Wallack v. Mayor of New York — 10 N.Y. Sup. Ct. 84

Majority

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LESTER WALLACK, Respondent, v. THE MAYOR, Etc., OF THE CITY OF NEW YORK, and THE SOCIETY FOR THE REFORMATION OF JUVENILE DELINQUENTS IN THE CITY OF NEW YORK, Appellant.

Headnote

Theaters—power of legislature to require licenses to be taken out for— chapter 836, Laws of 1872 — Corporation—when public —power of legislature to give money to.

The legislature has power to regulate places of amusement, and may require them to be licensed by the proper authorities. Such legislation is sustainable as a legitimate exercise of the taxing power of the State, and also as a part of its police regulations.

In order to enforce its prohibitory legislation, the State may authorize any person to institute suits, either in his own name or in the name of the people of the State of Hew York, to recover penalties for violations of such laws.

Chapter 836, Laws of 1872, requiring the managers or proprietors of places of amusement in the city of Hew York to procure licenses from the mayor as therein provided, and requiring him to pay over the amounts received by him to the treasurer of the society for the reformation of juvenile delinquents in the city of Hew York for its use, is constitutional and valid. _ Even if the direction as to the disposition to be made of the license fees were invalid, the other provisions of the act would not be affected thereby.

The powers of the society for the reformation of juvenile delinquents, its purposes, and the statutes relative thereto, considered.

The right of the legislature to direct the payment of the public moneys to an

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institution, depends upon the uses of such institution, and not. upon the character of the person or body who exercises them.

The appropriation of the license fees, by the act of 1872, to the said society is not a gift to a private charity, but a provision for public use, lawfully administered through that corporation, and is clearly within the constitutional power of the legislature.

In view of the objects of the said society, the legislature might appropriate the public moneys to it as a mere gift, and for its private use.

Wire Depa/iiment v. Noble (3 E. D. Smith, 440) and Mre Department v. Wright (id., 453) followed; People v. BateheUor (53 ÍT. Y., 128) distinguished.

Appeal from an order of the Special Term, continuing an injunction.

Edmund Randolph Robinson, for the appellant.

A. Oakey Hall, for the respondent.

The appeal in this case is from an order of the Special Term, continuing, pendente lite, an injunction restraining “ the defendants, and each of them, from beginning or prosecuting or instituting against the plaintiff in the above entitled action, any of the proceedings which are provided by any of the sections of chapter 836 of the Laws of 1872, of this State, referred to in the complaint in this action, and from enforcing or imposing, or attempting to enforce or impose, any penalty or penalties against the said plaintiff, under or by color of any of the provisions of said chapter, by suit or otherwise, and from applying for any injunction to restrain the said plaintiff from conducting or carrying on the business and place of amusement for the performances in the complaint mentioned.” '

The act referred to is the act entitled, “ An act to regulate places of amusement in the city of Hew York.” The first section of the act declares that it shall not be lawful to exhibit to the public, in the city of Hew York, the various entertainments and performances therein mentioned, without first having obtained “ a license for the place of such exhibition,” as thereinafter provided. The second section empowers the mayor to grant such license on receiving for each license so granted, before the issuing thereof, the sum

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of $500; and imposes a penalty of $100 for every exhibition or performance without such license, and authorizes the Society for the Reformation of Juvenile Delinquents to prosecute for such penalty, in the name of the people of the State of Rew York.

The third section subjects the licenses granted by the mayor, to be revoked upon a hearing before a judge or justice of any court of record of the city, on summary proceedings.

The fourth section provides that “ upon granting every such license authorized by this act, the said mayor shall receive from the person to whom the same shall be granted, the amount payable for said license, as above provided, which amounts, as respectively received by him, shall be paid over to the treasurer of the Society for the Reformation of Juvenile Delinquents in the city of Rew York, for the use of said society.”

The sixth section declares the violation of any of the provisions of the act to be a misdemeanor, punishable on conviction by fine or imprisonment, or by both.

