| NY | Jun 5, 1953
Dissenting Opinion
(dissenting). I agree that a justiciable controversy exists, which has not been rendered moot, by the execution of the lease between the city and the Transit Authority and that we may, accordingly, deal with the problem on its merits. A majority of this court is about to decide that the Transit Authority legislation (L. 1953, ohs. 200-208) “ on its face ” does not appear to be “ unconstitutional.” With this I cannot agree.
The People, as every one knows, have vested the legislative power in the Senate and Assembly (N. Y. Const., art. Ill, § 1). Nonetheless under the home rule provisions the Legislature is prohibited from enacting any laws in relation to the ‘ ‘ property, affairs or government ” of any city except when requested by the city affected and then only upon “ the concurrent action of two-thirds of the members of each house of the legislature ’ ’ (N. Y. Const., art. IX, § 11).
The statutes now under consideration, on their face, have reference only to New York City and, dealing as they do with the city-owned transit system, must meet the test of the Constitution if validity is to be accorded. Never before has the State intervened to require a city to turn over to an appointed authority the control, operation and management of a vast proprietary interest such as is involved here. Regulation of utilities, including transportation within the province of the Public Service Commission or the Rapid Transit Commission, is something quite different from the complete assumption and control authorized by the Transit Authority laws.
It is no answer to our problem to say that the Transit Authority Act authorizes but does not compel the city to turn over its transit facilities by “ deed, lease, license or other arrangement, provided the term thereof shall not be less than ten years ” (L. 1953, ohs. 200-201). To he sure the language used connotes permission, but the permission is so intertwined with the fiscal aspects of the tax laws enacted as a part thereof (ohs. 202-208) as to make any choice wholly illusory. It may not he denied that if the city is to have the benefit of the tax laws, it must divest itself of the control of its transit system or, to state it simply, the city must either choose to comply with the Transit Authority provisions or else forfeit the additional taxes — a choice of a sort but nonetheless, for all practical purposes, without an alternative. Even though the laws he treated as permissive, we cannot escape the conclusion that they nonetheless d";-1 solely with the 11 property, affairs or government ” oí A-City of New York.
The existing home rule provisions of the Constituí ica adopted by the People, after many rears of struggle for local self-government are, as wo have heretofore .-.tided, intended to vest in the cities of the State increased cod roi of iheir own “ property, affairs and govei rmivui (Malta- of II oil a ml v.
The presumption attending the constitutionality of legislative enactments is not being overlooked. By the same token, we may not disregard the threat to constitutional government that lurks in a piecemeal whittling away of constitutional mandates. To accord these statutes validity because the act does not appear to be “ on its face unconstitutional ” is to create a pattern for future guidance the effect of which will eventually, if it has not already done so, vitiate constitutional home rule. The power to withhold or to grant the right to tax on condition may indeed become a formidable weapon of unlimited possibilities.
The judgment appealed from should be reversed and a judgment entered granting the relief demanded in the complaint.
Lewis, Ch. J., Conway, Desmond, Fuld, Froessel and Van Voorhis, JJ., concur in Per Curiam opinion; Dye, J., dissents in opinion.
Judgment accordingly.
Lead Opinion
This is a taxpayer’s action to enjoin the City of New York from entering into any kind of agreement with the New York City Transit Authority pursuant to chapters 200-208 of the Laws of 1953, and for a declaratory judgment determining that no transaction which those statutes purport to authorize can be executed due to their alleged unconstitutionality. The action was begun before any lease or other form of agreement had been made between the city and the Transit Authority respecting the subways; indeed, before the members of the Authority had been appointed.
The statutes in question are permissive only, in a field in which the State is concerned. Under these circumstances, and assuming that any transfer will not be by absolute conveyance, but by a lease of limited term with reversion to the city, we cannot say that the legislation is on its face unconstitutional. Whether it would be constitutional without those concomitants need not now be decided. Arguments addressed to policy are not within our province. Whether the statutes will be constitutionally applied, or whether other constitutional questions, not now foreseeable, will arise, we cannot know in advance. Such problems, if any, must be dealt with when presented.
The judgment should be modified in accordance with this opinion and, as so modified, affirmed, without costs.