Whalen v. Wagner

• Decision Date: 25 June 1958
• Citation: 4 N.Y.2d 575,152 N.E.2d 54,176 N.Y.S.2d 616
• Parties: , 152 N.E.2d 54 Michael F. WHALEN et al., Appellants, v. Robert F. WAGNER et al., Constituting the Board of Estimate of the City of New York, et al., Respondents, and Port of New York Authority et al., Intervenors-Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 616

176 N.Y.S.2d 616

4 N.Y.2d 575, 152 N.E.2d 54

Michael F. WHALEN et al., Appellants, v. Robert F. WAGNER et al., Constituting the Board of Estimate of the City of New York, et al., Respondents, and Port of New York Authority et al Intervenors-Respondents.

Court of Appeals of New York.

June 25, 1958.

John H. Finn and Victor J. Tirabasso, Jr., New York City, for appellants.

Peter Campbell Brown, Corp. Counsel, New York City (W. Bernard Richland, New York City, of counsel), for respondents.

Daniel B. Goldberg, Sidney Goldstein, New York City, Joseph Lesser and Maria J. Ryan, New York City, for Port of New York Authority, intervenor-respondent.

Franklin S. Wood, Clarence Fried and Barent L. Visscher, New York City, for Triborough Bridge & Tunnel Authority, intervenor-respondent.

Louis J. Lefkowitz, Atty. Gen. (Abe Wagman, New York City, and Paxton Blair, Albany, of counsel), intervenor-respondent in person.

VAN VOORHIS, Judge.

This is a taxpayer's action under section 51 of the General Municipal Law to declare chapters 806 to 809, inclusive, of the Laws of 1955 unconstitutional, and to restrain the Mayor and Board of Estimate of the City of New York from acting thereunder in the condemnation of real property or the taking of other steps for the construction and operation of bridges over Throgs Neck connecting Bronx and Queens, or over the Narrows, connecting Kings and Richmond Counties (Brooklyn and Staten Island). Plaintiffs also seek to restrain the construction of a second deck to the George Washington Bridge between New York and New Jersey.

The statutes involved in this controversy are interrelated. Their validity is attacked under the Home Rule provisions of the State Constitution (art. IX, §§ 11, 12). Other provisions of the State and Federal Constitutions are mentioned in the complaint, but they are not relied upon. Home Rule is the only basis on which the legislation is attacked in the brief or argument by appellants in this court.

It seems that no city message was submitted to the Legislature pursuant to section 11 of article IX of the Constitution in the case of chapters 807 and 808 of the Laws of 1955. Those chapters pertain especially to the power of the Port of New York Authority to construct a second deck of the George Washington bridge, and to build a bridge across the Narrows. No city messages or special messages from the Governor appear to have preceded the enactment or subsequent amendments of the Port Authority Act, either before or after the taking effect of the present Home Rule amendment in 1938. Nineteen of such statutes are enumerated in the Port Authority's brief, eight of which were enacted subsequent to the adoption of the 1938 Home Rule amendment. Although city messages would not have been required in the case of the earlier enactments, the earlier statutes would have run afoul of the Constitution of 1894 or its 1923 amendment in other respects if they pertained to the 'property, affairs or government of any city', viz., either in that such statutes would have had to have related to all cities in the State (of the same class before 1923) or would have had to have been adopted on a special message by the Governor to the Legislature and been passed by two thirds of the members of each house (cf. Adler v. Deegan, 251 N.Y. 467, 472, 473, 474, 167 N.E. 705, 706, 707; Admiral Realty Co. v. City of New York, 206 N.Y. 110, 99 N.E. 241; People ex rel. Central Trust Co. v. Prendergast, 202 N.Y. 188, 95 N.E. 715; McGrath v. Grout, 171 N.Y. 7, 63 N.E. 547; People ex rel. Einsfeld v. Murray, 149 N.Y. 367, 44 N.E. 146, 32 L.R.A. 344; N.Y.Const.1894, art. XII, § 2, and as amended in 1923). Chief Judge Cardozo said in his concurring opinion in Adler v. Deegan, supra, 251 N.Y. at page 487, 167 N.E. at page 712, concerning these 1894 and 1923 constitutional mandates in their effect on possibly noncomplying statutes: 'If all these acts are in truth invalid, we must submit to the inconvenience that would result from such a holding. It is not one to be invited.'

