
    Edward C. St. Clair, Individually and on Behalf of the People of the State of New York as a Citizen and Taxpayer Thereof, Appellant, v. Yonkers Raceway, Inc., et al., Respondents, et al., Defendants.
    Argued May 6, 1963;
    decided July 10, 1963.
    
      J. Clement Johnston for appellant.
    I. Plaintiff is an interested person directly aggrieved and has capacity to bring this action; the cases relied upon by defendants have no application. (Doolittle v. Supervisors of Broome County, 18 N. Y. 155; Kilbourne v. St. John, 59 N. Y. 21; Schieffelin v. Komfort, 212 N. Y. 520; Bull v. Stichman, 273 App. Div. 311, 298 N. Y. 516; Dorsey v. Stuyvesant Town Corp., 299 N. Y. 512, 339 U. S. 981.) II. This court may entertain this case upon the merits without overruling the Doolittle case. (Matter of Kuhn v. Curran, 294 N. Y. 207; Heim v. McCall, 214 N. Y. 629, 239 U. S. 175; Palmer v. Board of Educ., 276 N. Y. 222; Matter of Tartaglia v. McLaughlin, 190 Misc. 266, 273 App. Div. 821, 297 N. Y. 419; Elkind v. City of New Rochelle, 5 Misc 2d 296, 4 A D 2d 761, 5 N Y 2d 836; Lederman v. Board of Educ. of City of N. Y., 196 Misc. 873, 301 N. Y. 476, 342 U. S. 485; Matter of Peters v. New York City Housing Auth., 9 Misc 2d 942, 307 N. Y. 519; Matter of Plumbing, Heating, Piping & Air Conditioning Contrs. Assn. v. New York State Thruway Auth., 5 N Y 2d 420.) III. This court can and should decide whether this matter is of sufficient public importance to be decided by the courts. (Matter of Roosevelt Raceway v. Monaghan, 22 Misc 2d 776,11 A D 2d 206, 9 N Y 2d 293, 368 U. S. 12.) IV. The rule of the Doolittle case should be modified, at least to the extent necessary for the enforcement of section 8 of article VII of the Constitution. (Woods v. Lancet, 303 N. Y. 349; Greenberg v. Lorenz, 9 N Y 2d 195; People v. Spitaleri, 9 N Y 2d 168; Bing v. Thunig, 2 N Y 2d 656; Randy Knitwear v. American Cyanamid Co., 11 N Y 2d 5; Battalla v. State of New York, 10 N Y 2d 237.)
    
