2 Rob. 230 | The Superior Court of New York City | 1864
Lead Opinion
By the Court,
An action does not lie at common law against a municipal corporation, to recover for injuries to person or property caused by a mob. This was conceded by counsel, and is well settled.
The legislature of this state, in 1855, (Sess. L. 1855, p. 800, ch. 428,) enacted that, “ Whenever any building or other real or personal property shall be destroyed or injured, in consequence of any mob or riot, the city or county in which such property was situated shall be liable to an action by or in behalf of the party whose property was thus destroyed or injured, for the damages sustained by reason thereof.”
The act provides that actions may be brought and conducted in the same manner that other actions may be prosecuted by law, and directs that, “ Whenever any final judgment shall be recovered against any such city or county, in any such action, the treasurer of such city or county shall, upon the production and filing in his office a certified copy of the judgment roll, pay the amount of such judgment to the party or
The complaint alleges the unlawful assemblage, on the 14th day of July, 1863, of a mob of disorderly and riotous persons, and the destruction of the plaintiff’s property by the mob; and contains a statement of facts sufficient to constitute a cause of action against the defendants, if the act referred to can be sustained as a constitutional enactment.
The demurrer was sustained at the special term upon two grounds—-first, that the act is in conflict with the constitution of this state, which declares that no person shall be deprived of life, liberty, or property, without due process of law ; and, second, that it impairs the obligation of a contract within the prohibition of the federal constitution.
I will first consider the provision in our state constitution.
The liability created by the act in question is in derogation of the common law, and was involuntarily imposed upon the defendants. The state, in the exercise of its sovereign power, holds the city responsible, without its consent, and without previous process of law, for the consequences of acts not committed by them, or by their authority or permission, but over which they could exercise no control, and which they had not the physical means to avert.
The decision at special term rested upon the ground that this legislative imposition of liability upon the city, by its consequences of a judgment for damages sustained by a citizen to his property, and the duty enjoined upon the treasurer to pay, does in effect and in fact deprive the defendants of their property, without due process of law, and is within the constitutional prohibition. Process of law does not mean legislative enactment, but condemnation by judicial decree ; and the legislature cannot usurp the right and the power of the courts to determine every question concerning life, liberty, or property.
It is a principle, fundamental with our government, that the citizen shall be protected in the enjoyment of the blessings of life, liberty, and property. Every man in surrendering his personal independence'to the state sovereignty by yielding his
Hence, since we ceased to be colonies of Great Britain, it has always been a provision of the organic law of the state that none of its members shall be disfranchised, or deprived of any of his rights or privileges, unless by the law of the land or the judgment of his peers.
If the consequences of a judgment recovered under the act in question, were to deprive the corporation of the city of New York of any of its “property," as a private body, or artificial person, or to subject any of its property to the lien of such judgment, or to render it liable to be sold, then the act, in my opinion, would be clearly unconstitutional and void.
No property is taken by the terms of the act. The taking, if any there be, is only some compulsion to pay upon an involuntary liability. Money being property, the forced duty to pay money, as effectually deprives the corporation of its property, as if its real estate, or rents, or franchises were in terms to be seized.
The corporation of the city of -New York, represented by the mayor, aldermen, and commonalty, is the owner of both real and personal property. This property may ordinarily, by. process of law, be subjected to the payment of any debt which the corporation, as an artificial person, may lawfully contract. In this respect a municipal corporation is regarded as a natural person, capable of making contracts, of sueing and being sued, and may be compelled, in like manner, to discharge its obligations.
If, therefore, an execution could be issued upon a judgment recovered under the riot act, and levied upon any of the “ property” of the corporation, which it has obtained under its charters, or by subsequent purchase, and be sold in satisfaction of the judgment; or, if the city is compelled to pay its money to discharge these claims, then I am of opinion that the act would be exposed to the constitutional objection.
But the terms of the act forbid any such conclusion.
Without such a statute, a sufferer by a riot is remediless.
The exigencies which originated the act in question, were the not unfrequent unlawful assemblages'of disorderly persons, suddenly and unexpectedly overpowering the ordinary constituted authorities, and in defiance of law, wantonly destroying-life and property. During such periods, the citizen was powerless to sheild himself, and looked in vain for help to the protecting arm of the law. His property was seized and swept to destruction, and his life imperilled or lost.
As under our free institutions, private interest must yield to the public good, so sometimes, in the due dispensation and distribution of justice, private wrongs, which the government was powerless to avert, may be redressed by removing the burden from the individual, and placing it upon the whole community or some large portion of it, such as might be culpable in not providing means to resist the assault, or most interested in defeating similar ones.
It seems to me that the legislature was influenced by these considerations in passing the act before us. They recognized the right of the citizen to demand of the people indemnity, where they had failed to shield from injury; and that the. legislature, in the exercise of its power to levy taxes, designed that the people of the county or city whose authorities had failed to provide means of protection, should assume the burden of .indemnity. It was not the intention of. the legislature, by imposing- a liability upon a county or city, to do more than to designate a body politic, representing the inhabitants of a district, who might be proceeded against to obtain redress for losses which it was proper should be borne by them. Except that the people cannot be sued, the liability could as well have been imposed directly upon them, instead of their representatives. Hence the act designates the city or county as the party to be liable. It is in effect a mere mode of assessing the damages occasioned by disorderly and riotous persons unlawfully assembled, with a provision for their payment by the
The fire act of 1806, which authorized the mayor to direct the pulling down of buildings to arrest the progress of a fire, (Valentines Laws, 450, § 8,) provided for an assessment of the damages to the owner; and after confirmation of the assessment by the mayor’s court, directs the amount to be paid by the city. The riot act does no more than to require an assessment of damages with a direction to the city treasurer to pay. And it does not follow, that because the city or county is designated by the act as the body to be proceeded against in ascertaining the amount of damages, that their municipal or corporate property is to be taken; or that it was intended that the damages when put into the form of a judgment, should be a lien upon such property. ■ I cannot, therefore, believe that the legislature designed to give any other or greater force or effect to such judgments, than is given in the act itself; or to prescribe or allow any other mode of satisfaction than the means therein pointed out. If it had been the design to create a lien upon the corporate property, or subject it to levy and sale, a direction to the treasurer to pay was wholly unnecessary. Such a lien, and a right to enforce it by sale, would have been incident to the judgment itself.
