People ex rel. Rayland Realty Co. v. Fagan

194 A.D. 185, 186 N.Y.S. 23, 1920 N.Y. App. Div. LEXIS 6628

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 7, 1920
• Status: Published

Opinions

Jenks, P. J.:

The relator acquired premises subject to a lease to Reines which expired on April 30, 1920. It instituted a summary proceeding in the Municipal Court against Reines as a hold-over. The proceeding was heard on May 7, 1920, and a final order was made for possession but staying the warrant to August 1, 1920. That order was amended on August 2d by stipulation extending the stay until October 1, 1920, on condition of no further stay. On October 4, 1920, the relator applied to this defendant as clerk of the Municipal Court for a warrant in execution of the final order. But as chapter 942 of the Laws of 1920 (adding to Code Civ. Proc. § 2231, subd. la) had been passed on September 27, 1920, the clerk refused the warrant. The relator moved at Special Term for mandamus, and this appeal is from an order which denied that motion.

This appeal presents but two questions: (A) Was the summary proceeding pending' at the time of the enactment of chapter 942 of the Laws of 1920? (B) And if so could the Legislature enact that statute which provides the stay—the basis of the clerk’s refusal to issue the warrant?

(A) The said statute provides: “In a pending proceeding for the recovery of real property in such a city on the ground that the occupant holds over after the expiration of his term, a warrant shall not be issued,” etc. Thus the statute expressly declares the legislative purpose is to stay the warrant in a pending proceeding. A warrant can have no legal existence until after the final order. If the final order ex -propriore vigore ended the proceeding, the proceeding could not be pending when the warrant, the very subject-matter of the provision, came into existence. Further, the statute of summary proceeding declares that the issuing of the warrant for the removal of a tenant from demised premises- “ cancels the agreement for the use of the premises,, if any, under which the person removed held them; and annuls accordingly the relation of landlord and tenant.” (Code Civ. Proc. § 2253.) It follows that until the warrant issue the relation of landlord and tenant exists, and so the proceeding is not terminated by the final order. I. think that maugre the final order this proceeding should be regarded as “ pending ” within the purview of this statute. (Wegman v. Childs, 41 N. Y. 159; Pitt v. Davison, 37 id. 235, 241; Mulstein Co. v. City of New York, 213 id. 308, 314.)

(B) The statute only postpones this statutory remedy in that it stays the issue of the warrant for two years. In no other way is the remedy touched. This is within the ordinary powers, so to speak, of the Legislature. (Stocking v. Hunt, 3 Den. 274; Wolfkiel v. Mason, 16 Abb. Pr. 221 [Gen. Term Com. Pis.]. See, too, Van Rensselaer v. Snyder, 13 N. Y. 299; Conkey v. Hart, 14 id. 22; Morse v. Goold, 11 id. 281; Butler v. Palmer, 1 Hill, 324.)

But the contention is that under the circumstance of this pending proceeding this provision is unconstitutional. The courts do not consider the constitutionality of a statute unless the question is so involved in the given case as to be essential to the determination of that case. (People ex rel. Wetmore v. Supervisors of New York, 3 Abb. Ct. App. Dec. 566; Frees v. Ford, 6 N. Y. 176; Dodge v. Cornelius, 168 id. 244; Demarest v. Mayor, 147 id. 203, 207; White v. Scott, 4 Barb. 56; People ex rel. Yale v. Eckler, 19 Hun, 609, 613; People ex rel. Simpson v. Wells, 99 App. Div. 364, 366; People ex rel. Usoy v. Waring, 52 id. 36, 40; Clark v. Kansas City, 176 U. S. 118.) Then, and then only, the court decides whether there is conflict between laws of different authority, and the statute, being of lesser authority in so .far as it conflicts with Constitution, is declared extinct. (1 Bryce Am. Commonwealth, 253; Haines Am. Doctrine of Jud. Supremacy, 184; Cooley Const. Lim. [7th ed.] 227 et seq.)

The final order in the supplementary proceeding does determine every question litigated or that may on the issues raised be litigated, relating to the existence and validity of the lease and the relation of the parties (Reich v. Cochran, 151 N. Y. 127), but it does not, as we have seen, terminate the relation of landlord and tenant; that is done by the warrant which is a subsequent step in the procedure itself. (Code Civ. Proc. § 2253.)

