243 A.D. 380 | N.Y. App. Div. | 1935
We are reviewing two orders of the Broome County Special Term, (1) denying appellants’ motion to dismiss plaintiff’s complaint for failure to state a cause of action, (2) granting an injunction pendente lite restraining defendants from interfering with plaintiff in the operation of his intrastate coal business.
Appellants constitute the Divisional Code Authority, Division No. 3, of the Retail Solid Fuel Industry. The jurisdiction of Division No. 3 extends to the entire State of New York except the counties comprising New York city and those on Long Island. Code of Fair Competition No. 280 for the Retail Solid Fuel Industry was approved by the President of the United States by an executive order dated February 14, 1934, which recited that the approval was pursuant to the authority vested in the President by title 1 of the National Industrial Recovery Act, approved June 16, 1933. A properly certified copy of the code was filed with the Secretary of State of the State of New York on February 24, 1934.
The suit is brought for a permanent injunction to restrain defendants from enforcing the numerous rules and regulations contained in the code in connection with the conduct by plaintiff of his intrastate retail coal business, particularly rule No. 5 thereof, which forbids a sale of solid fuel at retail under any terms and conditions so that a buyer shall pay a price less than that fixed by the code authorities. It is pleaded that threats to prosecute plaintiff civilly and criminally have been made by defendants. The defendants, by making the motion to dismiss the complaint, admit for the purposes of the motion, the truth of all the allegations of the complaint and all reasonable intendments arising from the facts pleaded, but argue that plaintiff has no cause of action because thereof, as the President’s executive order of February 14, 1934, justifies and empowers them to force plaintiff to conduct his coal business according to the code of “ fair competition.” The constitutionality of the National Industrial Recovery Act of June 16, 1933 (U. S. Code, tit. 15, chap. 15), was discussed by the Supreme Court of the United States in Panama Refining Co. v. Ryan (293 U. S. 388; 55 S. Ct. 241). That suit for injunction involved the
With so recent, direct and authoritative precedent, other and wider citations of authorities would be cumulative.
Defendants also argue that the Schackno Act (Laws of 1933, chaps. 781 and 783, of the State of New York) justifies their attempted control of plaintiff’s coal business. Section 1 of chapter 781 reads: “ Section 1. Legislative finding; statement of policy. A national emergency productive of widespread unemployment and disorganization of industry, which likewise prevails in the state of New York, which burdens intrastate, interstate and foreign commerce, affects the public welfare, and undermines the standards of living of the American people and of the people of the state of New York, is hereby declared to exist. The existence in this state of such present acute economic emergency, and the effects and certain causes thereof as declared in section one of title one of the national industrial recovery act, enacted by the congress of the United States, effective June sixteenth, nineteen hundred thirty-three, are hereby recognized; and it is hereby declared that said emergency, the causes and effects thereof, as so declared, relate as well to commerce in this state wholly intrastate in character as to interstate and foreign commerce and transactions affecting interstate and foreign commerce carried on in this state. It is hereby
The order denying defendants’ motion to dismiss the complaint should be affirmed, with ten dollars costs. The order granting an injunction pendente lite against the defendants should be affirmed, with ten dollars costs.
Rhodes, Bliss and Heefernan, JJ., concur; Rhodes, J., also votes to" affirm upon the grounds stated in his separate memorandum, in "which Hill, P. J., Bliss and Heefernan, JJ., concur; McNamee, concurs for affirmance, with a separate memorandum.
I concur with Presiding Justice Hill.
The Ninth Amendment to the Constitution of the United States provides as follows: “ Reserved rights of people. The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
The Tenth Amendment to said Constitution is as follows: “Powers not delegated, reserved to States and people respectively. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
The several States were separate and independent sovereignties at the time of the adoption of the Federal Constitution, and thus
The so-called Schackno Act does not create or establish any State agency or instrumentality for the carrying out of its declared purposes. By its terms a copy of each code in effect pursuant to the Federal act (NIBA) is permitted to be filed in the office of the Department of State of the State of New York, and provides that upon the filing of a copy of such code properly certified, as approved by the President of the United States, such code shall be “ the standard of fair competition ” in this State as to transactions intrastate in character. The adoption, administration and enforcement of any code are sought to be effected not by agencies of the State subject to State control, but by the President acting under the Federal law.
Thus, the Legislature has, to this extent, attempted to abdicate its powers and surrender the sovereignty of the State into the hands of the President. I do not believe that such power is reposed in the Legislature; it rests, if at all, in the People, to be accomplished by a change in the State Constitution.
It is true that the authority attempted to be granted is not irrevocable; the Legislature may at any time retake what it has attempted to bestow, but that involves a contingency which is not our problem. Our duty is to pass upon the validity of the statute as it now exists. I am unable to find any tenable theory upon which it may be upheld.
Hill, P. J., Bliss and Heffernan, JJ., concur.
We have here only a question of pleading, and a question of the propriety of granting injunctive relief pending the suit. Our decision calls only for a disposition of these two questions.
On the question of pleading, it appears from the complaint that an organized group who are unfamiliar to the law of New York are defending. This group have adopted a rule known as Order No. 3 E, part-of its code of fair practice; and thereunder they claim the right to control the conduct and the intrastate business of the plaintiff, and also the right to prosecute him criminally for disobeying their order, and they threaten to do so. Already they have done so to others, under a code known as No. 280. The contemplated prosecution is imminent, and the prospective damage
On the question of temporary injunctive, relief, it appears in the moving papers, and is not denied, that the rule in question was never filed with the Secretary of State. Chapter 781 of the Laws of 1933 (the Schackno Act, so called) affords the only color of authority for defendants’ claims to obedience and the only alleged basis for their threats of prosecution, pursuant to any rule enacted by them. Section 2 of that statute authorizes and requires the filing of certain codes and rules, and provides: “ Upon such filing of a copy so certified of a code of fair competition for any trade, industry or subdivision thereof, * * * or of any rule or regulation * * * such code * * * rule or regulation shall be the standard of fair competition for such trade or industry * * * and any violation of any provision of such code * * * shall be a misdemeanor,” and shall be punished by fine. The filing with the Secretary of State was a sine qua non to any validity of a code or rule enacted by defendants, even if the statute mentioned could impart validity to it as a part of the law of the State. This condition the defendants have not met, and admit the failure. Accordingly, they cannot defend even under the color of right to exercise any power over the plaintiff or his business. The injunctive relief pendente lite was properly granted.
Hence a complete disposition of the appeal before this court can be made without inquiry into the validity of the statute under which the defendants seek a dismissal of the complaint and a denial of the injunction. Until now they have disregarded it.
The orders should be affirmed.
Order denying defendants’ motion to dismiss complaint affirmed, with ten dollars costs and disbursements. Order granting injunction pendente lite against defendants affirmed, with ten dollars costs and disbursements.