Opinion
Argued March 6, 1969
Decided April 24, 1969
Appeal from the Supreme Court, New York County, SAMUEL M. GOLD, J.
John R. Hupper, Bruce Bromley, Howard G. Kristol and James C. Hansen for Metropolitan Transportation Authority and another, appellants.
Louis J. Lefkowitz, Attorney-General ( Joel Lewittes and Samuel A. Hirshowitz of counsel), for J. Burch McMorran, as Commissioner, appellant. Edward N. Costikyan, Allan A. Tuttle and Robert S. Smith for City of Rye and others, respondents.
Bernard F. McCaffrey, Town Attorney ( Charles F. Lynch of counsel), for Town of Oyster Bay, intervenors-respondents. Daniel B. Goldberg for Niagara Frontier Transportation Authority, amicus curiae.
By chapter 717 of the Laws of 1967 the Legislature amended the Public Authorities Law in a number of respects and made relevant changes in related statutes. Among other things, in form, at least, it created the Metropolitan Transportation Authority or continued a previously created authority under this name (§ 83; Public Authorities Law, § 1263). It also created the Niagara Frontier Transportation Authority (§ 96; Public Authorities Law, § 1299-c).
Plaintiff City of Rye and intervenor Town of Oyster Bay in their respective actions against the Metropolitan Transportation Authority and certain State officers for a declaratory judgment contend that chapter 717 is unconstitutional because it does not conform to the mandate of section 5 of article X of the New York Constitution.
This section provides that no public corporation having authority to contract indebtedness and to collect fees and charges shall be "created" except by "special act of the legislature". Concededly the Metropolitan Transportation Authority is that kind of a public corporation as, indeed, is the Niagara Frontier Transportation Authority.
The particular thrust of the attack by the city and by the town on the constitutionality of the 1967 statute is the provision of section 92, which added subdivision 9 to section 1266 of the Public Authorities Law. This subdivision empowers the Metropolitan Transportation Authority under certain prescribed conditions to build two bridges over Long Island Sound, one of which would be located as determined by the Authority in an area in the Town of Oyster Bay crossing to Westchester County at a point near the City of Rye.
The Court at Special Term granted judgment in favor of the city and the town declaring portions of the statute (Public Authorities Law, § 1266, subd. 9, par. [a], and parts of pars. [c], [d], [e]) added by section 92 of chapter 717 of the Laws of 1967 unconstitutional. The ground is not specified in the judgment. Reference to the opinion of the court discloses that the basis for the judgment is the court's view that the authorization to build the bridges was in contravention of the constitutional requirement that the public corporation authorized to do this must be created by special act.
The Metropolitan Transportation Authority and the State officers affected adversely in their powers by the declaratory judgment appeal directly to this court on constitutional grounds. The Niagara Frontier Transportation Authority has appeared as amicus curiae, contending that if the judgment at Special Term is right, its existence is imperiled since it was created by the same 1967 statute.
The judgment was specifically pointed to the section of the statute authorizing the building of the Rye-Oyster Bay bridge over Long Island Sound. Since section 5 of article X does not deal with a legislative direction to State officers or agencies to build bridges, but is concerned solely with the creation of public corporations, the validity, in the constitutional sense, of the power of the Metropolitan Transportation Authority to build bridges must necessarily depend on the validity of the creation of the corporation.
Although it is arguable, and has been suggested, that the Metropolitan Transportation Authority was actually created by an amendment to the Public Authorities Law in 1965 under the name Metropolitan Commuter Transportation Authority and that the 1967 statute was merely a continuance of the original corporate entity with a change of name and of some, but not all powers, it seems preferable to meet the issue squarely by treating section 83 of chapter 717 of the Laws of 1967 as having effected sufficiently substantial changes in the functions and powers of the corporation to treat the 1967 statute as an act of creation.
The court at Special Term seemed to have assumed in its opinion that the 1965 act of creation was valid. We agree with this assumption and find the act of 1967 in all important essentials equally valid.
The language of section 5 of article X originated in the recommendations of the Constitutional Convention of 1938 and it has an historic background beginning with the Constitutional Convention of 1846. In that year the Constitution was amended to provide that "Corporations may be formed under general laws; but shall not be created by special act, except for municipal purposes" (Constitution of 1846, art. VIII, § 1; now art. X, § 1, in identical language).
