24 Barb. 248 | N.Y. Sup. Ct. | 1857
The defendants having failed to appear and show cause, I was at first inclined to grant a temporary injunction. But when I reflected that not one of the bond holders, the only persons having an interest in the suit, hostile to the
The 118th section of the code, which is merely declarative of a long established and well settled principle of law, provides that “ any person may be made a defendant, who has, or claims an interest in the controversy, adverse to the plaintiff, or who is a necessary party to a complete determination or settlement of the question involved therein.” To prevent inconvenience in the prosecution or defense of suits, on account of the multiplicity of parties, the 119th section provides that, “Avhere the parties are very numerous, one or more may sue, or defend, for the whole.” That a “ complete determination, or settlement of the question involved” in this suit cannot be made, until at least some of the bond holders, the only persons, “ who have an interest in the controversy adverse to the plaintiffs,” are made parties, is a proposition too plain to be controverted. It is manifest therefore, that the court will never grant a perpetual injunction to restrain the payment of the bonds in question, or the interest to groAV due thereon, until some of the bond holders are made parties to the suit, and afforded an opportunity to be heard, before their claims are pronounced invalid.
I am not prepared to say that a case might not be presented in which a temporary injunction should be granted to restrain the agent of the plaintiff from paying over his funds to the creditors who claim them, although none of the creditors were made parties to the suit, because they were unknown to the
But I have felt compelled to deny the application on other grounds than an omission to make the proper persons parties to the suit. I could not, consistently with the conclusions at which I- have arrived, have granted the injunction, if all the bond holders had been made parties. I was referred, by the plaintiffs’ counsel, to the decision in the case of Clark v. The City of Rochester, as an authority showing that the act under which the bonds in question were issued was unconstitutional, and conferred no power upon the common council of the city of Albany to issue them. I regret that I have been compelled to examine and to form an opinion upon so delicate and grave a question, unaided by the light which the discussion of it by counsel, presenting the views of the parties whose interests are adverse, could not fail to have afforded. In the absence of such aid, I have read and considered that case with great care, and with all the respect due to the opinion of the learned judge by whom it was decided, but I have been unable to concur in its conclusions, so far as they affect this case.
In 1851, the legislature passed an act authorizing the city of Rochester to borrow $300,000, and to issue its bonds for that
1st. “ The absence of any express power conferred by the people in the constitution,”' upon the legislature to pass an act of such a character.
2d. That the “ assumption ” and exercise of such a power by the legislature “ is adverse to the spirit ” of the constitution.
3d. That the constitution “ expressly forbids the legislature to grant the power which the act in question assumes to confer upon the common council of Rochester.”
By section 1st of the 3d article of the constitution, “the legislative power of this state shall be vested in a senate and assembly.” It would seem to be difficult, after such a grant, to maintain the first of the above propositions, if the power exercised by the legislature in reference to the city of Rochester, falls within the province of legislative action. All the sovereign power of the people of the state except what is expressly reserved in the constitution, is by that instrument conferred upon-the executive, legislative and judicial departments of the government. It will not be denied, that if the power in question exists, it is vested in the legislative department. That it is a power, coming within the province of legislation if not prohibited by the constitution, is proved by the concurrent testimony of almost every, legislature that has assembled within the state since the formation of the first constitution, and its exercise has become more and more frequent, as the unexampled growth of the state and prosperity of the people have increased the necessity for its exercise. The people, from all sections of the state, have petitioned the legislature from year to year, for grants of authority similar in principle to that conferred upon the city of Rochester, and the power of the legislature to make such grants has never, until very lately, been seriously questioned in this
In the case of The People v. The Mayor &c. of Brooklyn, (4 Comst. 439,) Buggies, J., says: “ This system of taxation was in force at the time of the making and adoption of our first, second and third constitutions, and has stood in our statute books along with our constitutions, from 1777 until now. * * * If the uniform practice of the government from its origin, can settle any question of this nature, the power of the legislature to exercise this kind of taxation would seem to be established by it.” These observations are as pertinent to the case before me, as they were to the case in which they were made. The cases are of a kindred character : both relato to the power of taxation. Strong as is the argument derived from a long and unvarying practice in favor of the inherent power of the legislature to legislate upon the subject in question, its existence has also been recognized and sanctioned by the judicial tribunals of this, and I believe every other state in the union in which the question has been presented for adjudication. Upon one or two occasions, within a few years past, this power has been questioned by some of the judges of our own state, previous to the decision of Justice Allen in the Bochester City case; but I believe that in every such instance, upon a review in the court of appeals, the power has been recognized, and the constitutional right of the legislature to exercise it affirmed.
