St. Clair v. Yonkers Raceway, Inc.

• Decision Date: 10 July 1963
• Citation: 13 N.Y.2d 72,192 N.E.2d 15,242 N.Y.S.2d 43
• Parties: , 192 N.E.2d 15 Edward C. ST. CLAIR, Individually and on Behalf of the People of the State of New York as a Citizen and Taxpayer Thereof, Appellant, v. YONKERS RACEWAY, INC., et al., Respondents, et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

Page 43

242 N.Y.S.2d 43

13 N.Y.2d 72, 192 N.E.2d 15

Edward C. ST. CLAIR, Individually and on Behalf of the People of the State of New York as a Citizen and Taxpayer Thereof, Appellant, v. YONKERS RACEWAY, INC., et al., Respondents, et al., Defendants.

Court of Appeals of New York.

July 10, 1963.

J. Clement Johnston, Buffalo, for appellant.

Samuel I. Rosenman, New York City, George Morton Levy, Sr., Mineola, Max Freund, Ernest A. Gleit and Fred H. Greene, New York City, for Roosevelt Raceway, Inc., respondent.

Louis Haimoff and Joseph G. Blum, New York City, for Yonkers Raceway, Inc., respondent.

Ira H. Morris, Rochester, for Genesee Monroe Racing Ass'n., Inc., respondent.

Alfred L. Hetzelt, Buffalo, for Buffalo Trotting Ass'n., Inc., respondent.

Ernest B. Morris, Albany, for Saratoga Harness Racing Ass'n., Inc., respondent.

Louis J. Lefkowitz, Atty. Gen. (Paxton Blair and Edward Siegfried, Albany, of counsel), pro se and for the State Harness Racing Commission and others, respondents.

BURKE, Judge.

The simple question presented on this appeal is whether the complaint was properly dismissed on the ground that appellant lacks legal capacity to sue.

The appellant, who allegedly placed small wagers $18 in all at racetracks of several of the corporate defendants, brought this suit to have the difference paid to the State between the amount of the payments made to the State by such racetracks at the tax rates reduced by an amendment of the Pari-Mutuel Revenue Law (L.1956, ch. 837) McK.Unconsol.Laws, §§ 8008, 8020, 9502, and the amount which the State would have obtained under the tax rates in effect prior to the effective date of the amendment, and to require payment in the future at the old rates. The respondents, joined by the Attorney-General, moved to dismiss the complaint on the ground that appellant lacked standing to dispute the constitutionality of the amendment.

Once again we are presented with an attempt to change the law of this State, which is also the law of the United States of America. We have always held that the constitutionality of a State statute may be tested only by one personally aggrieved thereby, and then only if the determination of the grievance requires a determination of constitutionality. Under that ruling an unaggrieved citizen-taxpayer, such as appellant, lacks standing to challenge a statute's constitutional validity. Appellant's contentions were rejected by this court in the case of Bull v. Stichman, 298 N.Y. 516, 80 N.E.2d 661, affg. 273 App.Div. 311, 78 N.Y.S.2d 279. In the Bull case the dissent in the Appellate Division was based on the cases appellant relies upon here (Matter of Kuhn v. Curran, 294 N.Y. 207, 61 N.E.2d 513, and Heim v. McCall, 214 N.Y. 629, 108 N.E. 1095). This court's unanimous affirmance in spite of the dissent disposed of the theory that the rule regarding taxpayers' cases permitted exceptions.

Thus we have found anew that the rationale propounded in Doolittle v. Supervisors of Broome County, 18 N.Y. 155 and Schieffelin v. Komfort, 212 N.Y. 520, 106 N.E. 675, L.R.A.1915D, 485 remains sound today. It seems to us proper 'that the courts of this state have denied the right of a citizen and taxpayer to bring before the court for review the acts of another department of government simply because he is one of many such citizens and taxpayers' (Schieffelin v. Komfort, 212 N.Y. 520, 537, 106 N.E. 675, 680, L.R.A.1915D, 485, supra).

As Judge Chase stated in the Schieffelin case:

'Jurisdiction has never been directly conferred upon the courts to supervise the acts of other departments of government. The jurisdiction to declare an act of the Legislature unconstitutional arises because it is the province and duty of the judicial department of government to declare the law in the determination of the individual rights of the parties.

'The assumption of jurisdiction in any other case would be an interference by one department of government with another department of government when each is equally independent within the powers conferred upon it by the Constitution itself.' (supra, 212 N.Y. p. 530, 106 N.E. p. 677, L.R.A.1915D, 485).

This concept was later advanced by Mr. Justice Black in Perkins v. Lukens Steel Co., 310 U.S. 113, 132, 60 S.Ct. 869, 879, 84 L.Ed. 1108, when he said: 'Our decision that the complaining companies lack standing to sue does not rest upon a mere formality. We rest it upon reasons deeply rooted in the constitutional divisions of authority in our system of Government and the impropriety of judicial interpretations of law at the instance of those who show no more than a mere possible injury to the public.'

