69 Misc. 2d 958 | N.Y. Sup. Ct. | 1972
By notice of petition and petition served upon the Attorney-General on January 27,1972 and upon the President of the State Tax Commission on January 31,1972, the petitioners seek a declaratory judgment pursuant to article 30 of the CPLR and an order pursuant to article 78 of the CPLR in the nature of mandamus directing the State of New York and, specifically, the President of the State Tax Commission, Norman F. Gallman, ‘ ‘ to collect no further monies, from such date as the court believes practicable (so as not to upset normal functions in operations of state government) in accordance
Respondents by notice of motion have moved to dismiss the petition upon the following grounds:
(1) The petitioners lack legal capacity to bring this proceeding.
(2) The State of New York has not consented to be sued in the Supreme Court and is immune from such suit. The court therefore lacks jurisdiction of the subject matter of the cause of action. The court does not have jurisdiction over the State of New York or of the person of the respondent, Norman F. Gall-man, President of the State Tax Commission.
(3) The petition fails to set forth a justiciable controversy that would lend itself to a declaratory judgment.
(4) The petition fails to set a cause of action either as a proceeding under article 78 of the CPLR or as an action for a declaratory judgment.
(5) The petition has not been signed and verified by all the petitioners as required by law.
The petition alleges that this proceeding is brought by five categories of petitioners, viz., 14 members of the New York State Legislature, 2 taxpayers, 2 citizens groups representing over 10,000 taxpayers, 2 recipients of State services and 1 former employee of the State of New York.
The law of this State as enunciated by the Court of Appeals forecloses consideration of the complaints of Assemblymen (Matter of Posner v. Rockefeller, 26 N Y 2d 970), State employees (Hidley v. Rockefeller, 28 N Y 2d 439) or private citizens as taxpayers (St. Clair v. Yonkers Raceway, 13 N Y 2d 72) as those complaints may relate to appropriation bills enacted indi
This view is unquestionably the position of the courts of this State and, to a degree, is inconsistent with the position of the Federal judiciary as enunciated in Flast v. Cohen (392 U. S. 83). In that case the United States Supreme Court struck down a 45-year-old ruling (Frothingham v. Mellon, 262 U. S. 447) that a Federal taxpayer was without standing to challenge the constitutionality of a Federal statute solely on the ground that he lacked capacity or 4 4 standing ’ ’ because of his inability to distinguish or differentiate himself from all other taxpayers. In the Flast v. Gohen (supra) action, however, it must be noted that the challenge to the statute was on the ground that it violated the Establishment and Free Exercises Clauses of the First Amendment. The gravamen of the complaint was that Federal funds appropriated under the challenged statute were being
The subtleties and nuances that presently exist between the New York and Federal positions on the question of “ standing ” are, however, of no avail in this case. In the case at bar the petitioners, in all five categories, have not framed a complaint. The matter is before the court on petition. There is, therefore, no showing that any one or all of the revenue measures passed at the Second Extraordinary Session of the Legislature had any effect on any one of the petitioners. Absent such evidentiary allegations even a Federal court would be unable to discern a
It is the finding of this court that none of the petitioners in any of the five categories has ‘ ‘ standing ’ ’ to challenge chapters 1, 2, 4, 5 and 10 of the laws of the Second Extraordinary Session of 1971.
The court does not pass on any other issue sought to be raised by the petition herein.
The respondents’ motion to dismiss the petition is granted.
Chapter 1 increased the amount of tax payable on taxable income. Chapter 2 amended the law to raise the tax on cigarettes from 12 cents per pack to 15 cents. Chapter 4 raised the tax on gasoline and diesel fuel by 1 cent per gallon. Chapter 5 raised the excise tax on liquor from $2.25 per gallon to $3.25 with a lesser tax being imposed on liquors with less than 24% alcohol including wine and beer. Chapter 10 adds a new article, article 26-A to the Tax Law which imposes for the first time a tax on transfer of property by gift.