This appeal is from a judgment in favor of the defendant city of New York in an action to *Page 141 recover taxes exacted from plaintiff by force of chapter 815 of the Laws of 1933 and Local Law No. 19, 1933 (Local Laws, 1933, pp. 127-135). The validity of the statute is challenged under sections 1 and 2 of article XII of the Constitution of the State. The local law is assailed under the Fourteenth Amendment of the Constitution of the United States.
The provisions of the statute, known as the Buckley Act, so far as material, are as follows:
"AN ACT to relieve the people of any city of the state having a population of one million inhabitants or more from the hardships and suffering caused by unemployment and the effects thereof on the public health and welfare, by temporarily enabling any such city to adopt and amend local laws imposing in any such city any tax which the legislature has or would have power and authority to impose; to limit the application of such local laws to the period commencing September first, nineteen hundred thirty-three, and ending February twenty-eighth, nineteen hundred thirty-four, and to limit the use of the revenue derived from such taxes to the defrayal of the cost of granting unemployment relief in any such city.
"Became a law August 29, 1933, with the approval of the Governor. Passed, on message of necessity, three-fifths being present.
"The People of the State of New York, represented in Senateand Assembly, do enact as follows:
"Section 1. It is hereby declared that an emergency exists requiring the enactment of the following provisions of law to relieve the people of any city of the state having a population of one million inhabitants or more from the hardships and suffering caused by unemployment and the effects thereof on the public health and welfare and to continue their application until the twenty-eighth day of February, nineteen hundred thirty-four.
"§ 2. Notwithstanding any other provision of law to the contrary, any city of the state having a population *Page 142 of one million inhabitants or more, acting through its local legislative body, is hereby authorized and empowered to adopt and amend local laws imposing in any such city any tax which the legislature has or would have power and authority to impose. Such local laws shall be effective only during the period commencing September first, nineteen hundred thirty-three, and ending February twenty-eighth, nineteen hundred thirty-four, or any portion of such period. A tax imposed hereunder shall have application only within the territorial limits of any such city and shall be in addition to any and all other taxes. * * *
"§ 3. A local law adopted pursuant to the provisions of this act shall provide that all revenues collected thereunder shall be paid into a special fund to be established by the chief fiscal officer of any such city and shall be used exclusively for the following purposes: (a) to defray the cost of granting unemployment home and work relief, and (b) to defray the annual cost of the interest on certificates of indebtedness issued in the first instance to obtain funds necessary to provide unemployment home and work relief, and to redeem such certificates of indebtedness. * * *"
(1) Because this legislation was passed without the concurrent action of two-thirds of each house of the Legislature, plaintiff would have it condemned as a violation of the Home Rule Amendment of the Constitution of the State (Art. XII, § 2). By that section it is provided: "The Legislature shall not pass any law relating to the property, affairs or government of cities, which shall be special or local either in its terms or in its effect, but shall act in relation to the property, affairs or government of any city only by general laws which shall in terms and in effect apply alike to all cities except on message from the governor declaring that an emergency exists and the concurrent action of two-thirds of the members of each house of the Legislature." *Page 143
The question is whether relief of unemployment so far relates to the property, affairs or government of cities that the act must be held to be special or local in effect. The field of its application is defined as any city of the State having a population of one million inhabitants or more. To that extent it is general both in terms and in effect, but the spirit of the Home Rule article is not satisfied by such a form of words alone. (Matter of Mayor, etc., of New York [Elm St.], 246 N.Y. 72.) It is only matters of paramount State concern, as discriminated from those of dominant local significance, that are not subject to the requirements of section 2 of article XII of the Constitution. (Art. XII, § 4; City Home Rule Law [Cons. Laws, ch. 76], § 30; Adler v. Deegan, 251 N.Y. 467; Robertson v.Zimmermann, 268 N.Y. 52.) However hard the problem of classification may be in other situations (McGoldrick on Law and Practice of Municipal Home Rule, pp. 317-351; McBain, 37 Political Science Quarterly, 655), choice of the category in this instance is, we think, free from doubt. It is common knowledge that widespread unemployment has undermined standards of living to a degree which threatens the economic stability of State and nation and affects the welfare of all the American people. (Darweger v. Staats, 267 N.Y. 290.) More than half the population of the State live in the city of New York. "Anything that affects the health and the welfare of the city of New York, touches almost directly the welfare of the State as a whole." (CRANE, J., in Adler v. Deegan, supra, pp. 477, 478.) "If the moral and physical fibre of its manhood and its womanhood is not a State concern, the question is, what is?" (CARDOZO, Ch. J., id. p. 484.)
