Adler v. Deegan , 251 N.Y. 467 ( 1929 )

I vote for affirmance.

If this statute relates to the "property, affairs or government" of a city and is special and local in its effect, it could have been validly enacted only on an emergency message from the Governor and by a two-thirds vote of each house (Const. art. XII, § 2). Concededly, it applies to only one city and was passed by less than a two-thirds vote without an emergency message. It does not touch any municipal property. The question, then, is whether, in the sense intended by the Constitution, it relates to the "affairs" or to the "government" of the city of New York. Never has a definition of these words been framed by this court. Neither has an attempt been made to mark with precision the limits of the field within which a city may legislate. (Browne v. City ofNew York, 241 N.Y. 96, 125.) The statute interpreted in Peopleex rel. Einsfeld v. Murray (149 N.Y. 367) was a general excise law applicable to the entire State. In Admiral Realty Company v. City of New York (206 N.Y. 110) the Rapid Transit Act there considered was passed before the constitutional provision, with which it was claimed to conflict, went into effect. In Matter ofMcAneny v. Board of Estimate (232 N.Y. 377) a decision respecting the scope of article XII, section 2, as it then read, was not necessary for a determination of the appeal. Since the adoption of the Home Rule Amendment the classification of cities has been terminated and all are regarded as belonging to one class for the purposes of legislation.

Extremely difficult is the effort to dislodge from the mind the thought that, when a power or a function has been conferred or a duty or an obligation has been imposed upon a municipal corporation, those faculties become part of the city's affairs or government. "Affairs" must necessarily include something more than a mere business transaction like the execution and performance of a construction contract or the administration of an appropriation. Within its meaning seem to be comprehended all those elements which directly constitute a city's concerns. "Government" was probably not intended to be restricted to the mere form of machinery by which a public corporation regulates and controls local matters. Doubtless the word was expected by the framers of the Constitution to be interpreted by the courts as embracing a larger significance. Executive acts, both discretionary and ministerial, the adoption of ordinances and resolutions by boards of aldermen and other bodies, all go to make up that political fabric known as government. The grant to municipalities by Constitution or statute of the right to perform functions either corporate or governmental is a recognition that such functions pertain to a city and such a grant takes them into the category of municipal affairs or government. This conclusion is strengthened, if indeed not actually demonstrated, by the language of the Home Rule Amendment. With what subjects does article XII deal except municipal property, affairs and government? Section 2 prohibits the Legislature from passing any law relating to them unless it shall be enacted in the manner therein designated. Section 3 specifically enumerates definite matters or concerns over which the power to legislate, not inconsistently with the Constitution and laws of the State, is delegated to each city. Among these specific matters is the "government and regulation of the conduct of its inhabitants and the protection of their property, safety and health." Section 5 authorizes the Legislature to confer upon cities "further powers of local legislation and administration." The grant of this extensive fragment of the police power coupled with language denoting that its exercise is regarded as part of local legislation and administration indicates an intention to range in the catalogue of municipal affairs and government all those health and safety measures which are essentially local in their operation. If the framers of the Constitution harbored a different purpose, the context is most misleading. The inference is not only reasonable, it seems almost irresistible, that they intended to include such matters within the scope of those things upon which a city may legislate until the State acts by general laws applicable to all cities or in an emergency declared by the Governor. Among the powers vested by statute in the corporation of the city of New York, previous to the adoption of the Home Rule Amendment, was authority lodged in the Board of Aldermen by section 407 of the Greater New York Charter to adopt a Building Code and in the Board of Estimate and Apportionment by section 242-a of the same law to regulate and limit the height and bulk of buildings and to determine the area of yards, courts and open spaces in the interest of safety, health and welfare. Similar and additional elements of the police power had also been delegated by section 20 of the General City Law (Cons. Laws, ch. 21). The city accepted these grants of power and enacted a Building Code and adopted a Zone Resolution. Surely these local legislative measures are acts of government and the transactions resulting from them have mingled with and become components of the city's other affairs. Any statute directly affecting these acts or adding to or subtracting from the authority of the local officials having jurisdiction over them cannot reasonably be excluded from a list of laws which relate to the affairs or government of the city.

