#### Clement H. Wilcox, Plaintiff, *v.*George B. McClellan, as Mayor, etc., et al., Defendants.

(Supreme Court, New York Special Term,

June, 1905.)

Constitutional law — Delegated powers — Legislative control over streets in the city of New York — Laws 1905, chaps. 629-631—Board of estimate and apportionment may grant rapid transit railway franchises — Injunction — Taxpayer’s action.

The legislature creates the subjects of local legislation and except as restrained by the Constitution, defines the powers and duties of the local legislatures in relation thereto, and that the legislature under its reserved power may modify or take away these delegated powers and duties in whole or in part is well established.

The legislature may delegate its power of control over the streets of the city of New York, to any local board, administrative or legislative, under such provisions of law as will permit it to be best exercised for the public welfare.

*466Chapters 629, 630 and 631 of the Laws of 1905, by which the control of the streets of the city of New York and the power to grant franchises to street railway corporations' were taken from the board of aldermen, the legislative body of the city, and given to the board of estimate and apportionment, an administrative body, are constitutional, and the latter board may not .be restrained by injunction, in a taxpayer’s action, from considering and taking action upon the application to it of the board of rapid transit railway commissioners for consent to the construction of certain rapid transit railways.

Motion by a taxpayer for an. order enjoining the defendants pending this action, from considering or taking action' pursuant to the provisions of chapters 629, 630 and 631 of Laws of 1905, in respect to certain communications received by the defendants, as the board of estimate and apportionment of the city of New York, from the board of rapid transit railway commissioners.

Kellogg & Hose (L. Tallin Kellogg, of counsel), for motion.

John J.. Delany, Corporation Counsel (William P. Burr, of counsel), opposed.

Blanchard, J.

