author: O’Brien, J.

text:
    George L. McConnell, Appellant, v. Caribbean Petroleum Company, Respondent.

      Argued April 11, 1938;
    decided May 24, 1938.

      Carlos Lazo, Charles L. MacDonald and George A. Dickinson for appellant.
    Jurisdiction should be exercised over the subject of the second cause of action. (Loucks v. Standard Oil Co., 224 N. Y. 99; Matter of Phillips, 206 App. Div. 314.) The Statute of Limitations is not a bar to the second cause of action. (Payne v. N. Y., S. & W. R. R. Co., 201 N. Y. 436; United States v. Memphis Cotton Oil Co., 288 U. S. 62; N. Y. C. & H. R. R. R. Co. v. Kinney, 260 U. S. 340; Missouri, K. & T. Ry. Co. v. Wulf, 226 U. S. 570; Seaboard Air Line Ry. Co. v. Renn, 241 U. S. 290; Seaboard Air Line Ry. Co. v. Koennecke, 239 U. S. 352; Friederichsen v. Renard, 247 U. S. 207; Eighmie v. Taylor, 39 Hun, 366; Lustig v. N. Y., L. E. & W. R. R. Co., 65 Hun, 547; Lassiter v. R. R. Co., 136 N. C. 89; Louisville & N. R. R. Co. v. Pointer, 113 Ky. 952.) Assuming that the amendment to the complaint states a new cause of action, our Statute of Limitations has been tolled under section 19 of our Civil Practice Act. (McClure v. Supreme Lodge, 41 App. Div. 131; National Surety v. Ruffin, 242 N. Y. 413; Meyers v. Credit Lyonnais, 259 N. Y. 399; Kirsch v. Lubin, 131 Misc. Rep. 700; 223 App. Div. 826; 248 N. Y. 645; 249 N. Y. 610.)

      Albert B. Connelly, Bruce Bromley and John H. Morse for respondent.
    The second cause of action set forth in the complaint is a new cause of action. (McConnell v. Williams S. S. Co., 146 Misc. Rep. 512; 239 App. Div. 393; 265 N. Y. 594; Konner v. State, 180 App. Div. 837; 227 N. Y. 478; Harriss v. Tams, 258 N. Y. 229.) The second cause of action is barred by the New York Statute of Limitations. (Mack v. Mendels, 249 N. Y. 356; St. Clair v. Cox, 106 U. S. 350; Peoples Tobacco Co., Ltd., v. American Tobacco Co., 246 U. S. 79; International Harvester Co. v. Kentucky, 234 U. S. 579; Tauza v. Susquehanna Coal Co., 220 N. Y. 259; Holzer v. Dodge Bros., 233 N. Y. 216; Comey v. United Surety Co., 217 N. Y. 268.) The second cause of action is based upon a foreign statute not enforceable in the courts of this State. (Marshall v. Sherman, 148 N. Y. 9; Verdicchio v. Mc Nab & Harlin Mfg. Co., 178 App. Div. 48; Lehmann v. Ramo Films, Inc., 92 Misc. Rep. 418; McCarthy v. McAllister Steamboat Co., 94 Misc. Rep. 692; Delaware, Lackawanna & Western R. R. Co. v. Peck, 255 Fed. Rep. 261.)
   O’Brien, J.

Plaintiff is a resident of Oklahoma and a former employee of defendant, which is a New Jersey corporation. The original complaint was served July 31, 1930, to recover damages for personal injury sustained by plaintiff in July, 1928, through the alleged negligence of defendant in Venezuela where plaintiff was then employed by defendant. It alleged that plaintiff was injured in an automobile which was provided by defendant and operated by defendant’s agents, by reason of its defective condition, of which defendant had notice, and that his injury was caused solely by the negligence of defendant. Also it set forth this provision of article 1218 of the Venezuela Civil Code: “ Every person is responsible for the injury he has caused, not only by bis act, but also by his negligence or imprudence.” The action was tried in January, 1934, and a verdict was rendered for plaintiff, which was set aside and a new trial ordered on the ground that it was contrary to the evidence and the law.

In October, 1936, plaintiff, without taking the new trial for negligence to which he was entitled under the orders of the Trial Term and Appellate Division, moved for leave to serve an amended complaint, and his motion was granted. The alleged cause of action for negligence, as originally pleaded, was repeated as a first cause of action in the amended complaint and in addition another alleged cause of action was pleaded. This second cause of action does not allege negligence but pleads plaintiff’s contract of employment with defendant and the fact of his injury solely by reason of his fall from the automobile which was provided by defendant and operated by its agents. It also alleges that the rights, duties and obligations of plaintiff and defendant are governed by article 1683 of the Venezuela Civil Code, which reads in part as follows: “ The hirer has the right to end the agreement, if the servant becomes disabled by any cause for the service during more than one month, provided that the disability, in an industrial or mining establishment, does not arise from the service itself, in which event the hirer is civilly responsible for the accidents incurred in the service, unless fault is proved on the part of the servant.” Defendant moved, pursuant to rule 107 of the ¡Rules of Civil Practice, for an order dismissing this second cause of action on the ground that it did not accrue within the time limited by law for the commencement of an action thereon, and its motion was granted.

This amended complaint was not served until November, 1936, more than eight years after the alleged cause of action arose. The first question of law is whether a new cause of action is alleged or merely whether a change in legal theory is effected. Plaintiff’s attorneys assert that the motion for leave to serve this amended complaint is based upon sections 245-a and 245-b of our Civil Practice Act. The section first mentioned confers authority upon the court to permit a party to serve a supplemental pleading alleging “ any new and additional cause or causes of action.” The exposition in Payne v. N. Y., S. & W. R. R. Co. (201 N. Y. 436, 441) seems to be quite applicable here, where this court referred to “ instances in which the statutes have created a new or extended liability not known at common law,” and observed: “In such cases it is quite accurate to say that the statute which establishes a new liability also creates a new ‘cause of action,’ for without the statute none would exist.” Venezuela, being a civil law country, the common law, of course, is inoperative. Whatever rights plaintiff may possess depend upon article 1218 or article 1683 of the Venezuela Civil Code. Both rights are created by statute. One cause of action depends upon negligence by defendant, and on this cause of action, in which plaintiff alleges that his injury was caused “ solely by the negligence of the defendant,” he was defeated. The other cause of action, according to plaintiff’s interpretation of article 1683, depends upon the fact of plaintiff’s injury without negligence by defendant. In this second cause of action, which is the only surviving one, the complaint alleges that plaintiff’s injury was caused “ solely by reason of said fall.” Appellant’s brief states that both counts allege the same set of facts, but this statement is not accurate. One asserts a wrong, the other is silent in respect to any wrong; one is based upon a tort, the other merely upon a statutory liability; one charges negligence, the other omits it; one attributes the injury solely to negligence, the other solely to the fall. The principle here differs from the doctrine expounded in New York Central R. R. Co. v. Kinney (260 U. S. 340), where under both the original and the amended complaints the same wrong and tort was alleged. Here the obligation or liability alleged in the amended complaint is entirely different from the obligation or liability alleged in the original complaint. (Harriss v. Tams, 258 N. Y. 229, 241, 242.)