It is clear, we think, that the Buckley Act is not obnoxious to the letter of section 2 of article XII of the Constitution. Nor do we apprehend that the act does any violence to the spirit of that section. The city of New York is not thereby commanded to relieve unemployment or to *Page 144 raise taxes to that end. What shall be done in that regard is left to the determination of the local authority. There has been no encroachment upon the conception of the autonomy of the city as a State within a State.
The non-obligatory aspect of the statute persuaded the trial court to sustain it upon a view of section 5 of article XII of the Constitution which we are not prepared to accept. By that section it is provided: "The Legislature may by general laws confer on cities such further powers of local legislation and administration as it may, from time to time, deem expedient." At the Trial Term the phrase "general laws" in this section 5 was interpreted in its former sense of an act which, although local in effect, was in terms applicable to localities described as a class. (Matter of Henneberger, 155 N.Y. 420; Matter of Mayor,etc., of New York [Elm St.], supra.) Upon that construction it followed that the Buckley Act was a valid enlargement of the power of local legislation in the city of New York, and the Trial Term so held. The view taken by us renders review of this reasoning unnecessary. We leave open the question whether, in an affair of controlling local concern, legislation under section 5 of article XII of the Constitution must apply alike to all cities, unless enacted in accordance with section 2.
(2) The Legislature for the first time has here conferred upon a municipal corporation authority to enter the field of indirect or excise taxation. (Cf. General City Law [Cons. Laws, ch. 21], § 20 [4]; Tax Law [Cons. Laws, ch. 60], § 3, as amd. by L. 1933, ch. 470, § 1.) Plaintiff accents the consequent reduction of sources of revenue open to the State itself and the resultant harassment of the taxpayer by more complex methods of assessment and less summary remedies for review. (See Report of the State Tax Commission, 1934, Legislative Documents, 1935, No. 11, pp. 6, 7.) All this is held up to our imagination against a background of supposed waste and extravagance *Page 145 in municipal affairs as predicting the ultimate collapse of the State government.
It may be assumed that a novel situation is thus of serious import, for the assumption cannot change the essential nature of the issue under the constitutional provisions invoked upon this branch of the case. That issue is one of legislative power "to provide for the organization of cities and incorporated villages," a power limited only by the exhortation that it be exercised "to restrict their power of taxation, assessment, borrowing money, contracting debts, and loaning their credit, so as to prevent abuses in assessments and in contracting debt by such municipal corporations." (Const. art. XII, § 1.) The exhortation is itself a tacit recognition that municipal corporations have the traditional functions to which it is addressed. Those functions are not less extensive than the necessities of government as declared by the Legislature in the exercise of a discretion committed to it by the Constitution.