The seventh section declares it to be the duty of the police and other officers to arrest and convey persons violating the provisions of the act, before any magistrate having jurisdiction of the offense, to be dealt with according to law. And the eighth section provides, that it shall be lawful for the Society for the Reformation of Juvenile Delinquents in said city, to apply to the Supreme Court for an injunction to restrain any person from opening any theater, circus, or building which he shall open or advertise to open, until he shall have complied with the requisitions of the acts, in obtaining such license; which injunction may be allowed úpon a complaint to be made in the name of said society.

The chief object of this act is to provide for the regulation of places of amusement in the city of EewTork, by placing them under the control of the public authorities, through a system of licenses to be granted by the mayor on the payment of a fixed fee, subject to revocation in summary proceedings before a judge or justice of a court of record, and sanctioned and enforced by pains and penalties, both civil and criminal, and by the restraints of an injunction to prevent the opening of such places without license.

There is nothing new in the system of regulating such places by license. In all its essential features, it has been applied by special

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statute to the city of New York for upwards of forty-five years;^[11] and the same or similar powers have been conferred upon the municipal authorities of the incorporated cities and villages of the State by their respective charters, and upon the authorities of the several towns of the State by general laws reaching back to the earliest history of its legislation. Laws of this character are sustainable upon two grounds: first, as a legitimate exercise of the taxing power of the State;^[9] second, as a part of the police regulations of the State.^[8]

It will be difficult to find any authority in which the power of such regulation and restraint by license, has been denied to the state or federal legislature on constitutional grounds, when exercised within their appropriate jurisdiction.

In our judgment, the constitutionality of the act of 1872 does not at all depend upon the validity of the disposition of the fees to be received by the mayor. That is a question which legitimately arises after the license fee shall have been paid to him by the person taking out the license, and in which such person has no greater interest than any other citizen who is a member of the municipal corporation. It is a question properly between the city and the Society for the Reformation of Juvenile Delinquents; and, if it be true that the legislature has not power to provide that the mayor shall pay over such fees to the treasurer of that society, pursuant to

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the directions of the act of 1872, the consequence is, that it is his duty to refrain from doing so, and to pay them into the city treasury.

In either case, the obligation to take the license before opening the theater or other exhibition, and to pay to the mayor the prescribed fee, remains in perfect vigor. Nor is this affected by the fact that authority is given to the society to commence an action in its own name to restrain the opening of exhibitions without license. That is a power which may be conferred by the legislature on any citizen' or person, as a means of more stringently enforcing its laws of prohibition. And the same thing is true of the provision which authorizes the society to institute suits at law m the name of the people of the State, to recover penalties for violations of the law. Authority of that kind can be legitimately conferred on any person, on such terms as the legislature chooses to dictate; and the- disposition of the penalties recovered, is clearly within the sound discretion of the legislature. Frequent examples of such legislation may be found in the statutes. Whether they are discreet or provident, or not, is for the legislature alone to judge; but no one has, in any case that has fallen under our notice, questioned their constitutionality.

These remarks, it is to be observed, are limited to those sections of the act which are aimed at the offense of violating its provisions, and which become operative only upon such violation or threatened violation.

We are of opinion therefore, that the provisions of the act of 1872, requiring licenses to be taken out, and fees to be paid to the mayor, and providing pains and penalties, civil and criminal, for violations of the obligation to take out licenses, are valid and constitutional; and that it was error in the court below, to hold them to be otherwise, because of the supposed invalidity of the directions of the act touching the disposition of the license fees; and we do not think that such disposition is so mingled with the scheme of the act, that both must stand or fall together. This we think is illustrated by the point made by the learned counsel for the respondent, as to the effect of the charter of 1873. He insists that a provision of that charter requires the license fees, when paid to the mayor under this act, to be paid into the treasury for the use of the city.

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If that be correct, the act of 1872 is so modified thereby, that the question of the illegality of the direction to pay the fees to the treasurer of the Society for the Reformation of Juvenile Delinquents, is out of the case; and nothing is left but a system of licenses and fees exclusively for the public benefit, sanctioned by provisions for civil and criminal remedies for violations of the act, to be enforced by the police and by designated persons. Such a system we think is clearly valid. By taking out the prescribed license, every person, otherwise obnoxious to the penalties, can shield himself against them; but he has no right, by attacking the penalties in an action to restrain their enforcement, to shield himself against the obligation to take the license.