      Samuel I. Rosenman, George Morton Levy, Sr., Max Freund, Ernest A. Gleit and Fred H. Greene for Roosevelt Raceway, Inc., respondent.
    I. As a bettor, St. Clair is not aggrieved by the 1956 law, and he therefore has no standing to attack its constitutionality. (Thompson v. Wallin, 276 App. Div. 463, 301 N. Y. 476, 342 U. S. 801; Cramp v. Board of Public Instruction, 368 U. S. 278; Schieffelin v. Komfort, 212 N. Y. 520; Matter of Guardian Life Ins. Co. v. Chapman, 302 N. Y. 226; O’Kane v. State of New York, 283 N. Y. 439; Headley v. City of Rochester, 272 N. Y. 197; People v. Beakes Dairy Co., 222 N. Y. 416; Matter of Murtha v. Monaghan, 1 A D 2d 178, 2 N Y 2d 819, 355 U. S. 891; People ex rel. Moffett v. Bates, 276 App. Div. 38, 301 N. Y. 
      597, 340 U. S. 865; People ex rel. Tobacco & Allied Stocks v. Graves, 250 App. Div. 149, 277 N. Y. 723.) II. This case may not be entertained on its merits unless this court changes the long-established rule that taxpayers lack standing to contest the constitutionality of statutes. (Matter of Kuhn v. Curran, 294 N. Y. 207; Heim v. McCall, 214 N Y. 629, 239 U. S. 175; Palmer v. Board of Educ., 276 N. Y. 222; Bull v. Stichman, 189 Misc. 597, 273 App. Div. 311, 298 N. Y. 516; Matter of Plumbing, Heating, Piping & Air Conditioning Contrs. Assn. v. New York State Thruway Auth., 5 N Y 2d 420; Ausable Chasm Co. v. State of New York, 266 N. Y. 326; People v. Brooklyn Cooperage Co., 187 N. Y. 142.) III. The rule forbidding taxpayers to challenge the constitutionality of statutes should not be changed. (Doolittle v. Supervisors of Broome County, 18 N. Y. 155; Dorsey v. Stuyvesant Town Corp., 299 N. Y. 512; Schieffelin v. Komfort, 212 N. Y. 520; Kilbourne v. St. John, 59 N. Y. 21; Roosevelt v. Draper, 23 N. Y. 318; Thompson v. Wallin, 276 App. Div. 463, 301 N. Y. 476, 342 U. S. 801; Massachusetts v. Mellon, 262 U. S. 447; Perkins v. Lukens Steel Co., 310 U. S. 113; Ayers v. Lawrence, 59 N. Y. 192; Adamson v. Union R. R. Co., 74 Hun 3; Madden v. Queens County Jockey Club, 296 N. Y. 249, 332 U. S. 761; Matter of Blaikie, 11 A D 2d 196; Badigian v. Badigian, 9 N Y 2d 472; Purcell v. Long Is. Daily Press Pub. Co., 9 N Y 2d 255; Woods v. Lancet, 303 N. Y. 349; Richards v. Treasurer & Receiver General, 319 Mass. 672; Barco Mfg. Co. v. Wright, 10 Ill. 2d 157; Battalla v. State of New York, 10 N Y 2d 237; Bing v. Thunig, 2 N Y 2d 656; People v. Rosario, 9 N Y 2d 286; Coyne v. Campbell, 11 N Y 2d 372; Randy Knitwear v. American Cyanamid Co., 11 N Y 2d 5; Greenberg v. Lorens, 9 N Y 2d 195.)
    
      Louis Haimoff and Joseph G. Blum for Yonkers Raceway, Inc., respondent.
    I. Plaintiff as a citizen and taxpayer does not have capacity to bring this action. (Dorsey v. Stuyvesant Town Corp., 299 N. Y. 512; Bull v. Stichman, 273 App. Div. 311, 298 N. Y. 516; Schieffelin v. Komfort, 212 N. Y. 520; Demarest v. Wickham, 63 N. Y. 320; Kilbourne v. St. John, 59 N. Y. 21; Roosevelt v. Draper, 23 N. Y. 318; Doolittle v. Supervisors of Broome County, 18 N. Y. 155; Davis v. Mayor, 14 N. Y. 506; Matter of Blaikie, 11 A D 2d 196; Smith v. City of Buffalo, 191 Misc. 439; Massachusetts v. Mellon, 262 U. S. 447.) II. Plaintiff’s participation as a bettor in pari-mutuel pools conducted by harness racetracks is insufficient to vest him with standing to question the constitutionality of section 45-a. (Matter of Roosevelt Raceway v. Monaghan, 9 N Y 2d 293; Madden v. Queens County Jockey Club, 296 N. Y. 249; People v. Griswold, 213 N. Y. 92; Matter of Northern Bank of N. Y., 267 App. Div. 659, 293 N. Y. 936; Matter of Thalmann, 177 Misc. 1055; Dayton-Goose Cr. Ry. Co. v. United States, 263 U. S. 456.)
    
      Ira R. Morris for Genesee Monroe Racing Association, Inc., respondent.
    Plaintiff has no legal capacity to bring this action. (Matter of Blaikie, 11 A D 2d 196.)
    