But the statute which fixes the liability also provides for the satisfaction of the judgment. It directs the treasurer to pay and to charge the amount to the city or county made liable.
As I have said, the plaintiff has no right of action and no remedy, except under the statute, (Almy v. Harris, 5 John. 175,) and if the statute does not furnish a complete remedy, he is without any.
In Calking v. Baldwin, (4 Wend. 667,) an act of the legislature authorized B. to erect a dam across the Seneca river, and empowered any three judges of the common pleas, to assess the damages of the owners of lands, which sum so assessed
So, under the gaming act, which gave an action of “ debt,’’ it was held that the statutory remedy must be'pursued in form as well as in substance. (McKeon v. Caherty, 3 Wend. 494.) In that case the statute created a right which did not exist before, and prescribed a remedy.
It is provided by statute, (1 R. S. 315, §§ 13, 25,) that fines imposed by a regimental or battalion court-martial are. to be collected by a warrant issued by the president, and it was held in The People v. Hazard, (4 Hill, 207,) they could be collected in no other way.
The chancellor, in Renwick v. Morris, (7 Hill, 575,) says, where a new right is given, and a specific relief given for the violation of such right, the remedy is confined to that given by statute. So, in Smith v. Lockwood, (13 Barb. 217,) it is said, when a new right or the means of acquiring it, are conferred, and an adequate remedy for its invasion is given by the same statute, parties injured are confined to the statutory redress.
If the statute under consideration provided no specific mode of payment, then, undoubtedly, the ordinary common law-incidents necessary to render the judgment effectual would be inferred, although not mentioned in the statute. And even where the provision in a statute designed to give effect to the power, is in such general terms as to render the design doubtful or uncertain, it should receive a liberal construction towards effectuating the power. Bouton v. City of Brooklyn, (15 Barb. 375;) and Strong, J. in Dudley v. Mayhew, (3 Comst. 15,) says : “ The principle that when a statute confers a right, and prescribes adequate means for protecting it, the proprietor is confined to the statutory remedy, is conformable to the manifest intention of the legislature in such cases, and has therefore been properly settled in the courts of England and in this country.”
The corporate capacity of “ counties ” is prescribed by statute. (1 R. S. 364.) They are declared to be bodies corporate; they may sue and be sued, and may purchase and hold real and personal property; but their powers as a body politic can only be exercised by the boards of supervisors.
The liability of “ counties,” under the act in question, is the same as that of “ cities,” and judgments must be satisfied in the same manner. An» execution upon a judgment against a county, or against the supervisors thereof, cannot be issued, nor can the corporate property be sold. (2 R. S. 497, § 107.) So far, therefore, as' regards counties, which are protected from executions, in all cases, the direction to the treasurer to pay was quite unnecessary. In cities, however, which enjoy no such immunity, it was necessary to guard against the disturbance of any corporate rights of property. 4-nd I think the legislature has done so, by providing for payment out of the city treasury (which treasury, under the authority conferred by law, from time to time upon the city, to levy taxes upon the taxable property of the citizens of the city, may be replenished,) and by not providing any other mode of payment,
If I am right in my conclusions that a judgment recovered under the act creates no lien upon property ; that no property of the corporation can be subjected to its payment and that the burden of paying falls upon the tax payers of the city ; then jt follows, I tfiink, that the act is not unconstitutional, unless levying a tax to reimburse the treasury is a taking of property within the meaning of section 6 of article 1 of the constitution.
General laws have been enacted giving authority to boards of supervisors to raise money by tax. (1 R. S. 366, § 4. Laws 1849, ch. 194, § 34.)
In this city no general authority exists. But the -legislature may, from time to time, authorize the levying of a tax to reimburse the treasury, or to provide for the payment of the expenses and liabilities of the city. An act empowering the city to raise money by tax, is annually passed by the legislature.
The power of the legislature to impose the burden of taxation upon the citizens cannot, I think, at this day be questioned. It is one of the duties which the citizen owes to the state, to contribute to its support; and the state, in virtue of the right of eminent domain, may compel' the contribution. The compensation which the citizen receives, or is supposed to receive, is in the protection of the government, the security of life and liberty, and the enjoyment of property.
All right of property as regards its mode of enjoyment, burdens, alienations, transmission, or sacrifice, for the public good, depend upon positive municipal regulations of the sovereign power. The constitution only intended to forbid the seizure and appropriation of private property for public uses, when it would thereby remain the private property of the community, as a body politic or corporate, although enjoyed by the public. , Taxation is not so much the exercise of the right of eminent domain as a sacrifice to public wants or necessities. It is not the resumption of property by the state, compensating the owner for its loss, but the appropriating it at once to some public purpose. The state, or its officers, are only invested momentarily or temporarily, in order to discharge obligations incurred for a public necessity. The public necessity, to which the payment of a tax is a sacrifice, must be determined alone by the legislature ; the elements of judgment, as to its existence or quantum, are so minute and various, that a judicial body cannot take cognizance of them.
The limitation of the region of taxation to raise funds for
The power to tax for local as well as governmental purposes, has always been upheld by the courts as being necessary to the due administration of the government, and as imposing no new or improper burden upon the citizen.
