Because in my opinion the principle of separation of governmental powers is clearly implicit in the Charter of the city of New York and express grants of broad powers to the executive and to the legislative branches of the city government, though subject to no express limitations, are subject to implied limitations arising from that principle, I was constrained to dissent from the decision of the court in Matter of La Guardia v. Smith (288 N.Y. 1). For the same reason I now concur in the opinion of Judge LOUGHRAN so far as it holds that "legislative functions of the Council cannot be deemed to be defeasible by means of a mere failure of the Board of Estimate to concur in an appropriation for the necessary expenses thereof." *Page 522
It follows, I do not doubt, that when the Board of Estimate fails or refuses to appropriate moneys reasonably required for a legislative investigation by a special committee, appointed by the Council in accordance with section 43 to investigate a matter relating to the property affairs and government of the city, theCouncil may direct the special committee to incur necessary expenses for services and material. It does not follow, and so far, I think, there is no room for difference of opinion, that without such direction, or at least authorization from the Council the special committee can incur expenses for which the city would be liable.
In Chambers v. City of New York (286 N.Y. 308) the Council adopted a resolution "that when the committee just appointed reports, it return in full the evidence taken before it; thatthe said evidence be taken verbatim and transcribed and that acopy thereof be furnished to each member of the Council." Implied in the italicized words there is an unequivocal direction or authorization to incur the necessary expenses for stenographic and transcribing services. We held that for such services the city was liable. In this case I find no basis for any implication that without appropriation by the Board of Estimate the special committee is directed or authorized by the Council to incur any expenses in the course of its investigation. The resolution, indeed, expressly provided "if in the judgment of the Committeean appropriation of funds be needed for anticipated expenses ofsuch Committee, that, at the proper time, the necessary request be made to the Board of Estimate for such money as may be adequate for such expenses." This provision of the resolution shows, it seems to me, a manifest intention to withhold from the committee, in the absence of a previous appropriation, any authority to incur expenses necessary for an investigation which might extend into such undefined fields as the committee might deem germane to the inquiry. That is in accordance with sound legislative practice. I know no precedent in legislative practice for a grant of such broad authority to a sub-committee and I question whether such a grant would be within the power of the Legislature.
The judgment should be reversed and the complaint dismissed.
FINCH, RIPPEY, LEWIS, CONWAY and DESMOND, JJ., concur with LOUGHRAN, J., LEHMAN, Ch. J., dissents in opinion.
Judgment affirmed. *Page 523