Since a new and distinct .cause of action is alleged in the amended complaint, a second issue of law is in the case. The new action for personal injury, based solely upon a liability without the commission of a wrong was not begun until eight years after the cause of action arose. Under the law of Venezuela the Statute of Limitations is twenty years. Section 48, subdivision 2, of our Civil Practice Act prescribes six years as the Statute of Limitations for an action to recover upon a liability created by statute, and subdivision 3 prescribes the same limitation for an action to recover damages for a personal injury except in a case where a different period is expressly prescribed in this article.” Section 49, subdivision 6, expressly prescribes three years for an action for personal injury resulting from negligence. This section 49, subdivision 6, can have no application to this case as the action is not based on negligence but solely on a statutory liability created by the law of Venezuela. This case differs from the principle of Meyers v. Credit Lyonnais (259 N. Y. 399), which was decided on the fact that both parties were non-residents. Nothing in the opinion in that case indicates that that defendant was authorized to transact business in this State and was always in the State. In the case at bar plaintiff is a non-resident and defendant is a foreign corporation, but the fact is alleged by plaintiff that at all times mentioned in the complaint defendant, a foreign corporation, was engaged in business in the State of New York, and maintaining an office in the City of New York for the regular transaction of its business.” Appellant argues that, even assuming that the amendment states a new cause of action, our Statute of Limitations has been tolled by section 19 of the Civil Practice Act. The Statute of Limitations is not tolled by reason of defendant’s absence from the State, because under the allegations of the complaint and the decisions of this court it has been here all the time# should be dealt with as a domestic corporation, and section 19 of the Civil Practice Act would not protect plaintiff. For the purposes of the Statute of. Limitations this defendant is not a non-resident. (Comey v. United Surety Co., 217 N. Y. 268, 274, 275; Tauza v. Susquehanna Coal Co., 220 N. Y. 259, 269, 270; Holzer v. Dodge Bros., 233 N. Y. 216, 221, 222; Mack v. Mendels, 249 N. Y. 356, 363.)

The judgment should be affirmed, with costs.

Crane, Ch. J., Lehman, Hubbs, Loughran and Finch, JJ., concur; Rippey, J., dissents on the ground that the lex loci applies as to the time within which the action must be brought (37 C. J. pp. 686, 732; Kiefer v. Grand Trunk Ry. Co., 12 App. Div. 28; affd., 153 N. Y. 688) and the time within which the action may be brought under the Civil Code of Venezuela has not expired.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of William J. Cook et al., Respondents, against Paul J. Kern et al., Constituting the Civil Service Commission of the City of New York et al., Appellants, Impleaded with Another.

      Argued April 15, 1938;
    decided May 24, 1938.

      William C. Chanter, Corporation Counsel (Leonard M. Wallstein, Jr., and Paxton Blair of counsel), for appellants.
    Since no new positions were created and since the incumbents satisfied the civil service requirements in effect when they were appointed as stationary engineers, the commission properly held the promotion examination for the purpose only of filling future vacancies. The incumbents were not ousted and may continue in office. (People ex rel. Steiger v. Collins, 213 App. Div. 76; 241 N. Y. 526; Story v. Craig, 231 N. Y. 33; People ex rel. Kenehan v. Higgins, 159 App. Div. 226; Matter of Fornara v. Schroeder, 261 N. Y. 363; Matter of Sandford v. Finegan, 276 N. Y. 70; People ex rel. Wilson v. Knox, 45 App. Div. 537; Matter of Sugden v. Partridge, 174 N. Y. 87.) Before the holding of the promotion examination and the establishment of the eligible list, it was proper for the incumbents to act as engineers in charge. (Matter of Fornara v. Schroeder, 261 N. Y. 363; Matter of Sugden v. Partridge, 174 N. Y. 87; Matter of Murray, 88 Misc. Rep. 625; Hale v. Worstell, 185 N. Y. 247; Thoma v. City of New York, 263 N. Y. 402; People ex rel. Lodholz v. Knox, 58 App. Div. 541; 167 N. Y. 620; People ex rel. Stokes v. Tudy, 108 App. Div. 345; O’Malley v. Board of Education, 160 App. Div. 261; People ex rel. Holleran v. Creelman, 148 App. Div. 121; Smith v. City of New York, 83 Misc. Rep. 98.)

      Abraham K. Weber and Eugene V. King for respondents.
    The New York Constitution (art. 5, § 6) and Civil Service Law (Cons. Laws, ch. 7) require that a promotion may be filled only after a promotional competitive examination. (Matter of Ricketts, 111 App. Div. 669; People ex rel. McClelland v. Roberts, 148 N. Y. 360; Hale v. Worstell, 185 N. Y. 247; Matter of Seeley v. Stevens, 190 N. Y. 158; Hurley v. Bd. of Education, 270 N. Y. 275; Matter of Allaire v. Knox, 62 App. Div. 29; 168 N. Y. 642; People ex rel. Campbell v. Partridge, 89 App. Div. 497; 179 N. Y. 530; Matter of Scahill v. Drzewucki, 269 N. Y. 343; People ex rel. Hannan v. Board of Health, 153 N. Y. 513.) The position of stationary engineer in charge, being a position of a higher rank at increased compensation, is a promotion from the position of stationary engineer. (Hale v. Worstell, 185 N. Y. 247; Chittenden v. Wurster, 152 N. Y. 345; People ex rel. Schau v. McWilliams, 185 N. Y. 92.) The resolution was of no legal effect in so far as it attempted to create an exemption, (People ex rel. Mehegan v. Scannell, 28 Misc. Rep. 401;
      People ex rel. Sims v. Collier, 175 N. Y. 196; People ex rel. Schau v. McWilliams, 185 N. Y. 92; Matter of Simons v. McGuire, 204 N. Y. 253; People ex rel. Finnegan v. McBride, 226 N. Y. 252; Matter of Rooney v. Rice, 274 N. Y. 347; Matter of Kraus v. Singstad, 275 N. Y. 302.)
   O’Brien, J.

The order under review directs the Municipal Civil Service Commissioners, the Commissioner of Sanitation and the Budget Director of the city of New York to certify and assign the petitioners to the positions of “ Stationary Engineers in Charge ” in the order of their civil service ratings and forthwith to remove from these positions those persons now occupying them who are not on the eligible list and also those occupants who are on the eligible list but whose ratings are subordinate to those of the petitioners.

For many years prior to May, 1936, there existed in the Department of Sanitation an office or departmental designation known as Stationary Engineer in Charge,” but the fact does not appear that any such formal position had ever been created by law. Prior to May 27, 1936, the Municipal Civil Service Commission created a new classification known as “ Stationary Engineer in Charge,” and on that date directed a competitive promotional examination to be held for the position of Stationary Engineer in Charge.” However, on August 5, 1936, the Commission adopted this resolution: “ Resolved, That with respect to all Stationary Engineers in Charge whose payrolls have been heretofore approved by this Commission, that the Commission continue such approval of payrolls until application is made by the respective departments in which such persons are employed to change such title to Senior Stationary Engineer, the existence of any promotion list to the contrary notwithstanding; it- being intended that such a promotion list is to be used and certified only for the purpose of filling future vacancies.” Five months subsequent to the adoption of this resolution, and while it remained in effect, the examination for Stationary Engineer in Charge ” was held January 20, 1937. The ehgible hst, upon which these petitioners’ names appear, was not promulgated until July 7, 1937. On the dates of the adoption of the resolution, of the examination and of the promulgation of the ehgible list, no vacancies existed among the “ Stationary Engineers in Charge ” in the Department of Sanitation. Ah the present incumbents had obtained vahd original appointments as stationary engineers, and when, prior to May, 1936, additional duties were imposed and increased emoluments conferred upon them under their departmental designation as Stationary Engineers in Charge,” there were no promotion examinations to be taken and no ehgible lists from which appointments could be made. Having received original vahd appointments, they have the right to remain in their positions, even though a new classification has been effected and new requirements exacted. (Matter of Fornara v. Schroeder, 261 N. Y. 363, 368; Matter of Sandford v. Finegan, 276 N. Y. 70, 73.) No new position has been created, no vacancy has occurred, and the sole purpose of the promotion examination was for filling vacancies. (Civil Service Law [Cons. Laws, ch. 7], § 16.)

The orders should be reversed and the apphcation denied, with costs in ah courts. (See 278 N. Y. 694.)

Crane, Ch. J., Lehman, Htjbbs, Loughran, Finch and Rippey, JJ., concur.

Orders reversed, etc.


author: Rippey, J. Crane, Ch. J.

text:
    Glenn L. Judd et al., Appellants, v. Board of Education of Union Free School District No. 2 of the Town of Hempstead et al., Respondents. John J. Bennett, Jr., as Attorney-General of the State of New York et al., Respondents.

      Argued March 9, 1938;
    decided May 24, 1938.