In Thomas v. Leland, (24 Wend. 65,) the question arosunder an act of the legislature, levying a tax upon property in Utica, to pay the cost of a change of terminus of the Chenango canal. Neither the city of Utica, nor the inhabitants thereof, were liable for such costs. The court held the act to be constitutional. There the act subjected the taxable property of U tica to the payment of a debt, and shifted the burden from individuals to the tax payers.
In Morris v. The People, (3 Denio, 381,) the act sought to be invalidated, declared that the salaries of the judges of the court of sessions were county charges, and directed the supervisors to pay ; and it was held, that although the appointment of Judge Lynch, one of the session judges, was illegal, the act directing the payment of his salary was valid. Neither the city nor county could have been made liable except under the act.
In the People v. Mayor, &c. of Brooklyn, (4 Comst. 419,) the whole subject of taxation for local purposes received the careful consideration of the court. Judge Buggies, in that case, says (p. 422 :) “ The right of taxation, and the right of eminent domain, rest substantially on the same foundation. Compensation is made when private property is taken in either way. Money is property. Taxation takes it for public use, and the tax payer receives, or is supposed to receive, his just compensation in the protection which the government affords
In Bank of Rome v. Village of Rome, (18 N. Y. Rep. 38,) an act was sustained which authorized the defendants to subscribe to the capital stock of a railroad company, and to issue their corporate bonds therefor.
In Brewster v. the City of Syracuse, (19 N. Y. Rep. 116,) J. and W. Ley had constructed a sewer under a contract with the city of Syracuse, and had been paid in full. Afterwards, an act was passed directing the common council of Syracuse to assess and collect $600, and to pay it to the Leys, as an additional compensation. The Leys, before the act, had no claim whatever against the city, and the charter prohibited the city from paying any thing above the contract price. But the court say, “ The expense was imposed on that part of the citizens interested in the improvements by virtue of the discretionary power of the legislature to impose the public burdens on those who in its judgment ought to bear them.”
I will refer on this point to but one case more, that of The town of Guilford v. The Supervisors of Chenango Co. (13 N. Y. Rep. 143.) In that case it was attempted to restrain the supervisors from levying and collecting from the taxable property of the citizens of a town, a sum awarded to Cornell & Clark, under an act of the legislature, and for which, except under, the act, the town was in no way liable. Judge Denio there says, (p. 149 :) “ The legislature is not confined in its appropriation of the public moneys, or of the sums to be raised by taxation in favor of individuals, to cases in which a legal demand exists against the state. It can thus recognize claims founded in equity and justice, in the largest sense of these terms, or in gratitude or charity. Independently of express
The only conceivable difference between the cases to which I have referred and the question I am considering, is, that the riot act does not authorize the levying of a tax to place funds in the treasury to pay the judgments. That difference may affect the efficiency of the law ; may deprive the plaintiff of the means of obtaining satisfaction of his judgment until further legislation is had, but it does not render the law invalid. It rather sustains it in the view taken by the learned justice below.
My conclusion upon this branch of the case is, that the act does not allow judgments recovered under it, to be collected in any other manner -than is ■ prescribed by the act; that such judgments have not the attributes of ordinary judgments, and that none of the corporate property of the city can be seized or made liable for their payment. The burden of paying them falls upon the tax-payers of the city and not upon the city. The act, therefore, does not conflict with any provisions of the constitution of this state.
The second ground is, that the effect of the act is to impair the obligation of a contract.
I agree with the learned judge, at special term, that the charter of the city is so far a contract between the state and the corporation, that its right to hold and enjoy its property cannot be impaired or destroyed by subsequent legislation.
The constitution does not exempt charters from legislative control or interference whenever, upon principles of law, such control or interference would be valid. Their recognition does not impair the power to alter, amend, or modify, so long as no
I have endeavored to show that the act before us does not deprive the city of any of its property, and that the power to tax is a constitutional power. If I have succeeded in establishing those propositions, then- it necessarily follows, that no vested right of the city has been disturbed, nor has the obligation of any contract been impaired.
In the Charles River Bridge case, (11 Peters, 420,) the right of the legislature to interfere and take away a vested right, was clearly and distinctly recognized and decided. There the emoluments of a toll-bridge had been enjoyed, under a special charter, for more than forty years ; yet the legislature chartered a rival company, with corporate rights and powers injurious to those of the old company. The right was admitted to be vested in the old company, but it was not doubted that the legislature could take it away.
The Dartmouth College case, (4 Wheat. 519) is relied on as an authority that the legislature cannot interfere with vested rights. But it will be seen, that the distinction between public and private corporations is marked with emphasis by the eminent judges who delivered opinions in that case. The extent of that decision is, that an eleemosynary corporation, founded by private contributions, for the distribution of a general charity, is not an instrument of government, whose officers are public officers, but a private corporation, whose charter is a contract between the donors, trustees, and the government, founded on the consideration of public benefit to be derived from the corporation, which cannot be altered, amended, or modified without the consent of the corporation.
The corporation of the city of New York is a public corpo
This power of the legislature over charters was recently fully discussed and considered in the Court of Appeals, in the Chenango Bridge Co. v. the Binghamton Bridge Co., (26 How. Pr. 124, 297,) where the power is fully recognized.
The English statutes (13 Ed. I, and 27 and 28 Eliz.) giving remedies for injuries caused by a riot, to which we were referred, furnish no aid in determining the constitutional question arising under ours. Parliament is the highest law-making pdwer of • Great Britain, and it can conflict with nothing. Our legislature is limited and circumscribed by a higher law, which they, as well as the courts, must obey.
The question before us was directly involved in the case of Abbott v. Supervisors of Richmond Co., (11 Abbott, 207.) The learned judge who decided that case, and whose opinions are always entitled to great weight, sustained the act, in a well reasoned opinion, which it seems to me is supported in principle and by authority. Especially by the terse and direct annunciation of Mr. Senator Verplanck, 1840, in Stone v. the Mayor, &c. (25 Wend. 181,) who says : “ The legislature might with perfect justice, if sound policy was thought to require it, make our towns or counties, severally responsible for damages hereafter arising from robbery within them, or from public tumults, on the principle of the English riot act.”
