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Gubner v. McClellan

Supreme Court of New York, Appellate Division

March 12, 1909

ALDOLPH C. GUBNER
v.
MCCLELLAN, MAYOR, ET AL.

[115 N.Y.S. 756] John Leary, for appellant.

George S. Coleman (John F. Dillon, on the brief), for respondent the Public Service Commission.

Argued before INGRAHAM, McLAUGHLIN, LAUGHLIN, CLARKE, and SCOTT, JJ.

CLARKE, J.

This is a taxpayer's suit to restrain the mayor, comptroller, and chamberlain of the city of New York from paying to the Public Service Commission of the First district, or to any person at its direction, the moneys required to be appropriated and paid by section 14, c. 429, p. 897, of the Laws of 1907, upon the ground that any such payments would be illegal official acts and a waste of the funds of the city. Plaintiff applied upon the summons and complaint for an injunction pendente lite. The application was denied. From the order entered thereon, plaintiff appeals.

The complaint attacks the constitutionality of the Public Service Commissions law, being chapter 429, p. 889, of the Laws of 1907, entitled, " An act to establish the Public Service Commissions and prescribing their powers and duties, and to provide for the regulation and control of certain public service corporations and making an appropriation therefor." The complaint presents fourteen alleged violations [115 N.Y.S. 757] of the state Constitution, and objections under three separate provisions of the federal Constitution.

The appellant has argued upon this appeal but two of the constitutional questions so raised: First, that the act offends section 16, art. 3, of the state Constitution, which provides that " No private or local bill which may be passed by the Legislature shall embrace more than one subject, and that shall be expressed in the title; " and, second, that portion of section 10, art. 8, of the Constitution of the state which provides that, " Nor shall any such county, city, town or village be allowed to incur any indebtedness except for county, city, town or village purposes." We confine our consideration, therefore, to the questions so presented upon this appeal:

First. Section 14 of the act provides as follows:

" (1) The salaries of the commissioners, the counsel to the commission, and the secretary to the commission in the First district shall be audited and allowed by the State Comptroller, and paid monthly by the State Treasurer upon the order of the Comptroller out of the funds provided therefor. All other salaries and expenses of the commission of the First district shall be audited and paid as follows: The board of estimate and apportionment of the city of New York, or other board or public body on which is imposed the duty and in which is vested the power of making appropriations of public moneys for the purposes of the city government shall, from time to time, on requisition duly made by the Public Service Commission of the First district, appropriate such sum or sums of money as may be requisite and necessary to enable it to do and perform, or cause to be done and performed, the duties in this or in any other act prescribed, and to provide for the expenses and the compensation of the employés of such commission, and such appropriation shall be made forthwith upon presentation of a requisition from the said commission, which shall state the purposes for which said moneys are required by it.*** It shall be the duty of the auditor and comptroller of said city, after such appropriation shall have been duly made, to audit and pay the proper expenses and compensation of the employés of said commission, other than its counsel and secretary, upon vouchers therefor, to be furnished by the said commission, which payments shall be made in like manner as payments are now made by the auditor, comptroller or other public officers of claims against and demands upon such city; and for the purpose of providing funds with which to pay the said sums, the comptroller, or other chief financial officer of said city, is hereby authorized and directed to issue and sell revenue bonds of such city in anticipation of receipt of taxes and out of the proceeds of such bonds to make the payments in this section required to be made. The amount necessary to pay the principal and interest of such bonds shall be included in the estimates of moneys necessary to be raised by taxation to carry on the business of said city, and shall be made a part of the tax levy for the year next following the year in which such appropriations are made. ***
" (2) All salaries and expenses of the commission in the Second district shall be audited and allowed by the State Comptroller and paid monthly by the State Treasurer upon the order of the Comptroller, out of the funds provided therefor."

The argument is that the provision requiring the city to pay the expenses and salaries of the employés of the commission for the First district, other than its counsel and secretary, makes this act a local bill; that thereby the act embraces more than one subject and a subject not expressed in its title, and so violates section 16, art. 3, of the Constitution. That constitutional provision was designed to remedy and prevent two legislative evils: (1) The grouping of two or more separate matters in a single private or local bill; and (2) the failure to express in the title of the bill the single subject to which it relates.

[115 N.Y.S. 758] " The purpose of the sixteenth section was that neither the members of the Legislature nor the public should be misled by the title, not that the latter should embody all the distinct provisions of the bill in detail." Sun Mutual Ins. Co. v. New York, 8 N.Y. 241.

" The degree of particularity with which the title of an act is to express its subject is not defined in the Constitution, and rests in the discretion of the Legislature.*** An abstract of the law is not required in the title." Brewster v. City of Syracuse, 19 N.Y. 117.

" The learned counsel for the appellant insists that the act of 1866 (Laws 1866, p. 818, c. 367) is unconstitutional, saying, ‘ Its title does not express its title’ . It is ‘ An act relative to the powers and duties of the commissioners of Central Park,’ and a careful scrutiny of its provisions has not enabled us to discover in what respect-having in mind repeated decisions in answer to such objections-the title could be improved. It expresses a general object, and it must now be considered as the settled rule of construction that where such is the case all matters fairly and reasonably connected with it, and all measures which will or may facilitate its accomplishment, are proper to be incorporated in the act and are germane to the title. People v. Briggs, 50 N.Y. 553; In re Mayer, 50 N.Y. 504; In re Department of Public Parks, 86 N.Y. 437; In re Upson, 89 N.Y. 67; Water Com'rs of Clinton v. Dwight, 101 N.Y. 9, 3 N.E. 782.Those now before us are strictly within this rule. The provisions of the act, if literally applied, would include no matter not intrusted to the commissioners, nor any subject over which they are not by terms given jurisdiction. Each section of the act defines a power or prescribes a duty of the commissioners." Matter of Knaust, 101 N.Y. 188, 4 N.E. 338.

It may be said, in passing, that the reason for the original enactment of the constitutional provision now under consideration, and for its strict construction, viz., that legislators and the public might have clearly before them the proposed legislation, and might not be deceived by inadvertence, or by trick or device in adoption of laws of which they had no ...


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