Adler v. Deegan

167 N.E. 705, 251 N.Y. 467, 1929 N.Y. LEXIS 747

• Court: New York Court of Appeals
• Decided: August 8, 1929
• Status: Published

Opinions

Crane, J.

The Multiple Dwelling Law, entitled “ An Act in relation to multiple dwellings, constituting chapter sixty-one-a of the consolidated laws ” (L. 1929, ch. 713), supersedes the Tenement House Law (L. 1901, ch. 334, as amended), as applicable to the city of New York, and changes its provisions. It was passed in the manner in which other State legislation is adopted, that is, by a majority vote, and not as an emergency measure, by the concurrent vote of two-thirds of the members of each house of the Legislature.

The act has been challenged as unconstitutional, in that it violates the Home Rule provision of the State Constitution, article XII, section 2. The Special Term has decided that this Multiple Dwelling Law relates to the “ property, affairs or government ” of New York city, and, therefore, should have been adopted by the action of two-thirds of both houses of the Legislature, upon an emergency message from the Governor. The law has, therefore, been declared unconstitutional.

The determining factor on this appeal is the meaning of the words, “ property, affairs or government of cities,” as used in section 2 of article XII of the Constitution of this State. By section 4 of that same article it is provided that the power of the Legislature shall not be deemed to be restricted in relation to matters other than “ the property, affairs or government of cities.” Whatever be the meaning of section 3 of this same article, enumerating the powers which may be given to cities, it is certain that by the express provisions of this article of the Constitution, the Legislature by a majority vote has full power over all matters pertaining to the city of New York, except such matters as are included within the meaning of the words, “ property, affairs or government of cities.”

What do these words mean? Their colloquial significance would indicate that anything touching or pertaining to the affairs of a city or of the people thereof was within the breadth and scope of their intent. If we are satisfied with first impressions, if we do not look beneath the surface of the matter, if we ignore the past use of these words, then we may very well say that the statute under review, known as the Multiple Dwelling Law, is unconstitutional. If, however, we pause to consider whether these words had a special, legal significance when used in the constitutional amendment, we find that there is another side to the question, and it is that which I desire to present as the basis for my conclusion.

Words, like men, grow an individuality; their character changes with years and with use. It is common knowledge that many words have a meaning at law different from that of common speech — carelessness, negligence, fraud, theft and the like — have a limitation not always given to them by the dictionary. Thus, we may expect that if the words, “ property, affairs or.government of cities,” have been previously used in statutes and in decisions with a limited meaning, this limited meaning was carried into article XII of the Constitution.

What subject more vitally touches the affairs of the city than rapid transit? The recent litigation in the Federal courts, and the decision of the United States Supreme Court, show how necessary rapid transit is to urban life. (Gilchrist v. Interborough Rapid Transit Co., 279 U. S. 159.) Stop the railroads, surface, subways or elevated, in the city of New York, and the calamity, almost immediate, would be too direful for contemplation. An affair of the city! Any man in the street or in the ordinary walks of life, conversant with New York city, would say that the railroads, already half municipally owned, were a very important and vital affair of the city of New York. Yet this court, in Admiral Realty Co. v. City of New York (206 N. Y. 110), distinctly stated in its opinion that the Rapid Transit Act, dealing as it did directly with the railroads in New York city, was not a law which related to municipal property and affairs. It is said the law was adopted not only for the benefit of cities to be affected, but for the public at large. The words “ property, affairs or government of cities ” appeared in the Constitution of 1894 as follows: “ Laws relating to the property, affairs or government of cities, and the several departments thereof, are divided into general and special city laws; general city laws are those which relate to all the cities of one or more classes; special city laws are those which relate to a single city, or to less than all the cities of a class.”

If the Rapid Transit Act under discussion in the Admiral Realty Co. case related to the " property, affairs or government of a city,” and was a special law, it came within those provisions of the Constitution which required its submission to the Mayor of the city of New York for his approval. This court, as above stated, decided that the Rapid Transit Act, dealing with railroads, whether of one or more cities — it made no difference — was not a law relating to the “ property, affairs or government of cities.” You see how slowly we must go in jumping at conclusions as to what the people of this State meant by the “ affairs of a city,” — much less, very much less, than most people consider the word “ affairs ” to mean.

