1 Abb. N. Cas. 157 | N.Y. Sup. Ct. | 1876
This cause, most elaborately and carefully argued, presents questions of unusual interest, and it is a source of regret that the pressure of very many official duties and the need of a speedy determination, prevent a more diligent and lengthened examination than is possible for me to bestow upon it.
The plaintiffs are residents and tax-payers in the .city of Albany, and may, if the allegations of the complaint are well founded, bring an action of this character under the provisions of chapter 161 of the Laws of 1872, entitled “An act for the protection of tax-payers against the frauds, embezzlements and wrongful acts of public officers and agents.” The express language of that statute gives an action “ to prevent waste or injury to any property, funds or estate of such county, town or municipal corporation by any person residing in such county, town or municipal corporation assessed for and liable to pay taxes therein, or who has paid taxes therein within one year previous to the commencement of any such
The next question which this motion presents is, are the proper parties defendant before the court ? The decision of the matters involved in this action undoubtedly concerns the city of Albany and the board of commissioners of the Washington park. The former is interested not only in the improvement which the act contemplates, but its bonds are those sought to be enjoined. The defendants are its officers charged with the duty of such issue, but they have no personal interest in the question. If issued, the proceeds are to be used in making a city improvement, and the city alone is responsible for their payment. What is true of the city is also true, varying in details, of the park commissioners. They are charged with the duties of caring for the park, constructing its approaches and making the particular improve
Having reached the conclusion that the act of 1872, and the provisions of the Code are not inconsistent, and that a proper adjudication and determination of the rights of all interested in the subject-matter of this action, require the city of Albany and the board of park commissioners should be made defendants therein, it would follow that'the injunction asked should be refused. If, however, the plaintiffs are right in the general objects sought to be attained, they should not be defeated upon this technical ground, but an opportunity should be afforded to bring in all who are interested. To the real merits of the action, then, the opinion will now be addressed.
The act — action under which is sought to be restrained—is chapter 445 of the Laws of 1876, and is entitled, “ An act in relation to that portion of the Great Western turnpike road, commonly known as Western avenue, lying between Snipe street, in the city of Albany, on the east, and the west line of the proposed new boulevard, intersecting the said road west of Allen street, in said city, on the west.” The act allows the turnpike company to convey to the park commissioners the portion of the road to which, in its title, it refers, but forbids it being'closed, or the exclusion of the public from its use as a highway. It then places the grading, improvement and ornamentation thereof, in charge .of the park commissioners, to be paid for, in the first instance, -by the issue and sale of the bonds of the city of Albany, which issue is sought to, be enjoined. It then provides for the payment of the principal of the bonds, by assessment upon the owners of the property fronting upon the proposed avenue, and out of the city at large, in case the fund obtained for that purpose from the owners of .the property shall be insufficient; the city at large, until the maturity of the bonds, providing
Preliminarily to a discussion of the constitutional questions involved, it should be stated that Washington park, in the city of Albany, was authorized to" be established by chapter 582 of the Laws of 1869. Various acts have been since passed which are amendatory and supplementary thereto, by which (chap. 377, Laws of 1870; chap. 45, Laws of 1872) , approaches, among other things, could be made to the park, and streets already open selected and taken for that purpose. That portion of the turnpike road which the act of ,1876 refers to, had, previous to such act, and the recent constitutional amendments, been taken possession of by the park commissioners, and partially improved, under a lease executed by the turnpike corporation, which corporation has existed for many years.
It is said that the law of 1876 is in conflict with article 3, section 16 of the Constitution of this state, which declares : “ No private or local bill which may be passed by the legislature, shall embrace more than one subject, and that shall be expressed in the title.” It being conceded, as it certainly must be, that the act in question is “ local,” it is argued that the bill does embrace more than one “ subject,” and that that is not “ expressed in the title.” In determining this question, the exact word used, “ subject,” must be borne in mind. The scope, the object of the bill, need not be stated in the title; but the “subject,” i. e., the thing legislated upon, shall be disclosed, and the act can embrace only that one. If it can be shown that the law covers more than one “ subject,” one thing, it is obnoxious to the objection made. What the act proposes to do with the “ subject ” need not be stated in its title, nor the machinery to be put in operation therein disclosed. It is enough if the “ subject” of legislation be stated. Webster, in his definition of the word “ subject,” uses two quotations to illustrate its meaning; “ This
This view of the constitutional provision is not a strained or novel one. In Matter of Ferdinand Meyer (50 N. Y., 504) the court of appeals held : “ If the title of an act, fairly and reasonably announces the subject, and that is a single one, and if the various parts thereof have respect or relate to that subject, the provision of the Constitution that, no local or private bill shall embrace more than, one subject, and that shall be expressed in its title (state Constitution, art. 3, sec. 16), is complied with. The degree of relationship of each provision is not material if it legitimately tends to the accomplishment of the general purpose. The general subject of local improvements includes not only the plan and construction of contemplated work, but the means by which the work may be accomplished, the proceedings necessary to be adopted for assessing and paying the expenses, and the remedies to parties for redress of grievances arising out of their construction.