      Joseph Wheless for appellants.
    The Constitution prohibits State aid directly or indirectly to religious schools. (People ex rel. Lewis v. Graves, 245 N. Y. 195; Lewis v. Bd. of Education, 258 N. Y. 117; Gunnison v. Bd. of Education, 176 N. Y. 11; Adamson v. Union R. R. Co., 74 Hun. 3; Smith v. Donahue, 202 App. Div. 656.) The Constitution prohibits State aid, directly, or indirectly to sectarian schools. (People ex rel. Roman Catholic Orphan Asylum v. Board of Education, 13 Barb. 400; Smith v. Donahue, 202 App. Div. 656; O’Connor v. Hendrick, 109 App. Div. 361; 184 N. Y. 421; Stein v. Brown, 125 Misc. Rep. 692; State ex rel. v. Milquet, 180 Wis. 109; People ex rel. Lewis v. Craves, 245 N. Y. 195.)

      Stephen Crane West for defendants, respondents.
    The statute is valid. (People ex rel. Lewis v. Graves, 245 N. Y. 195; Smith v. Donahue, 202 App. Div. 656; Pierce v. Society of Sisters, 268 U. S. 510; Cochran v. Board of Education, 281 U. S. 370.)

      John J. Bennett, Jr., Attorney-General (John F. X. McGohey, Henry Epstein and John C. Crary of counsel)’ intervener, respondent,
    Furnishing the same transportation for pupils who obtain the education required by law at parochial schools as is provided for the pupils of public schools, is not aiding or maintaining denominational schools. It is an aid to all school children separate and apart from the institutions which they attend, and is, therefore, not in violation of section 4 of article 9 of the State Constitution. (Johnson v. City of New York, 274 N. Y. 411; Schieffelin v. Goldsmith, 253 N. Y. 243; People ex rel. Nash v. Loughman, 220 App. Div. 549; Matter of People v. Title & Mortgage Guar. Co., 264 N. Y. 69; People ex rel. Lewis v. Graves, 245 N. Y. 195; Pierce v. Society of Sisters, 268 U. S. 510; Meyer v. Nebraska, 262 U. S. 390; Cochran v. Louisiana State Board of Education, 281 U. S. 370; Lewis v. Board of Education, N. Y. L. J. Feb. 19, 1937.)

      Thomas F. Hyland for Frederick B. Bertrand, Jr., et ah, interveners, respondents.
    The State Constitution does not forbid the furnishing of equal transportation to all school children at public expense. (Lewis v. Board of Education, N. Y. L. J. Feb. 19, 1937; Pierce v. Society of Sisters, 268 U. S. 510; Borden v. State Board of Education, 168 La. 1005; Cochran v. Louisiana State Board of Education, 281 U. S. 370.)
   Rippey, J.

This action is brought by citizens of the United States and of the State of New York, each a resident and a taxpayer within the geographical limits of Union Free School District No. 2, of the Town of Hemp-stead, Nassau county, and owning property of the value of an amount in excess of one thousand dollars,to restrain the Board of Education of that school district from furnishing transportation with public funds for pupils to and from any private or parochial school located within or without such district, to compel the cancellation and removal of the assessment, levy and lien on their property for moneys appropriated for that purpose, and for other relief.

The defendant school district is a municipal corporation (General Corporation Law [Cons. Laws, ch. 23], § 3; Laws of 1892, ch. 687) and the defendant Board of Education is a body corporate (Education Law [Cons. Laws, ch. 16], § 300). An action may be brought by a taxpayer to restrain illegal official acts, to prevent waste and compel restoration of the taxpayer’s property by illegal action of the board (General Municipal Law [Cons. Laws, ch. 24], § 51; Lewis v. Board of Education, 258 N. Y. 117).

Pursuant to provisions of the Education Law (§§ 134, 206, 310 and 1020), the defendant had for some time prior to the commencement of the action provided free transportation to and from the public schools in the district for physically handicapped pupils of such schools and for those pupils who resided so remote therefrom that they were practically deprived of school advantages without such transportation. No such transportation was provided by the defendant for pupils resident therein who attended private or denominational schools.

In 1936, the Legislature amended section 206 of the Education Law (Laws of 1936, ch. 541, in effect September 1, 1936) so that the material part, with changes and additions in italics, reads as follows:

18. Whenever any district shall have contracted with the school authorities of any city, or other school district for the education therein of the pupils residing in such school district, or whenever in any school district children of school age shall reside so remote from the schoolhouse therein or the school they legally attend that they are practically deprived of school advantages during any portion of the school year, the inhabitants thereof entitled to vote are authorized to provide, by tax or otherwise, for the conveyance of any or all pupils residing therein (a) to the schools of such city, or district with which such contract shall have been made, or (5) tó the school maintained in said district and to schools, other than public, situate within the district or an adjacent district or city. Whenever conveyance of pupils shall be so provided for by vote of the inhabitants, the school district and the school trustees shall provide, if need be, one or more routes so that all children of school age in said district shall equally be afforded transportation facilities.
And the trustees [thereof] of the district may contract with any person, corporation or school district for such conveyance when so authorized in accordance with such rules and regulations as they may establish, consistent with rules and regulations of the commissioner of education, and for the purpose of defraying any expense incurred in carrying out the provisions of this subdivision, they may if necessary use any portion of the public money apportioned to such district. * * * ”

At a special district meeting of the voters of the public school district held on January 7, 1937, a proposition to appropriate moneys to provide transportation for pupils who attended a certain parochial school was defeated. The school was located outside of School District No. 2, was wholly under the control andjiirection of a religious denomination, and denominational tenets and doctrines were therein taught. Upon appeal to the Commissioner of Education, it was held that, under the statute as it stood in its amended form, if free transportation should be provided for pupils who attended the free common schools, similar transportation facilities must be provided for all pupils similarly situated who were attending private and parochial schools. The authority of the Commissioner to make such an order is unquestioned (People ex rel. Board of Education v. Graves, 243 N. Y. 204). As a consequence, a second meeting of the voters was held, an appropriation was made and a tax levied to meet the appropriation. The right to have parochial school pupils transported at public expense is asserted solely by virtue of the amendment of 1936 to section 206 of the Education Law. It is the claim of the plaintiffs that the section, in so far as it purports to or does authorize the use of public funds for the transportation of pupils to and from private schools or schools wholly or in part under the control or direction of any religious denomination or in which denominational tenets or doctrines are taught is in violation of article IX of the State Constitution and that the action taken thereunder by defendant is void. The case reaches us, after affirmance of a judgment on the pleadings dismissing the complaint, upon a certificate of the Appellate Division that a question of law is involved which should be here reviewed.

The provisions of article IX of our Constitution (adopted in 1894) are the ones under consideration here.