      Alfred L. Retselt for Buffalo Trotting Association, Inc., respondent.
    Plaintiff has no legal capacity to bring this action. (Matter of Blaikie, 11 A D 2d 196.)
    
      Ernest B. Morris for Saratoga Harness Racing Association, Inc., respondent.
    Plaintiff has no status, other than that of a citizen and taxpayer, upon which to base an attack on the $54,960.26 payments to Saratoga; his complaint is thus clearly defective on its face. (Matter of Blaikie, 11 A D 2d 196.)
    
      Louis J. Lefkowitz, Attorney-General (Paxton Blair and Edward Siegfried of counsel), pro se and for the State Harness Racing Commission and others, respondents.
    As a private citizen and taxpayer whose interests are not specifically affected by the statute he seeks to have declared unconstitutional, the plaintiff was rightly held to lack the legal capacity to maintain this action.
   Burke, J.

The simple question presented on this appeal is whether the complaint was properly dismissed on the ground that appellant lacks legal capacity to sue.

The appellant, who allegedly placed small wagers —$18 in all — at racetracks of several of the corporate defendants, brought this suit to have the difference paid to the State between the amount of the payments made to the State by such racetracks at the tax rates reduced by an amendment of the Pari-Mutuel Revenue Law (L. 1956, ch. 837) and the amount which the State would have obtained under the tax rates in effect prior to the effective date of that amendment, and to require payment in the future at the old rates. The respondents, joined by the Attorney-General, moved to dismiss the complaint on the ground that appellant lacked standing to dispute the constitutionality of the amendment.

Once again we are presented with an attempt to change the law of this State, which is also the law of the United States of America. We have always held that the constitutionality of a State statute may be tested only by one personally aggrieved thereby, and then only if the determination of the grievance requires a determination of constitutionality. Under that ruling an unaggrieved citizen-taxpayer, such as appellant, lacks standing to challenge a statute’s constitutional validity. Appellant’s contentions were rejected by this court in the case of Bull v. Stichman (298 N. Y. 516, affg. 273 App. Div. 311). In the Bull case the dissent in the Appellate Division was based on the cases appellant relies upon here (Matter of Kuhn v. Curran, 294 N. Y. 207, and Heim v. McCall, 214 N. Y. 629). This court’s unanimous affirmance in spite of the dissent disposed of the theory that the rule regarding taxpayers’ cases permitted exceptions.

Thus we have found anew that the rationale propounded in Doolittle v. Supervisors of Broome County (18 N. Y. 155) and Schieffelin v. Komfort (212 N. Y. 520) remains sound today. It seems to us proper ‘ ‘ that the courts of this state have denied the right of a citizen and taxpayer to bring before the court for review the acts of another department of government simply because he is one of many such citizens and taxpayers ” (Schieffelin v. Komfort, 212 N. Y. 520, 537, supra).

As Judge Chase stated in the Schieffelin case:

“ Jurisdiction has never been directly conferred upon the courts to supervise the acts of other departments of government. The jurisdiction to declare an act of the legislature unconstitutional arises because it is the province and duty of the judicial department of government to declare the law in the determination of the individual rights of the parties.
The assumption of jurisdiction in any other case would be an interference by one department of government with another department of government when each is equally independent within the powers conferred upon it by the Constitution itself.” (212 N. Y., supra, p. 530.)
This concept was later advanced by Mr. Justice Black in Perkins v. Lukens Steel Co. (310 U. S. 113, 132) when he said: Our decision that the complaining companies lack standing to sue does not rest upon a mere formality. We rest it upon reasons deeply rooted in the constitutional divisions of authority in our system of Government and the impropriety of judicial interpretations of law at the instance of those who show no more than a mere possible injury to the public.”

The judgment appealed from should be affirmed, without costs.

Fuld, J.

