The Multiple Dwelling Act (Laws of 1929, chap. 713) contains a legislative finding: "It is hereby declared that intensive occupation of multiple dwelling sites, overcrowding of multiple dwelling rooms, inadequate provision for light and air, and insufficient protection against and defective provision for escape from fire, and improper sanitation of multiple dwellings *Page 492 in certain areas of the State are a menace to the health, safety, morals, welfare, and reasonable comfort of the citizens of the State; and that the establishment and maintenance of proper housing standards requiring sufficient light, air, sanitation, and protection from fire hazards are essential to the public welfare. Therefore the provisions hereinafter prescribed are enacted and their necessity in the public interest is hereby declared as a matter of legislative determination."
The provisions "hereinafter prescribed" apply in terms only to cities having a population of eight hundred thousand inhabitants or more except that the local legislative body of any other city, town or village may by local law adopt the provisions of the act or may, at its will, ignore them. Since New York City is the only city in the State of New York with a population of eight hundred thousand or more, at present the act in effect applies only to that city. As to the City of New York the Multiple Dwelling Act purports to supersede the Tenement House Law and to regulate the occupation and construction of multiple dwellings. It provides new standards for the maximum height of such dwellings, and for the proportion of lots which may be occupied by such dwellings erected thereon. Provision is made for such light, air and measures of sanitation as the Legislature deems wise and for protection against fires and other dangers.
We may assume that the legislative finding is based upon the existence of facts known to the Legislature; indeed many observant and public-spirited citizens have mentally made the same finding based upon their common experience. We may assume that even though the act may contain imperfections the new standards created for multiple dwellings in the City of New York represent an advance over the old standards and that the act, if valid, would prove of substantial benefit to the inhabitants of the City of New York. The number of welfare associations *Page 493 and other semi-public bodies, which have intervened in this case in support of the validity of the act, seems to lend weight to the assumption. Considerations based upon the policy and wisdom of legislation are irrelevant in the determination of the question of whether the Legislature had power under the Constitution of the State to act.
Protection of the health and morals and safety of its citizens and inhabitants lies, beyond question, within the police power of the State. The State has not surrendered or been deprived of this power but in the Constitution of the State the State itself has decreed how this power shall be exercised and by what governmental bodies. The plenary power of the Legislature in relation to the property, affairs and government of cities has been restricted by article 12 of the Constitution. The Legislature has chosen to confine to the City of New York its remedies against the "intensive occupation of multiple dwelling sites, overcrowding of multiple dwelling rooms, inadequate provision for light and air, and insufficient protection against and defective provision for escape from fire, and improper sanitation of multiple dwellings" which the Legislature has found exist "in certain areas of the state." The question before us is only whether the act so confined is an act in relation to the "property, affairs or government" of the City of New York.
Within that field the plenary power of the Legislature is restricted by section 2 of article 12 of the Constitution, generally known as the Home Rule Amendment. Even before the passage of that amendment the plenary power of the Legislature had been restricted in some degree within the same field. The restrictions have been made more rigid. No new definition of the limits of the field within which those restrictions are effective is contained in the amended Constitution. The amended article uses the same language in defining that field that was used in the Constitution before the amendment. We must give *Page 494 to that language the meaning previously attached to it by authoritative decisions of this court. In other fields the power of the Legislature remains unrestricted.
The Multiple Dwelling Act was passed without a message from the Governor and without the concurrent action of two-thirds of the members of each house of the Legislature. It is said that it is nevertheless valid because it was enacted under the police power as a measure for the protection of the health, safety and welfare of the citizens of the State and though limited in effect to the City of New York it does not relate to the property, affairs or government of that city.
It is clear that in the exercise of the police power of the State the legislative authority may reasonably adopt regulations for the City of New York which would have no reasonable application to other localities. Obviously the health, safety and welfare of the inhabitants of the City of New York and those who visit that city may be endangered by conditions created by its size, situation or local conditions which could not exist in cities like Sherrill. Remedies applied to local conditions when such conditions threaten the health and welfare of the citizens of the State may constitute a matter of State concern and in the division of functions between the governments of State and City the right to legislate in relation to all matters affecting the health, safety and welfare of citizens of the State may be intrusted by the Constitution exclusively to the government of the State. Then such legislation even though local in its application does not relate to the "property, affairs or government" of the locality. So this court has stated in the cases decided before the Home Rule Amendment to the Constitution was passed, which are cited in the opinions of my associates.
At that time the cities of the State were not granted by the Constitution any authority to exercise the police power of the State. The Legislature, it is true, might confer upon local legislative bodies a limited right of *Page 495 legislation in regard to local matters but in so far as such bodies received authority to exercise in local matters a portion of the police power of the State they acted under a delegated power as agents of the government of the State rather than as agents of the government of the city.