It is not necessary to decide-what, if any, were the contract rights of this owner perforce of the contract of leasing or of its performance, or of his institution of, the summary proceeding which went to final order. At most the final order was but a judgment. But a judgment is not a contract (McCoun v. N. Y. C. & H. R. R. R. Co., 50 N. Y. 176; O’Brien v. Young, 95 id. 428; Morley v. Lake Shore Railway Co., 146 U. S. 162), and it is not within the purview of the constitutional provision as to the obligation of contracts. (Black Judg. §§ 9, 10, 11.) Whatever the contract rights of the relator or of its tenant, they must give way to the public welfare. And a statute enacted in the exercise of the police power —the “ law of overruling necessity,” as it once was termed — is paramount and cannot be affected by previous contracts between individuals. (Manigault v. Springs, 199 U. S. 473, 481; Buffalo East Side R. R. Co. v. B. S. R. R. Co., 111 N. Y. 132; Lincoln Trust Co. v. Williams Building Corp., 229 id. 313.)

The contention against this statute assumes that the owner is deprived of all remedies. So far as this isolated statute is concerned, this is error. This statutory remedy is not abolished, it is but postponed and for a definite period. No attempt is made by this statute to affect any other remedy. But we are pointed to other and contemporaneous statutes known as the September laws, and it is said that these statutes and this statute, articulated, deprive the owner of all remedies for two years. As I have said, we cannot consider other statutes not necessary to the decision in this case with purpose to pass upon their constitutionality. But I concede that we could consider the September statutes, as any other statute, to determine whether all remedies were abolished, if in the case at bar we were thus confronted with that condition. But we are not confronted with that condition because, whatever other statutes may provide, the remedy affected only by this statute is not abolished, but is modified or postponed only, so far as the means of enforcement are concerned. It is not essential that the remedy extant should be as drastic or efficacious. (Sturges v. Crowninshield, 4 Wheat. 200, and see the comments of the chief justice as to the principle in Bronson v. Kinzie, 1 How. [U. S.] 316.)

If, however, contrary to the fact, by exercise of the police power, all existing remedies were stayed by the Legislature by several statutes for a definite period determined by the Legislature, or if in the exercise of the police power all remedies were thus stayed in one statute for a definite period determined by the Legislature, even then the legislation would not necessarily transcend this sovereign power. The validity of the statute would depend upon its justification by emergency and the reasonableness of the stay under the circumstance.

Thus Cooley on Constitutional Limitations (7th ed. p. 414) says: “And a statute which authorizes stay of execution, for an unreasonable or for indefinite period, on judgments rendered on pre-existing contracts, is void, as postponing payment, and taking away all remedy during the continuance of the stay.” (The italics mine.)

Breitenbach v. Bush (44 Penn. St. 313) held a stay of all process for three years constitutional, in that the emergency justified it. It was for definite time and it was not unreasonable under the circumstance. (See, too, Coxe’s Executor v. Martin, 44 Penn. St. 324.) In Bunn, R. & Co. v. Gorgas (41 Penn. St. 441) a stay was pronounced unconstitutional because the Legislature had not exercised its own discretion as to the duration of the stay. The fine of discrimination is pointed' out by Woodward, J., in Bunn’s Case (supra). The learned judge also pointed out that this feature —- definite duration by the legislative act — saved the constitutionality of the stay for a year, upheld by the court, per Gibson, Ch. J., in Chadwick v. Moore (8 W. & S, 50). Both in Breitenbach’s Case (supra) and Chadwick’s Case (supra) the opinions deal with principles. Gibson, Ch. J., in the latter case considers the principle in the light of the decisions of the Supreme Court of the United States and concludes with the statement that summary-suspensions of execution for a reasonable time have not been infrequent in some sister States, as creditors have submitted to them as regulations depending, in the language of Mr. Justice Baldwin, “ on the sound discretion of the Legislature, according to the nature of the titles, the situation of the country, and the emergency which leads to their enactment.” This language, as the context shows, is in Jackson v. Lamphire (3 Pet. 290). (See, too, Edmonson v. Ferguson, 11 Mo. 344; Bender v. Crawford, 33 Tex. 745.) Black on Constitutional Prohibition (§ 159) says: “There is reasonable ground for holding that when some public necessity exists, as in case of war or invasion, an act suspending legal proceedings for a limited period is not unconstitutional; for a statute, of this character, prompted by such an emergency, rather conduces to the due administration of justice and is beneficial to parties litigant.”