Since 1894 the words “ property, affairs or government of cities ” have become words of art, and were so used in the recent Home Rule Amendment, now known as article XII of the Constitution. Whatever other reasons there may have been for deciding the Admiral Realty Co. case, the fact remains that this court gave to these words, “ property, affairs or government of cities,” a special limited meaning, and we would be unfair to the people of this State if we now changed their meaning. When the people put these words in article XII of the Constitution, they put them there with a Court of Appeals’ definition, not'that of Webster’s Dictionary.

The same thing holds true regarding the Public Service Commission Law. (Matter of McAneny v. Board of Estimate, 232 N. Y. 377.) The law applied in effect to the city of New York; it controlled the transit in that city, an affair, apparently, of the city of New York. Yet this court said: “ Rapid transit for the city of New York has, for many years, been a matter of public interest, affecting not only the people of that city, but of the whole State. It has been generally regarded as a State affair. The history of legislation on the subject shows it.”

The fact that that law was also considered a general, instead of a local law under the Constitution of 1894, was another point in the case, but in no way affected or weakened the statement which I have just quoted. It is too late for us at this time to say that this court, or our former associates were not obliged to pass upon all the questions involved in these cases which I have cited. Whether necessary or unnecessary, the fact is they did pass upon them, and the Legislature and the people, in adopting the Constitution, were justified in using words in the sense in which they had been judicially explained and limited.

Apparently nothing so nearly affects the property or government of a city as its jurisdiction. To change the boundaries of the city of New York either by contraction or expansion touches it in its government and in its property, using the word “ property ” in its widest sense as associated with jurisdiction. Yet we held in City of New York v. Village of Lawrence (250 N. Y. 429) that a change in boundary by the Legislature was not a law coming within the Home Rule provisions. The degree of the change, or its importance, could not and did not affect the principle. It either was or was not a law touching the property and government of the city, and we held that it was not. Such was also the ruling of this court regarding chapter 548 of the Laws of 1912, providing for the creation of Bronx county. (People ex rel. Unger v. Kennedy, 207 N. Y. 533.) (See, also, People ex rel. Einsfeld v. Murray, 149 N. Y. 367; Browne v. City of New York, 241 N. Y. 96.)

The Tenement House Act (L. 1901, ch. 334, as amended by L. 1902, ch. 352) was brought in question in the case, of Tenement House Department of City of New York v. Moeschen (179 N. Y. 325). This act required the removal of certain school sinks, privy vaults, etc., in the city of New York. Its constitutionality was questioned by very able counsel, and defended by the Corporation Counsel of the city of New York. In the opinion of the court we find this: “The governor, in 1900, appointed a committee known as ‘ The Tenement House Commission/ in accordance with chapter 279 of the laws of that year, to make a careful examination into the healthfulness of tenement houses in cities ol the first class, and to make ‘ such recommendations as it deems wise to enable the best and highest possible condition for tenement-houses in said cities to be attained.’ ” The Tenement House Act was the result of the work of this Commission, which became chapter 334 of the Laws of 1901. A quotation is given from an opinion of Judge Peckham, who refers to the spread of disease due to the possibly filthy conditions and pestilent breeding places in the city of New York.

While this case does not touch the point now presented to this court, the fact remains that the police power of the State, in so far as it dealt with the health of the people of the State, including those in the large cities, has ever since, if not always, been considered a State affair, a matter in which the people of the State as a whole were interested, as contrasted with a local affair in which the people of the cities had the first and final say. No point was made that the Tenement House Act was an affair of the city.

That this statement of mine is quite accurate may be gathered from the act of the New York State Legislature, following the immediate adoption of the Home Rule provision of the Constitution, and the commands therein contained. Section 3 of article XII reads: “The Legislature shall, at its next session after this section shall become part of the Constitution, provide by general law for carrying into effect the provisions of this section.”

