The sun. [volume] (New York [N.Y.]) 1833-1916, 1913-09-25
Board of Estimate Loses
Real Estate Sales and
Franchises.
NOT TO GRANT PENSIONS
Sinking Fund Commission Also
Shory Of Some Of Its
Former Powers.

supreme Court Justice treenOAum
handed down q decision yesterday uphold
ing the constitutionality Of I home rule
law passed by the last Legislature. which
under the contentious Of Corporation
Counsel Watson divests the Board Of
Estimate and the Sinking Fund Com
mission Of all their powers over the lease.
purchase and sale OF city real estate and
the granting Of franchises and gives the
Board Of Aldermen supreme power in
these matters.
The question was before the court In
the suit Of Joseph q. Hammitt in behalf
Of the citizens Union against the Board
of Estimate to restrain the payments Of
pensions to city employees upon their re-
tirement after thirty years service.
The suit alleged the unconstitutionality
Of the pension law passed In 1911 and
FIRST came to trial before the last Lesis.
lature met. Supreme Count Justice
Bischoff heard the suit and decided that
the pension law was constitutional
Justice .0reenbaum caid In his opinion
that before Justice Bischoff could sign
~ tuc Soec kuO oWAol
catastrophe intervened which deprived the
bench OF one OF its ablest members
Hsae Rsle Law Pass&A.
Before the case came to trial again the
Legislature passed the home rule bill.
which 10 chapter cA' Of the laws Of 1913.
Cpon the retrial the plaintiff contende1
thai. .paAss the home spls Law the psvsr
10 grant pensions was taken from the
Board Of Estimate and lodged with the
Board OF Aldermen and that since the
pension Law Of 1911 was superseded there
is now no statutory provision for the pay
msnt OF pensions.
Through the Corporation Counsel the
Board Of Estimate maintained that the
homo rule law IL UNCONSTITUTIONAL, and
even II II IL upheld as valid II does moi
operate to supersede the pension act. The
Cor poration Counsel also assailed the
home rule law on the ground that while II
is ostensibiy a general law applicable to
all cities II 10 In reality special legislation
applicable to the, city OF New York. and
As such should have been submitted to the
Mayor for hearing and approval before
1t became a law.
Justice Greenbaum remarked that g
special attack vas made on the provision
in the homo rule law that mo sale OF
lease Of city real estate or any franchise
belonging thereto or under the control oi
the city shall be made or authorised ex.
cept by the vote Of three-fourths of the
members 4: the common council or CORE.
spending legislative body Of the city
Law Called susterfuse.
This IL the provision transferring tn
powers Of the Board Of Estimate and tn,
Sinking Fund Commission to the Board o
Aldermen. which the court says IL helt
to be evidence OF the fact that the hom
rule measure, although In form a gen
erai law. rs Z mere device or subterfug
to circumvent the provision OF the Con
stitution requiring the submission OF New
York city laws to the Mayor for approval
Justice 0reenbsum decides that there i
no internal evidence In the bill OF an.
attempt on the part Of the Legislature 4
evsde or override the Constitution. Tn
reasoning Of the Corporation Counsel /
not persuasive"
Justice Greenbaum says:
1T 10 almost commonplace at this stag
Of our jurisprudencs' to reiterate the uni
versaliy recognised rule Of the courts I
uphold As controlling legislative enact
ments whenever possible and not to inter
fere with the expression Of the legislativ
will unless compelled to do. s0 by hishe
fundamental law as expressed In the Con
stitution. Tested by this rule, the cOur
unhesitatingly pronounces the, home rul
law constitutional"
As to the contention that the home rul
law takes the pensioning power away fror
the Board of Estimate, Justice 0reenbauT
says that while the homo rule law give
the Board Of Aldermen the right to pensio
city employees. until the board takes &C
tion to do 90 the power conferred In tn
pension law 10 effective.
Ne Repeal Intended.
He says II would be preposterous :
assume THAI the Legislature intended I
repeal the pension law. The decisio
makes this important ruling:
1T would be hardly profitable to attemy
Q dissection Of the somewhat involve
verbiage Of the subdivisions Of the HON
rule act. but close study reveals nothin
indicating an intention by the Lsgislatuv
TO supsrssds any existing Law operating I
sxtsnd any power therein grantsd sxcep
tns ct the moment when the munlcipalit
has undertaken to avail itself OF Ii
broader power"
Justice 0rsenbaum says that any 9th,
Interpretation would mean that the Lssi,
-laturs intsnded ITO create . condition I
chaos and paralysis Of existing laws aleec
ing the municipality"