Section 1 makes it mandatory for the Legislature to “ provide for the maintenance and support of a system of free common schools, wherein all the children of this State may be educated.” Under this provision, the schools provided must be sufficiently numerous so that all the children of the State may receive their education, whatever may be their race, creed, color, or condition. Private, denominational and sectarian schools, and schools or institutions of learning in which denominational tenets or doctrines are taught or those wholly or in part under the control or direction of any religious denomination are no part of and are not within that system. Amendments designed to bring such schools into the system of common schools were discarded by the convention which framed the Constitution. The common school system of the State was established by chapter 242 of the Laws of 1812. By that act, creation of school districts was authorized, the control of education in all the separate districts was vested in district trustees, inspectors, or town school commissioners to be elected by the people, and continued under the supervision of the State Superintendent of Instruction. Some additions were made by chapter 52 of the Laws of 1813. These acts were repealed and re-enacted by chapter 192 of the Laws of 1814 entitled “ An act for the better establishment of common schools.” The idea that the people must provide for the expense of education first finds expression in chapter 75 of the Laws of 1795, where the Legislature appropriated twenty thousand pounds per year for five years out of the annual revenue of the State for the purpose of encouraging and maintaining schools in the several cities and towns in this State ” other than colleges and. academies.. This constituted the origin of the common school fund of the State. (See, also, Laws of 1796, ch. 49; Laws of 1797, ch. 34; Laws of 1801, ch. 189; Laws of 1805, ch. 108; Laws of 1807, ohs. 20 and 32.) Under the act of 1812, revised in 1814 as above indicated, the moneys in the common school fund theretofore created and enlarged from year to year were required to be apportioned by the State Superintendent of Instruction among the various counties which in turn were required to spend such moneys together with such other moneys as they might themselves collect for education under the provisions of that act to the use of the common schools exclusively. The Legislature by chapters 161 and 212 of the Laws of 1819 continued the apportionment and use of the common school fund. Thereupon the people in article VII, section 10, of the Constitution of 1821 definitely established the common school fund as a perpetual fund to be used exclusively for the support of the common schools throughout the State. By chapter 150 of the Laws of 1842 the Legislature extended aid from this fund, previously used principally in upstate localities, to the city of New York to be distributed and used in a similar manner as in other localities. By that act the common school system was extended generally to apply to the city of New York. The provisions of article VII, section 10, of the Constitution of 1821 were readopted in article IX of the Constitution of 1846 and, in identical form, in article IX, section 3, of the Constitution of 1894. The State thus organized a secular common school system of education throughout the State and supports it by public funds. These schools are free to all. The cost of construction of common schools and the funds necessary for their maintenance and in aid of education therein are provided by taxation by the localities in which, the schools are located and by the State out of the common school and other public funds.

Section 2 of article IX of the present Constitution' continues the University of the State of New York, incorporated under the name of “ The Regents of the University of the State of New York ” in 1784 (Laws of 1784, ch. 51). The act of 1784 was amended in minor particulars in chapter 15 of the Laws of 1785. Those acts were repealed by chapter 82 of the Laws of 1787. By that act, however, the Regents were reincorporated, their powers continued and enlarged, and provision was made that the members of the board should be appointed by the Legislature and should hold office during its pleasure. Thus common school education within the State came exclusively under public control and has since so remained.

Section 4 of article IX of the Constitution provides that “ Neither the State nor any subdivision thereof, shall use its property or credit or any public money, or authorize or permit either to be used, directly or indirectly, in aid or maintenance, other than for examination or inspection, of any school or institution of learning wholly or in part under the control or direction of any religious denomination, or in which any denominational tenet or doctrine is taught.” The origin, history, and prohibition of the use of the common school fund to other than common schools have already been adverted to. This section restricts the use of all public moneys or moneys raised by taxation for educational purposes exclusively to the common schools.

Since our organization as a State we have clearly and unequivocally indicated that there must be a complete severance between denominational or sectarian schools on the one hand and the public common schools on the other. As early as 1805 (Laws of 1805, ch. 108) the Legislature provided specifically that funds for the establishment of free schools for the education of poor children in New York city could be so used only where those children did not belong to or were not provided for by any religious society. Section 14 of the act of 1842 (ch. 150) specifically barred schools which taught religious or sectarian doctrines from receiving any public money in aid or support thereof. To further clarify the matter, the Legislature provided in section 12 of chapter 320 of the Laws of 1844 that “ no school shall be entitled to a portion of the school moneys in which. the religious sectarian doctrine or tenet of any particular Christian, or other religious sect shall be taught, inculcated or practised, or in which any book or books containing compositions favorable or prejudicial to the particular doctrine or tenets of any Christian sect, or which shall teach the doctrine or tenets of any other religious sect, or which shall refuse or permit the visits and examinations provided for in this act.” In 1853, citizens of New York State who were members of a certain religious denomination petitioned the Legislature to authorize the establishment of schools where religion might be taught and to grant to such schools a portion of the common school fund and of other school moneys raised by taxation. The committee having the proposal in charge reported upon the general policy of separation of church and State in connection with the support and maintenance of the educational system and asserted that they could not grant this privilege to one sect without opening the door for applications from every sect in the State, and in view of their number, the conflicting and contradictory nature of their tenets, we should regard as suicidal the attempt to embrace them in the system of our common schools, or sustain them by its funds.” The committee predicted that a policy of that kind would completely ruin the common school system and would open the door for a dangerous and vicious controversy among the different religious denominations as to who should get the largest share of school funds. (See Assembly Document No. 97, 1853; Lincoln’s Constitutional History of New York, vol. Ill, pp. 571-573.) The question of the propriety of sectarian or denominational schools relying for aid or support upon public funds seems to have remained dormant until the meeting of the Constitutional Convention in 1894. When the proposal to amend article IX of the Constitution was taken up in the committee of the whole (Revised Record of the Constitutional Convention, 1894, vol. 3, p. 689 et seq.), the report of the committee on education contained the clause that “ this section [referring to section 4] shall not apply to schools in institutions subject to the visitation and inspection of the State Board of Charities ” (p. 739). This clause would have nullified the effect of the other provisions of section 4 as finally adopted. The clause was stricken out on the grounds, among others, that it is in flagrant derogation of a sound and universal principle, that none but public schools shall receive the support of public moneys, and that the people of this State, or any section of this State, shall not be taxed for the support of education of a sectarian nature in any schools whatever.” The arguments against the present constitutional provision, that it was discriminatory, that it was contrary to the requirements of public welfare, and that support of religious schools was in fact given to the children rather than to the schools involved, were urged but without success, and proponents of the efforts to authorize denominational schools to receive State aid in connection with education were compelled to submit to the conclusion that it was contrary to public opinion and contrary to the theory under which the free common school system was founded. As late as November 6, 1923, the principles underlying and expressed in article IX of the Constitution were reasserted when the Home Rule Amendment for Cities was adopted, wherein it was provided that nothing therein contained should “ apply to or affect the maintenance, support, or administration of the public school systems in the several cities of the state, as required or provided by article nine of the constitution” (Art. XII, § 7).

While the provisions of article IX of the Constitution formally establish the public policy of the State, it is seen, therefore, that they merely crystallize into the fundamental law in mandatory form earlier decisions made by the people and recognized by the Legislature since the organization of the State and the adoption of the first Constitution. While a close compact had existed between the Church and State in other governments, the Federal government and each State government from their respective beginnings have followed the new concept whereby the State deprived itself of all control over religion and has refused sectaries any participation in or jurisdiction or control over the civil prerogatives of the State. Amd so in all civil affairs there has been a complete separation of Church and State jealously guarded and unflinchingly maintained. In conformity with that concept, education in State supported schools must be non-partisan and non-sectarian. This involves no discrimination between individuals or classes. It invades the religious rights of no one. While education is compulsory in this State between certain ages, the State has no desire to and could not if it so wished compel children to attend the free public common schools when then-parents desire to send them to parochial schools (Pierce v. Society of Sisters, 268 U. S. 510), but their attendance upon the parochial school or private school is a matter of choice and the cost thereof not a matter of public concern. As Judge Pound aptly said in People ex rel. Lewis v. Graves (245 N. Y. 195, 198), “ Neither the Constitution nor the law discriminates against religion. Denominational religion is merely put in its proper place outside of public aid or support.” We furnish free common schools suitable for all children of the State regardless of social status, station in life, race, creed, color or religious faith. Any contribution directly or indirectly made in aid of the maintenance and support of any private or sectarian school out of public funds would be a violation of the concept of complete separation of Church and State in civil affairs and of the spirit and mandate of our fundamental law.

