeals of New York.

Jan. 17, 1922.

Application by George McAneny and others, constituting the Transit Commission, for an order requiring the Board of Estimate and Apportionment of the City of New York to appropriate the sum of money certified by such Commission to be necessary for its duties from April 26th to June 30, 1921, and also a similar application regarding the appropriation of money for duties from July 1 to December 31, 1921. From two orders of the Appellate Division, First Department (198 App. Div. 205,190 N. Y. Supp. 92), directing the board to make appropriations, such board appeals.

Orders affirmed.Appeal from Supreme Court, Appellate Division, First Department.

John P. O'Brien, Corp. Counsel, of New York City (Hiram W. Johnson, John F. O'Brien, Edgar J. Kohler and William E. C. Mayer, all of New York City, of counsel), for appellant.

Francis M. Scott and Godfrey Goldmark, both of New York City, for respondents.

Charles D. Newton, Atty. Gen. (Charles A. Collin and William M. Parke, both of New York City, of counsel), for the State.

McLAUGHLIN, J.

In 1921 the Legislature passed chapter 134 amending the Public Service Commissions Law (Consol. Laws, c. 48) in certain important particulars and added thereto article 6 (sections 105-111). The act is entitled:

‘An act to amend the Public Service Commissions Law, in relation to creating the Public Service Commission and the Transit Commission, defining the jurisdiction, powers and duties of such commissions, and abolishing the Public Service Commission of the First District, the Public Service Commission of the Second District and the office of transit construction commissioner.’

Section 1 provides that the title of chapter 480 of the Laws of 1910 ‘is hereby amended to read as follows: An act in relation to the Public Service Commission and the Transit Commission, constituting chapter Forty-Eight of the Consolidated Laws.’ The act was amended in some particulars by chapter 335 of the Laws of 1921.

It is unnecessary to consider the various amendments, it being sufficient for the determination of the question presented by this appeal to confine the discussion to the validity of so much of the act as is challenged by the appellant. It abolishes the Public Service Commission for the First District and creates in its place a transit commission consisting of three persons, to be appointed by the Governor by and with the consent of the Senate. It provides:

‘There shall be a transit commission for cities containing a population of more than one million inhabitants, according to the last preceding federal census or state enumeration, which shall possess the powers and duties hereinafter specified, and also all powers necessary or proper to enable it to carry out the purposes of this chapter.’ Section 4a.

The jurisdiction of the commission is specifically set forth. Section 5a. The salaries of the commissioners, secretary, and counsel are to be paid monthly by the state treasurer upon the order of the comptroller, out of funds provided therefor. All other salaries and expenses of the commission are to be paid by the city in which such commission has jurisdiction. The board of estimate and apportionment, or other board or public body on which is imposed a duty, and in which is vested the power of making appropriations of public moneys for the purposes of the city government in such city, shall, from time to time, on requisition duly made by the commission,appropriate such sums of money as the commission shall certify to be necessary to properly enable it to perform the duties imposed upon it.

‘Such appropriation shall be made forthwith upon presentation of such a requisition without revision or reduction and without the imposition of any conditions or limitations by such board or body, and such appropriation by it is hereby declared to be a ministerial act. If such board or body shall fail to appropriate such amount as such transit commission shall deem requisite and necessary, such commission may apply to the appellate division of the Supreme Court in the first judicial department, on notice to such board or body, for an order requiring such board or body to make such appropriation.’ Section 14, subd. 2

The Transit Commission delivered to the board of estimate and apportionment of the city of New York a requisition under the act for $360,895.78, ‘which sum said Transit Commission hereby certifies is necessary to properly enable it to do and perform, or cause to be done and performed, for the period from April 25, 1921, to June 30, 1921, the duties imposed upon said commission by said law.’ The commission also delivered, at the same time, another requisition for $1,083,327, ‘which sum said Transit Commission hereby certifies is necessary to properly enable it to do and perform, or cause to be done and performed, for the six months ending December 31, 1921, the duties imposed upon said commission by said law.’

These requisitions not having been honored by the board of estimate and apportionment, the Transit Commission applied to the Appellate Division, First Department, on notice, for an order requiring the board to make such appropriations. The motions in each case were granted, and orders entered to that effect, from which the board appealed to this court.

The validity of these orders, both of which were argued at the Appellate Division and in this court together, and will be so considered by me, is attacked upon various grounds, which, in the last analysis, resolves itself into an assertion that the entire act under which they were made is unconstitutional. The principal, and substantially the main, attack is upon an alleged violation of article 10, § 2, article 12, § 2, and article 3, § 18, of the State Constitution.

Article 10, § 2, provides that--

‘All city, town and village officers, whose election or appointment is not provided for by this Constitution, shall be elected by the electors of such cities, towns and villages, or of some division thereof, or appointed by such authorities thereof, as the Legislature shall designate for that purpose.’

Article 12, § 2, classifies the cities of the state according to population as determined by the last state enumeration as from time to time made, as follows:

‘The first class includes all cities having a population of one hundred and seventy-five thousand or more; the second class, all cities having a population of fifty thousand and less than one hundred and seventy-five thousand; the third class, all other cities. Laws relating to the property, affairs or government of cities, and the several departments thereof, are divided into general and special city laws; general city laws are those which relate to all the cities of one or more classes; special city laws are those which relate to a single city, or to less than all the cities of a class. Special city laws shall not be passed except in conformity with the provisions of this section.’

Then follows a provision to the effect that after a special city law ‘has been passed by both branches of the Legislature, the house in which it originated shall immediately transmit a certified copy thereof to the mayor of such city, and within fifteen days thereafter the mayor shall return such bill to the house from which it was sent, * * *’ with statement that it is either accepted or rejected.

Article 3, § 18, provides, among other things, that--

‘The Legislature shall not pass a private or local bill in any of the following cases. * * * Granting to any corporation, association or individual the right to lay down railroad tracks. * * * The Legislature shall pass general laws providing for the cases enumerated in this section, and for all other cases which in its judgment, may be provided for by general laws.’

In considering whether an act of the Legislature be constitutional, the history connected with its origin must be taken into account. The Public Service Commissions Law was passed in 1907 (chapter 429). It took the place of the Rapid Transit Act passed in 1891 (chapter 4). Both of these acts, as originally passed, have been amended from time to time down to the legislative session of 1921. The Public Service Commissions Law provided that the jurisdiction and powers of commissioners referred to in the Rapid Transit Act should be transferred, first, to five public service commissioners of the first district (Laws 1907, c. 429, § 5, subd. 6); then to one transit construction commissioner (Laws 1919, c. 520); and finally to three transit commissioners (Laws of 1921, c. 134).

[2] By section 4a of the act a transit commissionis created for cities having a population of over a 1,000,000 inhabitants, according to the last preceding federal census or state enumeration. In this commission is vested the power to regulate railroads and street railroads therein, and there is also given to it all the powers and duties given to the board of rapid transit railroad commissioners, the Public Service Commission of the First District, and the transit construction commissioner; in other words, there was given to the Transit Commission, by the act under consideration, all of the powers theretofore possessed by bodies having control of rapid transit. In so far as the power has been delegated by the state to a commission created by it, to demand and receive appropriations from the board of estimate and apportionment for the purpose of enabling it to properly perform the duties imposed upon it, I do not believe it can be seriously questioned but what the act is a valid legislative enactment.

[3] We are brought, therefore, directly to a consideration of the validity of the orders appealed from. If such validity alone be considered, then the question presented is a very narrow one, viz., Was it the duty of the board of estimate and apportionment,...