I have thus given this question the careful examination which its importance deserves. I have cast aside all those presumptions which go to sustain an act until its invalidity
We have nothing to do with either the wisdom, policy, or justice of the law, Those questions were with the legislature, not with us.
My conclusion is, that the act does not conflict with any provision in the state or federal constitutions, and is a valid law.
The judgment of the special term should be reversed, with costs, and leave given to the defendants to withdraw the demurrer, and to answer on payment of costs,
Garvin, J. concurred,
Dissenting Opinion
(dissenting.) The complaint in this action • alleged that, on the 14th of July last, the plaintiff owned and possessed certain articles of wearing apparel, a sum of money, watch and other chattels, carried on his person, of a certain value, in the aggregate, ($127;) that a mob of rioters then collected in this city, for the space of four days terrified, overpowered, and killed many citizens, openly defied, terrified and overpowered all the public authorities of the city, and destroyed much property ; that on the last named day, while such rioters were lawlessly engaged in pillaging and destroying by fire the preperty in a certain store, and threatening to destroy in like manner the next adjoining premises, which was the house where the plaintiff then resided, he, in the act of passing through such rioters, in order to save his property in such house, was violently assaulted, knocked down, and trampled upon by them, and deprived of all such property, the same “ being carried away from his possession by the said rioters, and in consequence of said mob and riot, being irrecoverably' destroyed, and lost to the plaintiff.” The plaintiff further averred in his complaint, that there was no negligence or want
It is conceded by the learned counsel for the plaintiff, and, indeed, there can be no doubt he is correct, that the latter is not entitled, under the rules of the common law, and without the aid of some statutory provision, to recover in this action against the defendants, the corporation of the city of New York ; but he bases his right to a recovery solely upon an act of the legislature of this state, passed in 1855, (3 R. S. 5th ed. 874,) providing for compensation to parties having property destroyed in consequence of mobs or riots.
The first section of that act declares, that “ whenever any building, or other real or personal property shall be destroyed or injured in consequence of any mob or riot, the city or county in which such property was situated shall be liable to an action by, or in behalf of, the party whose property was thus destroyed or injured, for the damages sustained by reason thereof.” The second section authorizes such actions to be brought and conducted, and the judgments therein appealed from, in the same manner as in other actions; and directs that whenever any final judgment shall be recovered against such city or county, the treasurer of said city or county shall pay the amount of the same to the party entitled thereto, whenever such party shall present to him a certified copy of the judgment roll, and shall charge tho amount thus paid, to such city or county. It is unnecessary to state here any other provisions of such act.
The objections raised by the defendants’ counsel, that the complaint, taken as an entirety, does not show that the property in question was injured or destroyed by the mob, cannot be sustained. The allegation that the property was carried
But there are other questions in the case, which, in view of the legal principles involved, and the magnitude of the interests to be adjudicated in this, and sixteen hundred similar cases, already instituted against the city, are of such importance as to demand careful examination and serious consideration.
As the ultimate effect and operation of the statute in question, if the same is valid, must be to compel all the citizens of the city of New York, in a case like this, to pay for such property as has been destroyed or injured by a mob, whether such citizens, or a considerable portion, or, even any of them, were or were not particeps criminis therein, or connected therewith, it can hardly be doubted that such act is not only penal in its character, but, in so far, at least, as concerns the innocent who are thus compelled to answer with their property for the acts and misconduct of others, is in derogation of common right; that right which every man has to keep and enjoy his own property, unless the same shall be taken from him by legal authority.
The rule is well settled that all penal statutes, and all statutes affecting property contrary to the principles of the common law, must not only be expressed in clear and unambiguous language, but must also be strictly pursued in relation to all matters impairing the rights of the person against whom they are designed to operate. (Dwarris on Stat. 749.) It is essential, therefore, that the language of such an act be sufficiently definite and certain, to enable the court to ascertain and determine with precision the person intended to be charged thereby.
The statute upon which this action is founded is, I think, neither wholly penal, nor entirely remedial; but it is to be con
In Ratcliffe v. Eden, (Cowp. 485,) it was decided that the statute of 1 George I, St. 2, Ch. 5, which is similar in principle to the act under consideration, was remedial. But, in Reid v. Clarke, (7 T. R. 497,) Lord Kenyon held that it was a penal law. In Hyde v. Cogan, (Doug. 699,) however, Buller, J. in discussing the question as to what property was covered by the act, said : “The statute is so framed that the words might possiby admit of two constructions, and therefore it is material to consider whether it is penal or remedial; because there is a well known difference in the rule of construction as applied to laws of the one sort and of the other. Where they are remedial, the interpretation is to be liberal, so as best to apply to the end. But a law may, certainly, be penal in one part, and remedial in another; and that is the case here.” So, too, in Wilmot v. Horton, (cited in a note to Hyde v. Cogan,) Lord Loughborough, in speaking of the same act, said : “ This statute, though penal in a great part of its provisions, and though, perhaps, there is something of a penal nature in transferring the action from the party committing the felony to the hundred, yet, with respect to the party injured, it must be considered as remedial.” (See also Fish v. Fisher, 2 John. Cas. 89 ; Smith v. Moffat, 1 Barb. 65 ; Millered v. Lake Ont. R. R. Co., 9 Haw. Pr. 86; Sickles v. Sharp, 13 John. 497.)
Holding in view these rules, the first question that rises to the mind is, whether the act, definitely, and with, at least, ordinary certainty, designates the person against whom it is designed to operate ; for if not, it is void for that reason.