But the more interesting question of this case is as to the validity of the provision requiring the mayor to pay over the license fees to the treasurer of the society. It is claimed that this is the imposition of a tax for the benefit of a private corporation: or, as succinctly stated by the learned justice at Special Term, an act “ to compel certain classes to support a private society that may, if it see fit, do the work of the State.”

The true question, however, is, as it seems to us, whether the legislature has power to appropriate and donate to the society in question, the fees or taxes derived from licenses which it sees fit to impose for the purpose of regulating and restricting places of public amusement of the kind named in the act. The exercise of this power by the legislature is certainly not startling for its novelty. Substantially the same provisions of appropriation to this society are found in chapter 302 of the Laws of 1829; they are repeated in chapter 13 of the Laws of 1839, and renewed in the act of 1872, now under consideration. So that more than forty-five years have elapsed since such license fees have been one of the sources of revenue to the society, without any question being raised in the courts as to the constitutionality of the several acts. This fact is not a refutation of the position of the plaintiff’s counsel, for no age can ripen into constitutional law a violation of the Constitution; but it is an argument that should induce courts to be sure of standing on very solid ground, before overturning enactments sanctioned by such long continued and unquestioned exercise.

The force of the objection seems to depend upon the character

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of the donee. If the act directed the license fees to be paid into the State treasury, or the treasury of the city, or to be applied to maintain the police, or to maintain prisons under the control of public officers, it seems to be conceded that the disposition of the fund would, by no reflective influence, taint the act with the odor of unconstitutionality. In view of this argument, it may be important to inquire, what is the true character of the society for the reformation of juvenile delinquents in the city of Hew York. That society was incorporated by an act, passed March 29th, 1824.^[11] It was clothed with the ordinary powers of a corporation, such as perpetual succession, the capacity of suing and being sued, of having a common seal, and of purchasing, holding and conveying estate, real or personal, for the use of the corporation, provided that its real estate should never exceed the yearly value of $10,000, nor be applied to any other purposes than those for which the incorporation was formed. Its estate and concerns were to be conducted by a board of thirty managers, to be elected yearly “ by the subscribers to the association; ” and it was declared that no manager should receive any compensation for his services. Power was given to the managers, at their discretion, to receive and take into the house of refuge, to be established by them, “ all such children, who shall be taken up and committed as vagrants, or convicted of criminal offenses, in the said city, as may, in the judgment of the Court of General Sessions of the Peace, or of the Court of Oyer and Terminer, in and for the said city, or of the jury before whom any such offender shall be tried, or of the police magistrates, or of the commissioners of the alms-house and bridewell of the said city, be proper objects; ” and to place such children, during their minority, at employments, and cause them to be instructed in such branches of useful knowledge, as might be suitable to their years and- capacity, with power also to apprentice them to proper trades, in accordance with the provisions of the law on that subject; and to make by-laws for the regulation and management of the estate and concerns of the corporation, and for the management, instruction, discipline and disposition of such children, while in the house of refuge or under their care, not contrary to law; and to appoint officers, agents and servants to transact the business of the corporation, and designate

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their duties. The managers were required to make annual reports to the legislature and the corporation of the city of New York, of the number of children received, the disposition made of them, their receipts and expenditures, and, generally, of all their acts and proceedings.

The act was required to be construed benignly and favorably in all courts and places, and was subjected at any time to be altered, modified or repealed by the legislature.

By chapter 24 of the Laws of 1826,^[11] the act was amended so as to provide that the managers “ shall receive and take into the house of refuge established by them in the city of New York, all such children as shall be convicted of criminal offenses in any city or county of this State, and as may, in the judgment of the court before whom any such offender shall be tried, be deemed proper objects; ” and the same powers and duties were conferred and required, as in respect of the children embraced in the original act; and the sheriffs of the several counties were allowed compensation for transportation of juvenile delinquents, the same as for transporting convicts to the State prison, to be paid by the supervisors of the several counties.

