Roosevelt Raceway, Inc. v. Monaghan

Per Curiam. The Harness Racing Commission has appealed from an order at Special Term, in a proceeding pursuant to article 78 of the Civil Practice Act brought by petitioner Roosevelt Raceway, Inc., directing that petitioner’s construction account be credited with Federal income taxes paid or hereafter to be paid, and requiring the commission to correct its records accordingly. The underlying facts and relevant statutory and constitutional provisions have been set forth in Presiding Justice Boteie’s opinion in Matter of Blaikie v. State Harness Racing Comm. (11 AD 2d 196), decided simultaneously herewith, and which it is intended should be read in conjunction with this opinion. The Attorney-General raises questions for the first time, in the form and scope they are presented upon this appeal, as to the constitutionality of section 45-a of the Pari-Mutuel Revenue Law (L. 1956, ch. 837), if that law is construed as the petitioner contends it should be. The Attorney-General argues that the uses to which petitioner seeks to put the construction account funds would be violative of section 7 and 8 of article VII of the State Constitution, which provide: “ § 7. No money shall ever be paid out of the state treasury or any of its funds, or any of the funds under its management, except in pursuance of an appropriation by law; nor unless such payment be made within two years next after the passage of such appropriation act; and every such law making a new appropriation or continuing or reviving an appropriation, shall distinctly specify the sum appropriated, and the object or purpose to which it is to be applied; and it shall not be sufficient for such law to refer to any other law to fix such sum.” “ § 8. The money of the state shall not be given or loaned to or in aid of any private corporation or association, or private [208] undertaking; nor shall the credit of the state be given or loaned to or in aid of any individual, or public or private corporation or association, or private undertaking, but the foregoing provisions shall not apply to any fund or property now held or which may hereafter be held by the state for educational purposes.” It should be noted that not only is this constitutional question raised for the first time on this appeal, but it is the only constitutional provision that appellant claims has been violated. In Presiding Justice Botein’s opinion in Matter of Blaikie, referred to above, it was concluded that the funds in the construction account are not ‘1 money of the State ’ ’ nor ‘1 money under its control ’ ’, and we adopt that conclusion and the reasons underlying it for all purposes in this opinion. The Attorney-General, in his brief, equates funds under the State’s management, as provided in the afore-mentioned section 7 of article VII of the Constitution, with funds under its control, and we are in agreement. Since the moneys which are the subject matter of this proceeding are not in the State treasury, nor State funds, nor under its management, they do not come within the interdiction of the constitutional provisions relied upon by the State; and so this argument must fall at the very threshold of our consideration. (See additionally, People ex rel. Evans v. Chapin, 101 N. Y. 682; Matter of Clark v. Sheldon, 106 N. Y. 104.) Nor is title to these funds in “a state of suspension ”, as stated in the dissenting opinion of Mr. Justice Valeitte. Title is always in the track, just as securely as the track has title to the State’s original share of the betting pool until such time as it actually makes payment to the State. These payments are to be made, the statute provides, at such regular intervals as the commission may require, and 1 ‘ when collected ’ ’, paid by the commission into the State treasury. As to the other points raised by appellant, the 1956 law provides in clear and unmistakable language that a so-called capital improvement track is entitled to receive from its construction account a sum of money, net after Federal income taxes paid thereon, equal to the cost of the improvements approved by the commission; and Special Term therefore construed the 1956 law correctly in that regard. Furthermore, the legislative intent with respect to the 1956 law was so clear that the 1959 law was not a clarification but was in effect an amendment of the earlier statute, and therefore not binding in a judicial proceeding affecting the earlier statute (City of New York v. Village of Lawrence, 250 N. Y. 429, 447; People [209] ex rel. Mutual Life Ins Co. v. Board of Supervisors, 16 N. Y. 424, 431, 432). Accordingly, the order appealed from should be affirmed, without costs.