This provision was designed to prevent the creation of private corporations by special acts which had been subject to abuse; and to allow for their formation by anyone in accordance with a general statute (Bishop Attree, Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State of New York, pp. 221-222). For an early discussion of the policy underlying this provision, see Johnson v. Hudson Riv. R.R. Co. ( 49 N.Y. 455, 458).
The debates of the 1938 Convention indicate that the proliferation of public authorities after 1927 was the reason for the enactment of section 5 of article X (Revised Record, 1938 Convention, vol. 3, p. 2259). Abbott Low Moffat, who supported this proposal, told the convention that its purpose was "to require the Legislature to pass directly itself upon the establishment of each new authority, and to prevent the enactment of general laws pursuant to which a municipal corporation can itself create a corporation of the authority type" ( op. cit., p. 2259).
Thus, the purpose was to prevent the Legislature from allowing the creation of public authorities in the manner in which, since 1846, it had been required to do with private corporations by a general statute, and require the Legislature itself to create them specifically by "special act".
It becomes manifest from the convention discussion that what was intended to be accomplished was a requirement that the State Legislature itself create public corporations of the type described and that their creation not be left either to administrative officers or to local governments and that is what is meant by "special act" in this context. As Mr. Moffat explained to the convention, it was the purpose of the framers of the section to see to it that "the power to create an authority shall not be delegated" (Record, p. 2260).
The term "special act" is not otherwise defined in this context by the Constitution. As it is used here it can only mean that a public corporation of this type must be created by a particular creative enactment of establishment by the Legislature. It cannot possibly mean that only one subject could be stated in the statute by which the corporation is created; or that in the statute creating the corporation the Legislature could not deal additionally with other matters, including the kinds of powers to be exercised or duties to be performed by the public corporation thus created.
Nothing illustrates better the continuing understanding of the Legislature and the Governor that section 5 of article X is to be construed in this sense than the Public Authorities Law as a statutory entity. The statute was first enacted immediately following the 1938 Convention (L. 1939, ch. 870) and for over 30 years has manifested a practical legislative construction of the Constitution.
This is the chapter of the Consolidated Laws where public authorities are created by the New York Legislature as specific entities under specific names with specific powers. It is the place where the Metropolitan Commuter Transportation Authority was created in 1965 (§ 1263) and it is the place where Niagara Frontier Transportation Authority was created and the Metropolitan Transportation Authority was created or continued in 1967.
The title of the Public Authorities Law makes clear its purpose to implement section 5 of article X of the Constitution. It is described in the title as an act to "compile in one chapter" for the purpose of public convenience "the several acts" in relation to public authorities "created" or "validated" by the Legislature.
In immediate response to the constitutional mandate, then, the 1939 act established a new chapter of the Consolidated Laws and re-enacted or validated the statutes which had created a large number of existing public authorities — substantially all those then extant.
It did not deal with one subject or one corporation but with a vast volume of statutory specifics providing differentially for diverse corporations. The 1939 statute occupies almost 200 pages of the Session Laws and repealed a large number of specified earlier enactments.
All new public authorities of the kind specified by section 5 of article X of the Constitution created by the Legislature have, in the 30 years since 1939, been created by specific name and specific enactment as amendatory additions to this chapter of the Consolidated Laws.
One notable example was the New York State Thruway Authority, created by chapter 143 of the Laws of 1950. The specific enactment of creation was by adding section 352 of the Public Authorities Law, i.e.: "A board * * * is hereby created. Such board shall be a body corporate and politic".
The statute dealt with a group of separate powers given to this corporation and with many local governments and places where powers granted and prescribed were to be exercised.
There are now some 30 different public corporations created by the Legislature through amendments to the Public Authorities Law. (See N.Y. Legis. Manual, 1968, § IV.)
Typical of such statutes is chapter 1071 of the Laws of 1960 which, by amendment to section 725 of the Public Authorities Law, reconstituted and continued the Ogdensburg Bridge Authority as the Ogdensburg Bridge and Port Authority.
This statute not only vested specific additional new powers and functions in the corporation, for example the development of "such facilities as it [the authority] may deem necessary" within the City of Ogdensburg and certain towns (§§ 1377, 1379, subd. 22), but it also amended the general legislative act making appropriation for the support of government to meet the needs of the authority (§ 6).
It is reasonable, then, to hold that the Legislature created the Metropolitan Transportation Authority by a special act within the intention of section 5 of article X and that the incidental power to build a State bridge was relevant to its corporate function and well within the frame of legislative power.
