The People of the State of New York ex rel. The Inebriates' Home for Kings County, Appellant, v. The Comptroller of the City of Brooklyn, Respondent

The People of the State of New York ex rel. The Inebriates' Home for Kings County, Appellant, v. The Comptroller of the City of Brooklyn, Respondent. Charitable and reformatory institutions, not controlled by the board of charities, are not entitled to public moneys — effect of the Constitution of 1894 — chapter 169 of 1877 is repugnant to the Constitution in so far as it commands payment. A construction of a constitutional provision which may operate to defeat and nullify the purpose and object of such provision must be rejected. By sections 11-15 of article 8 of the Constitution of 1894 a new scheme for the government of charitable, correctional and reformatory institutions in this State was enacted, and a new method of procedure prescribed where public moneys are to be applied in support of any such institutions. In the latter respect such provisions are self-enforcing-and operate as a repeal and abrogation of all statutes in conflict with or repugnant to them. The provisions of section 14 of said article 8, that “payment hy -comities, cities, towns and villages to charitable, eleemosynary, correctional and reformatory institutions, wholly or partly under private control, for care, support and maintenance, may be authorized, hut shall not he required hy the Legislature,” and that " no such payments shall be made for any inmate of such institutions who is not received and retained therein pursuant to.rules established by the State Board of Charities,” operate to modify all statutes, existing at the time of the adoption, of such provisions, requiring any of the political divisions of. the State to apply public moneys in support of such an institution, by abrogating the requirement and leaving simply an authorization to pay. The passage hy the Legislature- of an act (Chap. 574 of the Laws of 1895) authorizing the payment of public moneys hy the several political divisions of t-lie State, following immediately upon the adoption of the Constitution and in pursuance of its provisions, is a contemporaneous act, places practical construction upon such provisions, and as such is entitled to weight in the construction of the provisions themselves. Chapter 169 of the Laws of 1877, providing that the comptroller of the city-pf Brooklyn should pay to the treasurer of the Inebriates’ Home for Kings county fifteen per cent of the excise moneys, is repugnant to the provisions of the Constitution of 1894, so far as it commands such payment to he made. Appeal by tbe relator, Tbe Inebriates’ Home for Kings County, from an order of the Supreme Court, made at the Kings County Special Term and entered in tbe office of tbe clerk .of the county of Kings on tbe 23d day of September, 1896, denying its motion for a peremptory writ of mandamus requiring .the comptroller of the city of Brooklyn to pay over fifteen per cent of the excise moneys received by him between January 1, 1895, and May 1,1896, from the excise commissioners of tbe city of Brooklyn. Josiah T. Marean, for tbe appellant. Joseph A. Burr, Corporation Counsel, for the respondent. [MAJORITY — Hatch, J.:] Hatch, J.: Tbe relator was created a corporation by chapter 843, Laws 1867, and is of the class denominated charitable, correctional and reformatory. It has been from its creation in part supported by moneys received by the board of excise for liquor licenses. The Legislature has from time to time amended tbe act of incorporation. In 1877 (Laws of 1877, chap. 169) it was enacted that tbe comptroller of the city of Brooklyn should pay to tbe treasurer of' said home fifteen per cent of all moneys received by him after the 1st day of April, 1877, from the excisev commissioners of the'city ■ of Brooklyn for licenses granted by them under the excise laws of the State, the money to be paid to the treasurer of the home upon the presentation of a certified copy of a resolution passed by the executive committee of said home declaring that it was necessary for the care and maintenance of the indigent poor treated therein. It was also provided that the moneys required to be paid should be so paid by said comptroller within thirty days after the receipt thereof by him as the same shall be called for by resolution of the executive committee of said home. The act required that, the moneys thus received should be applied to -the care and treatment in said home of such persons, actual residents of the county of Kings, as in the judgment of said executive committee might be poor and in such indigent circumstances as to require relief and support. Under this act 'money, as required, was paid by the comptroller to the treasurer of the home, to the full amount of fifteen per cent, of the amount received from the excise commissioners up to the 1st day of January, 1895, since which time, although resolutions of the executive committee of the home have been passed and presented to the comptroller calling for such moneys, he has refused to pay over the same. Among the grounds upon which the comptroller bases his-refusal to pay is that the law, so far as it commands the payment of these moneys to this institution, is repugnant to the Constitution of the State. The provisions of the Constitution which are thus brought, in question are found in article 8, sections 11 to 15 inclusive. These-sections being in pari materia are to be considered and construed, together. Each is a new section and the subject-matter has never before found place in the fundamental law of the State. Much that is found in section 11 has for its basis various statutory enactments whereby had been created aboard of commissioners of charities, with more or less well-defined powers and which had been engaged in the performance of certain specified duties in connection with the various charitable organizations of the State. The necessity for the continuance of this board and the creation of others was apparent, as well as was the enactment, in the fundamental law, of a fixed and definite scheme for the government of .the various charitable and. reformatory institutions of the State. And this scheme in all its essential features was a new scheme devised for the purpose of.' meeting the wants which a large body of persons within these institutions, and of those which should thereafter be admitted, required; also to limit the purposes for which public moneys should be expended in connection therewith, and yet preserve the institutions, secure the fruits of private enterprise and generosity which had been expended for the benefit of unfortunate people, and to correct abuses which the former system had engendered. Section 11 provides for a State Board of Charities, a State Commission in Lunacy, and a State Commission of Prisons, and upon such board and each commission specific duties are imposed. Section 12 provides that the Governor, by and with the consent of the Senate, shall appoint the members of the said board and of the said commissions. Section 13 saves existing laws, so far as they are not inconsistent with the Constitution, and provides that the visitation and