13 N.Y.2d 72 | NY | 1963
Lead Opinion
The simple question presented on this appeal is whether the complaint was properly dismissed on the ground that appellant lacks legal capacity to sue.
The appellant, who allegedly placed small wagers —$18 in all — at racetracks of several of the corporate defendants, brought this suit to have the difference paid to the State between the amount of the payments made to the State by such racetracks at the tax rates reduced by an amendment of the Pari-Mutuel Revenue Law (L. 1956, ch. 837) and the amount which the State would have obtained under the tax rates in effect prior to the effective date of that amendment, and to require payment in the future at the old rates. The respondents, joined by the Attorney-General, moved to dismiss the complaint on the ground that
Once again we are presented with an attempt to change the law of this State, which is also the law of the United States of America. We have always held that the constitutionality of a State statute may be tested only by one personally aggrieved thereby, and then only if the determination of the grievance requires a determination of constitutionality. Under that ruling an unaggrieved citizen-taxpayer, such as appellant, lacks standing to challenge a statute’s constitutional validity. Appellant’s contentions were rejected by this court in the case of Bull v. Stichman (298 N. Y. 516, affg. 273 App. Div. 311). In the Bull case the dissent in the Appellate Division was based on the cases appellant relies upon here (Matter of Kuhn v. Curran, 294 N. Y. 207, and Heim v. McCall, 214 N. Y. 629). This court’s unanimous affirmance in spite of the dissent disposed of the theory that the rule regarding taxpayers’ cases permitted exceptions.
Thus we have found anew that the rationale propounded in Doolittle v. Supervisors of Broome County (18 N. Y. 155) and Schieffelin v. Komfort (212 N. Y. 520) remains sound today. It seems to us proper ‘ ‘ that the courts of this state have denied the right of a citizen and taxpayer to bring before the court for review the acts of another department of government simply because he is one of many such citizens and taxpayers ” (Schieffelin v. Komfort, 212 N. Y. 520, 537, supra).
As Judge Chase stated in the Schieffelin case:
“ Jurisdiction has never been directly conferred upon the courts to supervise the acts of other departments of government. The jurisdiction to declare an act of the legislature unconstitutional arises because it is the province and duty of the judicial department of government to declare the law in the determination of the individual rights of the parties.
“ The assumption of jurisdiction in any other case would be an interference by one department of government with another department of government when each is equally independent within the powers conferred upon it by the Constitution itself.” (212 N. Y., supra, p. 530.)
This concept was later advanced by Mr. Justice Black in Perkins v. Lukens Steel Co. (310 U. S. 113, 132) when he said: “ Our decision that the complaining companies lack standing to*77 sue does not rest upon a mere formality. We rest it upon reasons deeply rooted in the constitutional divisions of authority in our system of Government and the impropriety of judicial interpretations of law at the instance of those who show no more than a mere possible injury to the public.”
The judgment appealed from should be affirmed, without costs.
Dissenting Opinion
(dissenting). The plaintiff, seeking to prevent the alleged misapplication of more than $42,000,000, sues as a citizen and taxpayer for a judgment declaring that section 45-a of the Pari-Mutuel Revenue Law (added by L. 1956, ch. 837) violates the constitutional prohibition against the expenditure of public funds to private parties (N. Y. Const., art. VII, § 8).
Although the rule is one which, judicially formulated, has been applied by this court for more than 100 years (see, e.g., Doolittle v. Supervisors of Broome County, 18 N. Y. 155; Kilbourne v. St. John, 59 N. Y. 21, 27; Schieffelin v. Komfort, 212 N. Y. 520; Bull v. Stichman, 298 N. Y. 516; Dorsey v. Stuyvesant Town Corp., 299 N. Y. 512, cert. den. 339 U. S. 981),
At the present time, virtually every state, either by decision or by statute — New York, by section 51 of the General Municipal Law — permits taxpayers to challenge local action and at least 34 states clearly sanction taxpayers’ suits at the state level, that is, actions by state taxpayers challenging state action; indeed, only two states — New York and New Mexico — squarely prohibit such actions. (See Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harv. L. Rev. 1265, 1278; Note, Taxpayers’ Suits, 69 Yale L. J. 895, 900-902.)
