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MILTON M. BERGERMAN v. JOHN V. LINDSAY (01/21/69)
SUPREME COURT OF NEW YORK, SPECIAL TERM, NEW YORK COUNTY
1969.NY.40220 <http://www.versuslaw.com>; 297 N.Y.S.2d 421; 58 Misc. 2d 1013
January 21, 1969
MILTON M. BERGERMAN, INDIVIDUALLY AND AS CHAIRMAN OF THE CITIZENS UNION OF THE CITY OF NEW YORK, INC., PLAINTIFF,v.JOHN V. LINDSAY, AS MAYOR OF THE CITY OF NEW YORK, ET AL., ALL CONSTITUTING THE BOARD OF ESTIMATE OF THE CITY OF NEW YORK, DEFENDANTS
Samuel D. Smoleff for plaintiff.
J. Lee Rankin, Corporation Counsel (John J. Loflin and Judith Grad of counsel), for John V. Lindsay, defendant.
Charles S. Desmond for Frank D. O'Connor and others, defendants.
Saul Streit, J.
Pursuant to CPLR 3212, plaintiff moves for summary judgment and judgment on the pleadings in his favor restraining defendants, as members of the Board of Estimate of the City of New York, from passing upon and approving, disapproving or changing proposed budgets of the City of New York, and from exercising any other alleged legislative powers.
The material facts are not in dispute. There is no issue regarding the allegations of plaintiff's complaint as to the great disparity in population among the five boroughs of the City of New York, nor do defendants deny that despite such variation, the City Charter gives each borough the same vote in the Board of Estimate (see New York City Charter, §§ 61, 62).
It is plaintiff's contention, however, that sections 119, 120, 121, 124, 128, 221, 222, 223 and 224 of the New York City Charter, all of which relate to city budget and allied fiscal matters, violate the Constitution of the United States. He asserts that these provisions confer upon the Board of Estimate (hereinafter referred to as the "Board") the power to participate in the adoption of expense budgets and capital budgets and thereby deny to each citizen and voter in this city an equal vote, "or a vote as nearly equal as possible to the vote of every other voter and citizen in the city".
Thus, in substance, while plaintiff, significantly, does not seek "weighted" voting by members of the Board or to set aside the method by which these members are elected (i.e., reapportionment), he, in effect, merely argues that the "one man -- one vote" rule recently enunciated by the Supreme Court of the United States is applicable to the voting process of the Board on city budget matters, thereby nullifying the above-enumerated provisions of the charter (citing Avery v. Midland County, 390 U.S. 474 ). In my opinion such contentions and the resulting "back door" effort by plaintiff to alter or amend the Charter of the City of New York are without merit.
It is now well-settled law, even under the Avery decision cited and relied on by plaintiff, that the "one man -- one vote" principle established by the much publicized "reapportionment cases" applies only to Legislatures or the " general governing body " of a local government unit (Avery v. Midland County, supra, pp. 476, 485; see, also, WMCA v. Lomenzo, 377 U.S. 633; Reynolds v. Sims, 377 U.S. 533; Maryland Committee v. Tawes, 377 U.S. 656; Davis v. Mann, 377 U.S. 678; Roman v. Sincock, 377 U.S. 695; Lucas v. Colorado Gen. Assembly, 377 U.S. 713; Wesberry v. Sanders, 376 U.S. 1; Iannucci v. Board of Supervisors of County of Washington, 20 N.Y.2d 244; Seaman v. Fedourich, 16 N.Y.2d 94).
However, contrary to plaintiff's contention, an analysis of the background, history and function of the Board, as hereinafter set forth in detail, clearly establishes that the subject rule does not apply to the Board today, inasmuch as it is now neither a "Legislature" nor the "general governing body" of the City of New York, nor is it a political unit vested with "general governmental powers" (Avery v. Midland County, supra, pp. 485-486).
Significantly, this is in sharp contrast to county Boards of Supervisors outside the City of New York which, by mandate of law, have the responsibility and powers of a legislative body in the enactment of local laws (County Law, § 301). Thus, the "one man -- one vote" rule has consistently been held applicable to such bodies (see Iannucci v. Board of Supervisors, supra ; Davis v. Board of Supervisors of County of Clinton, 28 A.D.2d 583; Graham v. Board of Supervisors of Erie County, 27 A.D.2d 902; Glessing v. State of New York, 27 A.D.2d 977; see, also, Saratogian, Inc. v. Board of Supervisors of County of Saratoga, 20 N.Y.2d 244; Augostini v. Lasky, 46 Misc. 2d 1058; Morris v. Board of Supervisors of Herkimer County, 50 Misc. 2d 929; Orlando v. Board of Supervisors of Genesee County, 53 Misc. 2d 377).