It is apparent that in drafting this legislation the Port Authority was always regarded as involved in matters of State concern, and consequently not subject to the Home Rule amendment. If it were to be brought within that amendment, the Port Authority Acts would have been invalid from the beginning inasmuch as they never complied with the constitutional requirements prescribed in the case of the enactment of statutes dealing with the 'property, affairs or government' of cities. Appellants' brief implies that chapters 807 and 808 of the Laws of 1955 relating chiefly to the Port Authority are less vulnerable to the charge that they did not comply with the Home Rule amendment, by stating that plaintiffs' attack is 'in the main' addressed 'to the validity of the Home Rule legislation affecting Chapters 806 and 809.'

Although city messages are recited as having been submitted to the Legislature in chapters 806 and 809 (against which plaintiffs' attack is in the main addressed), it is not necessary to decide whether such messages were, in fact, made in compliance with the Home Rule amendment to the State Constitution, or whether the recitals of these city messages in the statutes preclude further inquiry concerning them. The decisive question is whether the Home Rule amendment applies at all to any of chapters 806-809 of the Laws of 1955. The cases of Admiral Realty Co. v. City of New York, 206 N.Y. 110, 99 N.E. 241, supra; McAneny v. Board of Estimate & Apportionment of City of New York, 232 N.Y. 377, 134 N.E. 187; City of New York v. Village of Lawrence, 250 N.Y. 429, 165 N.E. 836; Adler v. Deegan, 251 N.Y. 467, 167 N.E. 705, supra; Robertson v. Zimmermann, 268 N.Y. 52, 196 N.E. 740; New York Steam Corp. v. City of New York, 268 N.Y. 137, 197 N.E. 172, 99 A.L.R. 1157; Gaynor v. Marohn, 268 N.Y. 417, 198 N.E. 13; People ex rel. Buffalo & Fort Erie Public Authority v. Davis, 277 N.Y. 292, 14 N.E.2d 74; Salzman v. Impellitteri, 203 Misc. 486, 124 N.Y.S.2d 369, affirmed 281 App.Div. 1023, 1024, 122 N.Y.S.2d 787, affirmed 305 N.Y. 414, 113 N.E.2d 543; Board of Supervisors of Ontario County v. Water Power & Control Comm., etc., 227 App.Div. 345, 238 N.Y.S. 55; City of New York v. Willcox, 115 Misc. 351, 189 N.Y.S. 724; Bush Term. Co. v. City of New York, 152 Misc. 144, 273 N.Y.S. 331, affirmed 256 App.Div. 978, 11 N.Y.S.2d 554, affirmed 282 N.Y. 306, 26 N.E.2d 269, as well as the cognate case of Port of New York Authority v. Weehawken Township, 14 N.J. 570, 573, 103 A.2d 603, and the Federal District Court case of Howell v. Port of New York Authority, 34 F.Supp. 797, 798, bear upon various aspects of this topic, and establish the Port Authority to be engaged in matters of State concern. So, also, does Commissioner of Internal Revenue v. Estate of Shamberg, 2 Cir., 144 F.2d 998, certiorari denied 323 U.S. 792, 65 S.Ct. 433, 89 L.Ed. 631, which held that the bonds of the Port Authority are obligations issued 'on behalf of the state' on which basis they qualified for exemption from the Federal income tax. In the opinion by Judge Augustus Hand, it is stated that the Port Authority (144 F.2d at page 1000) 'is fully owned by the two states and its projects are all operated in the interest of the public without profit to private persons. The compact was induced by the necessity for joint state action in the development of the Port of New York which lies partly within the jurisdiction of each state.'

In the Howell case it was said (34 F.Supp. at page 798) 'In the words of Mr. Justice Frankfurter and Dean Landis, it is an organic whole, split between the law-making of two states,' and again (at page 801): 'The Port Authority * * * is a joint or common agency of the states of New York and New Jersey. It performs governmental functions which project beyond state lines'.

Quotations of this nature could be multiplied indefinitely, the upshot being without substantial contradiction that the matters over which the Port Authority has jurisdiction are of State concern, and, therefore, not within the Home Rule amendment. Judge Crane's opinion in Alder v. Deegan, supra, interprets graphically the limited meaning which has attached to the words 'property, affairs and government of cities', and mentions as matters of State concern the operation of the railroads, surface, subways or elevated in the city of New York, essential as they are to that city (251 N.Y. at page 472, 167 N.E. at page 714). Chief Judge Cardozo in a concurring opinion, which like Judge Crane's opinion, spoke for the court, summarizes the standard of judgment governing whether the Home Rule amendment applies, saying (251 N.Y. at page 491, 167 N.E. at page 714): 'The test is rather this: That, if the subject he in a substantial degree a matter of state concern, the Legislature may act, though intermingled with it are concerns of the locality. Measured by that test, this statute must prevail. I do not say that an affair must be one of city concern exclusively, to bring it within the scope of the powers conferred upon the municipality by section 3 of the Home Rule article and section 11 of the City...