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MILTON M. BERGERMAN v. JOHN V. LINDSAY (12/03/69)

COURT OF APPEALS OF NEW YORK 1969.NY.43743 <http://www.versuslaw.com>; 255 N.E.2d 142; 25 N.Y.2d 405 decided: December 3, 1969. MILTON M. BERGERMAN, INDIVIDUALLY AND AS CHAIRMAN OF THE CITIZENS UNION OF THE CITY OF NEW YORK, INC., APPELLANT,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, RESPONDENTS Bergerman v. Lindsay, 58 Misc. 2d 1013, affirmed. Counsel Samuel D. Smoleff for appellant. J. Lee Rankin, Corporation Counsel (John J. Loflin and Stanley Buchsbaum of counsel), for John V. Lindsay, respondent. Counsel Charles S. Desmond for remaining respondents. Counsel Louis J. Lefkowitz, Attorney-General (Daniel M. Cohen and Samuel A. Hirshowitz of counsel), in his statutory capacity under section 71 of the Executive Law and CPLR 1012 (subd. [b]). No State statutory provision is attacked as unconstitutional by the complaint in this action. Bergan, J. Chief Judge Fuld and Judges Burke, Scileppi, Breitel, Jasen and Gibson concur. Author: Bergan


Bergerman v. Lindsay, 58 Misc. 2d 1013, affirmed.

Bergan, J. Chief Judge Fuld and Judges Burke, Scileppi, Breitel, Jasen and Gibson concur.

Author: Bergan

 The action is to declare statutory powers of the Board of Estimate of the City of New York in the budget-making process constitutionally invalid because of the marked population inequalities of the units which elect some of the board's members. The court at Special Term granted judgment for the defendants and expressly declared the challenged statutory powers valid. A direct appeal is here on constitutional grounds.

The plaintiff's contention is that the selection of the five Borough Presidents who have equal voting powers in the Board of Estimate but who are elected by boroughs which have numerically widely disparate populations, violates the right of the citizen to have substantial equality with others in the part his vote plays in selecting officers of local government -- the concept of one man-one vote.

This construction of the equal protection clause of the United States Constitution (14th Amdt., § 1) to interdict selection of State and local officials sharing equal powers by geographical units of unequal population has, in its development by the Supreme Court, been addressed mainly to State and local legislative bodies (Reynolds v. Sims, 377 U.S. 533 [1964], and the group of related decisions of that year, e.g., WMCA, Inc. v. Lomenzo, 377 U.S. 633; Wesberry v. Sanders, 376 U.S. 1).

This also has been its direction in New York (Town of Greenburgh v. Board of Supervisors of Westchester County, 25 N.Y.2d 817; Abate v. Mundt, 25 N.Y.2d 309; Iannucci v. Board of Supervisors, 20 N.Y.2d 244; Saratogian, Inc. v. Board of Supervisors, 20 N.Y.2d 244; Seaman v. Fedourich, 16 N.Y.2d 94). Reference was made on the argument to Kramer v. Union Free School Dist. (395 U.S. 621 [1969]) but this involves the qualifications of voters to participate in school elections and not the equality of population bases for multimember local agencies.

The further development of the rule by the Supreme Court in Avery v. Midland County (390 U.S. 474 [1968]) has shown that the traditional legislative function of the local unit is not the single test to be applied. More broadly it is to be decided whether a local unit composed of multiple members has "general governmental powers over the entire geographic area" (390 U.S., at p. 485). This is something different from a test measured by legislative powers alone. In pure theory, at least, the typical legislative body in the United States does not normally exercise "general governmental powers". Indeed the concept of separation of powers negates the exercise by any one branch of "general governmental powers". Normally only governments with parliamentary executives come close to this theoretical merger.

The main thrust of plaintiff's argument is that budget-making is primarily a legislative function (People v. Tremaine, 252 N. Y. 27) and that by its role in preparing the city budget the Board of Estimate performs a truly legislative function; thus its members must be selected with the equality required for other local legislative bodies. The result actually sought by plaintiff is a judicial excision of the board's statutory budget powers.

It is conceded by plaintiff that the Board of Estimate performs "many administrative functions" but those powers "are not questioned". And, so plaintiff also suggests, the past powers of the board and their historical development are irrelevant to the question raised. Although plaintiff cites and seems to rely on Midland County (supra) in support of his action, he does not expressly argue that the Board of Estimate exercises "general governmental powers" within the literal definitions of that case.

He does seem to imply this, however, in suggesting that budget-making -- the power of the purse -- "is the essence of sovereign power". The respondents argue that the Board of Estimate is not a legislative body and especially that it does not exercise "general governmental powers" within the Midland County rule.

The Board of Estimate's constituency and its budgetary powers are precisely stated in the New York City Charter and are not disputed. Its membership is made up of the Mayor, the Comptroller, the President of the Council, each of whom is entitled to cast four votes; and the five Borough Presidents, each of whom is entitled to cast two votes.

There are thus 22 votes in the board and the Presidents of the boroughs all together may cast less than half of them. The units in which the Borough Presidents are chosen are of greatly varied populations. The Borough of Kings, for example, has a population of 2,627,319 and the Borough of Richmond 221,991.

The budget-making powers of the Board of Estimate are at once closely conditioned and highly contingent on the action of other city agencies, executive and legislative. The board is itself unable alone to make or revoke a budget with finality or to add or delete an item in a budget beyond the reach of further change by others.

The Charter authorizes the Mayor to prepare and submit to the Board of Estimate, and the Council which is a body "vested with the legislative power of the city" (Charter, § 21) his expense budget. This embraces the ...


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