In 1834 the legislature passed an act authorizing the canal commissioners to change the eastern termination of the Chenango canal from Whitesborough to Utica, on receiving satisfactory security for the payment into the-state treasury of a sum equal to the estimated increased expense to be occasioned by
The commissioners of highways of the town of Guilford, in the county of Chenango, by direction of the voters of the town, commenced and prosecuted a suit in their official character which was decided against them, subjecting them to the payment of a large bill of costs. The town having refused to reimburse the commissioners, they sued the town for the recovery of the costs which they had been compelled to pay in the first suit. Judgment-was rendered against the commissioners in this suit, by the'court hf last resort, it having been held that they had no , legal claim' against the -town for those costs. In 1851, the legislature passed an act authorizing the question of payment to
The questions which have lately arisen under
In the case of Wynehamer v. The People, (3 Kernan,.428,) Selden, J., says: “ Every sovereign state possess within itself, absolute and unlimited legislative power. While, therefore, the right of a sovereign state to pass arbitrary and tyrannical laws may. its legal power cannot be denied. I speak, of course, of a state as a whole, where all its powers are concentrated in the hands of the people at large, or of one or more of its members. It. follows, that if a society, or people, wishing to form an organized government, should simply create the three essential departments, vesting the whole executive power in one, the legislative in another, and the judicial in a third, the legislative department could make any law which the people themselves could have made, arbitrary or otherwise. The legislative power of this state shall be vested in the senate and assembly.’ This means of course, the whole legislative power. The words are general, and unlimited ; nothing is reserved. Why then, as it has been shown that the people could make any law, just or unjust, is not the legislature equally absolute? It is because by other clauses in the constitution, a portion of this absolute power has been transferred to the judiciary, not, it is true, in direct terms ; but the constitution being the result of legislation by the people themselves before parting with their power, is the paramount law. When therefore, any law passed by the legislature conflicts with this, the judiciary pronounces between them, •and the paramount law prevails. The law-making power has, and can have, no other limitation than such as is prescribed by the constitution. The doctrine that there exists m the judi
In the case of The People v. The Mayor &c. of Brooklyn, (4 Comst. 425,) Buggies, 3., quotes the opinion of Chief Justice Marshall in the case of the Providence Bank v. Billings, (4 Peters, 514,) in which he says, “ the power of legislation and consequently of taxation, is granted for the benefit of all. It resides in the government as part of itself, and need not to be reserved. This vital power may be abused, but the interest, wisdom and justice of the legislative body, and its relations
It appears to me that the second proposition upon which the decision in the case of Clark v. The City of Rochester is based, is equally untenable, and equally opposed to the principles established by the court of appeals in the cases above cited. The proposition is, that the “ assumption ” and exercise of such a power by the legislature is “ adverse to the spirit ” of the constitution. To maintain this proposition, the learned judge cites the following clauses of the constitution: No person shall be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use without just compensation. If these clauses were in fact intended to impose any such restriction as is here imputed to them, it is most manifest that their true meaning has not heretofore been correctly understood; for the former constitutions of the state contained provisions of a similar character, and yet, as has already been observed, there has been a uniform and unvarying practical disregard of their supposed intended restraining influence. The judge also cites in support of the second proposition that clause of the constitution which, in express terms, prohibits the state from in any manner giving or loaning its credit to, or in aid of, any individual, association or incorporation. It is certainly to be regretted, if the framers of the constitution intended to impose a restriction upon that department of the government to which was. delegated the legislative power of the state, in order to prevent it from conferring upon municipal corporations authority to loan their credit or contract debts, that terms equally plain and unequivocal had not been selected to express such intent. The judge also cites sections 12, IS and 14, of article 7 of the constitution under this branch of his argument. But as they relate to matters distinct from, and entirely independent of the question of legislative power involved in the Bochester
The duty assigned to the judiciary, of defining the limits and establishing the boundaries of the powers conferred and the restrictions imposed upon the different departments of the government by the fundamental law, for the purpose of guarding against the abuses, and averting the evils arising from the usurpation of power withheld or restricted, is of too delicate and too important a character to be exercised except in cases free from all reasonable doubt, lest that department subject itself to the imputation of transcending the just limits of its own power, and committing the very abuses which it professes to restrain and correct.