And in People agt. Briggs and others (50 N. Y., 553-562), Church, chief justice, says: “In an act in relation to Lake avenue it would not be competent to insert provisions
Cases to the same effect can be multiplied indefinitely (See, among others, People agt. Willson, 60 N. Y., 507-509; People agt. Dudley, 58 N. Y., 323 ; Harris agt. People, 59 N. Y., 599-602; In the matter of Volkenning, 52 N. Y., 650; People ex rel. agt. Havemeyer, 47 Howard, 494-509).
An examination of the act of 1876 will, we think, show that it relates to but one subject, and that is the avenue, and the particular part thereof referred to in the title. It is that which is to be conveyed, graded and improved; it is upon • that which the money to be raised is to be expended, and every section and clause concerns this single subject. It is true that all which the law requires to be done to the avenue is not stated, nor the machinery devised for that purpose disclosed in its title, but the whole of it relates to such avenue as the “subject” to and upon which legislation is directed. It is the “ subject ” thereof (to borrow an illustration from the medical profession), as much as the person or body to be operated upon by the surgeon may be said to be his. The first objection cannot therefore prevail.
It is further objected, that as the act of 1876 provides that the assessment which is to be made upon the owners of property fronting upon the avenue shall be made as prescribed in certain other laws therein referred to, it is in conflict with article 3, section 17 of the Constitution, which declares: “Ho act shall be passed which shall provide that any existing law, or any part thereof shall be made or deemed to be a part of said act, or which shall enact that any existing law, or any part thereof,' shall be applicable, except by inserting it in such act.”
It is true, as defendants’ counsel urge, that it does not necessarily follow if the part of the act of 1876 Which makes
It is further urged that article 3, section 18, of the Constitution applies, which declares that, “ the legislature shall not pass a private or local bill in any of the following cases. * * * Laying out, opening, altering, working or discontinuing roads, highways or alleys, or for draining swamps or other low lands.”
Is this part of Western avenuq, which had, previous to the act of 1876, and this constitutional amendment, been selected as an approach to the park, and already leased to the park commissioners, either a road, highway, or alley, in the sense these words are used in the Constitution ? It is a highway, undoubtedly, in a general sense, but it can scarcely be deemed one of these of which the Constitution speaks. That refers to the ordinary “ roads, highways, or alleys,” the manner of opening, working, altering or discontinuing which can be readily provided for by general law. $To general law applicable to this case can be passed; and it is manifest as the same section subsequently provides, that “ the legislature shall pass general laws providing for the cases enumerated in this section,” that this clause of the Constitution cannot, and does not, prevent a special act being passed in relation to a road leading to or passing through a park of any city, the provisions of which must always be in accordance with the particular plan in each case.
Neither is the law, in my opinion, obnoxious to any objection founded upon article 3, section 20 of the Constitution, because it fails “to distinctly state the tax.”' It does state the tax; it cannot exceed $185,000. It does not, it is true, require the commissioners of the park to expend
It is also argued that article 8, section 11 of the Constitution is contravened by this act. That provision declares: “Mo county, city, town or village shall hereafter give any money or property, or loan its money or credit to or in aid of any individual, association or corporation, or become, directly or indirectly, the owner of stock in, or bonds of any association or corporation, nor shall any such county, city, town or village be allowed to incur any indebtedness, except for county, city, town or village purposes. This section shall not prevent such county, city, town or village from making such provision for the aid and support of its poor, as may be authorized by law.”
The reasoning employed is as follows: It is the duty of the persons owning property upon the avenue to bear the cost of the improvement — it is their debt — and while the act recognizes this by requiring them in the end to pay it, the city advances for them the money in the first instance, and then at the end of five years' receives back the amount from them without interest. The same argument would invalidate every law which authorizes any “county, city, town or village” to borrow money for any purpose. The objector would argue, the tax-payers of such “ county, city, town or village” should pay this money which is to be raised by a debt created by the municipality—it is their debt —
We have now examined in detail the various objections which have been made to the act of 1876, and are constrained to overrule them all. It is a grave responsibility for any court to hold that a law passed in accordance with the forms of the Constitution is invalid because in its provisions it violates that instrument. That duty would not, however, be evaded in a clear case; but such an one is not, in our judgment, now before us. On the contrary, whilst the questions
The injunction asked for is refused, with ten dollars costs of motion.
Note.—By consent of counsel, as an order granting or refusing an injunction is not appealable to the court of appeals, a mandamus commanding the issue of the bonds was granted by judge Westbbook at special term. This order was immediately affirmed pro forma at general term and an appeal at once taken to the court of appeals, which latter court has just (December, 1876) affirmed the conclusions reached in the foregoing opinion as to the constitutionality of the law, which was the subject of litigation,—[Rep.