The argument is advanced that furnishing transportation to the pupils of private or parochial schools is not in aid or support of the schools within the spirit or meaning of our organic law but, rather, is in aid of their pupils. That argument is utterly without substance. It not only ignores the spirit, purpose and intent of the constitutional provisions but, as well, their exact wording. The object of construction as applied to a written constitution is to give effect to the intent of the people in adopting it and this intent is to be found in the instrument itself unless the words or expressions are ambiguous (Cooley’s Constitutional Limitations [8th ed.], vol. 1, pp. 124-126). There is nothing ambiguous here. The wording of the mandate is broad. Aid or support to the school “ directly or indirectly is proscribed. The two words must have been used with some definite intent and purpose; otherwise why were they used at all? Aid furnished “ directly would be that furnished in a direct line, both literally and figuratively, to the school itself, unmistakably earmarked, and without circumlocution or ambiguity. Aid furnished “ indirectly ” clearly embraces any contribution, to whomsoever made, circuitously, collaterally, disguised, or otherwise not in a straight, open and direct course for the open and avowed aid of the school, that may be to the benefit of the institution or promotional of its interests and purposes. How could the people have expressed their purpose in the fundamental law in more apt, simple and all-embracing language? Free transportation of pupils induces attendance at the school. The purpose of the transportation is to promote the interests of the private school or religious or sectarian institution that controls Xand directs it. It helps build up, strengthen and make successful the schools as organizations ” (State ex rel. Traub v. Brown, 36 Del. 181, 187, writ of error dismissed, Feb. 15, 1938). Without pupils there could be no school. It is illogical to say that the furnishing of transportation is not an aid to the institution while the employment of teachers and furnishing of books, accommodations and other facilities are such an aid. In the instant case, $3,350 was appropriated out of public moneys solely for the transportation of the relatively few pupils attending the specific school in question. If the cardinal rule that written constitutions are to receive uniform and unvarying interpretation and practical construction is to be followed, in view of interpretation in analogous cases, it cannot successfully be maintained that the furnishing of transportation to the private or parochial school out of public money is not in aid or support of the school. A similar argument was advanced in Smith v. Donahue (202 App. Div. 656), in State ex rel. Traub v. Brown (supra), and in Williams v. Board of Trustees (173 Ky. 708, revg., on rehearing, 172 Ky. 133) and discarded.

We have found but two decisions upon the precise question involved in this case (State ex rel. Van Straten v. Milquet, 180 Wis. 109, and State ex rel. Traub v. Brown, supra), in both of which it was held that the furnishing of transportation at public expense to private or parochial school children was prohibited by the provisions of their respective Constitutions which were similar to ours. To like effect was Report of the Minnesota Attorney-General, 1920, page 300.

A related question arises on the constitutionality of statutes authorizing the furnishing out of public funds of free textbooks to private schools. Such a statute was held unconstitutional in Smith v. Donahue (supra). It was there urged that the furnishing of the textbooks was in aid of the pupils rather than in aid of the schools, but the court unanimously reached a contrary result. It is said that Cochran v. Louisiana State Board of Education (281 U. S. 370) is controlling authority to the contrary. That is not the case, however. In Borden v. Louisiana State Board of Education (168 La. 1005) it was held that the furnishing of school books to all the children of the State regardless of where they attended school did not violate a constitutional provision of that State to the effect that no money should ever be taken from the public treasury, directly or indirectly, in aid of any church or religious association, or another constitutional provision to the effect that no public funds should be used for the support of any private or sectarian school, on the ground that the private or sectarian schools were not the beneficiaries of the appropriations made for that purpose but rather the school children and the State alone. Three of the seven judges of the court dissented from that reasoning. That decision was immediately followed in the Cochran case (168 La. 1030), which latter went to the Supreme Court. The question of the constitutionality of the act authorizing the appropriation of public funds for the purpose indicated under the Louisiana Constitution was not a Federal question, and the only question involved or decided in the Supreme Court was whether or not the act in question authorized the taking of private property for a private purpose and was thus violative of the provisions of the Fourteenth Amendment to the Federal Constitution. The reasoning followed in the Louisiana State courts has been followed in no other case to which our attention has been called, but has been expressly disapproved in State ex rel. Traub v. Brown (supra). In the Borden case the minority presented the better-reasoned opinion, in accord with the reasoning in Smith v. Donahue, and said, among other things: The maintenance of private or sectarian schools, however valuable may be the work which they perform, is not a public purpose so as to justify the expenditure of the public money in their support. School books are as essential to the means of imparting instruction to children as are other educational appliances, school houses and school teachers. But I do not believe that any one will contend for a moment that, in face of the prohibitory clauses of the Constitution, money can be taken from the public treasury for the purpose of furnishing the children in private and sectarian schools with these necessary educational facilities. To say the least, the appropriation of the public funds for the purchase of books for all the children of the state is an attempt to do indirectly that which cannot be done directly. The argument of resultant benefit to the state must and does fall before the rule of public policy established in the organic law itself that the welfare of the state can be best promoted by prohibiting appropriations from the public treasury in aid of any church, religious denomination, private charitable, or benevolent purpose, private or sectarian school.”

The courts of this country have been unanimous in prohibiting a use of public funds to pay, directly or indirectly, tuition fees of pupils in private or sectarian schools (Williams v. Board of Trustees, supra; Otken v. Lamkin, 56 Miss. 758; Synod of Dakota v. State, 2 S. D. 366; Opinion of the Justices, 214 Mass. 599; People ex rel. Roman Catholic Orphan Asylum Soc. v. Board of Education, 13 Barb. 400), in spite of the argument presented that tuition fees were for the benefit of pupils exclusively and not for the schools and the economic argument that it would be less expensive for the State to pay the tuition fees of these children in private schools than to provide for them in public schools.

Some reliance is also placed on the decision in Sargent v. Board of Education (177 N. Y. 317). It was a taxpayer’s action brought to restrain the defendant from providing out of public funds for the secular education of inmates of an incorporated orphan asylum maintained and controlled by a religious corporation, on the ground that chapter 261 of the Laws of 1850 under which the expenditures were authorized was repealed by article IX, section 4, of the Constitution and that such expenditures were unauthorized and unconstitutional. It was held as a basis for decision for the defendant that the particular asylum was neither a school nor an institution of learning and that the system of statutory law for the maintenance of charities administered by private corporations did not fall when the Constitution went into effect ” (p. 323).

It is claimed that the statute may be sustained as a valid exercise by the Legislature of the police power of the State. This argument overlooks the consideration than even the police power must be exercised in harmony with the restrictions imposed in the fundamental law (Colon v. Lisk, 153 N. Y. 188; People ex rel. Wineburgh Adv. Co. v. Murphy, 195 N. Y. 126, 131; Ives v. South Buffalo Ry. Co., 201 N. Y. 271, 300; Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398).

Some reliance has been placed upon the decision in People v. Ewer (141 N. Y. 129), which, it is asserted, sustains the broadest kind of regulation over children. The case is not in point. The parent of a child of seven years of age was arrested for violation of section 292 of the Penal Code for publicly exhibiting the child as a dancer, and it was held that the statute was not repugnant to any provision of the Constitution guaranteeing personal freedom and rights to the individual. The decision was grounded in the proposition that, in the exercise of the police power of the State, the Legislature had the right to supervise and control services and exhibitions of a child in the interests of public morals inasmuch as such supervision and control was within the limits and outside of the restrictions of the provisions of the Constitution.

No authority has been called to our attention nor has one been found in any jurisdiction to the effect that a statute purporting to be enacted in the exercise of the police power of the State may be held valid if repugnant to any constitutional provision or restriction. “ A written constitution,” said Judge Werner in Wright v. Hart (182 N. Y. 330), “ is the fundamental expression of the sovereign will. Under our form of government that sovereign will resides in the people. A written constitution is not only the direct and basic expression of the sovereign will, but is the absolute rule of action and decision for all departments and offices of government in respect to all matters covered by it and must control as it is written until it shall be changed by the authority that established it” (p. 333). When that sovereign will has been clearly expressed, it is the duty of the courts rigidly to enforce it. It is not the province of the courts to circumvent it because of private notions of justice or because of personal inclinations (People ex rel. Roman Catholic Orphan Asylum Soc. v. Board of Education, 13 Barb. 400, 411; Cooley’s Constitutional Limitations [8th ed.], vol. 1, pp. 124-126, and cases cited). “Eternal vigilance,” said Judge Pound in People ex rel. Lewis v. Graves (245 N. Y. 195,199), “ is the price of constitutional rights.” Reiterating the necessity of protecting the sovereign will as expressed in our Constitution, Chief Judge Crane said in Matter of Andresen v. Rice (277 N. Y. 271), “ It is not for us, however, to pass upon the best methods of selection or the wisdom of legislation. We have a constitution * * * and we, like everybody else, are bound to follow it ” (p. 280). In Colon v. Lisk (supra) this court said, “ Whenever the legislature passes an act which transcends the limits of the police power, it is the duty of the judiciary to pronounce it invalid, and to nullify the legislative attempt to invade the citizen’s rights ” (p. 197). No claim of right to transportation furnished by public funds can be asserted in the interest of the health, safety and welfare of the pupils of the private or parochial school for any such claim is moderated by the specific provisions of the Constitution (Ives v. South Buffalo Ry. Co., supra, p. 300).