Of this there can be no possible doubt. The State has a vital concern, its People a deep interest, in seeing to it that the provisions of our Constitution are enforced, and unconstitutional
It is self-evident that the denial of standing to a taxpayer will in most instances prevent any challenge to an expenditure of state funds as violative of the Constitution. The suggestion in the opinion of the majority that the Attorney-General and other state officials may be relied upon to attack the constitutional validity of state legislation is both unreal in fact and dubious in theory. As to the Attorney-General, for example, it would seem more appropriate to his office that he defend a statute’s constitutionality when it is challenged than initiate an attack of his own. (Cf. Executive Law, § 71; and see, e.g., Matter of Roosevelt Raceway v. Monaghan, 9 N Y 2d 293.) Certainly, our Constitution does not entrust the determination of constitutionality to the executive branch of the government. But, in any event, if there is an official who is authorized to act and he declines to assert the invalidity of the statute, or otherwise raise that issue, the question whether the expenditures made pursuant to the statute’s provisions violate the State Constitution will never be subjected to judicial scrutiny.
The Constitution is a People’s document and the hypothesis that a citizen-taxpayer has no “ interest ” in state expenditures is little more than a legal fiction. It cannot be squared with the generally accepted doctrine that a taxpayer on the municipal level — where the issues are rarely of comparable importance — does possess the requisite “ direct and immediate ” interest to warrant his bringing an action to challenge the expenditure of municipal funds. (Massachusetts v. Mellon, 262 U. S. 447, 486, supra.) And, beyond that, as the Illinois Supreme Court declared in a case involving the alleged misappropriation of state moneys, the taxpayers’ “ownership of such funds and their liability to replenish the public treasury for the deficiency ”, which might be occasioned by their misuse, should be
Little is to be gained by extended discussion of the few arguments which have been put forward to support perpetuation of the rule denying standing to taxpayers on the state level, and I consider briefly but two of them.
Less than persuasive is the claim that the court’s assumption of jurisdiction in these suits in the face of inaction by the executive branch of government charged with the responsibility of preventing the waste of public funds 1 ‘ would be an interference by one department of government with another ”. (Schieffelin v. Komfort, 212 N. Y. 520, 530, supra.) Fundamental to our form of government is the principle that determination of the constitutionality of legislation is essentially a judicial function. And, this being so, it is difficult to understand how it may be said that a court, in making such a determination, would be interfering with another branch of government, or usurping the latter’s powers simply because it acts in a case initiated by a taxpayer. In brief, litigation such as this calls upon the courts to assess the constitutional validity of legislation, not to supervise the acts of another branch of government.
Nor do I find any basis for the concern — expressed in the Doolittle case (18 N. Y. 155, 162, supra) and elsewhere — that, opening the doors of the court to taxpayers would cause a flood of actions by officious meddlers. If there ever was reason for such a fear, it has been completely dispelled by the experience not only of the many jurisdictions where taxpayers’ suits on the state level have long been sanctioned but, indeed, of our own State of New York under the statute permitting municipal taxpayers to challenge the action of local officials (General Municipal Law, § 51). The New Jersey high court accurately appraised the situation when many years ago it observed that ‘‘ The general indifference of private individuals to public omissions and encroachments, the fear of expense in unsuccessful and even in successful litigation, and the discretion of the court, have been, and doubtless will continue to be, a sufficient guard to these public officials against too numerous and unreasonable attacks.” (Ferry v. Williams, 41 N. J. L. 332, 339; see Davis, Standing to Challenge Governmental Action, 39 Minn. L. Bev. 354, 430.) The courts undoubtedly can be relied upon to dis
In sum — although the Legislature could, of course, remove the taxpayer’s disability at a stroke, enforcement of the Constitution should not depend upon the will of the legislative branch any more than on that of the executive. The apathy of the average citizen concerning public affairs has often been decried; under the court-made rule now reaffirmed, it is being compelled. I would change the rule.
The judgment appealed from should be reversed and the motion to dismiss the complaint denied.