The plaintiff, a taxpayer, makes this motion for an order enjoining the defendants pending this action from considering or taking any action pursuant to the provisions of chapters 629, 630 and 631 of the Laws of 190-5 of the State of New York, in resjiect to certain communications received by the defendants, as the board of estimate and apportionment of the city of New York, from the board of rapid transit railway commissioners. These communications have for their purpose the securing from the board of estimate and apportionment its consent to the construction of certain rapid transit railways in the city of New York. In support of this motion the plaintiff contends that the said acts of 1905, by virtue of which the board of rapid transit railway commissioners has applied to the board of estimate and apportionment for its consent to the construction of the railways in question, are void, because in violation of certain of the provisions of the State Constitution. The plaintiff’s objections to the constitution*467ality of the acts in question are stated in the complaint as follows: “ *First.*Because they violate the home rule principle as secured to cities hy article X, section *2*of the Constitution of the State of Xew York, in that important functions pertaining to the franchise control over the public streets of said city are by said acts attempted to be taken away from the legislative body of the municipality, to wit, the board of aldermen, and transferred to one of the administrative bodies of the municipality, to wit, the board of estimate and apportionment, during the incumbency of the persons elected by the people and now constituting the said board of aldermen, and which legislation amounts to an appointment by the Legislature to a local office instead of an election by the people or an appointment thereto by the local authorities. *Second.*Because they violate article III, sections 26 and 27, which require that the control of the streets, including the right to grant franchises for the use and occupation thereof, shall be vested in the legislative department, to wit, the board of aldermen; and, *Tim'd.*Because they violate article III, section 18, in that (a) They are purely local bills relating solely to the City of Xew York in respect to the granting of franchises to lay down railroad tracks; and (b) They do not require the consent of the municipal authorities having the control of that portion of the public streets over which it is proposed to construct a street railroad, but provide for the consent of a board not capable of exercising that control under the Constitution.” These several grounds of objection to the constitutionality of the laws in question may be conveniently discussed together. The board of aldermen is, by virtue of article III, section 26, of the Constitution, created the legislative body of the city of Xew York. This section provides that in this city the powers and duties of a board of supervisors may be devolved upon the municipal assembly or common council, board of aldermen “ or other legislative body of the city.” The words *e<*or other legislative body ” evidently mean that in this city the powers and duties of a board of supervisors may be exercised by the legislative body of the city by whatever name it may be designated. *468Article III, section 18, of the Constitution provides that no law shall authorize the construction or operation of a street railway except upon the condition that the consent of the local authorities having the control of that portion of the street or highway upon which it is proposed to construct or operate such railroad *be*first' obtained. The vital question to be determined is, therefore, this: Under the Constitution, has the board of aldermen, as the legislative body of the city of New York, the exclusive i ight to the control of the streets of the city, and is the S^ate Legislature prevented from changing such control? I do not think so. The Constitution nowhere commands or directs that such control be vested solely in a board of supervisors. Such board has only such powers and duties as the Legislature, in its wisdom, may confer upon it. Const., art. III, § 27. In this *city the*board of aldermen stands in *the*place of a board of supervisors, and, likewise, may exercise, under the Constitution, only those powers and duties which the Legislature may confer upon it. I find no authority in the Constitution itself, or anywhere else, to support the proposition that the powers and duties of a board of supervisors of a county, and of a board of aldermen of a city, must be identical. The Constitution provides that in the city the powers and duties of a board of supervisors may be devolved upon a board of aldermen. It nowhere prohibits the Legislature from granting to' the board of aldermen powers and duties greater or less than, or different from, those possessed by a board of supervisors. In the case of boards of supervisors, the Legislature is commanded by the Constitution to confer upon them such powers of local legislation and administration as it may, from time to time, deem expedient (Const., art. III, § *27),*and, as in the government of the city, the board of aldermen takes the place of a board of supervisors, so, likewise, *the*Legislature must confer *upon*the board of aldermen those powers of local legislation and administration as the Legislature may, from time to time, deem expedient. The purpose of these constitutional provisions doubtless was to secure to the State Legislature absolute control over the subjects of legislation, which should be *469within the jurisdiction of merely local legislative bodies. The Legislature creates the subjects of local legislation and defines the powers and duties of the local legislatures in relation thereto. The reserved power of the State Legislature to modify or take away these delegated powers and duties, in whole or in part, is established by abundant authority. The general principle is well stated by Judge Coolev in his work on Constitutional limitations (p. 192), cited land approved in Demarest v. Mayor, 74 N. Y. 167, as follows: “ The creation of municipal corporations, and the conferring upon them of certain powers and subjecting them to corresponding duties, docs not deprive the Legislature of the State of that general control over their citizens which was before possessed. It still has authority to amend their charters, enlarge or diminish their powers, extend or limit their boundaries, consolidate two or more into one, overrule their legislative action whenever it is deemed unwise, impolitic, or unjust, and even abolish them altogether in the legislative discretion. The rights and franchises of such a corporation, being granted for the purposes of the government, can never become such vested rights as against the State that they cannot be taken away; nor does the charter constitute a coniract in the sense of the constitutional provision which prohibits the obligation of contracts being violated. Restraints upon the legislative power of control must be found in the Constitution of the State, or they must rest alone in the legislative discretion.” In commenting upon this citation Earl, J., in Demarest v. Mayor, *supra,*remarks: “ The doctrine of these authorities has never before, so far as I have discovered, been questioned in the courts of this country. The Legislature of this State has made frequent amendments of the charter of Xcw York * * It has, from time to time, increased and diminished the powers of the local officers, and has exercised it power to change and alter the charter of the city at its discretion, and its power to.do so, except as restrained by the State Constitution, has never been questioned in the courts.” In Matter of Lester, 21 Hun, 131, it was objected that an act taking from the common council of the city of Xew York the power to *470confirm an assessment and transferring such power to a board of revision and correction of assessments was unconstitutional. A unanimous court held that the act was constitutional, using the following language: “ We see no force in this objection. The power is transferred from oné body of local officers to another local body, and it is clearly in the power of the legislature to do that,” citing Devoy v. Mayor, 36 N. Y. 449; People v. Pinckney, 32 id. 382; Tone v. Mayor, 70 id. 157; Matter of Roberts, 17 Hun, 559. The plaintiff’s contention that the powers and duties conferred by the acts in question upon the board of estimate and apportionment are purely legislative in their nature, and, therefore, may only be exercised by the board of aldermen, is without substance. Briefly and broadly stated the plaintiff’s objection is that by the acts in question the control of the streets of the city and the power to grant franchises to street railway corporations are taken from the board of aldermen and given to the board of estimate and apportionment, an administrative body. I find nothing in the charter of the city to warrant the conclusion that the board of estimate and apportionment is a purely administrative or executive body. Section 96 of the charter defines the administrative departments of the city government, and the board of estimate and apportionment is not among them. This board has numerous and important original powers and duties. Among these are the making up of the annual budget, and fixing the amount thereof (Greater New York Charter, § 242) ; the appropriation of money for certain purposes (Id., § 242), and general powers, in respect to the opening and improvement of streets. Id., § 243. I find no authority for the proposition that the control of the streets of this city and the power to grant franchises to use them for street railway purposes must necessarily be given to the board of aldermen as the local legislative body. The terms of the Constitution do not require this to be done, and, as the State Legislature has the paramount control of the streets of the city, there seems to be no reason why it, in its wisdom, should not delegate that control to any local board, administrative or legislative, under such *471provisions of law as will permit it to be best exercised for the public welfare. I have fully considered the other objections of the plaintiff to the acts in question and do not deem any of them well taken. These acts amend the charter of the city, as well as certain provisions of the Rapid Transit Act, being chapter 4 of the Laws of 1891. Both of these statutes are, in a sense, local laws, but I cannot hold them to be unconstitutional on that ground. The objection that the board of estimate and apportionment may, at times, be constituted largely of appointed officers instead of elected officers, viz., by the deputy comptroller and the commissioners of public works of the several boroughs, is sufficiently answered by stating that the Legislature has so provided in the charter, and unless the board, when so constituted, is itself an unconstitutional body, its acts, performed in pursuance of law, in respect to the control of the streets and franchises relating to the use thereof, will be constitutional. These considerations lead me to the opinion that the acts in question are constitutional, and as I am convinced from the papers submitted upon this motion that the public interests would be damaged by granting the temporary injunction applied for, the motion is denied, with ten dollars costs.

Motion denied, with ten dollars costs.