White v. Inebriates' Home for Kings Cnty.

• Decision Date: 23 January 1894
• Citation: 35 N.E. 1092,141 N.Y. 123
• Parties: WHITE et al. v. INEBRIATES' HOME FOR KINGS COUNTY et al.
• Court: New York Court of Appeals Court of Appeals

141 N.Y. 123

35 N.E. 1092

WHITE et al.

v.INEBRIATES' HOME FOR KINGS COUNTY et al.

Court of Appeals of New York.

Jan. 23, 1894.

Appeal from supreme court, general term, second department.

Action by Alfred T. White and another, taxpayers of the city of Brooklyn, against David A. Boody, mayor of said city, and others, to restrain defendants from paying any money to the Inebriates' Home under Laws 1877, c. 169, § 4. From a judgment of the general term (26 N. Y. Supp. 294) affirming a judgment for defendants, plaintiffs appeal. Affirmed.

R. Burnham Moffat, for appellants.

James C. Church, for respondent the Inebriates' Home.

Almet F. Jenks, Corp. Counsel, for respondent officials.

GRAY, J.

This is an action by taxpayers to restrain officials of the city of Brooklyn from paying certain moneys to the Inebriates' Home for Kings County. An application for a restraining order was granted pendente lite, and that order was affirmed by the general term. An appeal was taken from the order of affirmance to this court. There are no controverted facts, and the complaint presented but a question of law, which was in fact determined adversely by the granting of the motion for an injunction. The form of the order below, by adjudging upon that question, and disposing of the issues, raises a question of law, which we can review here. Birge v. Bridge Co., 133 N. Y. 477, 31 N. E. 609.The ‘home’ was incorporated under chapter 843, Laws 1867, for the purpose of receiving inebriates entering voluntarily, or by order of the trustees. Its objects were declared to be reformatory, and its operation and powers comprehended the county of Kings. This act, and subsequent amendatory acts, provided for the raising of revenues by appropriating a certain proportion of the excise moneys of Kings county and of the city of Brooklyn. By section 4 of chapter 169 of the Laws of 1877, it was finally provided that the city comptroller shall pay to the treasurer of the home 15 per cent. of the moneys received for licenses granted, and that the board of excise commissioners of the towns of Kings county shall also pay to the treasurer 15 per cent. of the moneys received for licenses granted by them. It is claimed that that act was repealed by chapter 583 of the Laws of 1888, commonly known as the ‘City Charter.’ That act provided, in section 35 of title 22, for the repeal of ‘all local and special acts, passed prior to January 1, 1888, relating to the corporation of the city of Brooklyn, or to the administration of the property and affairs of said corporation.’ We think that the act of 1877, in question, can only be said to be in a sense, and relatively to the rest of the state, local. The title was ‘An act to provide means for the support of inebriates for Kings county,’ etc., and the scope of its action was over the whole county. It would be a misuse of terms to classify it with the local and special acts to be affected by the repealing clause of the city charter. Relatively to the county, the act was general in its objects and provisions. Incidentally, it touched the local administration of the city of Brooklyn. In the revision and combination of existing special and local laws affecting the city, which chapter 583 was designed to effect, it is but reasonable to suppose that the acts intended to be combined were such as directly, and only, concerned the municipal administration. We should not extend its operation of exclusion or repeal to acts which affect the city only as it is part of a subdivision of the state, unless compelled to do so by express language.

It is further insisted that section 4 of the act of 1877, referred to, is a nullity. That result is reached by the appellants by comparing the provision of a prior act amendatory of the original act. In 1872 an act was passed (Laws, c. 687) which, in its first section, provided with respect to the appropriation of certain percentages of city and county excise moneys. In 1875 (Laws, c. 627, § 3) section 1 of the act of 1872 was amended ‘so as to read as follows,’ etc.; and by the use of that language, and because of the amendment containing all the provisions of the amended section with other new ones, it is, in substance, claimed that section 1 of the act of 1872 was so merged and lost in the amending section as to be incapable of the...