(dissenting). The plaintiff, seeking to prevent the alleged misapplication of more than $42,000,000, sues as a citizen and taxpayer for a judgment declaring that section 45-a of the Pari-Mutuel Revenue Law (added by L. 1956, ch. 837) violates the constitutional prohibition against the expenditure of public funds to private parties (N. Y. Const., art. VII, § 8). The courts below dismissed the complaint and we are called upon to decide whether this State shall continue to be one of the very few remaining jurisdictions to adhere to the rule that a citizen-taxpayer, who cannot show any direct or personal injury, lacks standing to challenge allegedly unconstitutional expenditures of state moneys.

Although the rule is one which, judicially formulated, has been applied by this court for more than 100 years (see, e.g., Doolittle v. Supervisors of Broome County, 18 N. Y. 155; Kilbourne v. St. John, 59 N. Y. 21, 27; Schieffelin v. Komfort, 212 N. Y. 520; Bull v. Stichman, 298 N. Y. 516; Dorsey v. Stuyvesant Town Corp., 299 N. Y. 512, cert. den. 339 U. S. 981), it has not only been sharply criticized by authoritative writers on the subject (see, e.g., 3 Davis, Administrative Law Treatise [1958], § 22.09, p. 243 et seq., § 22.10, p. 249 et seq.; Davis, Standing to Challenge Governmental Action, 39 Minn. L. Rev. 353, 386 el seq.; Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harv. L. Rev. 1265; Note, Taxpayers’ Suits, 69 Yale L. J., 895) but rejected by the courts of many jurisdictions. (See 3 Davis, Administrative Law Treatise, op. oil., p. 245; Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harv. L. Rev. 1265, 1278.)

At the present time, virtually every state, either by decision or by statute — New York, by section 51 of the General Municipal Law — permits taxpayers to challenge local action and at least 34 states clearly sanction taxpayers’ suits at the state level, that is, actions by state taxpayers challenging state action; indeed, only two states — New York and New Mexico — squarely prohibit such actions. (See Jaffe, Standing to Secure Judicial Review: Public Actions, 74 Harv. L. Rev. 1265, 1278; Note, Taxpayers’ Suits, 69 Yale L. J. 895, 900-902.) “ This trend ”, it has been said, “ reflects the absence of significant reasons for distinguishing municipal taxpayers’ suits, permitted practically everywhere, from their state counterparts. True, the taxpayer’s contribution to the state treasury may be a lesser percentage of the total than his municipal tax payments, and his interest in state affairs might therefore be said to be more remote. But no overriding considerations — such as the need for executive flexibility on the national level in foreign affairs and defense — make review of state action less desirable than review of the affairs of local government.” (Note, Taxpayers’ Suits, 69 Yale L. J. 895, 902.)

Of this there can be no possible doubt. The State has a vital concern, its People a deep interest, in seeing to it that the provisions of our Constitution are enforced, and unconstitutional expenditures of state funds prevented. Neither logic nor policy demands that the judiciary stay its hand and dismiss the action simply because the proceeding happens to be initiated by a vigilant and civic-minded taxpayer following official inaction. It hardly seems consonant with the Constitution itself that the enforcement of its provisions should have to turn on the meaning ascribed to it by members of the executive or administrative branch of government or on whether they choose to assert themselves.

It is self-evident that the denial of standing to a taxpayer will in most instances prevent any challenge to an expenditure of state funds as violative of the Constitution. The suggestion in the opinion of the majority that the Attorney-General and other state officials may be relied upon to attack the constitutional validity of state legislation is both unreal in fact and dubious in theory. As to the Attorney-General, for example, it would seem more appropriate to his office that he defend a statute’s constitutionality when it is challenged than initiate an attack of his own. (Cf. Executive Law, § 71; and see, e.g., Matter of Roosevelt Raceway v. Monaghan, 9 N Y 2d 293.) Certainly, our Constitution does not entrust the determination of constitutionality to the executive branch of the government. But, in any event, if there is an official who is authorized to act and he declines to assert the invalidity of the statute, or otherwise raise that issue, the question whether the expenditures made pursuant to the statute’s provisions violate the State Constitution will never be subjected to judicial scrutiny.