(The statute, in so far as it authorizes the use of public funds for transportation of pupils to and from any school or institution of learning wholly or in part under the control or direction of any religious denomination or in which any denominational tenet or doctrine is taught, is repugnant to our fundamental law, unconstitutional^/ and void.J Attention has been called to the fact conceded by the pleadings that the defendant has appropriated $3,350 of public funds for the purpose of transporting pupils to a private school at which denominational tenets and doctrines are taught, which sum has been added to the budget of defendant, a tax has been levied upon the taxable property of the school district for the purpose of meeting such appropriation, and a lien exists against the property of the plaintiffs. Plaintiffs seek judgment enjoining and restraining the Board, its members, trustees, agents, officers and employees, from furnishing trans portation for pupils attending the school in question and that such assessment, levy and hen on the property of plaintiffs be vacated, canceled and removed as a cloud on the title to their property. Upon the pleadings, the plaintiffs are entitled to such relief and such further relief as by the Special Term may be deemed necessary completely to restore the plaintiffs to the same position in which they stood prior to the making of the appropriation in question.

The judgments appealed from should be reversed and the case remitted to the Special Term to proceed in accordance with this opinion, without costs.

Crane, Ch. J.

(dissenting). In this taxpayer’s action, instituted under section 51 of the General Municipal Law, to restrain the Board of Education from furnishing transportation to pupils of private schools, the plaintiffs attack the constitutionality of subdivision 18 of section 206 of the Education Law, under the authority of which the transportation was furnished. In so far as material here that section provides: “ * * * whenever in any school district children of school age shall reside so remote from the schoolhouse therein or the school they legally attend that they are practically deprived of school advantages during any portion of the school year, the inhabitants thereof entitled to vote are authorized to provide, by tax or otherwise, for the conveyance of any or all pupils residing therein (a) to the schools of such city, or district with which such contract shall have been made, or (b) to the school maintained in said district and to schools, other' than public, situate within the district or an adjacent district or city. Whenever conveyance of pupils shall be so provided for by vote of the inhabitants, the school district and the school trustees shall provide, if need be, one or more routes so that all children of school age in said district shall equally be afforded transportation facilities.”

The sole ground of attack on the constitutional validity of this statute is that it infringes article IX, section 4, of the State Constitution, which reads: “ Neither the State nor any subdivision thereof, shall use its property or credit or any public money, or authorize or permit either to be used, directly or indirectly, in aid or maintenance, other than for examination or inspection, of any school or institution of learning wholly or in part under the control or direction of any religious denomination, or in which any denominational tenet or doctrine is taught.” It is conceded that the school to which transportation is furnished here comes within the class specified in this section of the Constitution.

It will be observed that the constitutional provision referred to not only recognizes the right of such schools to exist, but by implication, authorizes the expenditure of public money “ for examination or inspection ” of such schools. Nevertheless, our fundamental law provides that neither the State nor any political subdivision shall permit its money, credit or property to be used “ in aid or maintenance ” of any such religious schools. The Legislature may not disobey the mandate of the Constitution, and should they do so the courts may not hesitate to declare the infringement of the constitutional mandate. (The question presented here is whether the Legislature has authorized a political subdivision of the State to use its money “in aid or maintenance ” of any school of the class named in the Constitution. X

Article 23 of the Education Law deals with compulsory education. Under section 620: “ A minor required to attend upon instruction by the provisions of this article may attend at a public school or elsewhere. The requirements of this section shall apply to such a minor, irrespective of the place of instruction.” The section prescribes the quality and language of instruction, courses of study, and length of school sessions. Section 621 prescribes the age limit within which minors must attend upon full time instruction, and section 622 sets forth the conditions under which he may attend part-time school. Section 625 provides for the amount and character of the required attendance: “ If a minor included by the provisions of this article attends upon instruction elsewhere than at a public school, he shall attend for at least as many hours, and within the hours specified therefor.” (Id.) Every person in parental relation to a minor shall cause such minor to attend upon instruction as hereinbefore required * * *.” (§ 627, subd. B-2.) The provisions relating to attendance at school are enforced by attendance officers who may arrest truants (§ 640). A violation of the article is punishable by a fine (§ 641).

The Legislature recognizes the right of parents to send their children for instruction to schools other than public schools. It could not do otherwise consistently with the Fourteenth Amendment to the United States Constitution. (Pierce v. Society of Sisters, 268 U. S. 510.) Nevertheless, it has commanded all minors within certain ages to attend school and requires those in parental relation to cause the children to attend upon instruction as provided. When a child is enrolled in a school, public or otherwise, regular attendance is compulsory .J A child may be sent to a public school or to a private school, but those in charge of the child are not free to permit the child to grow up without any instruction whatever. '/^Having made attendance upon instruction compulsory and having approved of attendance at certain schools other than public schools, the Legislature determined that the inhabitants of the district should have the power, under certain conditions, to provide for the transportation of the pupils to and from the schoolhouse in the district or the school which they legally attend. The object of such legislation is apparently to insure the attendance of the children at their respective schools for the requisite period of instruction and, perhaps, to safeguard the health of the children. The statute is not designed to aid or maintain the institutions themselves. Recognizing the right of the children to be sent to such schools, and enjoining upon them the duty of regular attendance, the Legislature gave the authorities power, in a proper case, to assist the children in getting to their school^ The law says to the children and parents: Having chosen a proper school, you must attend regularly. The school district has been given the power to add to that: Where necessary, we shall assist you in getting there. <

f The statute in question does not have the effect of giving public money, property or credit in aid or maintenance of religious schools. The aid is given to the pupils who are legally attending such schools, to assist them to spend the required time in attendance upon / instruction^ In most cases those in parental relation choose the school at the beginning of the school year, and the arrangements for transportation cannot be initiated until the attendance figures show whether and to what extent such facilities may be needed. There is no benefit to the schools except, perhaps, as one may conceive an accidental benefit in the sense that some parents might place their children in religious schools when they anticipate transportation provision, though they might hesitate to do so if the children were compelled to make their own way. The constitutional provision is not designed to discourage or thwart the school where religious instruction is imparted. Denominational religion is merely put in its proper place outside of public aid or support.” (People ex rel. Lewis v. Graves, 245 N. Y. 195, 198.)

The judgment should be affirmed.

Lehman, Hubbs and Pinch, JJ., concur with Rippey, J.; Crane, Ch. J., dissents in opinion, in which O’Brien and Loughran, JJ., concur.

Judgment accordingly. (See 278 N. Y. 712.)


author: Lehman, J.

text:
    Arverne Bay Construction Company, Appellant, v. Edwin H. Thatcher, as Commissioner of Buildings of the Borough of Brooklyn, City of New York et al., Respondents.

      Argued April 20, 1938;
    decided May 24, 1938.