The statute in question, it will be remarked, declares that where property shall be destroyed or injured by a mob, &c., the city or county—that is, the one or the other of them—shall be liable for the damage. The legislature have thus, very clearly, expressed their intention that either the one or the other of those two parties shall be liable to pay the damage. This, it
But, although a strict construction must be given to the act, according to its letter, for the security of the person to whose prejudice the same is designed to operate, it is, nevertheless, our duty so to construe it as to give effect, if possible, to the intention of the legislature, as embodied in its provisions, (McCluskey v. Cromwell, 1 Kern. 593 ; Waller v. Harris, 20 Wend. 561;) and I know of no reason why the court may not, in examining the question of legislative intention, take into consideration such extraneous facts, within their judicial cognizance, as tend to elucidate such intention.
What, then, was the design of the legislature touching the parties to be charged as defendants, as derived from such facts and the statute itself?
The act is general in its provisions, and was, undoubtedly, intended to operate in the same manner in and upon every city and every county of the state. All the cities in the state, other than the city of Hew York, are included within the bounds and form a part, and only a part, of the counties in which they are, respectively, situated ; but. the boundaries of the- city and of the county of Hew York are precisely the same. The most natural and obvious construction of the act, so far as relates to counties and cities other than Hew York, is, that the same was designed to compel those cities to pay such damages as should be occasioned by the destruction or injury of property by mobs within their respective limits ; while the county, as such, was to be held for such damages only as should be caused within such county, but beyond the bounds of its cities. Unless such was the intention, the provision, in the alternative, that the county or the city might be proceeded agaiust, would be senseless, as well as unjust and unreasonable. It cannot reasonably be imagined, it appears to me, that the legislature designed to
Is it possible to imagine that the legislators who framed this act, considered themselves less competent to determine whether the city or the county ought to bear the loss, than the person who should have sustained the injury ; and that they designed to leave it optional with such party to charge his damages upon the city or the county, as he might himself elect P The proposition appears to me to be absurd.
It has been said, however, that inasmuch as the boundaries of the city and county of New York are alike, and the citizens of the one are, necessarily, the inhabitants of the other, it is immaterial whether an action is brought against the city or the county, and therefore a different rule of construction should prevail here from that which is applicable to cities and counties in the interior. But I have been unable to discover any distinction, in this regard between the city of New York, and the other cities of the state. The city of New York, precisely like the other cities, as I understand the act, was to be held responsible for such damages as should be occasioned by mobs within its precincts ; and although it follows as a necessary conclusion, that no recovery can, in any case, be had against the county of New York, by virtue of the statute, because the boundaries of such county and of .the city of New York are precisely the same, yet there is no inconsistency whatever in this. The act does not operate upon the county of New York, simply for the reason that there is nothing to operate upon ; no locus in quo ; because it has no territory outside the limits of a city. By its terms, the act is to operate upon every city and every county, in like manner as to each of the class.
Again : If the party whose property has been destroyed by a mob, may, at his own option, bring a suit to recover for his damages under the statute against either the city or county, as he shall elect, I see no reason why he may not, if he shall see fit to do so, institute two separate actions, against the city and the county, respectively, and proceed with them, pari
I am, therefore, of opinion that the act, irrespective of the further question I am about to consider, is valid, and may be enforced, nothwithstanding the uncertainty in its terms regarding the parties to be charged.
I pass next to the examination of the question, discussed upon the hearing, as to the constitutionality of the act.
Many statutes have been enacted by the English Parliament, at various times, running through a period of several hundred years, such as the statute of Winton, (13 Edw. 1,) the statute of Elizabeth, &c. providing for recoveries in actions brought against the hundred by parties robbed therein, or against cities and towns by persons whose property has been destroyed within the bounds of such municipalities by mobs or riotous assemblages; all of which statutes were, undoubtedly, based upon the theory that it was the duty of such hundreds, cities, &c. (which were clothed with power for that purpose,) to preserve the peace and protect the property of all persons within their limits; that such persons were rightfully entitled to such protection, or to compensation in case of loss; and that a liability imposed by law upon such municipalities or political organizations, in case a robbery was committed or a riot should be permitted to occur, and property to be destroyed or injured, would not only tend to incite them, to greater vigilance.
But whether the legislature, in passing the act in question, were or were not governed by the reasons which induced the enactment of the English statutes, as above suggested, it is to be remembered that, while parliament is omnipotent in regard to its legislation, ours is circumscribed and controlled by the constitution. By an act of parliament alone, and without the intervention of courts of law, a man may be deprived of his property, and even of his life. But the constitution of this state declares that no person shall be deprived of life, liberty or property, without due process of law, (Const. of N. Y. act 1, § 6 ;) and that of the United States prohibits the passage of any law by a state impairing the obligation of contracts. (Const. U. S. art. 1, § 10.)
The mayor, aldermen and commonalty of the city of New York, the defendants in this action, are a corporation, and, therefore, a person within the meaning of the constitution, possessing and owning, under and by virtue of various grants of lands, rights, and franchises, which are contained in their ancient charters, a large amount of property, real and personal, consisting of such lands, rents and franchises and' the proceeds thereof, and are 'in the annual receipt of large sums of money derived from such franchises, and from the sales and rents of their lands ; all of which property has heretofore been, and now is, held and possessed by such corporation, under and by virtue of a further grant or covenant, also contained in those charters in express terms, that the grantees should have and enjoy the property granted, with the profits thereof, forever,
This property of the corporation is as sacred, and as free from legislative control, as that of any individual; although its municipal or governmental powers may be, in most respects, restricted or enlarged by the legislature. For, first, those charters constitute a valid contract between the crown of Great Britain and the corporation of New York, which is binding upon their successor, the state of New York, (see Charles River Bridge Case, 11 Peters, 572,) on the one part, and the city corporation on the other. The latter, therefore, cannot be disturbed or molested in their possession and enjoyment of the property covered by the grants, by, under, or by virtue of any act of the state authorities, and against the will of such grantees, without a direct violation of the provision of the constitution of the United States above referred to. Secondly, even were this otherwise, it is sufficient that the constitution of this state, in the section above mentioned, prohibits such legislation.