When the zone of municipal affairs and government overlaps that of State affairs and government, as almost invariably is the fact, how can a decision be reached except by an estimate of the extent of each and a determination in respect to the inquiry whether the interest of one or the other is overwhelming in its preponderance? The Constitution declares that cities may legislate concerning subjects relating to their own property, affairs and government but may not legislate in respect to any other matter. The same organic law continues the State's right to enact laws relating to matters other than the property, affairs or government of cities, nor does it abrogate the State's power over municipal concerns except in respect to the manner of controlling them by two-thirds vote after an emergency message or by general laws. So if the subject be one relating to city property, affairs or government, the city may act, but if relating to other matters, the State may legislate without conforming with the limitations of article XII, section 2. I do not see how the court's duty can be avoided to determine in each instance the general aspect and the dominating influence of State or city interest. A municipality has no inherent interest or power. Unless its rights proceed from Constitution or statute, none exists. Every authority which it possesses, every right incident to its being, can truly be said to partake in some measure of a character akin to that of the State. A municipality is nothing except a creature and a subdivision of the State. Distinctions between corporate and governmental functions have become so nearly obliterated as to be incapable of classification on any logical basis. There is scarcely an act of local government that cannot be tortured into one of sovereignty or, in any event, into one in which all the people are to some extent indirectly interested. Probably few statutes could be proved beyond doubt to be exclusively local in their indirect influence. A law fixing the site of a garbage incinerator on a certain street in Buffalo could by an elastic interpretation be shown to have some remote effect upon the health of travelers proceeding from Duluth to Syracuse. A statute enlarging the fire department at Tupper Lake could not be held absolutely and at all events to bear no relation to the protection of the public domain within the Adirondack forests. The laying out of a park in a congested section of the metropolis or the establishment of public baths or the cleaning of a filthy street certainly affects the health and welfare of the inhabitants of the entire State to an extent at least equal to the installation of a lamp of prescribed illuminating power in a multiple dwelling. Non-residents might stumble and fall in the unlighted hallway of a multiple dwelling. Many are known to have done the same on a defective sidewalk. Courts exist for the purpose, among others, to decide, when each occasion arises, whether certain things are part of the affairs and government of the city, or of the State, within the purview of the Constitution. This statute now before us cannot, any more than innumerable other laws, be utterly divorced from all effect upon the health, safety and well-being of people residing outside New York city. Its relation to the State as a whole must, however, be considered so extremely remote as to be almost entirely negligible. Its underlying purpose is the protection of occupants of multiple dwellings located in one city. It is primarily, predominately, overwhelmingly and essentially local in its operation. I think the proposition is plain that, by article XII, section 2, of the Constitution, the execution of the purpose embodied in this statute relates to the affairs and government of that city, and, therefore, that any law carrying it out may be enacted only in the manner commanded by section 2 of that article. I am aware, of course, that this view might lead at times to conflicting judicial interpretations and might imperil the validity of other legislation, yet a different result bears with it the graver danger of depriving cities of the exercise of local self-government which is the cardinal principle of article XII.

When the sovereign delegated to its creatures the authority to adopt and administer measures of government, it did not release its own grasp on those subjects. It retained ultimate control over the health and safety of all the inhabitants of the State. The procedure by which this control shall be exerted was, however, restricted when it bound itself to act only in the way which it selected for itself in section 2 of the Home Rule Amendment. It can now enact a multiple dwelling law by making it applicable to every city in the State. If such legislation were to be deemed unwise, and doubtless it would be so considered, the sovereign still possesses the constitutional power, which has never been abdicated, to pass this identical statute by a two-thirds vote on an emergency message.

CARDOZO, Ch. J., and POUND, J., in separate opinions, concur with CRANE, J.; KELLOGG and HUBBS, JJ., concur in opinions of CRANE and POUND, JJ., and of CARDOZO, Ch. J.; LEHMAN and O'BRIEN, JJ., dissent in separate opinions.

Judgment reversed, etc.