Surely, no department of the government is under a stronger, or more solemn obligation to exercise its powers in such a manner as to secure it against affording any reasonable ground for such a charge, than that which possesses and exerts the power of restricting the action of the other departments within the limits of their legitimate constitutional authority, and is itself exempt from any direct supervisory control.
The remaining point of inquiry is, does the constitution prohibit the legislature from making grants of power of the character in question ? It has been contended that the 9th section of the 8th article furnishes an affirmative answer to this question. It is in these words : “ It shall be the duty of the legislature to provide for the organization of cities and incorporated villages, and to restrict their power of taxation, assessment and borrowing money, contracting debts and loaning their credit, so as to prevent abuses in assessments, and in contracting debts by such municipal corporations.” Justice Allen makes the following comments upon this section: “ A discretion is vested in the legislature as to the restriction, but none whatever in regard to the granting of new and enlarged powers, in respect to taxation and the creation of debts.” Again he says, “ It must be construed as an absolute restriction upon the powers of the legislature in conferring powers upon municipal corporations.” If this be a correct exposition of the section in question ; if the legislature are prohibited from granting to municipal corporations, any “new and enlarged powers in respect to the creation” of a debt, the act passed in 1850, authorizing the city of Albany to borrow money for the purpose of supplying the city with water, is unconstitutional, and the bonds issued under it are void, for it was both a new and an enlarged power; and it was the necessity for such a power that compelled the city to apply for, and the legislature to grant it; and it led to the creation of a debt, for under that grant the city issued its bonds to
To construe the section under consideration as a prohibition upon the legislature against granting any new and enlarged power. appears to me to involve the incongruity of forbidding them to do at all, what they are explicitly required to do in a particular manner. Buggies, J., in the Brooklyn case, (p. 440,) in speaking of the section in question says, “ the direction given to restrict the power of cities and villages to make assessments, presupposes and admits the existence of the power to be restricted.” The remark applies with equal force to the restriction of the power of contracting debts; it presupposes and admits the existence of such a power to be restricted. It may he asked, is there no remedy, if the legislature grant to municipal corporations the power of taxation and of contracting debts, and fail to impose the necessary restrictions to prevent abuses in its exercise 1 I am inclined to think that the character and extent of the restrictions to be imposed is, from the very nature of the case, entirely a matter of legislative discretion, and like all discretionary power, not the subject of review or reversal by any judicial tribunal. The constititution confers powers upon every department of the government which may be abused, and which no other department has the power to review or revise, and which can only be corrected by the su
The opinions quoted in connection with the other points in this case will, it is believed, sustain the doctrine that the judiciary have no power to correct the errors of indiscretion, which the legislature may commit in the exercise of the power it possesses.
It might, I think, be conceded that an act' conferring upon a city a general power of taxation and contracting debts, was unconstitutional if it contained no restrictions to prevent abuses in its exercise, and yet be shown that the act conferring the power in question upon the city of Albany, was a constitutional and valid act.
It is made the duty of the legislature “ to restrict” the power of municipal corporations “ so as to prevent abuses in assessments and in contracting debt.” To restrict means to limit, to confine. The question then presented is, between conferring limited or unlimited, restricted or unrestricted power. It cannot be asserted with even the semblance of truth, that to confer Upon a city the power to contract a debt in a single instance, and for a specified • purpose, is conferring unlimited and unre
As the result of my examination of the question involved in this case, I have arrived at the following conclusions:
1st. That the act of 1854, authorizing the loan of the credit of the city of Albany to the Northern Rail Road Company, was an exercise of the legitimate power of legislation.
2d. That the exercise of this power was not “ adverse to the spirit” of the constitution, so as to authorize the judicial tribunals to declare it void.
3d. That there is no prohibition in the constitution, against the exercise of such a power by the legislature.
4th. And therefore that the remedy for the evils which a large and respectable class of citizens believe to grow out of grants of power to municipal corporations to loan their credit, is not to be found in appeals to the judicial tribunals, but must be sought through other channels.
Motion denied.
D. Wright, Justice.]