Thereafter the Legislature passed the City Home Rule Law (L. 1924, ch. 363; Cons. Laws, ch. 76), section 21 of which provided that the local legislative body of a city shall not be authorized to adopt a local law which changes any provision of the Tenement House Law. If the matters covered by the Tenement House Law were, arid had been considered local matters (property, affairs or government of cities), the power of the Legislature over such provisions would have been nil, and that of the cities plenary. It is beyond the power of the imagination to conceive that such an important matter as the health of people in tenements should have been left by the people in this State beyond the power of the Legislature or the city, to legislate upon except as an emergency measure. Either the State had the power to deal with it, or the city had, and to my mind this is the only reasonable way of looking at it. It has been said below that the city has no power to pass as a local measure a multiple dwelling law. If the State has not the power, the city must have it. Power of this important and vital nature would not be left to inference or indirection.

The fact is that the State Legislature, in drafting those provisions which subsequently, by the vote of the people, became the Home Rule measure in the Constitution, knew and realized that the words “ property, affairs or government of cities ” did not include health measures, or those already covered by the Tenement House Law, which of its nature is a health measure.

Immediately after the adoption of the Constitution, this same Legislature of the State of New York passed the City Home Rule Law, specifically exempting from the power of the cities the right to make changes in any provision of the Tenement House Law. The Legislature of the State of New York is one continuous body, although the individuals composing it may change. Its vital spark, giving it mentality, intent and purpose, we must assume, continues the same from year to year. When amendments to the Tenement House Law were passed, they were not considered as city affairs within the meaning of the Constitution before or after amendments effective in 1924. (See L. 1926, ch. 176; L. 1927, ch. 674.)

The Multiple Dwelling Law, here under discussion before us, is the Tenement House Law with another name. It is a result of the remodeling of the Tenement House Act, after a careful study by a Commission appointed for the purpose of surveying the entire field, and adopting the best known measures for the safety and health of the people of New York.

Reason as well as authority justifies a conclusion that these health measures must be a matter of State concern. The city of New York may justly be proud of its position as the largest and greatest city of this country. Size, however, is of minor importance; its position makes it the great port of entry for the people of this entire land. Immigrants from all over the world, of all classes and descriptions, land at Ellis Island, and virtually enter the city of New York. It has been the first introduction to American fife, which most of those of foreign birth have had. Many of these people settle in this city, either permanently or temporarily, before going west. More than this, a mere look at the daily press will give some idea of how many thousands of people — men, women and children — from all over the United States and Canada, come to New York city to depart upon steamers for Europe and other places. It has been said, and perhaps truly, that the theatres of New York are maintained almost entirely by the finances of those nonresidents who frequent New York city during some portion of the year. The business of the country, if not the world, is more or less centered in New York city. The point of all this is, that New York city with its millions is made up very largely of those who pass through it, or temporarily reside in it. It is a shifting population, scattering over all portions of the State and to the four corners of the earth. A pestilence, a disease, anything that affects the health and the welfare of the city of New York, touches almost directly the welfare of the State as a whole. We need not deal with the financial results to the State following good or bad hygienic conditions. We may well confine ourselves more particularly to the social element and those things which government has to-day considered as part of its governmental function, the bodily and mental health of its inhabitants. The health of a community, we have discovered, thanks to science, has more to do with the general prosperity and welfare of a State than its wealth or its learning or its culture. A happy, contented citizen is the foundation of the future; he is the bulwark of the Commonwealth.

The police power of the State has never been questioned when it dealt directly with hygienic conditions of a community. Unless the intent is clear or reasonably certain it should not now be limited or whittled away by the reform known as Home Rule for cities. Let us recognize in our decision the useful division which custom and practice have made between those things which are considered State affairs, and those which are purely the affairs of cities.

The Multiple Dwelling Law is constitutional, for the reasons stated, and the judgment should be reversed and the complaint dismissed, with costs in this court and in the trial court.