Chancellor Kent, in his learned and well considered Note 3, on the charters of the city of New York, (City Charters and Kents Notes, p. 202,) says: “ The grant to the corporation was doubtless a valid grant; and the rights of property thereby acquired could never thereafter have been lawfully divested, without the consent and act of the corporation, or due process of law, It may not be amiss to state here, once for all, that it is an acknowledged and settled principle, that no vested right of property, whether it belongs to individuals, or be in the shape of a corporate franchise, can ever be lawfully taken away, without some -default or forfeiture, to be ascertained upon a fair trial, and pronounced by judicial decree.” * * * “ Corporate franchises, in this country, rest on a basis, which ought to be, at least, as solid as Magna Charta, for they are founded on grants which are contracts ; and no state/ says the constitution of the United States, 'can pass any law impairing the obligation of contracts.’ ” (See also Fletcher v. Peck, 6 Cranch, 87 ; Charles River Bridge
In Taylor v. Porter, 4 Hill, 140;) Justice Bronson, in discussing the powers of the legislature upon-a similar question, uses this language: “ It is readily admitted that the two houses, subject only to the qualified negative of the governor, possess all the legislative power of the state; but the question immediately presents itself, what is that legislative power, and how far does it extend ? Does it reach the life, liberty, or property of a citizen who is not charged with a transgression of the lazos, and when the sacrifice is not demanded by a just regard for the public welfare ?” * * * “ The security of life, liberty and property lies at the foundation of the social compact; and to say that this grant of legislative power includes the right to attack private property, is equivalent to saying that the people have delegated to their servants the power of defeating one of the great ends for which the government was established).” * * * “ The legislative power of this state does not reach to such an unwarrantable extent. Neither life, liberty nor property, except when forfeited by crime, or when the latter is taken for public use, falls within the scope of the power.” (See also Wilkinson v. Leland, 2 Peters, 657 ; 2 Kent’s Com, 13, 340, and cases cited ; Matter of Albany street, 11 Wend. 149 ; Bloodgood v. The Mohawk & Hudson River R. R. Co., 18 id. 59 ; Matter of John and Cherry streets, 19 id. 659 ; Varick v. Smith, 5 Paige, 137 ; People ex rel. Fountain v. Supervisors of Westchester, 4 Barb. 64 ; Powers v. Bergen, 2 Seld. 366 ; Wynehamer v. The People, 3 Kern. 392; The People ex rel. Baldwin v. Haws, 37 Barb. 440 ; Dartmouth College case, 4 Wheat. 519.)
The words, “ due process of law,” used in the United States constitution, and by the learned chancellor in the opinion above quoted, as well as in the state constitution, do not mean such proceedings in court as are contemplated by the statute in this case ; proceedings which are to be had for the purpose of determining, merely, whether the plaintiff’s property has
There is no pretense in this case, that the corporation of the city of Hew York, or any of its officers, agents, or servants, as such, aided or abetted the rioters, in the destruction of the property which is the subject matter of this action; or that any of them contributed in the slightest degree to the destruction of property set forth in the complaint; nor, indeed, is it probable, that any considerable proportion of the eight hundred thousand inhabitants of the city were, themselves, engaged in the riot. Of course, no recovery could have been had in an action of this character against the corporation, except for the act in question ; for no claim or right of action would have existed. It is by the statute, and its operation, therefore, that these defendants are to be deprived- of their property, if the plaintiff succeeds, and not by due process of law. The proceedings in court, contemplated by the act, are merely a part of the machinery to be used in perpetrating the wrong. The legislature have, themselves, assumed the powers and functions of the judiciary, and by the act, have -undertaken to adjudicate and judicially determine the rights of the parties, plaintiff and defendants in the actions to be brought; leaving to the courts
The only question remaining for consideration is this ; Will the statute upon which this action is founded, if carried into effect through and by means of a judgment against the defend- . ants here, operate to deprive them of their property ?
When a statute is expressed in clear and unambiguous language, it needs no interpretation beyond what is to be found in its letter. The legislature should be intended to mean what they have plainly expressed ; and, consequently, there is no room left for construction. (Fisher v. Bright, 2 Cranch, 358. Case v. Wildridge, 4 Ind. R. 51. Jackson v. Lewis, 17 John. 475. Waterford & Whitehall Turn. Co. v. The People, 9 Barb. 161. Vattel, b. 2, ch. 7, § 263. McCluskey v. Cromwell, 11 N. Y. Rep. 593. Waller v. Harris, 20 Wend. 555.) But as all statutes are to be construed according to the intention of the legislature, (see Story on Const. § 392; Smith on Stats. § 478 ; Purdy v. The People, 4 Hill, 384 ; Waller v. Harris, supra, and authorities cited below,) in cases where the design of the law makers is not-clearly or fully expressed in the act itself, their intention is to be gathered from surrounding circumstances. It is, then, the duty of the court to make the inquiries, said by Lord Coke to have been held necessary, in
The intention of the law makers, thus ascertained, is to be held and considered as a part and parcel of the act itself; for, in the language first used in Zouch v. Storrell, (Plowd. 366,) and substantially adopted in some of our own decisions, “ a thing which is within the intention of the makers of the statute, is within the statute, though not within the letter.” (See, also, Donaldson v. Wood, 22 Wend. 395 ; Dwar. on Stat. 562 ; Pillow v. Bushnell, 5 Barb. 156 ; People v. Utica Ins. Co. 15 John. 358; Dresser v. Brooks, 3 Barb. 429; Bac. Abr. Stat. J. 5, 10 ; Beaiofage’s case, 10 Co. R. 101.) I may add, we have no right to assume that the legislature designed to violate the constitution, but if .this statute, of itself, or when construed with the aid of surrounding circumstances, in accordance with these rules, leads, necessarily, to the conclusion that they intended to authorize certain acts to be done, and that the doing of such acts will deprive a person of the rights guaranteed to him by the constitution, it is our imperative duty so to adjudicate and determine.