      John P. McGrath for appellant.
    The restriction to residental use is confiscatory, arbitrary, unreasonable and void as to plaintiff’s property. (Buchanan v. War- ley, 245 U. S. 60; Pennsylvania Coal Co. v. Mahon, 260 U, S. 393; Municipal Gas Co. v. Public Service Com., 225 N. Y. 89; Sundlun v. Zoning Board of Review, 50 R. I.108; Matter of Eaton v. Sweeny, 257 N. Y. 176; Dowsey v. Village of Kensington, 257 N. Y. 221; Cordts v. Hutton Co., 146 Misc. Rep. 10; 241 App. Div. 648; 266 N. Y. 399.) The restriction bears no substantial relation to public health, safety, morals or general welfare and is beyond the power of public authority to impose and is, therefore, unconstitutional and void. (Nectow v. City of Cambridge, 277 U. S. 183; Village of Euclid v. Ambler Realty Co., 272 U. S. 365; Sundlun v. Zoning Board of Review, 50 R. I. 108; Dowsey v. Village of Kensington, 257 N. Y. 221; Zahn v. Board of Public Works, 274 U. S. 325; City of Providence v. Stephens, 47 R. I. 391; Mayer v. Turk, 129 Atl. Rep. 512.) The constitutional questions raised by this action are unaffected by the certiorari proceeding conducted by the appellant. (Dowsey v. Village of Kensington, 257 N. Y. 221; Matter of Levy v. Board of Standards & Appeals, 267 N. Y. 347; Donahue v. New York Life Ins. Co., 259 N. Y. 98; Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304; House v. Lockwood, 137 N. Y. 259; Barber v. Kendall, 158 N. Y. 401,)

      William C. Chanler, Corporation Counsel (Paxton Blair and Francis J. Bloustein of counsel), for respondents.
    The Board of Estimate and Apportionment, having spent $5,000,000 in developing Linden boulevard, acted rightly in taking steps to protect the investment by preserving the boulevard from ruination through the devotion of abutting lands to uses which are tolerated in unrestricted districts. (Zahn v. Board of Public Works, 195 Cal. 497; 274 U. S. 325; Pritz v. Messer, 112 Ohio St. 628; West Bros. Brick Co. v. City of Alexandria, 169 Va. 271.) The affirmance of the order sustaining the action of the Board of Standards and Appeals in denying a variance under section 21 of the Building Zone Resolution is strong, if not conclusive, evidence that no violation of appellant’s constitutional rights has occurred. (People ex rel. Arverne Bay Constr. Co. v. Murdock, 271 N. Y. 631; Woolsey v. Best, 299 U. S. 1.) If an applicant felt aggrieved by a use district regulation, and felt that his grievance was of such severity as to amount to a violation of constitutional rights, then the time to say so was in the petition to the Board. (People ex rel. Sheldon v. Board of Appeals, 234 N. Y. 484; People ex rel. Arseekay Syndicate, Inc., v. Murdock, 265 N. Y. 158; Matter of Mayberg v. Murdock, 248 App. Div. 703; 272 N. Y. 571; Matter of Gelkom Realty Corp. v. Board of Standards &

      Appeals, 251 App. Div. 708; 275 N. Y. 650; People ex rel. David Holding Corp. v. Murdock, 264 N. Y. 609; Central High School Athletic Assn. v. City of Grand Rapids, 274 Mich. 147.)
   Lehman, J.

The plaintiff is the owner of a plot of vacant land on the northerly side of Linden boulevard in the borough of Brooklyn. Until 1928 the district in which the property is situated was classified as an unrestricted ” zone, under the Building Zone Resolution of the city of New York (New York Code of Ordinances, Appendix B). Then, by amendment of the ordinance and the Use District Map,” the district was placed in a residence zone. The plaintiff, claiming that its property could not be used properly or profitably for any purpose permitted in a residence zone and that, in consequence, the zoning ordinance imposed unnecessary hardship upon it, applied to the Board of Standards and Appeals, under section 21 of the Building Zone Resolution, for a variance which would permit the use of the premises for a gasoline service station. The application was denied, and, upon review in certiorari proceedings, the courts sustained thai determination of the board. (People ex rel. Arverne Bay Construction Co. v. Murdock, 247 App. Div. 889; affd., 271 N. Y. 631.)

Defeated in its attempt to obtain permission to put its property to a profitable use, the plaintiff has brought this action to secure an adjudication that the restrictions placed upon the use of its property by the zoning ordinance result in deprivation of its property without due process of law and that, in so far as the ordinance affects its property, the ordinance violates the provisions of the Constitution of the United States and the Constitution of the State of New York. In this action it demands as a right what has been refused to it as a favor. The defendant challenges the right of the plaintiff to urge the invalidity of the zoning ordinance after denial of an application for a variance made under its provisions. At the outset, and before considering the merits of the plaintiff’s cause of action, we must dispose of this challenge to the plaintiff’s right to maintain this action.

The application for the favor of a variance is an appeal primarily to the discretion of the board, conferred'upon it by the ordinance. It necessarily assumes the validity of the ordinance. A successful attack upon the validity of the ordinance destroys the foundation of any discretion conferred by the statute. To invoke the discretion of the board, an owner of property must show “ unnecessary hardship.” When that has been shown the board may grant a special privilege ” denied to others differently situated. (People ex rel. Fordham M. R. Church v. Walsh, 244 N. Y. 280.) Without such special privilege,” strict enforcement of a general rule restricting the use of all property within a district might work such hardship upon a particular owner that in effect it would deprive the tiwner of his property without compensation. The power to grant a variation might give such flexibility to the rule or its application that a property owner can, without violation of its terms, make reasonable use of his property. (Dowsey v. Village of Kensington, 257 N. Y. 221.)

The rule established by that case is this: To sustain an attack upon the validity of the ordinance an aggrieved property owner must show that if the ordinance is enforced the consequent restrictions upon his property preclude its use for any purpose to which it is reasonably adapted. Thus it must appear either that the ordinance does not authorize a variation of the general rule which would admit of such use or that such variation has been refused by the administrative board in the exercise of a discretion which the ordinance confers upon it. Only two possible questions can be presented for decision upon an application for a variation: First, does the ordinance confer upon the administrative board power to grant the variation which is asked; second, if the board has power to grant it, does the exercise of a wise discretion call for the use of the power in the particular case? The issue whether without such variation the strict enforcement of the general rule would work such hardship as to constitute the taking of property without due process of law is not directly presented upon an application for a variation, and it follows that the denial of the application cannot be a binding adjudication that, without such variation, enforcement of the general rule will not deprive the applicant of his property without due process of law. True, where the board in the exercise of its discretion denies an application for a variation which it has power to grant, argument may be made that a refusal to exercise such discretion can, logically, be based only upon a finding that even without such variation there is no unnecessary hardship, and that the enforcement of the general rule would not deprive the owner of his property or preclude a reasonable use of the property. Then the same considerations which induced the board to deny the application might constrain the court to decide that the statute is valid. None the less, the questions presented would not be identical and the denial of the application for a variance would not be a conclusive adjudication of the validity of the statute; and that would be true even though the courts had, upon review by certiorari, sustained the determination of the board. We proceed, then, to a consideration of the merits of the plaintiff’s claim, and in our discussion it will appear that in this case the denial of the application for a variation may have been based upon considerations which cannot affect the judgment of the court in passing upon the validity of the ordinance in so far as it applies to the plaintiff’s property.

The amendment to the zoning ordinance, about which complaint is made, changed from an unrestricted zone to a residential district the property abutting on Linden boulevard for a distance of four miles, with the exception of a small section at a railroad crossing. The district is almost undeveloped. There had been no building construction in that area for many years prior to the amendment. The chairman of the building zone commission which drafted the zoning ordinance, testifying as an expert witness for the defendant, described the district as in a transition state from the farms as I knew them thirty and forty years ago south of this location.” There are some old buildings used for non-conforming purposes, left from the days when the district was used for farming. There are only three buildings in Linden boulevard in a distance of about a mile. One of these buildings is a cow stable and a second building is used as an office in connection with the dairy business conducted there. A gasoline station erected on that boulevard would, it is plain, not adversely affect the health, morals, safety or general welfare of the people who now live in that neighborhood. Justification, if any, for the ordinance restricting the use of the property on Linden boulevard to residential purposes must be found in the control over future development which will result from such restrictions.