inspection provided for shall not be exclusive. Then follows section 14, which is the present particular subject of construction, and which reads : “ Sec. 14. Nothing in this Constitution contained shall 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 ; or prevent any county, city, town or village from providing for the care, support, maintenance and secular education of inmates of orphan asylums, homes for dependent children or correctional institutions, whether under public or private control. Payment by counties, cities, towns and villages to charitable, eleemosynary, correctional and reformatory institutions, wholly or partly under private control, for care, support and maintenance, may be authorized, but shall not be required, by the Legislature. No such payments shall be made for any inmate of such institutions who is not received and retained therein pursuant to rules established by the State Board of Charities. Such rules shall be subject to the control of the Legislature by general laws.” Section 15 continued in power the State Board of Charities and the State Commission in Lunacy for the time for which they were appointed, unless the Legislature should otherwise provide, and authorized the conferring of additional powers upon such boards by the Legislature not inconsistent with the provisions of the Constitution. It seems to be apparent, from a mere reading of these sections of the Constitution, that the provisions are not limited to prospective acts of the Legislature, but embrace the whole subject-matter, present and future, and create and provide a new scheme of management and new procedure when public money is to be appropriated in support of any such institution. Where the Board of Commissioners of Charities have practical control and charge of the institutions coming within its jurisdiction, it shall formulate rules for the admission into any institution of any person, and unless such rules be complied with, no payment of any money shall be made. It would seem that this contemplated a change in management and payment not alone as to prospective action, but as to existing condition. Certainly if the act of 181!, as to the payment of moneys, was to be continued in force, then the absolute right exists to have and receive such moneys without regard to any action of the Board of Charities, and without regard to the consideration of whether they have complied with its rules. The right to demand these moneys is wholly independent of the constitutional provisions, or else, if it be subject thereto, it is to receive payments, not under the act, but such as may be authorized by the Legislature, for the Constitution speaks alone of payments that may be authorized, and its language is “ no such payments shall be made,” unless the rules are complied with. If the relator is entitled to these moneys, then the scheme of the Constitution is defeated or may be, for its right, being dependent upon the act of the Legislature, continues until the act is repealed, and if the act is never repealed then the constitutional provisions, as to it, are a nullity. We are of opinion that a construction which works such a result is not permissible. Certainly it is one that was not contemplated by the framers of these provisions of the Constitution. In the constitutional debates which resulted in the adoption of these provisions it was said by Mr. Choate, in speaking of section 14: “Wo can venture to say in the Constitution that no dollar of public money shall be paid to any inmate of a private institution * * x" except under such rules and regulations as that board shall create. Now, what will happen ? This constitutional amendment being adopted, that board will lay down rules and regulations * * and this abuse to which I refer, if this amendment is passed, can be and will be rooted out.” (5 Const. Conv. Rec. 2396.) The debate by other members upon the same question was of like tenor. (Id. 2393, 2408, 2416.) Now all this could not happen, and the purpose of the framers of the Constitution might be defeated, if it should now be the law that -public moneys could be drawn and expended in utter disregard of these provisions. The Constitution has now been in force nearly two years, and if the contention of the appellant is sound so far as these moneys and this institution is concerned, it has not been affected in the slightest degree by this constitutional .provision. The fact, if it be one, that the money received would only be applied to the relief of persons, actually residents of the county of Kings, or that the executive committee would not act in defiance of the rules established by the State Board of Charities, or that, if they did, ample remedy is lodged either in the State board or in the Attorney-General of the State to correct such abuse, is mere idle claim. The sufficient answer to the whole claim is that it would defeat and nullify the purpose and object of the constitutional provision, and this has ever been held sufficient for the rejection of such a construction. (People v. Draper, 15 N. Y. 532-544; People ex rel. Bolton v. Albertson, 55 id. 50; People ex rel. Jackson v. Potter, 47 id. 375.) We think the clear intention of the Constitution was to wipe out all existing laws for the appropriation of public moneys for the support and maintenance of these institutions inconsistent with its provisions and substitute in the place and stead thereof the system formulated in the Constitution. In this respect its provisions are self-enforcing, and by virtue of its own power it operates as a repeal and abrogation of all statutes in conflict with or repugnant to it. (Cooley’s Const. Lim. 99.) The passage by the Legislature of an act authorizing the payment of public moneys by the several political divisions of the State to charitable, eleemosynary, reformatory and correctional institutions (Chap. 754, Laws of 1895), following immediately upon the adoption of the Constitution, and in pursuance of its provisions, is a contemporaneous act placing practical construction upon such provisions, and as such is entitled to weight in the construction of the provisions themselves. (Matter of N. Y. District Railway, 42 Hun, 621-627; Cooley’s Const. Lim. 81 et seq.) Rules have been adopted by the State Board of Charities in pursuance of the Constitution, and these rules and the act just cited, with the Constitution, cover the. whole question and establish a uniform, harmonious system which it was the purpose of the Constitution to accomplish. In People ex rel. Wayside Some v. Suprs. (12 Misc. Rep. 187) Mr. Justice Bartlett, in a learned opinion delivered at Special Term, held that this constitutional provision (Art. 8, § 14) operated directly upon existing statutes, and that its effect was to modify the act by striking out the command to pay, leaving simply in force the authorization to pay. The latter subject is now wholly covered by the act of 1895 (Chap. 754). We concur in the views expressed in that opinion and adopt the reasons for the construction as our own. It follows, from these views, that the order appealed from should be affirmed. All concurred. Order affirmed, with ten dollars costs and disbursements.