It is contended that the statute is unconstitutional because it takes private property without compensation. To say that it does “ take it ” is, of course, to beg the question. In Transportation Co. v. Chicago (99 U. S. 642) the court, after declaration that private property shall not be taken for public use without just compensation being made, say: “ But acts done in the proper exercise of governmental powers, and not directly encroaching upon private property, though their consequences may impair its use, are universally held not to be a taking within the meaning of the constitutional provision. They do not entitle the owner of such property to compensation from the State or its agents, or give him any right of action. This is supported by an immense weight of authority. Those who are curious to see the decisions will find them collected in Cooley on Constitutional Limitations, p. 542 and notes.”

This statute does not touch the title of the owner. It does not physically take the premises. It does not directly work encroachment upon them. It does interfere to a degree for two years with the owner’s absolute control. That is, if the present use of the premises is to be continued by the owner, the statute controls such use by continuance of the present user; the owner cannot change the person of the user simply from preference of another, even though that other may be the more persona grata to the owner or is ready to pay a greater sum for the use. Thus far but no farther the “ consequences may impair its use,” but this, as we have seen, as declared by the Supreme Court, is not the taking contemplated by the Constitution.

It is contended that there is no principle that justifies the “ taking of the property of A to give it to B for his private use,” and that this is done by this law. But although the “ immediate purpose ” were the private use of B, the contention may not be sound if there is “ ulterior public advantage.” Thus in Noble State Bank v. Haskell (219 U. S. 104), Holmes, J., for the court, in speaking of the exercise of the police power, says: “ In.the first place it is established by a series of cases that an ulterior public advantage may justify, a comparatively insignificant taking of private property for what, in its immediate purpose, is a private use. (Clark v. Nash, 198 U. S. 361.) ” (See, too, Beekman v. Saratoga & Schenectady R. R. Co., 3 Paige, 72.) The comparative significance of this “ taking ” in the case at bar is considered later:

The due process clause is not to be invoked as against exercise of the police power. (Union Dry Goods Co. v. Georgia P. S. Corporation, 248 U. S. 372.)

The sweep of this sovereign power is broad and deep. In the Slaughter House Cases (16 Wall. 62) Miller, J., says: “ This power is, and must be from its very nature, incapable of any very exact definition or limitation. Upon it depends the security of social order, the life and health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of private and social fife, and the beneficial use of property. ‘ It extends/ says another eminent judge, ' to the protection of the lives, limbs, health, comfort and quiet of all persons, and the protection of all property within the State; * * * and persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health and prosperity of the State. Of the perfect right of the Legislature to do this no question ever was, or, upon acknowledged general principles, ever can be made, so far as natural persons are concerned.’ ”

The extent of the taking is measured by the emergency. Cooley on Constitutional Limitations (7th ed. p. 878) says: “And there are other cases where it becomes necessary for the public authorities to interfere with the control by individuals of their property, and even to destroy it, where the owners themselves have fully observed all their duties to their fellows and to the State, but where, nevertheless, some controlling public necessity demands the interference or destruction. A strong instance of this description is where it becomes necessary to take, use, or destroy the private property of individuals to prevent the spreading of a fire, the ravages of a pestilence, the advance of a hostile army, or any other great public calamity.”

The judiciary is not supreme. But with respect to the sovereign power of the Legislature there may arise in a given case a judicial question necessary to the decision of the rights of the litigants then before the court. “ For many times the things deduced to judgment may be rneum and tuum when the reason and consequence thereof may trench to point of estate.” (Bacon, Viscount St. Albans.) But the power of the courts to sit in judgment upon the Legislature must be exercised with the utmost caution. (People v. Griswold, 213 N. Y. 92.) In that case Milleb, J., for the court says: “ Legislation passed in the exercise of the police power must be reasonable in the sense that it must be based on reason as distinct from being wholly arbitrary or capricious, but when the Legislature has power to legislate on a subject, the courts may only look into its enactment far enough to see whether it is in any view adapted to the end intended. If it is, the court must give it effect, however unwise they may regard it, or however much they might, if given the choice, prefer some other measure as more fit and appropriate.” Our function is to recall the Legislature to the confines of the highest law which limits all branches of government. In the words of Holmes, J., we should be slow to use the “ nolumus mudare as against the law-making power.” (Noble State Bank v. Haskell, supra, 110.) Bacon has said of the judges: “ Let them be lions but yet lions under the throne, being circumspect that they do not check or oppose any points of sovereignty.”