Unlike these county boards of supervisors, however, in New York City, the Board is not authorized nor does it have any serious legislative role in the enactment of the city's local laws. This power is vested in the Mayor and the City Council (New York City Charter, §§ 21, 27 and 38). Concededly, similar to such other bodies as the Board of Health and the Public Service Commission, the Board has a specified but strictly limited range of powers concerning the approval and adoption of certain fiscal policies (infra). Nevertheless, the major part of the legislative and governmental powers of the city lie elsewhere (New York City Charter, § 8, subd. a; §§ 21, 27 and 38). It is this critical division of legislative duties which distinguishes the Board from the legislative body considered by the Supreme Court of the United States in the decision cited and relied on by plaintiff (Avery v. Midland County, supra).
An examination of the Avery decision clearly shows that under the Constitution of the State of Texas, virtually all of the county's powers were vested in the "Commissioners Court", the subject body of the lawsuit. As noted by Mr. Justice White, writing for the majority of the court, the Commissioners Court " is the general governing body of the county ". (390 U.S. 474, 476; emphasis added.)
In apposition thereto, however, the chief functions today of the Board in this city (as fully set forth in the uncontroverted answering affidavit of Ruth W. Whaley, its Secretary and Parliamentarian, and the exhibits annexed thereto), are merely, in effect, to be the caretaker of the city's property and to act as Trustee of the New York City Employees' Retirement System. Admittedly, however, until the 1963 revision of the City Charter, the Board did exercise far greater legislative powers than it has today and perhaps, until then, would have lent substance to plaintiff's alleged grievance (see McGoldrick, J., "The Board of Estimate and Apportionment of New York City" 18 Nat. Mun. Rev. 125 ; Interim Report, N. Y. St. Comm. on the Governmental Operations of City of N. Y. [Moore Comm.]; Kaufman, W., "The New York City Board of Estimate"). An analysis of the development and changes in the powers and duties of the Board, therefore, is necessary and pertinent to the issues here involved.
The Board has its origin in the 1864 legislative creation of the "Board of Estimate and Apportionment", consisting of the Commissioners of the Metropolitan Police and the Comptrollers of the Cities of New York and Brooklyn. It was charged with estimating the expenses of this district and apportioning them among the cities, counties, towns and villages. The immediate predecessor of the present Board was instituted under the influence of the infamous Tweed Ring (in 1871) and was charged with fixing a tax rate and apportioning revenue among the city and county departments. The 1873 charter reform delegated similar budgetary and fiscal duties to the Board of Estimate and Apportionment but in 1882, the New York City Consolidation Act added such other duties as fixing salaries, establishing various city employees' lists and approving contracts for street-sweeping and garbage collection.
Greater New York emerged with the adoption of the 1898 Charter. Then, 1901 witnessed the beginning of a significant shift of power to the Board of Estimate and Apportionment which, under the revised charter of that year, gave this Board the membership it still, in substance, retains, namely, the Mayor, the Comptroller, the President of the then new Board of Aldermen and the five Borough Presidents (Greater New York Charter § 226; L. 1901, ch. 466). The effect of this was to weaken, in large measure, the prior great influence of the Mayor, since his appointees no longer served on the Board (see Mayor's Messages, 1898-1902 [Mayor Robert Van Wyck]). City-wide officers had three votes each, Manhattan and Brooklyn Borough Presidents had two votes each, and the remaining Borough Presidents, one vote each. Under the revised charter of 1901, the Board was charged with preparing the annual budget, including the terms and conditions for expenditures. This became a major source of the Board's power, particularly as the Aldermen could only decrease but not increase the budget ("The Board of Estimate and Apportionment of New York City", supra).
From 1901 on, the Board continued to grow in power and prestige. Control over franchises and streets was added to its duties in 1905. In 1911, the Board was given the power to pass on improvements and to levy assessments therefor. In 1916, it was empowered to adopt zoning regulations and in ...