Wilcox v. McClellan

• Decision Date: 24 April 1906
• Citation: 77 N.E. 986,185 N.Y. 9
• Parties: WILCOX v. McCLELLAN, Mayor, et al.
• Court: New York Court of Appeals Court of Appeals

185 N.Y. 9

77 N.E. 986

WILCOX

v.McCLELLAN, Mayor, et al.

Court of Appeals of New York.

April 24, 1906.

Appeal from Supreme Court, Appellate Division, First Department.

Action by Clermont H. Wilcox against George B. McClellan and others, constituting the board of estimate and apportionment of the city of New York. From a judgment of the Appellate Division (97 N. Y. Supp. 311,110 App. Div. 378), affirming a judgment sustaining a demurrer to the complaint, plaintiff appeals. Affirmed.

L. Laflin Kellogg and Alfred C. Petté, for appellant.

John J. Delany, Corp. Counsel (Theodore Connoly and William P. Burr, of counsel), for respondents.

Edward M. Shepard, Paul D. Cravath, William D. Guthrie, and Chase Mellen, for interveners Union Railway Company of New York and others.

George L. Rives and Albert B. Boardman, for interveners board of rapid transit railroad commissioners for the city of New York.

O'BRIEN, J.

This action was brought by a taxpayer of the city of New York against the mayor and the other officials of that city constituting the board of estimate and apportionment. The purpose of the action was to restrain the board from proceeding to exercise the various powers conferred by the statutes hereinafter referred to. The defendants demurred to the complaint on the ground that it did not state facts sufficient to constitute a cause of action. The demurrer was sustained by the trial court, and the judgment was subsequently affirmed on appeal. The plaintiff's case is based entirely upon allegations that the statutes conferring new powers upon the defendants as the board of estimate and apportionment are void as in conflict with the state Constitution. This general conclusion is based upon various grounds and reasons that need not be referred to with much detail, since the whole argument rests upon one or two propositions that are controlling. The enactments attacked by the complaint were passed, or at least became laws, on the 27th of May, 1905, and consist in form of three separate statutes. Two of them are amendments to the charter with respect to the powers and duties of the board of estimate and apportionment and the board of aldermen. Laws 1905, p. 1533, c. 629; Laws 1905, p. 1548, c. 630. The other is an act which purports to amend chapter 4, p. 3, of the Laws of 1891, known as the ‘Rapid Transit Act.’ Laws 1905, p. 1550, c. 631. The general scope of the complaint is to the effect that the Legislature had no power to pass these laws, since it was an attempt to abolish or greatly restrict the powers and duties of the board of aldermen as the legislative and governing body of the city, and transfer these powers and duties to another board, namely, the board of estimate and apportionment.

It is argued that prior to the passage of these acts the power to grant franchises rested with the board of aldermen, while by the legislation in question the power of the aldermen over this subject was abolished and transferred to the board of estimate and apportionment. This changing of the statute in various ways constitutes the substantial element in the complaint, and it is necessary only to deal with that feature of the controversy. All franchises or privileges known by that term proceed from the state in the exercise of its sovereign powers. Through different mediums or agencies the state may act in granting franchises, but it is itself the source and depositary from which the right proceeds. Sometimes the franchise is conferred directly by the state through some grant or legislative enactment, but more generally the sovereign delegates its power to municipal or local authorities. It is in the manner of delegating the power to certain officers of the city of New York that it is claimed that the constitutional power of the Legislature has been transcended in this case. There can be no doubt that the Legislature had the power to repeal the charter in so far as it conferred power upon the board of aldermen to grant franchises. The authority that conferred the power could abolish it or take it away. It makes no difference that this power was exercised by the Legislature before the official terms for which the aldermen were elected had expired, since that body had no vested right to the continuance of any of the public powers or duties conferred upon them by the charter. Having abolished or greatly limited the powers of the aldermen with respect to the granting of franchises, the Legislature was not compelled to leave this power in abeyance, but might confer it upon any other local authority authorized by the Constitution. There is no constitutionalrestriction upon the power of the Legislature to delegate to local authorities the power to grant franchises for the use of the public streets or otherwise, except in one class of cases. The Legislature is forbidden by the Constitution to pass any local bill granting to any corporation, association, or individual the right to lay down railroad tracks, and, further, that no law shall authorize the construction or operation of a street railroad, except upon condition that the owners of one-half in value of the property bounded on, and the consent, also, of the local authorities having control of, that portion of the street or highway upon which it is proposed to construct or operate such railway shall be first obtained. Const. art. 3, § 18. Therefore the Legislature has no power, direct or indirect, to grant a franchise for the purpose of laying down railroad tracks in the street, except upon the conditions specified in this provision of the Constitution, and one of these conditions is that the consent of the local authorities having control of the street shall be obtained. As to all other franchises, the Legislature is not restricted in conferring power upon the local authorities.

It is contended by the learned counsel for the plaintiff that at the time of the passage of the acts in question the board of aldermen constituted the sole authority having control of the streets within the meaning of this provision of the Constitution. If this were so, we cannot see how it would restrict the Legislature from abolishing that power and transferring it to some other board or department of the city government. But it seems to us that the contention cannot be sustained as a matter of fact. When the various charters and statutes relating to the control of the streets of the city are examined it will be found that for certain purposes the board of aldermen possess certain powers. The board of estimate and apportionment possess the power to open and close streets and alter the city map, and the street commissioner or commissioner of public works possessed certain other powers in that respect. It was, therefore, competent for the Legislature, by the acts in question, to specify the particular body or board that should be deemed to have control of the streets within the meaning of the Constitution, and in this case it has designated for that purpose the board of estimate and apportionment. There is nothing in the Constitution to prevent the Legislature from making such a designation, or from changing it from time to time as the public interest may require, and that is substantially what the legislation in question seeks to accomplish. The burden is upon the plaintiff to point out the particular provision of the Constitution claimed to have been violated in the passage of these laws. The amendments were an exercise by the Legislature of its undoubted power with respect to the government of cities, and every presumption should be indulged in favor of the validity of its action. If, in the judgment of the Legislature, the board of estimate and apportionment was the proper body to intrust with the granting of franchises, we are unable to see wherein any right of the board of aldermen or of any other officer or individual has...