48 Barb. 524 | N.Y. Sup. Ct. | 1867
The powers and duties which by this act are taken from the. municipal authorities and are entrusted to the defendants,-have been exercised■ by these authorities alone since there was any authority for the execution of-them by any public body. The power to license in many of those cases was given to the mayor by the 24th section of the Mont
The difficulty which occurs to me, however, on this branch of the case is, that no class of persons referred to in the 12 th • section of this act can be said to belong to public officers. A license to a person to follow any particular trade or business is not an appointment to office, nor does it confer any of the powers or privileges of a public officer. It is a mere license to follow his calling, whatever it may be. The duties to be performed are not public duties, and the public have no interest in their performance or omission. The object of the license is for the purpose of controlling the business and preventing its being conducted in a manner injurious to the public welfare. Beyond that, the public interest is not affected, and if the licensee neglects to act under his license, the public cannot complain.
The only ground of objection that can be taken to these provisions, under this article of the constitution, is, that officers to perform specific local and city duties are appointed by the state authorities, instead of being appointed by the city authorities or elected by the people.
Such has been the conclusion to which I have arrived, in regard to other laws of a similar character passed by the legislature within a few years past. Beginning with the case of The People v. Draper, (15 N. Y. R. 539,) down to the last case of The People v. Pinckney, (32 N. Y. R. 377,) it seems' to have been conceded that city officers in existence at the time of the adoption of the constitution, or persons to discharge their duties, could not be appointed by the state or legislature, but must be elected by the people or appointed by the county or municipal authorities. In the first case, (People v. Draper,) Denio, C. J. says : “ If the provisions of the statute had been limited, teritorially, to the city of Hew York, it would have been in conflict with the section of the constitution referred to. If the public duties, with which
In the¡ latter case of People v. Pinckney, Brown, J. in a dissenting, opinion relating to another point, remarks : “It is the power which this act gives to entrust the execution of the duty for providing for. the ■ prevention of fires to officers not elected by the people or appointed by local authorities, which;
I think, conflicts with the constitutionand-Davis, J. in the prevailing opinion, says : “ Conceding that a métropolitan fire district is created by the act,' composed of the cities of New York .and; Brooklyn, it cannot be doubted but that the officers created under it are limited in their' authority and functions to the city of New York.alone. In my judgment, their Appointment by the governor and'senate is nót.and cannot be justified, on the grounds that enabled this court to uphold the organization and appointments of the metropolitan police bill.” In Clarke v. City of Rochester, (28 N. Y. R. 605, 633,) Denió; C. J. says; in referring to several cases cited by him :. “ The principles settled' in these cases are, that the legislature cannot commit the power of enacting laws to any other body than itself, not even to all the electors of the state.” And again, “ While general statutes must be enacted by. the legislature, it is plain the power to make local.regulations having the force of law, in limited localities, may, be committed to other bodies representing the people in their local divisions, .or to the people of those districts themselves. Our whole system of local governments in cities, villages and towns, depend on that distinction. It is recognized in. the constitution itself, which prescribes to the. legislature the duty to provide for the organization of cities, incorporated villages, &c.; and it .contains an irresistible implication that the authority to lay local taxes, &c., may be constitutionally committed to local boards or councils within the cities and villages.”
If the principles settled in these decisions are correct, then'
Another objection to the validity of this law is made by the plaintiffs’ counsel, that it is a local law and embraces more than one subject.
In the case of The People, ex. rel. Bradley, v. Stephens, (2 Abb. N. S. 348,) this question was raised, with others, and a doubt was expressed by me whether a tax bill was a local act, within the meaning of the constitution. The decision of that question, at that time, was, however, unnecessary in disposing of that case, as the proceeding was for a mandamus, which was not a proper remedy where the title to an office was in dispute, and on the latter ground the application was denied.
The tax law, which contains these clauses; provides for extending the power of the metropolitan police, and this object is stated in the title. So far as there is any legislation, in regard to this board, it is not local, and the union with these provisions of others, relating to local matters, would not, necessarily, render such legislation void. I do not think it by any means clear that such an act can properly be declared a local act. Even if it should be held to be local, so far as it relates to the fax law, the other portions would not be, and it might be a serious question which should be rejected, the portion claimed to be local or that which is conceded to belong to general legislation.
