
    The People of the State of New York ex rel. The Veteran Volunteer Firemen of the City of Brooklyn, Western District, a Corporation, Respondent, v. Herman A. Metz, as Comptroller of the City of New York, Appellant.
    Second Department,
    June 7, 1907.
    Municipal corporations—lands of incorporated veteran firemen of Brooklyn- — water rates — constitutional law — statute creating exemption.
    Real estate owned by the incorporated Veteran Volunteer Firemen of the City of Brooklyn, Western District, and not used for profit but solely for the purposes of the corporation, is exempt from assessment for water fates by virtue of chapter 696 of the Laws of 1887, as amended by chapter 440 of the Laws of 1906, which exempts certain property owned by benevolent corporations, including veteran firemen's associations. ,
    Chapter 440 of the Laws of 1906,. including veteran firemen’s associations among the charitable organizations exempt from water rates under chapter 696 of the Laws of 1887, does not offend section 10 of article 8, of the Staté Constitution providing that no • municipality shall give any money or property or loan its money or credit to or in aid of individuals, associations or corporations, etc.; this because the Constitution does not prevent a municipality from fulfilling honorable obligations founded upon a public service rendered.
    Appeal by the defendant, Herman A. Metz, as comptroller of the city of New York, from an order of the Supreme Court, made at the Kings County Special-Term and entered in the office of the elerk.of the county of Kings on the 8th day of February, 1907, directing the issuance df a peremptory writ of mandamus requiring the appellant Metz to mark “canceled and discharged” on-the records of the bureau of assessments and arrears in the borough of Brooklyn, any and all water rates from and including the year of 1891 to the date of such order, affecting premises owned by the relator.
    
      James D. Bell [William B. Ellison with him on the brief], for the appellant.
    
      William H. Good, for the respondent.
   Hooker, J.:

The relator, The Yeteran Yolunteer Firemen of - the City of Brooklyn, Western District, was incorporated in the year 1887, the declared, purpose of its incorporation being to renew and perpetuate the social intercourse and friendship that existed in the late Volunteer Fire Department of the City of Brooklyn, Western District, and to provide a headquarters for the - transaction- of its-Business and the enjoyment of its members, all of whom shall have served at least five years in said department. All of the members of the relator have been and now are honorably discharged Volunteer firemen, who have'previously served, as such- firemen, either in the old city of Brooklyn' .or in some one of the former county towns Of ■the county of Kings. The relator became 'the owner in fee of the premises mentioned in- the order; at no tim'e has the relator derived any rent or profit from the building or any .part of the ju'emises which have been used exclusively for the business and purposes of the corporation ; its members are; for the most part, men advanced in years; the regular running expenses for maintenance of the building are met by regular' dues paid by members of the corporation, who mutually help each other and the families of their" deceased members when nécessity therefor arises. Water rates assessed against the building owned by the corporation and referred to in the- order have remained unpaid during the years 1891 to 1904 inclusive. Prior to the year 1906 chapter 69,6 of the Laws of 1887 (as amd. by Laws of 1890/chap. 492; Laws of 1894, chap. 672 ; Laws of 1895, cliap. 459; Laws of 1896,-chap, 852; Laws of 1902, chap'. 605, and Laws of .1903,. chap. 386) substantially provided that certain charitable organizations mentioned in the statute should 'be exempted from the.payment of any. sum of money whatsoever to the city of 'Mew York for the use of .water' taken by them from the city ; that water should be supplied by the city to them insufii* 'cient quantity for their use; that the real property necessarily used" by such institutions should be released,, discharged and. exempted from all lien and charge for water “ heretofore used * * * .or whiéh may hereafter be used: by any such institution,, society or corporation,” and .that real property “.necessarily now in use or which may hereafter be necessarily used and devoted to” any such institution, should be and was. by. the statute declared discharged and exempted from all assessments laid or made for the use of water and sales thereunder, and from, all .such assessments hereafter, so long as the premises should be owned by such institution and used: for the purposes mentioned. This chapter was amended by chapter ■440 of the Laws of 1906 so as to incl ude veteran firemen’s associations as beneficiaries thereunder. The relator claims that by reasdn of- this statutory provision it is entitled to be relieved of the payment-of the water rates assessed againstits property during the years 1891 to 1904, inclusive, which remain unpaid. The appellant asserts that solar as the statute affects the unpaid water rates between the dates mentioned it'offends the provisions of section 10 of article 8 of the Constitution of tlie State of Mew York -and is, therefore, void. The part of that section of the Constitution which the appellant invokes reads as follows: “ Mo county, city, town or village shall hereafter give any money or property or loan its money or credit to. or in aid of any individual, association or corporation, or become directly or indirectly the owner of stock in .or bonds of any association or corporation.” Other sections of the Constitution permit the Legislature to make provision for the blind, the deaf and dumb and juvenile delinquents; permit comities, cities, towns and villages-to provide for orphans and dependent children; provide for the care of the insane and permit assistance to paupers. (See- Const., art. 8, § 9 ei seq.)