By the act of April 29, 1829, a fund was created, payable by the commissioners of health, out of moneys received for the use of the Marine Hospital, to the treasurer of the society, in aid of its purposes.

By the act of April 16th, 1830, the governor of the State was empowered to direct the agent of either of the State prisons, to convey convicts, under seventeen years of age, to the house of refuge, there to be confined according to the rules and regulations of said house of refuge.

By chapter 186, of the Laws of 1831, an additional fund was directed to be paid to the society, by the treasurer of the city of New York, out of the fund for the support and maintenance of the poor, derived from a duty on the sale of liquors and the licensing of inns and taverns; and, by chapter 13, of the Laws of 1839, the proceeds of licenses of theatrical and equestrian performances, were directed to be paid over in support of the society.

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By chapter 100, of the Laws of 1840; 460, of the Laws of 1847; and 608, of the Laws of 1853, the society is required to receive and safely keep criminals under the age of sixteen years, convicted in this State of offenses against the laws of the United States.

■The buildings of the society were erected at public expense, on public property, as provided by chapters 254, of the Laws of 1851, and 539, of the Laws of 1855; and by chapter 252, of the Laws of 1847, and chapter 386, of the Laws of 1851, the school of the society is entitled to participate in the apportionment of the public school moneys, and "is subjected to the general supervision of the board of education of the city of Hew York.

Under the act of May 8, 1846, authorizing the establishment of a house of refuge for juvenile delinquents in western Hew York, and various acts afterward passed, the territory from which juvenile convicts are to be sent by the courts to the house of refuge of the society in Hew York, has been diminished; and other laws, establishing houses of refuge on similar foundations in the city of Hew York, and in the city of Buffalo, have clothed them with power to receive and take care of a portion of the delinquents, who, under the laws above cited, would have been consigned to the care of the society in Hew York. But all these enactments have left intact the general powers and duties of the corporation under consideration. For nearly half a century, from time to time, the legislature has made direct appropriations for the maintenance of the house of refuge of the society, and it has been a1 •all times subject to the visitation of that body.

This review of the legislation creating the Society for the Reformation of Juvenile Delinquents in the City of Hew York, and oi the subsequent legislation touching its duties and powers, shows clearly the true character of the institution. It is in no sense £ trading corporation. It has neither capital, nor stock, nor stock holders, and it is incapable of making either profits or dividends or carrying on trade or manufactures for the private emolumen of its subscribers or managers, or of any person* Its purposes anc objects are exclusively public, and if, in any sense, it may justl; be called a private corporation, it is certainly such only for publi uses. Its connection with the administration of criminal justic in the State, is just as clear and well defined as is that of any o

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the public prisons managed by commissions, or by public officers; the only difference being, that, in respect of the class of offenders who may be committed to its care, the legislature has seen fit to create a body corporate, with all the official functions necessary to their restraint, discipline, punishment and reformation which could be used by the managers of jails and prisons if the offenders had been committed to their custody; to which have been super-added, in tenderness to the youth of such offenders, means supposed to be adequate to rescue them from the path of crime, and restore them to a life of usefulness and virtue.

We know of nothing in the Constitution of 1821, under which this society was incorporated, to prevent the legislature from creating a body corporate for such purposes; nor do we see why such a corporation should not be deemed, in considering the question now before us, as much a body politic, as a municipal corporation clothed with the same functions, or a board of commissioners whose authority and powers are the same. But this is an immaterial question, so long as the uses of the institution are altogether public, and in no sense private. It is the uses that must control, and not the character of the person or body who exercises them, when the question of the right of the legislature to appropriate public moneys is challenged on such a ground as that under consideration. We think it is perfectly manifest, that the license fees appropriated by the act of 1872, are given exclusively to uses, which, in every sense, are as public as those of any other branch of the administration of criminal justice.