Since the decision referred to above was made, the case of
Applying this description or definition of a local act to the portion of the one under consideration, containing the tax law, it would warrant the conclusion that it was local; and if so, it might 'he improper to place- in it any other subject than the one which it was the main object of the law to enact. It is not, however, necessary to place the decision of this case on this ground. There are two other propositions which are made, as to the validity of this section, viz. one that the legislature could not delegate to the hoard of metropolitan police the power of legislation ; and 2d, that the license fees being pledged to the sinking fund, the authority to repeal the laws granted to them is void and cannot be enforced. These two objections may both he considered under the question whether the legislature can thus delegate to the police hoard the power to legislate, as to licenses, and to aipend and repeal corporation ordinances.
The constitution provides ■ that the legislature may confer upon the board of supervisors powers of local legislation. The granting of such a power to the legislature naturally involves the supposition that they could not otherwise give such a power. If they could not give any such power to hoards of supervisors, without a constitutional provision, I am at a loss to see any authority to bestow such a power on a hoard created by themselves, and not a recognized body in the constitu
In Barto v. Himrod et al. (4 Seld. 483,) it was held that . laws could only be enacted by the legislative bodies to which the legislative power is committed by the constitution. I see no good reason why the legislature should be allowed to commit to the board of police the power to legislate, when they could not even submit to the people the question whether they would approve of a law. (See also Clarke v. City of Rochester, (supra.)
It is said that municipal corporations possess such powers, delegated to them by the legislature. The power of legislating is a neceslary right to a municipal corporation, and authority to confer on them legislative power, for local purposes, may be found in the ninth section of the eighth article of the constitution, which makes it the duty of the legislature to provide for the organization of cities and incorporated villages, &e. (See Bank of Rome v. Village of Rome, 18 N. Y. Rep. p. 38-41.) As such,' they were in existence when the constitution was adopted, and were recognized, and their charters continued. Such a recognition would confirm to New York all the chartered powers and authority possessed at that time.
As to the right to repeal these laws, so far as they provided revenues which had been pledged to the sinking fund, there can be no doubt as to the want of authority even in. the legislature.
The first act appropriating the revenues of the city to the payment of the public debt, was the act of 1812, chapter 99. That act pledged all the revenues of the corporation to the payment of the interest and principal of the debt then created, and they would continue so pledged until the final redemption of the stock. By the act of 1820, chapter 101, that pledge was applied to stock then to be raised, and so by the various acts passed it was continued. The act of 1838, chapter 127, authorizing the Croton water stock to be issued,
I cannot better conclude my remarks on these questions than by quoting the expressive language of an extract made by Chief Justice Davies, in The People v. Hills, above referred to. “ To maintain the constitution is our first duty, and if the legislature has, for any cause, encroached upon that sacred instrument, or if an erroneous construction has been given to it, we are imperatively called upon to declare its meaning and to assert its supremacy. Nothing can be more dangerous to our free institutions, or to the rights of the people, than to encourage doubtful interpretations of the constitution, contrary to its more plain and natural import, as understood by the great body of its readers.”
I will only add to this, that attempts to defeat clear constitutional provisions by resorting to technical evasions, should be equally resisted and frustrated by the courts.
Upon the ground ■ first stated, the plaintiffs are entitled to the relief asked for.
The plaintiffs claim that the twelfth section of the act of 1867, (chapter 806,) referred to in the case submitted to us, contravenes the provision of section two, article ten, of the constitution of this state, which de
The section of the act referred to commits to the board of metropolitan police all the powers and duties conferred by law upon the mayor, the common council, the mayor and council, and all other boards and officers of the city of New York, (except the metropolitan board of health,) in respect to the various subjects specified in the section, and also authorizes such board of police to alter, amend, modify or repeal all ordinances in force at the time of the passage of the act, concerning the powers, occupations or matters in said section mentioned. It is unnecessary at present to refer particularly to the subjects which the section enumerates ; it is sufficient to say, that they all relate to the government of the city, and are matters of police.
The Board of Metropolitan Police is composed of the commissioners of Metropolitan Police who are officers of the metropolitan police district, and are appointed by the governor with the consent of the senate. The district consists of the counties of New York, Kings, Westchester and Richmond, and certain towns in the county of Queens. (Laws of 1857, eh. 569 ; of 1860, eh. 259.)