The Constitution is a People’s document and the hypothesis that a citizen-taxpayer has no “ interest ” in state expenditures is little more than a legal fiction. It cannot be squared with the generally accepted doctrine that a taxpayer on the municipal level — where the issues are rarely of comparable importance — does possess the requisite “ direct and immediate ” interest to warrant his bringing an action to challenge the expenditure of municipal funds. (Massachusetts v. Mellon, 262 U. S. 447, 486, supra.) And, beyond that, as the Illinois Supreme Court declared in a case involving the alleged misappropriation of state moneys, the taxpayers’ “ownership of such funds and their liability to replenish the public treasury for the deficiency ”, which might be occasioned by their misuse, should be deemed sufficient to supply the essential basis for standing. (Turkovich v. Board of Trustees of Univ., 11 Ill. 2d 460, 464.)

Little is to be gained by extended discussion of the few arguments which have been put forward to support perpetuation of the rule denying standing to taxpayers on the state level, and I consider briefly but two of them.

Less than persuasive is the claim that the court’s assumption of jurisdiction in these suits in the face of inaction by the executive branch of government charged with the responsibility of preventing the waste of public funds 1 ‘ would be an interference by one department of government with another ”. (Schieffelin v. Komfort, 212 N. Y. 520, 530, supra.) Fundamental to our form of government is the principle that determination of the constitutionality of legislation is essentially a judicial function. And, this being so, it is difficult to understand how it may be said that a court, in making such a determination, would be interfering with another branch of government, or usurping the latter’s powers simply because it acts in a case initiated by a taxpayer. In brief, litigation such as this calls upon the courts to assess the constitutional validity of legislation, not to supervise the acts of another branch of government.

Nor do I find any basis for the concern — expressed in the Doolittle case (18 N. Y. 155, 162, supra) and elsewhere — that, opening the doors of the court to taxpayers would cause a flood of actions by officious meddlers. If there ever was reason for such a fear, it has been completely dispelled by the experience not only of the many jurisdictions where taxpayers’ suits on the state level have long been sanctioned but, indeed, of our own State of New York under the statute permitting municipal taxpayers to challenge the action of local officials (General Municipal Law, § 51). The New Jersey high court accurately appraised the situation when many years ago it observed that ‘‘ The general indifference of private individuals to public omissions and encroachments, the fear of expense in unsuccessful and even in successful litigation, and the discretion of the court, have been, and doubtless will continue to be, a sufficient guard to these public officials against too numerous and unreasonable attacks.” (Ferry v. Williams, 41 N. J. L. 332, 339; see Davis, Standing to Challenge Governmental Action, 39 Minn. L. Bev. 354, 430.) The courts undoubtedly can be relied upon to discourage and prevent baseless taxpayers’ suits by insisting that the action pose an issue of general public importance; that it involve an actual bona fide controversy, not one. which is feigned; that all interested parties be represented; that there be no other remedy available; and that the public officials vested with authority to bring an action shall have refused to do so. All of these conditions have been met in the case before us.

In sum — although the Legislature could, of course, remove the taxpayer’s disability at a stroke, enforcement of the Constitution should not depend upon the will of the legislative branch any more than on that of the executive. The apathy of the average citizen concerning public affairs has often been decried; under the court-made rule now reaffirmed, it is being compelled. I would change the rule.

The judgment appealed from should be reversed and the motion to dismiss the complaint denied.

Dye, J.

