Salzman v. Impellitteri, 305 N. Y. 414, 113 N. E. 2d 543 (1953)

Ertell, Dewey, Jr.

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Municipal Corporations—Home Rule

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Buffalo Law Review Volume 3 Number 1 Article 50 12-1-1953 Municipal Corporations—Home Rule Dewey Ertell Jr. Follow this and additional works at: https://digitalcommons.law.buffalo.edu/buffalolawreview  Part of the State and Local Government Law Commons Recommended Citation Dewey Ertell Jr., Municipal Corporations—Home Rule, 3 Buff. L. Rev. 127 (1953). Available at: https://digitalcommons.law.buffalo.edu/buffalolawreview/vol3/iss1/50 This The Court of Appeals Term is brought to you for free and open access by the Law Journals at Digital Commons @ University at Buffalo School of Law. It has been accepted for inclusion in Buffalo Law Review by an authorized editor of Digital Commons @ University at Buffalo School of Law. For more information, please contact lawscholar@buffalo.edu. THE COURT OF APPEALS 1952-53 TERMreferee's report was not binding, but merely "to inform the con-science of the court."'Home RuleThe New York Constitution expressly prohibits the Legisla-ture from passing any law in relation to the "property, affairs orgovernment" of cities, except by general law which in terms andeffect apply alike to all cities or by special request of the particularcity.37  The purpose of these so-called home rule provisions is toprevent special pork-barrel legislation and undue rural influence inrespect to cities.38  As to just what acts constitute such infringe-ment upon the "property, affairs or government" of cities hasbeen a constant source of litigation. Adler v. Deegan?9 is the lead-ing case in New York, stating that "property, affairs or govern-ment" are words of art, defined not by the common meaning ofthe words, but as defined by the Court of Appeals. In 1953 theLegislature authorized New York City to turn over its transitfacilities to the New York City Transit Authority if the city wouldcomply with certain conditions.40  Favorable tax provisions wouldthereby accrue to New York City. A taxpayer's action wasbrought in Salzma% v. Impellitteri4' to enjoin the city from thislegislatively authorized transaction and a declaratory judgmentwas sought as to the constitutionality of the transaction. The Courtof Appeals held, per curiam, that "the statutes in question arepermissive only,42 in a field in which the State is concerned 3 . . .and assuming that any transfer will not be by absolute conveyance,but by a lease of limited term with reversion to the city,44 we can-not say that the legislation is on its face unconstitutional." JudgeDye dissented on the ground that New York City's straightenedtax structure made any choice purely illusory, that the legislationdeals solely with a proprietory interest of New York City and isthus in violation of the constitutional home-rule provisions.36. The instant case citing Bannon v. Bannon, 270 N. Y. 484, 493, 1 N. E. 2d975, 979 (1936).37. NEw Yorx CoNsT. Art. IX, § 11.38. 1 MCQUILLAN, MuNIciPA. CoRpoATrio_ § 1.93 (3d ed. 1949); FoRDHAm,LocAL GovmRNMEN LAW 74-79 (Ist ed. 1949).39. 251 N. Y. 467, 167 N. E. 705 (1929).40. L. 1953, cc. 200-208.41. 305 N. Y. 414, 113 N. E. 2d 543 (1953).42. For analogous case of permissive federal legislation not impinging upon statesovereignty see Massachusetts v. Mcllon, 262 U. S. 447 (199.-).43.' Matter of McAneny v. Board of Estimate, 232 N. Y. 377, 134 N. E. 187 (1922)held that the New York City transportation system was a matter of state concern andthe legislature may therefore act under the police power.44. N. Y. Const. Art. VIII, § 1 prohibits a city from giving or loaning its creditto a public or private corporation. The transit authority would be a public corperation.GEN. Coin. LAW §§ 2, 3. Deady v. Lyons, 39 App. Div. 139, 57 N. Y. Supp. 448 (4thDep't 1899) held that a village could not give funds for repair of a county courthousebecause this would be a gift to a public corporation.

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Municipal Corporations—Home Rule

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