It is by no means necessary to establish, for the purposes of this case, that the legislature has power to make donations to public or private charities; but only to maintain that it may provide for the administration of criminal justice toward youthful offenders, for whom reformation is more desirable than severe punishment, in a manner different from that to which old and hardened criminals are subjected; and, for that purpose, may create instrumentalities which to it seem-best adapted to accomplish the end. Whether such instrumentalities be public officers or boards of commissioners, or a municipal or other body corporate, they are engaged, when lawfully set in operation, in the administration of a portion of the public functions and uses for which the government itself is created;

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and they ought not to be let down to the rank of trading corporations, organized for traffic and individual gain, for the purpose of upholding fine-spun theories of constitutional law. The idea that the appropriations made by the legislature to such bodies are charities to private corporations for personal uses, has no basis in fact, and can have none in law when it is considered that the uses to which the appropriation can lawfully be applied are a part of those for which the government itself was created, and is bound in some form to discharge.

Our conclusion is, therefore, that the appropriation of the license fees, by the act of 1872, to the Society for the Reformation of Juvenile Delinquents, is not a gift to private charity, but a provision for public uses, lawfully administered through that corporation, and is clearly within the constitutional power of the legislature.

It is a pertinent and illustrative fact, that in the radical restrictions to be imposed on the legislature by the amendments to the Constitution adopted at the late election, and to take effect on the first of January next, the power we have been considering is expressly retained. Section 10 of such amendments is in these words : “ Neither the credit nor the money of the State shall be given or loaned to or in aid of any association, corporation or private undertaking. This section shall not, however, prevent the legislature from making such provision for the education and support of the blind, the deaf and dumb, and juvenile delinquents, as to it may seem proper.”

But if the Society for the Reformation of Juvenile Delinquents is to be regarded as a mere private "corporation, and the appropriation of the act of 1872 as a mere gift to such a corporation for private use, yet, in view of the objects of the society, it is clearly sustainable by numerous authorities.

The cases familiarly known as “ the Fire Department cases,”^[11] seem to us controlling upon this question. In those eases the question was as to the constitutional validity of the acts of the legislature, which required the agent of every foreign insurance company or underwriter, to pay to the treasurer of the fire department two per cent of all premiums for insurance, made or agreed

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to be made in the city of ¡New York, and to execute a bond to such treasurer that he will make such payments. A penalty of $1,000 was imposed for each insurance made before executing such bond, to be recovered by the fire department; and other heavy penalties were imposed for violations of the act, which were to be recovered in the name of the people of the State for the use of the fire department. The fire department was a corporation created by the Laws of 1798; its origin and history are fully traced in the opinion of the court, in The People v. Pinckney.^[11] Its objects and purposes, as defined in its charter, are “ for the relief of such indigent and disabled firemen and their families as may be interested therein and who may, in the opinion of a majority of the trustees, be worthy of assistance.”^[9] The cases were elaborately and ably argued; and the questions raised seem to have been identical with those urged upon us. The validity of the acts was sustained first at Special Term, by Woodruff, J., and again at General Term by Ingraham, Daly and Brady, JJ., and their decision was finally unanimously affirmed by the Court of Appeals, as stated m note to the report.^[8] If we doubted the correctness of this decision we should not deem ourselves at liberty to disregard it. It is on nearly every point presented, on all fours with the case before us.

But it is urged that the authority of those cases is shaken by the late case of The People v. Batchellor.^[10] The question in that case was, whether a mandatory statute compelling a municipal corporation, without its own consent, to issue its bonds and exchange them for the stock of a railroad company, was valid. It was held that the municipal corporation could not be compelled to become a stockholder in the railroad company, against its own will and consent. We are not able to see that the questions in this case, or in the fire department cases, were involved in or affected by The People v. Batchellor.

The cases on this subject are so numerous that the bare citation of them, is all that can be justified in this place. They establish that the power of the legislature, in the absence of constitutional restriction over the object of taxation, is supreme;

‡ ‡ 3 E. D. Smith, p. 440.

† † Davies’ Laws of the City, p. 392.

§ § 53 N. Y., 128 .