(dissenting). I concur with all that Judge Fuld has said and would like to add that in this case, as in others, where a court-made rule has gained veneration by long user (Bing v. Thunig, 2 N Y 2d 656; Woods v. Lancet, 303 N. Y. 349 [cf. comments by Desmond, Ch. J., in dissenting opinion, People v. Lane, 10 N Y 2d 347]), it does not necessarily follow that such a rule should be interposed to give a benediction to a patently unconstitutional gift of over $42,000,000 of the State’s money to a private corporation (N. Y. Const., art. VII, § 8; Matter of Roosevelt Raceway v. Monaghan, 9 N Y 2d 293, 311). If a choice is to be made between constitutional observance and a rule such as Doolittle v. Supervisors of Broome County (18 N. Y. 155) and Schieffelin v. Komfort (212 N. Y. 520), the choice should and must be the Constitution. Further, our State government operates under a tripartite system pursuant to a constitutional form, which is reason enough for each branch of the government to be mindful of its mandate. The Doolittle rule has been widely criticized for reasons far less compelling than those presented by the facts of this case. Early in our history the courts favored the taxpayer. While we have come a long way since then, it is not too late to reinstate the dignity of the taxpayer. When wrong is threatened or actually accomplished, every taxpayer suffers a loss, for in the end it is his pocketbook that must bear the ultimate burden. The personal monetary interest should not be the test, but whether, in fact, the Constitution of the State of New York is being flouted.

It is well settled that no person has a vested interest in any rule of law entitling him to insist that it shall remain unchanged for his benefit (New York Cent. R. R. Co. v. White, 243 U. S. 188; Munn v. Illinois, 94 U. S. 113; I. L. F. Y. Co. v. City Bent & Rehabilitation Administration, 11 N Y 2d 480; I. L. F. Y. Co. v. Temporary State Housing Bent Comm., 10 N Y 2d 263). I am not at all convinced that the racetracks of New York have such a vested interest in the Doolittle rule as to prevent testing the constitutionality of section 45-a of the Pari-Mutuel Revenue Law (added by L. 1956, ch. 837), a question which we expressly left open in Matter of Roosevelt Raceway v. Monaghan (supra).

For these reasons I vote to reverse the judgment appealed from.

Chief Judge Desmond and Judges Foster and Scileppi concur with Judge Burke ; Judge Fuld dissents in an opinion in which Judges Dye and Van Voorhis concur, Judge Dye in a separate opinion.

Judgment affirmed. 
      
      . We know from earlier litigation that this is no specious charge or feigned controversy. In Matter of Roosevelt Raceway v. Monaghan (9 N Y 2d 293), not only did the court expressly reserve the very question here sought to be raised (p. 303) but one judge actually expressed the view that section 45-a was “ constitutionally invalid ” in its entirety (pp. 311-315, per Dye, J., concurring).
     
      
      . It is difficult to reconcile the cited cases with those involving challenged official action with respect to nonfiscal matters. (See, e.g., Matter of Cash v. Bates, 301 N. Y. 258, 261; Matter of Kuhn v. Curran, 294 N Y. 207, 213; Matter of Andresen v. Rice, 277 N. Y. 271, 281; 3 Davis, Administrative Law Treatise, op. cit., pp. 249-250.) In the Cash ease (301 N. Y. 258, supra), for instance, the court held that “the erroneous appointment * * * ought to be open to attack by the petitioners, because as citizens and taxpayers they are entitled to an opportunity to insist upon the construction which this court placed upon the civil service article of the State Constitution ” (p. 261).
     
      
      . The Federal courts also deny standing to taxpayers attacking Federal expenditures. (See, e.g., Massachusetts v. Mellon, 262 U. S. 447.) However, the Supreme Court in the Mellon ease differentiated between taxpayers attacking the expenditures of the Federal Government and those challenging the expenditure of local funds. (See, also, Wieman v. Updegraff, 344 U. S. 183; Everson v. Board of Educ., 330 U. S. 1; Hart and Wechsler, The Federal Courts and the Federal System [1953], pp. 160-162.) 'Thus, observed the court in Mellon (262 U. S., at p. 486), “ The interest of a taxpayer of a municipality in the application of its moneys is direct and immediate and the remedy by injunction to prevent their misuse is not inappropriate. It is upheld by a large number of state eases and is the rule of this Court.”
     