From the historical background of the constitutional provision; from the explanation of its proponent in the 1938 Convention; from the initial construction of it by the Legislature in the following year by passing an act compiling in one chapter "for the purpose of public convenience" acts in relation to public authorities "created or validated by the legislature"; and from the consistent practice of the Legislature in this statutory field in the 30 years since 1939, it is manifest that the Metropolitan Transportation Authority was created by special act and that the implementation of its powers, including the right to build bridges, was a valid exercise of legislative authority.
Additional grounds of constitutional invalidity of section 92 of chapter 717 are asserted in the complaint of the city and of the intervening town. The city and town assert that section 92 is a "local bill", embracing "more than one subject" within the prohibition of section 15 of article III of the Constitution.
The town additionally pleads that section 92 violates paragraph (2) of subdivision (b) of section 2 of article IX of the Constitution which controls the enactment by the Legislature of statutes relating to "property, affairs or government" of any local government.
The court at Special Term did not pass on these objections to the 1967 statute, but the additional grounds of asserted unconstitutionality have been argued on the merits by the appellants, by the amicus curiae, by the town and by the city conditionally on the merits. The court has concluded that these additional objections are properly before it and that they should be determined.
In effect, this result was forecast by the prior denial of respondents' motion to dismiss the appeal to the extent it would have precluded a consideration of objections under articles III and IX ( 23 N.Y.2d 1015).
But on broader grounds the separate "causes of action" based on different constitutional provisions are actually not different causes of action but different legal and constitutional arguments based on precisely the same factual allegations, both complaints seeking a declaration of invalidity on stated constitutional grounds on the same facts.
This kind of factual unity as a claimed basis for differing legal consequences does not usually authorize a segmented adjudication. (See De Coss v. Turner Blanchard, 267 N.Y. 207; Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N.Y. 304; Eidelberg v. Zellermayer, 5 A.D.2d 658, 663.)
Considered on their merits, these additional constitutional objections to the statute are not well founded. Whatever else may be said about it, chapter 717 of the Laws of 1967, dealing broadly with State purposes and State policies, is not a "local bill" within section 15 of article III. Nor is it a law, within paragraph (2) of subdivision (b) of section 2 of article IX, in relation to the property, affairs or government of the Town of Oyster Bay.
Section 92, as it has been observed, authorizes a State corporation to build a State bridge; and section 93, amending section 341 of the Highway Law, describes where a State highway is to be located in the complaining town. This location of State highways has nothing whatever to do with the property, affairs or government of the Town of Oyster Bay.
All State highways have to be located physically in some local subdivision; but their authorization remains a State and not a local matter. One might compare the laying out of the Thruway which was located in many enumerated towns, villages and cities without losing its essentially State character. Nor is there anything about the proposed State bridge, part of which would be in Oyster Bay, offensive to the Home Rule provision.
Numerous decisions deny this aspect of the construction of the statute which the city and town would invoke ( Whalen v. Wagner, 4 N.Y.2d 575; People ex rel. Buffalo Fort Erie Bridge Auth. v. Davis, 277 N.Y. 292; Adler v. Deegan, 251 N.Y. 467; Admiral Realty Co. v. City of New York, 206 N.Y. 110; People v. O'Brien, 38 N.Y. 193).
It is suggested that concessions by counsel at Special Term require affirmance of the judgment. But no concession or admission in a pleading or affidavit by a public officer or his counsel on the validity of an act duly passed by the Legislature will bind the court to hold it unconstitutional ( Fougera Co. v. City of New York, 224 N.Y. 269, 278-279; National Bank of Colchester v. Murphy, 384 Ill. 61, 64; General Motors Corp. v. Blevins, 144 F. Supp. 381, 389; 16 Am.Jur.2d, Constitutional Law, § 118, pp. 308-309; 16 C.J.S., Constitutional Law, § 97, pp. 344-345; Ann. — Stipulation as to Law, 92 A.L.R. 663, 667-668).
The answer denied the plaintiffs' allegation (complaint, par. 24) that the 1967 statute was not a "special act" (answer, par. 1). Elsewhere, the answer (par. 7) alleges the 1967 statute was a "general act", but this was in the context of the article III contention of plaintiffs. The answer also alleges that since the 1967 statute did not create the corporation it was unnecessary to have a "special act" (par. 17).
Counsel for defendants did not concede at Special Term the unconstitutionality of the 1967 statute. Their legal position was that the Metropolitan Transportation Authority was created by the statute of 1965 and merely continued in 1967. They conceded it was not a special act but argued that it was constitutional.