The Home Rule Amendment in section 2 of article 12 made more rigid the restrictions upon the power of the Legislature in the field of the property, affairs or government of cities. In section 3 it provided that all cities must have certain legislative functions. In unambiguous language it commanded that "Every city shall have power to adopt and amend local laws not inconsistent with the constitution and laws of the State relating to * * * the government and regulation of the conduct of its inhabitants and the protection of their property, safety and health. The Legislature shall, at its next session after this section shall become part of the constitution, provide by general law for carrying into effect the provisions of the section."
It cannot be gainsaid that in this section of the Constitution cities receive not from the Legislature but from the sovereign people of the State, authority to exercise some part of the police power of the State and the exercise of that authority is made the function not of a designated local legislative body or city officer but of the city itself. Its exercise does not rest upon delegation of power by the Legislature. Within its limited scope it is derived from the same fundamental law, from which the Legislature derives its own general power. The State, as I have said, has not surrendered its police power but it has to some extent divided it between the Legislature and the cities and clearly the exercise of the function bestowed on cities is a matter of city government. It is in the light of the enlarged scope of the government of cities that we must test the validity of the Multiple Dwelling Act.
The Multiple Dwelling Act, like the Tenement House Law which it purports to supersede in the City of New *Page 496 York, contains many provisions which directly affect the health and safety of inhabitants of the city and perhaps the welfare of the city itself. I recognize that the welfare of the State as a whole is bound up in the welfare of its individual citizens and that the welfare of each citizen may well be a matter of State concern. Some of the provisions of the law may furnish protection indirectly, at least, to citizens of the State outside the city. Benefit to be derived from other provisions by parts of the State outside of the city seems decidedly remote. Primarily the subject-matter of the act affects the City of New York and those who live in or construct and maintain multiple dwellings there. The interest of the inhabitants of the rest of the State is comparatively remote.
I may concede that preponderance of local concern in legislation would hardly prove a satisfactory test of the validity of legislation. It is not the test created by the Constitution. That test is whether the subject-matter of the lawrelates to the government of the city or to its affairs or property. In applying that test, however, the degree of interest on the part of sections of the State, outside of the city or cities directly affected by a statute, may be a relevant factor in the determination of whether encroachment, by the provisions of the statute, upon the government or legal affairs of a city, is merely incidental and insignificant or whether, in substance, the statute is one in relation to the government and affairs of a city.
I do not think that it is necessary, in this case, to determine the exact limits of the police power with which city governments are now endowed. At least there is some field in which that power may be exercised and, if the Legislature may restrict its exercise within that field, it must do so by general law. The People of the State have, it seems to me, clearly commanded that where local conditions create a need for local remedies the city shall, subject, at most, to restrictions imposed by general *Page 497 law, have power to formulate and apply the local remedy and where the Legislature by act, not applying to all cities alike, seeks to remedy local conditions and to divest a city of a governmental function, theretofore exercised by it, the Legislature is subject to the restrictions imposed by the Constitution.
The City Home Rule Act is the answer made by the Legislature to the constitutional command to "provide by general law for carrying into effect the provisions of" section 3 of article 12. It contains restrictions upon the legislative power of all city governments. None may change by local law any provision of the Tenement House Law. The validity of that restriction is not now before us. We may assume, without deciding, that the restriction is valid. Then it constitutes perhaps a declaration by the Legislature that so far as permitted by the Constitution it intends to continue its control over the regulation of tenement houses where previously it has assumed control and that it regards such regulation as a matter of State concern. It may hardly be regarded as a legislative construction of the constitutional amendment that even without such restriction cities would not have power to pass local laws regulating the construction and occupation of tenement houses.
No one indeed disputes that except for that attempted restriction cities in this State may adopt local laws for that purpose as they may adopt local laws regulating the construction and occupation of factories, theatres, or other buildings. Even if, in spite of the plain language of section 3 of article 12 of the Constitution, we could say that it was not intended to confer upon cities power to adopt local laws for the government and regulation of the conduct of the inhabitants and the protection of their property, safety and health except within the narrow limits of city affairs, as that term has been previously defined, it could still not be gainsaid that the city has, by express provisions of the charter, power to pass ordinances *Page 498 and to make regulations in regard to many matters covered by the Multiple Dwelling Act. It is provided by section 5 of article 12 of the amended Constitution that "the Legislature may by generallaws confer on cities such further powers of local legislation and administration as it may, from time to time, deem expedient." It seems to me we should pervert the provisions of the Constitution, if we were to hold that while the Legislature may not confer upon cities additional powers of legislation except by general laws applicable alike to all, it may restrict the powers of one city by laws applicable to that city alone. I am constrained by these considerations to the conclusion that the People of the State in clear language have provided that the power of local legislation conferred upon cities is part of the government of cities and may not be enlarged or restricted except by general laws.