. We know from earlier litigation that this is no specious charge or feigned controversy. In Matter of Roosevelt Raceway v. Monaghan (9 N Y 2d 293), not only did the court expressly reserve the very question here sought to be raised (p. 303) but one judge actually expressed the view that section 45-a was “ constitutionally invalid ” in its entirety (pp. 311-315, per Dye, J., concurring).
. It is difficult to reconcile the cited cases with those involving challenged official action with respect to nonfiscal matters. (See, e.g., Matter of Cash v. Bates, 301 N. Y. 258, 261; Matter of Kuhn v. Curran, 294 N Y. 207, 213; Matter of Andresen v. Rice, 277 N. Y. 271, 281; 3 Davis, Administrative Law Treatise, op. cit., pp. 249-250.) In the Cash ease (301 N. Y. 258, supra), for instance, the court held that “the erroneous appointment * * * ought to be open to attack by the petitioners, because as citizens and taxpayers they are entitled to an opportunity to insist upon the construction which this court placed upon the civil service article of the State Constitution ” (p. 261).
. The Federal courts also deny standing to taxpayers attacking Federal expenditures. (See, e.g., Massachusetts v. Mellon, 262 U. S. 447.) However, the Supreme Court in the Mellon ease differentiated between taxpayers attacking the expenditures of the Federal Government and those challenging the expenditure of local funds. (See, also, Wieman v. Updegraff, 344 U. S. 183; Everson v. Board of Educ., 330 U. S. 1; Hart and Wechsler, The Federal Courts and the Federal System [1953], pp. 160-162.) 'Thus, observed the court in Mellon (262 U. S., at p. 486), “ The interest of a taxpayer of a municipality in the application of its moneys is direct and immediate and the remedy by injunction to prevent their misuse is not inappropriate. It is upheld by a large number of state eases and is the rule of this Court.”
Dissenting Opinion
(dissenting). I concur with all that Judge Fuld has said and would like to add that in this case, as in others, where a court-made rule has gained veneration by long user (Bing v. Thunig, 2 N Y 2d 656; Woods v. Lancet, 303 N. Y. 349 [cf. comments by Desmond, Ch. J., in dissenting opinion, People v. Lane, 10 N Y 2d 347]), it does not necessarily follow that such a rule should be interposed to give a benediction to a patently unconstitutional gift of over $42,000,000 of the State’s money to a private corporation (N. Y. Const., art. VII, § 8; Matter of Roosevelt Raceway v. Monaghan, 9 N Y 2d 293, 311). If a choice is to be made between constitutional observance and a rule such as Doolittle v. Supervisors of Broome County (18 N. Y. 155) and Schieffelin v. Komfort (212 N. Y. 520), the choice should and must be the Constitution. Further, our State government operates under a tripartite system pursuant to a constitutional form, which is reason enough for each branch of the government to be mindful of its mandate. The Doolittle rule has been widely criticized for reasons far less compelling than those presented by the facts of this case. Early in our history the courts favored the taxpayer. While we have come a long way since then, it is not too late to reinstate the dignity of the taxpayer. When wrong is threatened or actually accomplished, every taxpayer suffers a loss, for in the end it is his pocketbook that must bear the ultimate burden. The personal monetary interest
It is well settled that no person has a vested interest in any rule of law entitling him to insist that it shall remain unchanged for his benefit (New York Cent. R. R. Co. v. White, 243 U. S. 188; Munn v. Illinois, 94 U. S. 113; I. L. F. Y. Co. v. City Bent & Rehabilitation Administration, 11 N Y 2d 480; I. L. F. Y. Co. v. Temporary State Housing Bent Comm., 10 N Y 2d 263). I am not at all convinced that the racetracks of New York have such a vested interest in the Doolittle rule as to prevent testing the constitutionality of section 45-a of the Pari-Mutuel Revenue Law (added by L. 1956, ch. 837), a question which we expressly left open in Matter of Roosevelt Raceway v. Monaghan (supra).
For these reasons I vote to reverse the judgment appealed from.
Chief Judge Desmond and Judges Foster and Scileppi concur with Judge Burke ; Judge Fuld dissents in an opinion in which Judges Dye and Van Voorhis concur, Judge Dye in a separate opinion.
Judgment affirmed.