What, then, was the reason which induced the passage of this act by the legislature, and what object did they intended to accomplish ?
Looking back through the legislation- of a thousand years, to the decennaries of Alfred, we find an unbroken series of
The construction given, in this regard, by the English courts to statutes in pari materia with the act under consideration, may not only well be followed here as a safe precedent, but it is impossible, it seems to me, to imagine that the legislature, in this case, could have been actuated by any different or other reason. The grand object here, as in England, was to compel the whole community or corporate body to pay the loss. It was the intention of the legislature, I think, to substitute an entire community, in a case like this, in the place and stead of the doers of the wrong, and to hold them amenable in an action at law, and upon a judgment to be therein recovered against them, for such damages as have been sustained by the injured party, in like manner, and to the same extent, as such wrongdoers would, themselves, be, were they the parties defendant in an action for damages. In other words, the legislature must have intended that the party injured should have a right to bring his action against the corporation, and prosecute it to a final judgment, according to the course and practice of courts, and collect the same out of the property of the defendants; and, for that reason, such judgment must be
This conviction is strengthened, in my mind, by the following consideration : If the legislature did not design that the judgments to be obtained in cases of this character should be satisfied out of the property of the corporation, it was absurd to make it a party defendant; because such corporation would have no interest whatever in defending a suit, or incurring the expenses attending its defense. Nothing less than the promotion of rioting and incendiarism, perpetrated for the purpose of recovering damages in undefended actions, would result from this. Most certainly, the main object of the law would, in that case, be defeated.
I am, also, of opinion that the act authorizes the plaintiff in a judgment of this character, to issue his execution, if he shall so elect, and collect the same out of the property of the defendants.
The act, to be sure, directs the payment of a judgment recovered against the corporation, by the city treasurer, upon the presentation to him of a certified copy of the judgment roll by the plaintiff. But the latter is not bound to present the roll, either within a limited period, or at any time ; nor does the act, expressly, or by implication, prohibit the issuing of an execution upon the judgment. The right given to the plaintiff to claim payment from the city treasurer, even if the act, in this regard, can be construed as granting such right, instead of being merely directory to that officer, which may be a matter of some doubt, is therefore, a cumulative remedy, granted by this act, in addition to those rights, appertaining to and running with all judgments for money, which are conferred by other statutes upon all plaintiffs herein, without any exception.
There is a general rule, it is 'true, that when a right, not before existing, has been granted by statute, and a full remedy has also been given by the same act, the beneficiary has no common law remedy. But that rule, in strictness, applies only to common law remedies. A statutory remedy, conferred
The silence of the act in relation to an execution, furnishes no evidence of an intention, on the part of the legislature, to deprive the plaintiff in the judgment of the remedy by execution which is given to all judgment creditors of the same class, by other statutes in force when this act was passed. It is equally silent as to executions upon the judgments against the mayor and sheriff, which are authorized, in certain cases, by the same act; but it will hardly be contended by any one, that, because, of such omission, executions may not be issued
The final judgment contemplated by the statute under consideration, is, therefore, it appears to me, to be, like all other judgments of the court, not only appealable, but “ the final determination of the rights of the parties in the action; ” (Code, § 245 ;) that is, it will constitute a full, perfect, and final adjudication and determination by the court, that the plaintiff is entitled to, and shall recover and have from the defendants, the sum awarded ; and, the moment it is docketed, the following provision of our general statutes will be applicable, and will attach thereto, viz : “ All judgments hereafter rendered in any court of record, shall bind and be a charge upon the lands, tenements, real estate, and chattels real, of every person against whom any such judgment shall be rendered; * * and such real estate and chattels real shall be subject to be sold upon execution to be issued upon such judgment.” (2 R. S. 358, § 4.)
At his own option, therefore, the plaintiff may issue his execution and sell the property of the defendants. In other words, the effect of the act is to clothe the plaintiff with the power to divest the defendants of their property, if, and whenever he shall see fit. Can it be that a statute which thus, in and by its operation, places a lien and charge upon the property of a person, and empowers another, at his will, to divest the owner of his estate therein, is less a violation of the constitution than an act which simply directs the property of one man to be. sold, and the proceeds paid over to another P Is there any doubt that if the act in question had merely authorized the recovery of a judgment against the city, without directing the city treasurer to pay it, such act would have been void, because contrary to the constitution ? Or, would the right of the plaintiff to issue, or to refrain from issuing, an execution, at his option, render it valid ? In the case supposed, the plaintiff would be empowered to deprive the defendants of their property, through, and by means of thé judgment, and to vest it, or its proceeds, in himself, at his pleasure; and
It may happen, too, that when the judgment roll is presented to the city treasurer, he will be unable to pay, for want of funds. In that case, the judgment creditor may issue his execution and sell the property of the corporation upon the judgment, if a recovery is had ; for so the statute provides as to all judgments for any debts, damages, or sums of money, without exception. (2 R. S. 359, § 4. Id. 353, § 1.)
But, again, the law cannot be. obeyed by the city treasurer without divesting the defendants of their property.
The act, it will be remembered, directs the treasurer to pay the judgment, and charge the amount to the city or county. He is not required to pay it out of his own funds, and to look to the city or county for reimbursement; if he was, the act would be unconstitutional for that reason. But, I think, the legislature designed that the treasurer should pay such judgment out of the moneys in his hands belonging to the judgment debtor, whether a city or county. What construction can be more ’ plain, simple, just and equitable than this ? The whole object and intent of the law, ultimately, is to substitute the city or the • county, as the case may be, in the place of the wrongdoers, and to compel such city or county to pay the damages.