It is argued on the part of the plaintiffs that as the provisions of the section under consideration are limited territorially to the city of New York, and the duties which they devolve upon the Board of Metropolitan Police are city duties, exclusively, the section violates the spirit of the constitutional provision referred to.
• The constitutional provision invoked by the plaintiffs has been the subject of discussion and adjudication in the Court of Appeals. The case of The People v. Draper, (15 N. Y. Rep. 532,) presented the question of the constitutionality ofj the act of 1857, which created the metropolitan police district,
The views of the Court of Appeals upon this point were again distinctly presented in the case of The People v. Pinckney, (32 N. Y. Rep. 377.) That case involved the constitutionality of the act of 1865, creating the metropolitan fire district. The bill united the cities of New York and Brooklyn into a district “ to be known as the Metropolitan Fire
The principle so clearly and firmly established by the case of Draper and that of Pinckney, is fully applicabló to the case in hand. The functions and duties transferred by the twelfth section are local, and confined to the city of New York. "It is true, the officers to whom they are committed, are not merely local officers, and their offices were not created by the bill itself. But their offices were created since the adoption of the constitution, and they were appointed by the state authorities, and as the functions conferred on them by the section under review are purely local, the case is the same, with reference to the present question, as if the metropolitan board of police had been brought into existence by the act of 1867, with no other powers than those committed to them by the twelfth section. Thus viewed, the case obviously falls within the principle referred to, and must-be controlled by it, unless excepted from its operation, by the considerations which prevailed in the case of Pinckney.
To those, more particular attention will now be directed. The functions which were committed to the new officers created by the act reviewed in that case, were of two classes : (1.) Those which were heretofore vested in. the fire department of the city of New York, and (2.) Those which were given to “ The mayor, aldermen and commonalty of the city in common council convened,” and were part of their general corporate powers as an administrative and legislative body.
In respect to the first class, it was held that neither the corporation called “ the fire department of the city of New York,” as it existed previously to and at the time of the act in question, nor the officers elected under the provisions of its charter, nor the firemen who were members of the department, were public or civil officers within the meaning of the constitution. That “ the corporation was not a municipal or political body, and neither it nor its officers occupied any
The second class of functions consisted of an authority in the corporation of the city, to appoint the firemen and their officers, and power to legislate generally for their regulation. These were held to be no part of the official duties of individual officers composing the common council, but to be vested in the corporation, and it was also held that the corporation of the city is not an officer within the meaning of the tenth article. It was said that “ to diminish or restrain its general legislative or administrative power as a body corporate, is not to abrogate or change a public office in the sense of the constitutional restriction.”
I cannot adopt the conclusion, that the legislation contained in the twelfth section can be justified upon either of the grounds above stated. Unquestionably, the functions attempted to be transferred, are those of public officers. They are not only the powers of the mayor and common council acting together as the legislative body of the city,- hut all the powers and duties, respecting the subjects specified, of the mayor as the sole chief executive and administrative officer of the city, of the common council acting independently of the mayor, and of all other hoards and officers of the city, with a single exception. The subjects to which these functions relate are various and extensive. Some pertain to classes of persons engaged in particular occupations and callings ; others affect the convenience and comfort of the citizens at large. The section transfers the control of every public conveyance, by land, for the transportation of persons or property, and of every place of public amusement. And not only does it transfer all functions of an administrative or .executive nature, pertaining to the subjects enumerated, hut also the power of altering or repealing all existing ordinances in relation to them. By the act establishing the metropolitan police dis
If these important powers can be taken from the city officers who have heretofore exercised them, and be centered in a new class of officers, not elected by the citizens, nor appointed by the city authorities, and who, as to the functions thus conferred, are purely local officers, acting only within the city, the constitutional limitation referred to is no protection to the rights intended to be preserved by it, for in like manner, every function of every local officer whatever, may be transferred to new local officers created by the legislature.
It is unnecessary to examine the other questions discussed on the argument. Upon the grounds above stated, I am of opinion that the plaintiffs are entitled to judgment declaring the provisions of said twelfth section unconstitutional and void, and restraining the defendants from exercising any of the powers conferred by it.
Sutherland, J. concurred.
Judgment for the plaintiffs.
Ingraham, Sutherland and James C. Smith, Justices.]