But that mistaken concession is not repeated in this court and all defendants correctly argue here that the 1967 statute is a special act which meets fully the article X, section 5, requirement that the Legislature itself shall create this kind of public authority.
The judgment appealed from should be reversed and declaratory judgment directed for defendants-appellants against respondents and intervenor-respondent, without costs.
While there is a legal presumption which favors the constitutionality of particular legislation, instances arise where logic mandates that the presumption be rejected. Such a situation exists in the present case.
Sections 83 and 92 of chapter 717 of the Laws of 1967 are today challenged by the residents of the City of Rye and the Town of Oyster Bay as unconstitutional enactments, in conflict with either section 5 of article X or section 15 of article III of our State Constitution.
The residents of these communities are for the first time aware that section 83 which the majority acknowledges created the Metropolitan Transportation Authority and section 92, which authorizes the design, construction, maintenance, operation, improvement and reconstruction of a highway bridge crossing Long Island Sound with Oyster Bay and Rye as termini, were enacted by the Legislature of this State with sundry other provisions of chapter 717 of the Laws of 1967. However, they maintain that such significant legislative enactments were adopted without opposition and proper consideration because they were secreted within the many provisos of that chapter.
These sections of chapter 717 were summarized, when presented to the Legislature in 1967, as follows: "AN ACT to amend the general municipal law, the highway law, the public authorities law, the rapid transit law and the state finance law and to enact chapter sixty-one-a of the consolidated laws, in relation to transportation generally and to the implementation of a chapter of the laws of nineteen hundred sixty-seven known as the transportation capital facilities bond act, the organization, functions, powers and duties of the metropolitan commuter transportation authority, the New York city transit authority, triborough bridge and tunnel authority and the Niagara Frontier port authority, the creation of the Niagara Frontier transportation authority, the powers of municipal corporations with respect to mass transportation, airport and aviation facilities, state highways in the counties of Nassau and Westchester and the powers of the port of New York authority to establish and operate an additional air terminal, and to repeal subdivisions two, three, four and five of section thirteen hundred three of the public authorities law relating to the board of the Niagara Frontier port authority." While descriptive of many of the subdivisions of chapter 717, this synopsis is lacking a reference to either the formation of the Metropolitan Transportation Authority or the contemplated bridge. The respondents thus contend that they were not given notice of these sections, when enacted, as required by the Constitution.
The constitutional provisions involved are unambiguous and do not require interpretation. Section 5 of article X states in pertinent part that "No [such] public corporation * * * possessing both the power to contract indebtedness and the power to collect rentals, charges, rates or fees for the services or facilities furnished or supplied by it shall hereafter be created except by special act of the legislature." Section 15 of article III provides "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" (emphasis supplied).
Clearly, the Metropolitan Transportation Authority is a public corporation possessing both the power to contract indebtedness and the power to charge rates for the use of its contemplated bridge facility. The majority concedes as much and, after discussing certain aspects of unrelated provisions of the Public Authorities Law, they conclude that the Metropolitan Transportation Authority was created by special act and that the implementation of all its powers, including the right to build bridges, was a valid exercise of legislative authority. The fallacy of this conclusion is demonstrated in part by the affidavit of the Assistant Attorney-General who states that "Chapter 717 * * * does not create a public corporation and accordingly Article X § 5 clearly does not apply." (Italics supplied.) In addition to this affidavit from the State's legal representative, the record before this court contains the answer submitted by the Metropolitan Transportation Authority wherein they concede that "Chapter 717 of the New York State Session Laws of 1967 * * * is a general law as is each and every part thereof." They continue, contending that "Since Chapter 717 does not create the public corporation involved here it was not necessary to be passed as a special act." Thus, the majority opinion of this court notwithstanding, the parties to this proceeding all acknowledge that chapter 717 of the Laws of 1967 is not a special act. In recognizing chapter 717 as a general act, the Metropolitan Transportation Authority argues that, while that body was created in 1967, there was then in existence the Metropolitan Commuter Transportation Authority which was created by special act, with very limited authority in 1965. In effect, they contend that the valid creation of a limited authority in 1965 permits subsequent transformation of that authority without compliance to constitutional standards. Hence, they maintain that there was no need for a "special act" in 1967. The majority has rejected this point sub silentio, and rightly so, since it is overly simplistic to decide that this constitutional provision (art. X, § 5) pertains only when a public corporation is established.
