127 Misc. 56 | N.Y. Sup. Ct. | 1926
Plaintiff in a taxpayer’s action moves to restrain payment to defendant Enright of a pension of $5,000 a year purporting to have been granted pursuant to the provisions of section 14-b of the General City Law (as added by Laws of 1924, chap. 509), providing that “ any person, including a police commissioner, who has * * * or shall have performed duty in the uniformed
police force of any city for a period of twenty years and upwards and who has served as police commissioner * * * for a period of three years, and who is now serving as such, may,” upon stated conditions, be “ granted an annual pension equal in amount to one-half the salary of police commissioner * *
The statute is attacked as repugnant to the so-called Home Rule Amendment of the Constitution (Art. XII, § 2), which prohibits State legislation “ relating to the property, affairs or government of cities, which shall be special or local either in its terms or in its effect ” without an emergency message of the Governor and a concurring vote of two-thirds of the Legislature. Concededly there was no emergency message of the Governor. The crucial question is whether the statute is “ special or local either in its terms or in its effect.”
Defendants urge that the court must answer this question by an examination of the statute alone and hold the statute general, if it so calls itself. Authority sustained this proposition prior to the Home Rule Amendment when the question of the generality of a statute arose under the old form of article XII, section 2, providing for veto by the mayor of a special or local bill. Beginning with Matter of New York Elevated R. R. Co. (70 N. Y. 327), the Court of Appeals held the generality of the language of the statute controlling. (Matter of Church, 92 N. Y. 1; Ferguson v. Ross, 126 id. 459; People v. Dunn, 157 id. 528; Kittinger v. Buffalo Traction Co., 160 id. 377; Hermitage Co. v. Goldfogle, 204 App. Div. 710; affd., 236 N. Y. 554.) In Matter of Henneberger (155 N. Y. 420) only, by a sharply divided court, it was held that the generality of expression in the statute “ should not be decisive of the question of its constitutionality.” The prevailing rule became the object of continual criticism by the advocates of municipal home rule. Accordingly, in the Home Rule Amendment was inserted the simple, clear and unmistakable limitation on the Legislature that a statute could be special or local neither in its terms nor “ in its effect.”
The beneficiary of this section 14-b of the General City Law is required to be a person who (1) shall have performed duty in the uniformed police force of the city for twenty years or more; (2) who has served as police commissioner or as deputy police commissioner for a period of three years; and (3) Cl who is now serving as ” a police commissioner. Defendant Enright’s argument that, since the first two conditions may be met in futuro, they should not be deemed to contract this legislation into a special bill is negatived by the third requirement that the beneficiary must be “ now serving as ” a police commissioner. The language of the act itself is so extreme in narrowing its content, that even if the Home Rule Amendment had not been passed I should hold it sufficiently exceptional to come within the condemnation of Matter of Henneberger (155 N. Y. 420). Its very terms proclaim it special and local. But the added duty is imposed on the court by the Home Rule Amendment to judge the statute by its effect, as well as by its' terms. Plaintiff’s affidavits show that there was in the State of New York at the time this statute Was passed no discoverable police commissioner who fulfilled all three requirements- other than the defendant Enright. Enright’s affidavit lists a number of cities in which there were police commissioners. It makes no showing that any of such commissioners met the other two requirements.
It fails to meet the specific allegations in the plaintiff’s affidavits, from which the inference is irresistible that this act applies to but one man in one city. Heed must be given to facts of general knowledge amply indicated by affidavit and the judicial eye may not be blind to obvious actualities. The law cannot apply to any individual other than Enright nor to any city other than New York. It is, therefore, local, special and unconstitutional.
The defendants ask, however, that the order at least allow a ■ pension under section 355-a of the Greater New York charter (as added by Laws of 1918, chap. 651), which provides “ service as police commissioner * * * by a member of the police force
shall be deemed the performance of duty on such force,” and that “ any member of the police force who shall have performed duty on such force for a period of twenty years, and for at least six months as police commissioner * * * may be * * *
placed upon the pension roll of the ” department with the pension of a chief inspector.
In Schieffelin v. Enright (200 App. Div. 312) it was held that Commissioner Enright was not entitled to a pension under this section.. It was there laid down that the section could operate ,
Motion granted. Settle order on notice.
