White v. Boody — 56 N.Y. St. Rep. 194

Majority

p. 194

Alfred T. White et al., App’lt, v. David A. Boody, as Mayor, etc., Resp’ts.

(Supreme Court, General Term, Second Department,

Filed December 1, 1893.)

Headnote

Constitutional Law—Inebriates’ some.

Chap. 169 of 1877, which re-imburses to the Inebriates’ Home the expenditures made on account of the inebriate class and provides for their support, is perfectly legal and constitutional.

p. 195

B. Burnham Moffat, for app’lt; Almet F. Jenks, for city officials ; James C. Church, for resp’ts.

The Inebriates’ Home of Kings county was incorporated by chapter 843, Laws of 1867. By the terms of this act twelve per cent, of the moneys received for licenses granted in Kings county, with certain deductions therefrom, not material to • the qnestion presented, were to be paid to the Inebriate Home. The county of Kings was then a portion of what was known as the Metropolitan Police District. The entire amount of the fines received for violations of the excise law in Kings county were to be paid to the home also. The act was an extremely beneficial one and was, by its terms, of a public character. The trustees could require persons who were held in the Kings county jail and penitentiary to be transferred to the home and magistrates were required to commit persons convicted for intoxication or as habitual drunkards for a period not exceeding six months and such persons were to be discharged; one class in ten days and the others in thirty days, unless transferred to the home. The excise money received by the home was to be applied for the purposes of the home “ and for no other purpose.” The act provided for the creation of branches of industry and that the inebriates should receive compensation for their services. By chap. 687, Laws of 1872, the legislature passed an act providing for the means of support of the home directly on excise money in Kings county, and the city of Brooklyn as the Metropolitan District has ceased to exist. This act increased the obligation of the home and made it, in a still larger sense, a public act. By chapter 627, of the Laws of 1875, the legislature passed an act amending the act of 1872. The act created new corporations by the first and second sections and then proceeded to amend § 1 of the act of 1872 “ so as to read as follows

Section 1 then provided that the excise money of Brooklyn city not exceeding twelve per cent, should be paid to the Home. Section 2 of the act of 1872 was repealed. Other parts of the act of 1872 were silently omitted, and additional, powers were given still increasing the charter of the Home as a public institute for inebriate paupers. By chap. 169, Laws of 1877, the legislature again amended the charter of the defendant by amending § 1 of the Laws of 1872 “so as to read as follows.” By this section fifteen per cent, of the city excise money and also from the outlying towns of Kings county-was to be paid over to the Inebriate Home. The complaint in this case is based upon this legal position. The act amending the first section of the act of 1867 “ so as to read as follows ” by the act of 1875 and the act of 1877, again amending that section “ so as to read as follows,” rendered the payments required to be made to the Inebriate Home invalid. The act of 1865 was merged in the act of 1872, and that the Law of 1872 was practically repealed by the Law of 1875, and the act of 1877 by amending the act of 1872, had no force because the act of 1872 was dead. The case of People v. Wilmoody, is no authority for this view. The law of 1872 was never repealed

p. 196

in terms. One of its sections was amended and again amended to conform to the legislative intent and there is a clear legislative intent to re-enact the law of 1872 so far as it was re-enacted by the laws of 1877. The payments of the excise moneys to the Home do not violate art. 8, § 11 of the constitution as amended in 1874. The payments are for city purposes and are directly within the exceptions in that article which asserts that the city may make such provisions for its poor as may be provided by the law. In the case of The Shepherd’s Fold v. The Mayor, 96 N. Y., 137 , the court of appeals says that where the city is entitled to put destitute persons in the care of a corporation, the legislature has the power to authorize the city to provide for the burden cast upon it, notwithstanding the constitutional provision in question. The defendant assumes a burden in respect to a class of persons who are charges upon the taxpayers of the city of Brooklyn, and the law in question which reimburses the expenditures made on account of this unfortunate class and provides for their support, is perfectly legal as an act of the legislature and also as being within the constitutional power of the legislature to pass.

Judgment affirmed, with costs.