Conceding, however, for argument’s sake, that the judgment is to be satisfied out of any moneys in the hands of the city treasurer, which he is authorized to charge to the city upon payment; how will the matter stand ?
There are two species of funds in the hands of the city treasurer, standing to the credit of the city ; one of them being derived from taxes, and the other arising from loans to the corporation, licenses, and the sales and rents of their houses, wharves, ferries, markets, &c. The last mentioned class of moneys are as much the property of the corporation, in absolute ownership, as is the ground upon which its city hall stands. The moneys
These moneys, thus raised by taxes, do ’not belong to the corporation ; because no grant to them is expressed in the act, and no grant from the sovereign can be implied. They are, merely, trustees or custodians of the funds, for the purposes declared in the aet.
But such funds cannot, legally, be applied by the city treasurer to the payment of the judgments contemplated by the statute upon which this action is founded, inasmuch as those tax laws, passed, too, subsequent to the enactment of the statute in question, expressly direct and provide that the moneys so raised by taxation shall be expended upon and for the particular objects specially enumerated in the laws themselves ; among which, the payment of judgments of this character is not to be found. (See Sess. Acts, 1862, 1863.) For we must bear in mind, the question before us is, not whether the act is, per se, a violation of the constitution, like a statute which, of itself, divests a person of his property without the aid of other machinery, or any intermediate agency; but whether, if carried into effect by means of a judgment here, such act would, at the time the decision below was made, have effected a violation of the paramount law of the land, in view of the facts which existed at the time the right of action is claimed to have accrued, and when the judgment at special term was rendered.
But, beyond this : In 1857, two years after the passage of the-statute under consideration, an act was passed by the legislature, purporting, in its title, to be “ An act to amend the charter of the city of New York,” (Valentine’s L. City of N. Y. p. 276,) which provides that “ annual and occasional appropriations shall be made by proper ordinances of the common
hi or'is the plaintiff aided, in this regard, by the provision contained in the annual tax law of 1863, which authorizes the mayor, aldermen and commonalty to borrow money upon their bonds, to pay such judgments as may be recovered against them after the annual tax for that year shall have been levied, (as would have been the case here had judgment gone for the plaintiff at special term,) and which also empowers the supervisors to levy taxes in 1864, for the payment of such bonds. For that is a mere power conferred upon the corporation, and may or may not be exercised, at their pleasure ; and unless exercised, no moneys are to be raised by the supervisors for the payment of the contemplated bonds, as there will be none. If, instead of a permission to the corporation to borrow money, the act imperatively commanded them to do it, such act would certainly be void.
It appears to me to be quite clear, therefore, that the city treasurer cannot pay the judgments contemplated by the act
But further : Even assuming that the power given to the plaintiff to obtain payment from the city treasurer supersedes the right given to all creditors in judgments, by other statutes, to issue an exception for the collection of the same, still, it seems to me, a judgment obtained in an action of this description will carry interest, (Laws of 1844, ch. 324, §4,) and will be a lien and charge upon the real estate of the debtor, from the docketing of the same until it shall be paid. For, certainly, the judgment itself is as much a portion of the remedy given to the plaintiff, as is the right to bring an action, or to collect such judgment from the city treasurer, in the manner prescribed by the act. Had the statute merely authorized the recovery of a judgment, without going further, the plaintiff would have been entitled not only to an appeal, but to collect the same by execution. (Dudley v. Mayhew and Almy v. Harris, supra. Miller v. Taylor, 4 Burr. R. 2303. Beckford, v. Hood, 7 T. R. 627. Ewen v. Jones, 2 Salk. 415. 2 Inst. 53, 74, 118. Bac. Abr. St. 16. Clark v. Brown, 18 Wend. 213.)
The judgment, in that case, clearly, would have been clothed with all the attributes of money judgments in other cases, and the plaintiff therein would have been entitled to all the rights given by statute to creditors in like judgments. The substitution of the one mode of collection for the other, deprives him of no right which the law gives him as judgment creditor, except that of issuing an execution, even if that is an exception. The lien remains.
Can it be doubted that an act which thus authorizes the creation of a judgment debt against the defendants, without their assent and contrary to their will, and charges their lands for its payment, operates to deprive them of their property, pro tanto,
If I have not erred in the foregoing conclusions, it follows, in brief:
First. That a judgment in this action in favor of the plaintiff, will entitle him to demand the payment of the same from the city treasurer, out of the funds in his hands belonging to the corporation as owners ; and that he may compel sqch payment by mandamus. The duty of the treasurer to pay is imperative, and the judgment will be a bar to all constitutional objections.
Second. That the plaintiff in such judgment nray, at his option, issue his execution thereon, and sell the property of the corporation.
Third. That such judgment will be a lien and charge upon all the real estate belonging to the corporation, amounting to many millions of dollars.
We have nothing to do with the question, suggested at the hearing, as to whether recoveries under the act will tend to prevent or diminish the evil sought to be remedied by it; or, on th(; contrary, whether, considering the facility with which mobs may be raised and property destroyed, and heavy damages recovered therefor, through the testimony of the plaintiff himself, the danger of incendiarism may be greatly increased. The reasons for or against the policy of the statute are exclusively within the province of the legislature. We are, simply, to examine carefully, and determine without fear or favor, whether the act in question can be carried into effect by means of a judgment against the defendants in this case, without violating the constitutional provisions above referred to. My mind, for the reasons I have mentioned, is irresistibly forced to the conviction that it cannot.
I am, therefore, of opinion that the judgment at special term was right, and ought not to be disturbed.
Judgment reversed,
The case of Darlington v. The Mayor, &c. of New York, in the Court of Appeals, (31 N. Y. Rep. 164,) involves the same questions examined and decided in the above.