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that the - whole subject is exclusively within legislative discretion, and that the legislature is to determine the subject and the class to be taxed, the district within which the tax is to be laid, the manner of its collection, and the purpose to which, when collected, it shall be applied.^[11] And they establish, also, that the constitutional inhibitions against the taking of private property for public use without just compensation, and against the deprivation of life, liberty or property without due process of law, are not limitations upon the taxing power. The absence of restrictions in this State has led to the adoption of the amendments to the Constitution already referred to, in order to guard against abuses of this absolute legislative discretion. They will operate, it is to be hoped, with signal benefit to the people; but however desirable such restrictions might be, it was never in the power of the courts to impose them, even in cases where the abuse of the discretion was revoltingly apparent. We may enjoy, but we cannot otherwise utilize the admirable argument of the learned counsel for the respondent, in defense of theatrical exhibitions, such • as those conducted by his client. It is not our duty to defend the justice or wisdom of the law which he seeks to condemn. It is enough for us that the legislature has power to enact it, and in its discretion has seen fit to do so. In such case, our duty to uphold and enforce it is very simple and plain. Yet, it might be no difficult task to show that the system of licenses, and its consequent preclusion of unworthy exhibitions, from which license is or ought to be withheld, is greatly advantageous to such establishments as the plaintiff’s, by preventing the degradation of all such performances in the public estimation, which would be quite certain to grow out of the promiscuous and unrestrained exhibitions which would spring up in the absence of legal restrictions.

The order of the court below must be reversed, and the injunction dissolved, with ten dollars costs of this appeal besides dis

* 1 Kent’s Com., 441; Thomas v. Leland, 24 Wend., 65 ; People v. Mayor, 4 Coms., 420; The Fire Department case, 3 E. D. Smith, 440; Guilford v. The Supervisors, 3 Kernan, 143; Brewster v. Syracuse, 19 N. Y., 116 ; Matter of Trustees, N. Y. P. E. School, 31 id., 583; Darlington v. The Mayor, 31 id., 190; Howell v. Buffalo, 37 id., 267; Litchfield v. Vernon, 41 id., 123; People v. Lawrence, 41 id., 137; People v. Harlem Railroad (see opinion in this case infra. —Rep.); People v. Flagg, 46 N. Y., 404 .

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bursements, and ten dollars costs of the motion in the court below.

Daniels and Lawrence, JJ., concurred.

Ordered accordingly.

Footnotes

* Laws of 1829, chap. 302, §4; Laws of 1839, chap. 13; 5 R. S. (Edm. ed.), p. 212; Laws of 1862, chap. 281.
† † Providence Bank v. Billings, 4 Peters, 514; Nathan v. Louisiana, 8 How. (U. S.) R., 73; License Tax Cases, 5 Wallace, 462, 475; Savings Bank Cases, 6 id., 611; Lunt’s case, 6 Greenleaf, 412; Ingersoll v. Skinner, 1 Denio, 540 ; People v. Coleman, 4 Cal., 46 ; Raquet v. Wade, 4 Ham., 107; State v. Stevens, 4 Texas, 137; The Germania v. The State, 7 Maryland, 1; 9 Texas, 369; Boston v. Schaffer, 9 Pick., 415 ; City of New Orleans v.North, 12 La. An., 205; 5 Wallace, 474; Fire Department v. Noble, 3 E. D. Smith, 452; People v. Lawrence, 41 N. Y., 137 .
‡ ‡ Fire Department v. Noble, 3 E. D. Smith, 452; Metro. Board of Excise v. Barrie, 34 N. Y., 657 ; License Cases, 5 How. (U. S.), 589; Cooley v. Board of Wardens, 12 id., 299; State v. Almond, 2 Hous., 612; Commonwealth v. Stodder, 2 Cush., 562 ; Nightingale’s case, 11 Pick., 168 ; Village of Buffalo v. Webster, 10 Wend., 99 ; Bush v. Seabury, 8 John., 418 ; Slaughter-house Cases, 16 Wallace, 62; Commonwealth v. Colton, 8 Gray, 488 ; Tanner v. The Village of Albion, 5 Hill, 121 .
* See 5 R. S. (Edmonds’ ed.), p. 206.
* 5 R. S. (Edmonds’ ed.), p. 208.
* Reported in 3 E. D. Smith, 440, 453.
* 32 N. Y., 377 -388, et seq.