We are now asked to declare as extinct an act of sovereign power—an act passed in the avowed exercise of the police power, which is said by my brother Putnam in People ex rel. Doscher v. Sisson (180 App. Div. 468; affd., 222 N. Y. 387) to be the least limitable of the powers of government. And we are asked to do so upon inspection of the act, in that it stays for two years a statutory remedy.

The motives of the Legislature are not our concern. (People v. Shepard, 36 N. Y. 285.) If a state of facts could exist which justified a change in the remedy, “ we must presume it did exist, and that the law was passed on that account.” (Antoni v. Greenhow, 107 U. S. 775.)

The Legislature has declared- that this act is passed in “ emergency,” which is an apt term for “ A sudden or unexpected occasion for action; exigency; pressing necessity.” (Cent. Diet.) As we have seen, this very word “ emergency ” is used by Mr. Justice Baldwin of the Supreme Court of the United States in Jackson v. Lamphire (supra) with reference to stay laws. What is the emergency apparently in the view of the Legislature? We can read in the legislative report of its joint committee (Caminetti v. United States, 242 U. S. 470, 490) that the bill will do away with the anxiety of the many people in New York who are now holding their premises under short stays, or have been served with notices to move on October 1st. The report of the joint legislative committee on housing of September 20, 1920, tells us (pp. 5, 6) that over 60,000 tenants had been notified to vacate irrespective of the rental, and says: “ The attempts of some landlords to obtain more rent by taking tenants to court month after month and the granting of short stays from time to timo subject families to great anxiety. They know not when they may have to move, have no place to go, lose respect for laws and the courts, who to them seem unable to respect their rights. They readily fall victims to the agitator.” To recur to the language of Miller, J., in the Slaughter House Cases (supra), this police power extends to secure “ social order, the life and health of the citizen, the comfort of an existence in a thickly populated community. * * * ' Persons and property are subjected to all kinds of restraints and burdens in order to secure the general comfort, health and prosperity of the State/ ” Can it be said that the Legislature, primarily the judge of reasonableness (Antoni v. Greenhow, supra), was unreasonable in that it has exercised this sovereign power so that we must conclude that the police power is but a cloak or a guise?

The Legislature is not dealing with an invasion of tramps. It is not yielding to a new variation of the cry of “ bread and the circus/’ It would assure, the present homes to citizens who pay for their habitation. Confronted with the stress of circumstance, could not the Legislature have asked what city, even our City of New York, however law abiding, can maintain its peace, health and order against the consequences of the evictions of perhaps thousands of its law-abiding citizens so that they may become outcasts with no places to lay their heads? . What consequences, in this densest city ever known, may not follow when the health and life of these citizens and their families face the peril of homelessness? All landlords are not profiteers and many are humanitarians. There may be, there must be, isolated cases of hardship in all applications of the rule of the greatest good of the greatest number. The house of the owner may be destroyed to prevent the spread of fire. But what is the chief peril of conflagration but the destruction of shelter, whereupon civil government may totter, pestilence may come and anarchy stalk in? Concede that this statute does not “ add one square foot ” to the housing accommodations of the people in the city of New York; yet there remains the question of the preservation of civil order and health and fife. If we can, I think we may suppose that the Legislature believed that this statute of stay for such a period might make for the order and health and life of this community. Upon this view might it not be “ comparatively insignificant ” that as a necessary incident to meet the “ emergency ”— to keep tranquility — the owner who purposed to continue the use of his land for tenants, should not change the tenant without reason save caprice or avidity for higher rentals. “New occasions make new duties.” In this emergency I cannot see that the statute flouts the Constitution or is Collectivism beyond the spirit and the law of our land.

My decision, if not my discussion, is confined to the question necessarily presented for the determination of this case. I advise affirmance of the order, without costs.

Putnam, J., concurs; Mills and Kelly, JJ., concur, with separate opinions; Blackmae, J., dissents, with opinion, and votes for reversal.