Without zoning restrictions, the self-interest of the individual property owners will almost inevitably dictate the form of the development of the district. The plaintiff claims, and has conclusively shown at the trial, that at no time since the amendment of the zoning resolution could its property be profitably used for residential purposes. The expert witness for the city, to whose testimony we have already referred and whose qualifications are universally recognized, admits that such a residential improvement would, even now after the lapse of ten years, be premature.” The property, then, must for the present remain unimproved and unproductive, a source of expense to the owner, or must be put to some non-conforming use. In a district otherwise well adapted for residences a gasoline station or other non-conforming use of property may render neighboring property less desirable for use as a private residence. The development of a district for residential purposes might best serve the interests of the city as a whole and, in the end, might perhaps prove the most profitable use of the property within such district. A majority of the property owners might conceivably be content to bear the burden of taxes and other carrying charges upon unimproved land in order to reap profit in the future from the development of the land for residential purposes. They could not safely do so without reasonable assurance that the district will remain adapted for residence use and will not be spoilt for such purpose by the intrusion of structures used for less desirable purposes. The zoning ordinance is calculated to provide such assurance to property owners in the district and to constrain the property owners to develop their land in manner which in the future will prove of benefit to the city. Such considerations have induced the Appellate Division to hold that the ordinance is valid.

There is little room for disagreement with the general rules and tests set forth in the opinion of the Appellate Division. The difficulty arises in the application of such rules and tests to the particular facts in this case. We are not disposed to define the police power of the State so narrowly that it would exclude reasonable restrictions placed upon the use of property in order to aid the development of new districts in accordance with plans calculated to advance the public welfare of the city in the future. We have said that the need for vision of the future in the governance of cities has not lessened with the years. The dweller within the gates, even more than the stranger from afar, will pay the price of blindness.” (.Hesse v. Rath, 249 N. Y. 436, 438.) We have, indeed, recognized that long-time planning for zoning purposes may be a valid exercise of the police power, but at the same time we have pointed out that the power is not unlimited. We are not required to say that a merely temporary restraint of beneficial enjoyment is unlawful where the interference is necessary to promote the ultimate good either of the municipality as a whole or of the immediate neighborhood. Such problems will have to be solved when they arise. If we assume that the restraint may be permitted, the interference must be not unreasonable, but on the contrary must be kept within the limits of necessity.” (People ex rel. St. AlbansSpringfield Corp. v. Connell, 257 N. Y. 73, 83.) The problem presented upon this appeal is whether or not the zoning ordinance as applied to the plaintiff’s property is unreasonable.

Findings of the trial judge, sustained by evidence presented by the plaintiff, establish that, in the vicinity of the plaintiff’s premises, the city operates an incinerator which gives off offensive fumes and odors which permeate plaintiff’s premises.” About 1,200 or 1,500 feet from the plaintiff’s land, “ a trunk sewer carrying both storm and sanitary sewage empties into an open creek * * *. The said creek runs to the south of plaintiff’s premises and gives off nauseating odors which permeate the said property.” The trial judge further found that other conditions exist which, it is plain, render the property entirely unfit, at present, for any conforming use. Though the defendant urges that the conditions are not as bad as the plaintiff’s witnesses have pictured, yet as the Appellate Division has said: “ It must be conceded, upon the undisputed facts in this case, that this property cannot, presently or in the immediate future, be profitably used for residential purposes.” (253 App. Div. 285, 286.)

We may assume that the zoning ordinance is the product of far-sighted planning calculated to promote the general welfare of the city at some future time. If the State or the city, acting by delegation from the State, had plenary power to pass laws calculated to promote the general welfare, then the validity of the ordinance might be sustained; for we have nothing to do with the question of the wisdom or good policy of municipal ordinances.” (Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 393.) (The legislative power of the State is, however, not plenary, but is limited by the Constitution of the United States and by the Constitution of the State. It may not take private property without compensation even for a public purpose and to advance the general welfare. (Matter of Eaton v. Sweeny, 257 N. Y. 176.) “ The protection of private property in the fifth amendment presupposes that it is wanted for public use, but provides that it shall not be taken for such use without compensation. A similar assumption is made in the decisions upon the fourteenth amendment. Hairston v. Danville & Western Ry. Co., 208 U. S. 598, 605. When this seemingly absolute protection is found to be qualified by the police power, the natural tendency of human nature is to extend the qualification more and more until at last private property disappears. But that cannot be accomplished in this way under the constitution of the United States. ’ ’ (Pennsylvania Coal Co. v. Mahon, 260 U. S. 393, 415.)

In the prevailing opinion in that case, Mr. Justice Holmes pointed out that the general rule at least is, that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a talcing ” (p. 415). Whether a regulation does go too far is “a question of degree — and therefore cannot be disposed of by general propositions,” and here Mr. Justice Holmes gave warning that we are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change ” (p. 416). The dissent of Mr. Justice Brandéis in that case is not based upon difference of opinion in regard to general principles, but upon different evaluation of the degree of the restrictions there challenged.

The warning of Mr. Justice Holmes should perhaps be directed rather to Legislatures than to courts; for the courts have not hesitated to- declare statutes invalid wherever regulation has gone so far that it is clearly unreasonable and must be recognized as taking;” and .unless regulation does clearly go so far the courts may ] not deny force to the regulation. We have already pointed out that in the case which we are reviewing, the plaintiff’s land cannot at present or in the immediate future be profitably or reasonably used without violation of the restriction. An ordinance which permanently so restricts the use of property that it cannot be used for any reasonable purpose goes, it is plain, beyond regulation, and must be recognized ¡as a taking of the property. The only substantial difference, in such case, between restriction and actual taking, is that the restriction leaves the owner subject to the burden of payment of taxation, while outright confiscation would relieve him of that burden.

The situation, of course, might be quite different where it appears that within a reasonable time the property can be put to a profitable use. The temporary inconvenience or even hardship of holding unproductive property might then be compensated by ultimate benefit to the owner or, perhaps, even without such compensation, the individual owners might be compelled to bear a temporary burden in order to promote the public good. We do not pass upon such problems now, for here no inference is permissible that within a reasonable time the property can be put to a profitable use or that the present inconvenience or hardship imposed upon the plaintiff is temporary. True, there is evidence that the neighborhood is improving and that some or all of the conditions which now render the district entirely unsuitable for residence purposes will in time be removed. Even so, it is conceded that prognostication that the district will in time become suited for residences rests upon hope and not upon certainty and no estimate can be made of the time which mu clause before the hope becomes fact.

During the nine years from 1928 to 1936, when concededly the property was unsuitable for any conforming use, the property was assessed at $18,000, and taxes amounting to $4,566 were levied upon it, in addition to assessments of several thousand dollars; yet, so far as appears, the district was no better suited for residence purposes at the time of the trial in 1936 than it was when the zoning ordinance was amended in 1928. In such case the ordinance is clearly more than a temporary and reasonable restriction placed upon the land to promote the general welfare. It is in substance a taking of the land prohibited by the Constitution of the United States and by the Constitution of the State.

We repeat here what under similar circumstances the court said in People ex rel. St. Albans-Springfield Corp. v. Connell (supra, p. 83): we are not required to say that a merely temporary restraint of beneficial enjoyment is unlawful where the interference is necessary to promote the ultimate good, either of the municipality as a whole or of the immediate neighborhood.” There the court held that the ultimate good ” could be attained and a productive use ” allowed by a variation of the zoning ordinance that “ will be temporary and provisional and readily terminable.” Here the application of the plaintiff for any variation was properly refused, for the conditions which render the plaintiff’s property unsuitable for residential use are general and not confined to plaintiff’s property. In such case, we have held "'that the general hardship should be remedied by revision of the general regulation, not by granting the special privilege of a variation to single owners. (Matter of Levy v. Board of Standards & Appeals, 267 N. Y. 347.) Perhaps a new ordinance might be evolved by which the “ ultimate good ” may be attained without depriving owners of the productive use of their property. That is a problem for the legislative authority, not for the courts. Now we hold only that the present regulation as applied to plaintiff’s property is not valid.

The judgment of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division.

Crane, Ch. J., O’Brien, Hubbs, Loughran, Finch and Rippey, JJ., concur.

Judgment accordingly.