The judgment appealed from should be affirmed, without costs.

FULD, Judge (dissenting).

The plaintiff, seeking to prevent the alleged misapplication of more than $42,000,000, sues as a citizen and taxpayer for a judgment declaring that section 45-a of the Pari-Mutuel Revenue Law (added by L.1956, ch. 837) McK.Unconsol.Laws, § 8020, violates the constitutional prohibition against the expenditure of public funds to private parties (N.Y. Const. art. VII, § 8). ¹ The courts below dismissed the complaint and we are called upon to decide whether this State shall continue to be one of the very few remaining jurisdictions to adhere to the rule that a citizen-taxpayer, who cannot show any direct or personal injury, lacks standing to challenge allegedly unconstitutional expenditures of state moneys.

Although the rule is one which, judicially formulated, has been applied by this court for more than 100 years (see, e. g., Doolittle v. Supervisors of Broome County, 18 N.Y. 155; Kilbourne v. St. John, 59 N.Y. 21, 27; Schieffelin v. Komfort, 212 N.Y. 520, 106 N.E. 675, L.R.A.1915D, 485; Bull v. Stichman, 298 N.Y. 516, 80 N.E.2d 661; Dorsey v. Stuyvesant Town Corp., 299 N.Y. 512, 87 N.E.2d 541, cert. den. 339 U.S. 981, 70 S.Ct. 1019, 94 L.Ed. 1385), ² it has not only been sharply criticized by authoritative writers on the subject (see, e. g., 3 Davis, Administrative Law Treatise (1958), § 22.09, p. 243 et seq., § 22.10, p. 249 et seq.; Davis, Standing to Challenge Governmental Action, 39 Minn.L.Rev. 353, 386 et seq.; Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harv.L.Rev. 1265; Note, Taxpayers' Suits, 69 Yale L.J. 895) but rejected by the courts of many jurisdictions. (See 3 Divis, Administrative Law Treatise, op. cit., p. 245; Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harv.L.Rev. 1265, 1278.)

At the present time, virtually every state, either by decision or by statute New York, by section 51 of the General Municipal Law, Consol.Laws, c. 24 permits taxpayers to challenge local action and at least 34 states clearly sanction taxpayers' suits at the state level, that is, actions by state taxpayers challenging state action; indeed, only two states New York and New Mexico squarely prohibit such actions. (See Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harv.L.Rev. 1265, 1278; Note, Taxpayers' Suits, 69 Yale L.J. 895, 900-902.) ³ 'This trend', it has been said, 'reflects the absence of significant reasons for distinguishing municipal taxpayers' suits, permitted practically everywhere, from their state counterparts. True, the taxpayer's contribution to the state treasury may be a lesser percentage of the total than his municipal tax payments, and his interest in state affairs might therefore be said to be more remote. But no overriding considerations such as the need for executive flexibility on the national level in foreign affairs and defense make review of state action less desirable than review of the affairs of local government.' (Note, Taxpayers' Suits, 69 Yale L.J. 895, 902.)

Of this there can be no possible doubt. The State has a vital concern, its People a deep interest, in seeing to it that the provisions of our Constitution are enforced, and unconstitutional expenditure of state funds prevented. Neither logic nor policy demands that the judiciary stay its hand and dismiss the action simply because the proceeding happens to be initiated by a vigilant and civic-minded taxpayer following official inaction. It hardly seems consonant with the Constitution itself that the enforcement of its provisions should have to turn on the meaning ascribed to it by members of the executive or administrative branch of government or on whether they choose to assert themselves.

It is self-evident that the denial of standing to a taxpayer will in most instances prevent any challenge to an expenditure of state funds as violative of the Constitution. The suggestion in the opinion of the majority that the Attorney-General and other state officials may be relied upon to attack the constitutional validity of state legislation is both unreal in fact and dubious in theory. As to the Attorney-General, for example, it would seem more appropriate to his office that he defend a statute's constitutionality when it is challenged than initiate an attack of his own. (Cf. Executive Law, Consol.Laws, c. 18, § 71; and see, e. g., Matter of Roosevelt Raceway v. Monaghan, 9 N.Y.2d 293, 213 N.Y.S.2d 729, 174 N.E.2d 71.) Certainly, our Constitution does not entrust the determination of constitutionality to the executive branch of the government. But, in any event, if there is an official who is authorized to act and he declines to assert the invalidity of the statute, or otherwise raise that issue, the question whether the expenditures made pursuant to the statute's provisions violate the State Constitution will never be subjected to judicial scrutiny.

The Constitution is a People's document and the hypothesis that a citizen-taxpayer has no 'interest' in state expenditures is little more than a legal fiction. It cannot be squared with the generally accepted doctrine that a taxpayer on the municipal level where the issues are rarely of comparable importance does possess the requisite 'direct and immediate'...