In Trustees of Exempt Firemen's Fund v. Roome (93 N. Y. 313) Judge Finch reviewed the history of the volunteer fire department of the city of New York and the history of the -Association of Exempt Firemen and the corporation styled the Trustees . of the Exempt Firemen’s -Benevolent Fund, and pointed out that the concessions hnade to the volunteer firemen while they were , in existence were to effectuate a just and equitable distribution of common public burdens; the duties of volunteer firemen involved exposure and risk and were.arduous ; such public service-must, however, be performed,' and! the discharge of this more difficult duty might fairly be compensated by the exemption of those who-performed it from other governmental duties, which would, of course, result in an excess of less arduous duties borne by .others. The volunteer firemen departments in the cities of New York and Brooklyn were replaced in 1865 by a paid organization. Thereafter to .protect the benevolent fund created for the benefit of firemen -and exempt firemen and their families a new corporation was organized known as the-Trustees of the Exempt Firemen’s Benevolent Fund. To 'this corporation was attached the right for five'years to-receivé two per cent of the gross premiums -paid by foreign fire insurance companiés doing business in the city of New York; in 1870 that right was extended for seven -years, and in 1877 for nine years moré. In 1875 the Constitution of the State was amended by adding a provision similar to that of séction 10 of article 8 of the present Constitution invoked by the appellant., lit was urged in the Roorne case that because of - the amendment -to the Constitution of 1875 .the act of 1877 (chap. 64, amdg'. Laws of 1866, chap. 633, § 7) effectuated a gift of the money-of-.the State to a corporation in violation of the Constitution. - The court held otherwise, however ; it was there said: “ When the State takes from the public treasury ■a-sum of money and gives it'.to a corporate body for the relief of deserving beneficiaries, it does one of two.fhings. ■ It either bestows a.charity or recognizes ■ and. discharges an obligation-due from it to the‘recipients.-The former it cannot'do except in specified-cases. The latter it may alwTays do, for the constitutional provision was not intended and should not. be construed to make impossible the- performance off an honorable obligation "founded upon a public service, invited by the State, adopted as its agency for doing its work, and induced by exemptions and rewards which' good faith and justice require should last so long as the occasion demands. . We do not apprehend that the wise prohibition' of the Constitution -is -weakened or narrowed by this construction. While the State owes some general duty of charity to the.poor and suffering, no body of-men, corporate or associated, can, of their own accord, take-upon ■themselves that duty without the request -and procurement of the State, standing in no relation of authorized governmental agency," and yet put - the State under .an obligation which makes the bestowal of public. money upon the corporate body something other than a gift or a donation. In the présent case we .have, patiently traced the whole history of the appropriation and -its recipients along the entire line of an abundant legislation, in order to feel sure that -we have not mistaken the qxrality of the act, or erred in ascribing to the plaintiff corporation the character of a subordinate governmental- agency employed by the State to fulfill its obligations due to the exempt firemen for the service they had rendered at the request, and by the procurement of the "State.”

While the relator in the present case was not organized until the year 1887, it is, nevertheless, undisputed as a fact that the membership of the corporation is entirely composed of men who have served a term of fivg years as members of the volunteer firemen departments of the former city of Brooklyn and other towns in the county of Kings. All that was said of' the obligation of the city and the' State of New Fork to the volunteer firemen in the Retome case must, of course, apply with equal force to the members of the relator. By the amendment, of 1906, which directed the remission of water rents, the State has ascribed to the relator the character of a “subordinate governmental-agency.employed by the State to fulfill its obligations due to the exempt firemen for the service they had rendered at the request and by the procurement of the State.” Granting that the past due water rates are not in the nature of taxes, blit are as a debt due to the city ■ for valuable service performed and are to be treated as money in the treasury of the city, as urged by the appellant, we cannot distinguish in principle between" the character of this legislation arid that upheld in the Court of Appeals in the Roome case; for there the State undertook-to take part of the license fees of foreign corporations paid for the privilege of conducting business' in this State, and to pay it into the treasury of a corporation existing for the benefit of exempt firemen.

The remission of the water rates is not a bestowal of a charity; it is the recognition and the discharge of an obligation due from the State., The extent of the obligation, and the question,whether it was fully discharged prior to the enactment of the amendment of 1906, rest alone with the State to determine. That the Legislature was of the opinion that the obligation had not been fully discharged prior to the amendment of 1906 is apparent because of the enactment thereof. .Our conclusion is that the legislation is not unconstitutional, and the order-must be affirmed,'with costs'.

Gaynor, Rich and Milleb, JJ., concurred; Jenks, J., concurred in result.

Order affirmed, with ten dollars costs and disbursements.  