Having rejected the argument advanced by both the Metropolitan Transportation Authority and the Assistant Attorney-General that a special act was not required, the majority has apparently circumvented the unanimous concession that chapter 717 is a general law by concluding that section 83 (not chapter 717) is a special act within the meaning of the Constitution. The legislation itself as well as the briefs in this case negates such reasoning. Chapter 717 is, by its own definition, one act. Section 83, which creates the Metropolitan Transportation Authority, is but a segment of that act, and the act itself has been recognized as a general act. The majority, rejecting the argument that the 1965 creation of the Metropolitan Commuter Transportation Authority was the only enactment which had to meet the constitutional requirement of section 5 of article X, has endeavored to sustain the constitutionality of the newly formed Metropolitan Transportation Authority by designating section 83 as a separate miniature act, contained in chapter 717 and satisfying constitutional standards not met by the chapter in its entirety.
Assuming, arguendo, that the chapter, though denominated an act, is in realty a conglomerate of many individual acts, then it is essential to consider whether section 83 is a special act. When one reads the legislative history of section 5 of article X, it is evident that the reason for its enactment was broader than that attributed to it by the majority. At the time of the Constitutional Convention, the creation of public authorities was a cause for public concern. It was apparent that such authorities, given broad power in specified and delimited areas, were virtually autonomous once unleashed. Cognizant of the ineffectiveness of public reaction upon the activities of an existing authority, the People of New York State insisted upon the requirement of a special act at the time of creation. In this manner, interested citizens were afforded an opportunity to speak out against a proposed authority. In effect, this was the public's sole avenue for circumscribing the proposed delegation of powers to a particular authority. The basic contention of the residents of the Town of Oyster Bay and the City of Rye at this time is that they were deprived of this right to oppose the Metropolitan Transportation Authority's creation. Since the passage of section 83 of chapter 717 of the Laws of 1967 accomplished the very result sought to be prevented by the requirement of a special act, it is clear that the constitutional safeguard written into the Constitution in 1938 is now bypassed by an ipse dixit that section 83 is a special act. The supreme rights of the citizens of this State to a public forum to debate the desirability of a bridge cannot be overcome through the device of a struggle in semantics to determine what is, or is not, a special act.
Regrettably, the majority has frustrated the constitutional command and denied these residents of Rye and Oyster Bay the right to challenge the wisdom of the construction of the bridge affecting their communities. Moreover when the majority concluded that section 83 was a separate special act within the framework of chapter 717 of the Laws of 1967, thereby evading one constitutional attack, they simultaneously raised another. If we divide the entire act into many little acts, then, perforce, each separate act must meet constitutional requirements. As noted above, section 15 of article III of our Constitution prohibits the passage of a private or local bill which does not express the subject of the bill in the title. Decisions are legion wherein this court has construed the term "local bill" in this setting to mean one which touches but a portion of the territory of the State or a part of its people. (See, e.g., Kerrigan v. Force, 68 N.Y. 381; Cahill v. Hogan, 180 N.Y. 304; Knapp v. Fasbender, 1 N.Y.2d 212.) Under these decisions, it is apparent that legislation authorizing the design, construction and maintenance of a bridge which would have one of its termini in the Town of Oyster Bay and the other in the City of Rye is a local law. Section 92 was nevertheless enacted without a separate title and even the title which accompanied the total enactment (ch. 717) lacked any reference to a bridge. Accordingly, it seems to me that the enactment is unfortunately unconstitutional.
The majority has, however, hurdled this constitutional requirement by reversing the analysis employed to defeat the prior challenge made pursuant to section 5 of article X and concluding instead that, for purposes of section 15 of article III, they will content themselves with the conclusion that chapter 717 (not § 92), dealing broadly with State purposes and State policies, is not a "local bill".
We see legal inconsistency in both this approach and reasoning. The court may not view an act in its separate provisions for one purpose and then consider it as an entity for another. Such reasoning is ill suited to the present litigation as it effectively emasculates those provisions of the State Constitution designed to guarantee to the citizenry the right to deal effectively and fairly with legislation affecting their localities. In the context of this case, the majority is denying the residents of Rye and Oyster Bay the opportunity to oppose the construction of bridge plazas which will be located in their respective backyards.
Accordingly, the judgment appealed from should be affirmed.
Judges SCILEPPI, BREITEL and JASEN concur with Judge BERGAN; Judge BURKE dissents and votes to affirm in a separate opinion in which Chief Judge FULD and Judge KEATING concur.
Judgment reversed, without costs, and case remitted to Special Term for further proceedings in accordance with the opinion herein.