The vice in the act now under consideration lies, not in the fact that it imposes upon owners and occupants of multiple dwellings in New York City regulations which do not apply in other parts of the State, but that in so doing it has encroached upon a field in which the City of New York had, at least, concurrent power and has excluded or restricted the exercise of legislative power by the City of New York in a field which remains open to other cities of the State. All ordinances and regulations previously adopted by the city inconsistent with the provisions of the Multiple Dwelling Act are expressly repealed by section 365, article 11 of the act, and the legislative power previously enjoyed by the city is expressly modified by the provision of section 9, article 2, that "No ordinance, regulation or ruling of any municipal authority shall modify or dispense with any provision of this chapter." In the same field the legislative power of other cities is left untouched or is, perhaps, even increased by the provision in the statute that they may adopt the provisions of the act or ignore them. *Page 499
Can it be said that a law so framed does not relate to the government and affairs of cities? A student of municipal government in New York State might regard as outside his field of study the fact that because of conditions peculiar to New York City, the construction and occupation of multiple dwellings are subject there to particular regulations. No student could regard as outside the field of municipal government restrictions upon the power of the City of New York to adopt local laws to meet local conditions while the power of other cities of the State remains unrestricted in that field. If this statute is sustained, then it would seem that the Legislature may cover by special laws almost the entire field of the protection of the property, safety and health of the City of New York and substantially exclude the government of the city from that field.
No case decided prior to the adoption of the Home Rule Amendment defining the field of government or affairs of cities is in any degree inconsistent with these views. True, the Home Rule Amendment used the same words as had been previously used in the Constitution and used them in the same sense, but the governmental functions of cities are subject to change and were changed by the amendment itself. Thereafter the cities had governmental functions in local legislation and article 12, both in its original and its amended form, restricted the Legislature in matters relating to the governmental functions of cities. (SeePeople ex rel. Bush v. Houghton, 182 N.Y. 301; Cleveland v.City of Watertown, 222 N.Y. 159.)
So I interpret the Fourth Report of the Home Rule Commission (Legislative Document, 1928, No. 55, p. 14). "1. In the first place it is necessary to inquire whether a proposed subject of legislation is a matter of State concern or of local concern. If of State concern, the Legislature alone may enact a law in reference to it, even though the law applies to but a single city. Such *Page 500 a law, however, may be enacted by the Legislature in the ordinary way, without an emergency message. 2. Secondly, if the proposed subject of legislation relates to the property, affairs or government of a city, it is necessary to inquire whether it comes within the enumeration of subjects contained in section 11 of the City Home Rule Law. If not, legislation in reference to it, even though it relates to the property, affairs or government of a city, may be enacted only by the Legislature, under an emergency message and by a two-thirds vote. 3. Thirdly, if the proposed subject of legislation relates to the property, affairs or government of a city, it is necessary to inquire whether it comes within the powers reserved to the Legislature by section 1 of article 12 of the Constitution, or specifically denied to the city by section 21 of the Home Rule Law. In such case, legislation on the subject may be enacted by the Legislature, and probably only on an emergency message and a two-thirds vote."
Here we have a threefold classification. Only where the subject of legislation is a matter of State concern and not of local concern, so that the Legislature alone may enact a law in reference to it, may a law be enacted by the Legislature without an emergency message. At least where under the Constitution the city has concurrent power of legislation with the Legislature, the Legislature may act only under an emergency message by a two-thirds vote if the purpose and effect of such action is to alter this concurrent power.
It is said that if we hold the Multiple Dwelling Act unconstitutional we cast doubt upon the validity of many other statutes where the Legislature, in the exercise of the police power, has inserted provisions which do not in terms and effect apply alike to all cities. I may not analyze now the provisions of such statutes, for their validity is not now in question. I merely point out that in many, if not all, of these statutes the effect on the *Page 501 legislative powers of the cities is not substantial. The Legislature, as we have pointed out, is restricted only when it acts in relation to the property, affairs and government of cities and an act may not fairly be said to be in relation to the government of a city merely because, in an incidental and unsubstantial manner it may affect the government. (City of NewYork v. Village of Lawrence, 250 N.Y. 429.) In testing the constitutionality of legislation, the substance, not the shadow, dictates the conclusion.
It is said "the Home Rule Amendment did not create a multitude of city states, self-governing in all respects in matters affecting `the government and regulation of the conduct of their inhabitants and the protection of their property, safety and health.'" With at least equal force, it might be said that the Home Rule Amendment was intended to prevent the cities of the State from becoming a conglomeration of subdivisions of the State, some with reasonable powers of local legislation and others mere satrapies. Because I am convinced that if we sustain this statute, we defeat the purpose of the Constitution, I have reached the conclusion that the statute is invalid and the judgment of the court below should be affirmed.