It is true that there is to be found in the Buckley Act neither limitation in respect of the character or rate of the taxation authorized, nor restriction in respect of persons, business or property within the city of New York to be subjected thereto. The terms of the act, however, do confine its operation in point of time and of specific public use of revenue to be derived. The State has here empowered its agent, the city of New York, during a fixed period, to experiment in taxation for a State purpose which is also so much a matter of local concern that the city authorities undoubtedly have unequaled knowledge and capacity to dispatch it. Broad and unprecedented as is the license so conferred, we are without jurisdiction to circumscribe or modify it. (Bank of Rome v. Village of Rome, 18 N.Y. 38; Bank ofChenango v. Brown, 26 N.Y. 467; Tifft v. City of Buffalo,82 N.Y. 204; Kelly v. Merry, 262 N.Y. 151, 160; Dillon on Municipal Corporations [Vols. 1 and 4; 5th ed.], §§ 74, *Page 146 1375, 1376; McBain on The Law and Practice of Municipal Home Rule, p. 52.)
(3) Subject to the restrictions laid down in the Buckley Act, Local Law No. 19 provides:
"§ 3. Imposition of excise tax or license fee. Notwithstanding any other provision of law to the contrary, for the privilege of exercising its corporate franchise, or of holding property, or of doing business in the city of New York, during the period commencing September first, nineteen hundred thirty-three and ending February twenty-eighth, nineteen hundred thirty-four, every corporation, company, association, joint stock association, copartnership and/or person, their lessees, trustees or receivers appointed by any court whatsoever, doing business in the city of New York and subject to the supervision of either division of the public service commission during such period, shall pay to the comptroller of the city of New York for such privilege an excise tax or license fee which shall be equal to one and one-half per centum of its gross monthly income for the period September first, nineteen hundred thirty-three to February twenty-eighth, nineteen hundred thirty-four. Such tax or fee shall accrue and be paid and collected at the end of each month. Such tax or fee shall be imposed for the period beginning September first, nineteen hundred thirty-three and ending February twenty-eighth, nineteen hundred thirty-four, and shall be in addition to any and all other license fees and/or taxes imposed by any other provision of law and shall be paid at the time and in the manner hereinafter provided."
The objections to this law amount, in one form or another, to the claim of unconstitutional discrimination depriving plaintiff of the equal protection of the laws. It is not denied that classification for taxation presupposes a group specially taxed. It is not asserted that the Fourteenth Amendment forbids selection among businesses for subjection to a State excise tax, if determined *Page 147 by some reasonable policy of differentiation, and all in the same class have equality. No objection is advanced to a gross receipts tax as such. Complaint is made that plaintiff also pays a property tax and franchise taxes based in part on income, but protest is not made that the aggregate runs to confiscation. The objections come down to the point that there is no reason for putting businesses like that of plaintiff in a class by themselves for the purposes of revenue for unemployment relief.
In our opinion reasons justifying that separation are apparent. Plaintiff is one of a group — those subject to supervision by the Public Service Commission — that, because of the public service nature of their respective businesses, are accorded a degree of protection against competition and other advantages over the general business community. This common character of the group is, we think, a valid basis of classification for the purposes of this tax. Quaker City Cab Co. v. Pennsylvania (277 U.S. 389) does not decide the contrary. In that case a similar tax was laid on every transportation company owning or operating in the State any device for the transportation of passengers, but that tax or an equivalent was not imposed on others engaged in competitive public service. The distinction was held to be based only on the corporate character of the taxpayer in violation of the equal protection clause of the Fourteenth Amendment. Again, in that case it was said that the tax was one that could be laid upon receipts belonging to others quite as conveniently as upon those of a corporation. The larger control exerted over public service undertakings simplifies enforcement of a tax upon them, a consideration which the taxing authority here was not bound to ignore in a fiscal crisis.
We conclude that this tax was not imposed through merely arbitrary or accidental classification and that it is not invalid under the Fourteenth Amendment. (See Lindsley v. NaturalCarbonic Gas Co., 220 U.S. 61, 78, *Page 148 79; Quong v. Kirkendall, 223 U.S. 59; Fort Smith Lumber Co. v. Arkansas, 251 U.S. 532; White River Lumber Co. v.Arkansas, 279 U.S. 692; People ex rel. Farrington v.Mensching, 187 N.Y. 8, 21, 22.)
The judgment should be affirmed, with costs.