Salzman v. Impellitteri
| Decision Date | 05 June 1953 |
| Citation | 305 N.Y. 414 |
| Parties | Pauline Salzman, Appellant,<BR>v.<BR>Vincent R. Impellitteri, as Mayor of The City of New York, et al., Appellants, et al., Defendants, and Nathaniel L. Goldstein, as Attorney-General of The State of New York, Intervener, Respondent. |
| Court | New York Court of Appeals Court of Appeals |
Herman Katz, Louis A. Cioffi and Edward S. Blackstone for Pauline Salzman, appellant.
Denis M. Hurley, Corporation Counsel (W. Bernard Richland, Pauline K. Berger and Barbara Carroll of counsel), for Vincent R. Impellitteri and another, appellants.
Nathaniel L. Goldstein, Attorney-General, in person (Wendell P. Brown and Ruth Kessler Toch of counsel), for intervener-respondent.
This is a taxpayer's action to enjoin the City of New York from entering into any kind of agreement with the New York City Transit Authority pursuant to chapters 200-208 of the Laws of 1953, and for a declaratory judgment determining that no transaction which those statutes purport to authorize can be executed due to their alleged unconstitutionality. The action was begun before any lease or other form of agreement had been made between the city and the Transit Authority respecting the subways; indeed, before the members of the Authority had been appointed.
The statutes in question are permissive only, in a field in which the State is concerned. Under these circumstances, and assuming that any transfer will not be by absolute conveyance, but by a lease of limited term with reversion to the city, we cannot say that the legislation is on its face unconstitutional. Whether it would be constitutional without those concomitants need not now be decided. Arguments addressed to policy are not within our province. Whether the statutes will be constitutionally applied, or whether other constitutional questions, not now foreseeable, will arise, we cannot know in advance. Such problems, if any, must be dealt with when presented.
The judgment should be modified in accordance with this opinion and, as so modified, affirmed, without costs.
I agree that a justiciable controversy exists, which has not been rendered moot, by the execution of the lease between the city and the Transit Authority and that we may, accordingly, deal with the problem on its merits. A majority of this court is about to decide that the Transit Authority legislation ) "on its face" does not appear to be "unconstitutional." With this I cannot agree.
The People, as every one knows, have vested the legislative power in the Senate and Assembly (N. Y. Const., art. III, § 1). Nonetheless under the home rule provisions the Legislature is prohibited from enacting any laws in relation to the "property, affairs or government" of any city except when requested by the city affected and then only upon "the concurrent action of two-thirds of the members of each house of the legislature" (N. Y. Const., art. IX, § 11).
Here, concededly, there was no compliance with this salutory condition precedent. The laws were passed without any request by the city and without a two-thirds vote of both houses of the Legislature. This fatal omission may not be excused for the Constitution in so many words requires it — nor may it be justified on any theory of an overriding State concern.
The statutes now under consideration, on their face, have reference only to New York City and, dealing as they do with the city-owned transit system, must meet the test of the Constitution if validity is to be accorded. Never before has the State intervened to require a city to turn over to an appointed authority the control, operation and management of a vast proprietary interest such as is involved here. Regulation of...
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