White v. Inebriates' Home for Kings County — 56 N.Y. St. Rep. 665

Majority

p. 665

Alfred T. White et al, App’lts, v. The Inebriates’ Home for Kings County, Imp’ld, etc., et al., Resp’ts.^[1]

(Court of Appeals,

Filed January 23, 1894.)

Headnote

1. Appeals—Court op Appeals.

An order denying a temporary injunction in an action, in which there are no controverted facts, and the complaint presents simply a question of law is reviewable in the court of appeals.

2. Inebriates’ Home for Kings County—Statutes.

The provision of § 1, chap. 687 of 1872, as amended by § 4, chap. 169 of 1877, was not repealed by the city charter of 1888.

3. Same—Local act.

Such act is not a special or local act, within the meaning of the repealing clause of said charter.

4. Constitutional law.

Chapter 169 of 1877 is not violative of § 11, article 8 of the state constitution.

5. Statutes—Amendment.

An enactment, however amended in its provisions and however incorporated in the amendments, may be further amended by reference to the statute, in which it originally appeared.

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Appeal from order of the general term of the supreme court in the second judicial department, made December 5, 1893, which affirmed an order of special term denying a motion by plaintiffs for a temporary injunction.

In the general term it was adjudged, as the ground for the affirmance, that chapter 169, Laws of 1877, was constitutional, has not been repealed and authorizes the comptroller of the city of Brooklyn to pay to defendant, the Inebriates’ Home for Kings county, fifteen per cent, of the moneys collected after April 1, 1887, for licenses.

The facts, so far as material, are stated in the opinion.

B. Burnham Moffat, for app’lts; James G. Church, for resp’ts.

This is an action by taxpayers to restrain officials of the city of Brooklyn from paying certain moneys to the Inebriates’ Home for Kings county. An application for a restraining order was denied pendente lite, and that order was affirmed by the general term. An appeal was taken from the order of affirmance to this court. There are no controverted facts, and the complaint presented but a question of law, which was, in fact, determined adversely by the denial of the motion for an injunction. The form of the order below, by adjudging upon that question, and disposing of the issues, raises a question of law, which we can review here. Birge v. Berlin Bridge Company, 133 N. Y., 477 ; 45 St. Rep., 874 .

The “Home” was incorporated under chapter 843, Laws of 1867, for the purpose of receiving inebriates, entering voluntarily or by order of the trustees. Its objects were declared to be reformatory, and its operation and powers comprehended the county of Kings. This act, and subsequent amendatory acts, provided for the raising of revenues by appropriating a certain proportion of the excise moneys of Kings county and of the city of Brooklyn.

By section IY of chapter 169 of the Laws of 1877, it was finally provided that the city comptroller shall pay to the treasurer of the “Home” fifteen per cent, of the moneys received for licenses granted, and that the board of excise commissioners of the towns of Kings county shall also pay to the treasurer fifteen per cent, of the moneys received for licenses granted by them. It is claimed that that act was repealed by chapter 583 of the Laws of 1888, commonly known as the city charter. That act provided, in section 35 of title XXII, for the repeal of “All local and special acts, passed prior to June 1, 1888, relating to the corporation of the city of Brooklyn, or to the administration of property and affairs of said corporation.” We think’ that the act of 1877 in question can only be said to be in a sense, and relatively to the rest of the state, local. The title was “An act to provide means for the support of inebriates for Kings county,” etc., and the scope of its action was over the whole county. It would be a misuse of terms to classify it with the local and special acts to be affected by the repealing clause of the city charter. Relatively to the county the act was general in its objects and provisions. Incidentally it touched the local administration of the city of Brook

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lyn. In the revision and combination of existing special and local laws affecting the city, which chapter 583 was designed to effect, it is but reasonable to suppose that the acts intended to be combined were such as directly, and only, concerned the municipal administration. We should not extend its operation of exclusion or repeal to acts, which affect the city only as it is part of a subdivision of the state; unless compelled to do so by express language. It is further insisted that § 4 of the act of 1877, referred to, is a nullity. That result is reached by the appellants by comparing the provision of a prior act amendatory of the original act. In 1872 an act was passed (Laws, chap. 687), which, in its first section, provided with respect to the appropriation of certain percentages of city and county excise moneys. In 1875 (Laws, chap. 627, § 3) section 1 of the act of 1872 was amended “ so as to read as follows,” etc.; and by the use of that language and because of the amendment containing all the provisions of the amended section with other new ones, it is, in substance, claimed that § 1 of the act of 1872 was so merged and lost in the amending section as to be incapable of the reference and amendment contained in the act of 1877. In support of this the case of People v. Wilmerding, 136 N. Y., 368 ; 49 St. Rep., 651 , is relied upon. But that case is no authority for any such proposition. There the question was as to the effect of the repeal of a statute, which had incorporated by amendment an earlier enactment, upon that earlier enactment, and it was held that it also was repealed. The principle of the decision, upon that point, was that the repeal of the amending act did not operate to revive the earlier or original act. But here there was no case of repeal. The act of 1877 simply further amended a legislative provision for raising revenues for the “ Home,” contained in the act of 1872. That the provision was amended by the act of 1875, so as to read as in that act stated, did not prevent a further amendment of the original statute by the legislature in 1877, so that the section, in course of amendment, should read as prescribed in the changed form. There is good reason for holding, as we did in the Wilmerding case, against an indirect revival of a statute once repealed, by a repeal of the repealing act; but none for holding that an enactment, however amended in its provisions and however incorporated in the amendments, may not be further amended by reference to the statute, in which it originally appeared.

The only remaining point to be noticed is that the provisions of chapter 169 of the Laws of 1877, respecting the payment of the excise moneys by the city, violates § 11 of article 8 of the constitution of the state. That section forbids the giving by a city of moneys or property in aid of persons, associations, or corporations ; but makes an exception in the case of “ aid or support of its poor as may be authorized by law.” We think the objects of this legislative enactment do comprehend an aid and a support of a very necessitous and helpless class of the poor of the city. In the performance of its charitable and reformatory duties, the trustees of this corporation are empowered to receive

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and care for drunkards in jails or penitentiaries. Thereby the community is relieved of the burden of caring for them, pro tanto. The case of Shepherd's Fold v. Mayor of New York, 96 N. Y., 137 , is sufficient authority upon the point. There the corporate objects were to receive, support and educate orphan, or friendless, children. The decision asserted the obligation of localities to provide for their poor, and held that the constitutional inhibition did not prevent carrying out designated charities through the instrumentality of private corporations; but the giving away of the moneys of the state, or of its counties, or local divisions; except for the designated purposes for which each is authorized to provide. That this act comprehends a provision for the poor of the city and of the county is evident. In terms, the 4th section of the act of 1877 provides that the excise moneys “ shall be paid to the treasurer upon the presentation of a * * * resolution * • * * declaring that it is necessary for the care and maintenance of the indigent poor treated therein,” etc. We can see no violation of the constitution; but, rather, an effectuation of a municipal duty to aid the poor through a duly authorized instrumentality.

For the reasons given, we think the order below was right and should be affirmed, with costs.

All concur.

Order affirmed.