27 Barb. 575 | N.Y. Sup. Ct. | 1857
Whatever may be our decision of this question, it is to be presented to the Court of Appeals. Their determination will be submitted to, if not respected, because it will be final. As far as this court is concerned, after the distinct intimation which was made to us, I should feel disposed simply to pronounce the judgment. which we deem right, without stating at any length the reasoning by which we have reached it, were it not that one of the members of the court, justly respected for his learning and experience, dissents from our conclusion. This induces me to give the reasons for that conclusion somewhat more fully than I should otherwise be inclined, under all the circumstances, to do.
The defendants have taken the ground that the act of the legislature, passed April 12, 1855, for, the imposition of a state tax, is unconstitutional. They deny its authority, and have refused to levy, on the property of their county, the tax which it imposes. The -present proceeding is a mandamus, instituted to compel them to levy and collect the tax; and a formal judgment having been rendered in favor of the relator at- special term, without argument, the cause was argued before us in fact for the first time.
The objection taken to the validity of this act is that it conflicts with the 23d section of the 7th article of the constitution, which requires that every law imposing a tax shall, without reference to any other law, state distinctly the tax, and the object to which it is to be applied. A like objection will apply with equal force to all the general tax laws which have been passed under the present constitution. The law of 1855, now in question, directs the money raised by the tax to be paid into the treasury to the credit of the “ general fund” of the state. The second section of the act directs the loan or - advance of a certain amount of money thus raised from the general fund, to the canal fund, appropriates this amount
The precise question before us has been considered by Mr. Justice W. F. Allen, in the case of The Black River Bank v. The Supervisors of Jefferson County, and determined in favor of the validity of the law, in a well reasoned opinion.
In the case of The Sun Mutual Ins. Co. v. The City of New York, (5 Sandf. 10; 4 Seld. 241, S. C. on appeal,) a question very analogous to the main question now before us, was passed upon by the superior court of the city of New York, if not subsequently by the Court of Appeals. The same constitu
But I am not convinced that either the letter or the spirit of the constitution requires a particular appropriation of the moneys to be raised by a tax, in the same law imposing the tax. The “ general fund” is the collective designation of all the assets of the state which furnish the means for the support of the government, and the defraying the discretionary appropriations of the legislature; in other words, the necessary and contingent expenses of the government. It was so known and established when the constitution was framed, and is recognized by its very terms. Replenishing this fund, placing money in the treasury to answer these necessary and contingent expenses, is an.“ object” for which a tax may be levied and applied, within the meaning of the constitution ; and it is stated with sufficient distinctness by the use of the general
I consider the words “object” and “purpose,” as used in this article of the constitution, as words of the same import. The word “applied” is used in connection with both. Thus sec. 1, which attempts to create a sinking fund for the payment of the canal debt, enjoins that such fund be “ sacredly applied to that purpose.” Sec. 2, which provides for a like sinking fund to pay the general fund debt, including the stocks loaned to corporations, contains the same language. Sec. 3 directs money to be “applied” to the completion of the canals. Sec. 8 directs that in appropriation bills the sum appropriated shall be “distinctly specified,” and also “the object to which it is to be applied.” There is an obvious distinction between the specification or application intended or required in an appropriation bill, which must point out the persons to whom money is to be paid, and the precise manner in which it is to be disbursed, and a tax law, which, according to all legislative usage, and the reason of the case, implies subsequent ac
In section 12, the language used in limiting the power to contract a debt, is that the “work or object” must be distinctly specified in the law creating it and which is to be submitted to the people, and the money raised is to be applied “to the work or object” so specified, “and to no other purpose.” It would be an unreasonable as well as a narrow construction, which would restrict the meaning of the word “object,” thus used, to the person recipient of the money or the expenditure. When the general purpose or design of the tax is declared, its object is specified, and the particular manner of its application to that object, the means of attaining it with the funds thus provided must be left to legislative discretion.
It seems to me that the only question in this case is whether the term “general fund,” used in this law, indicates with sufficient distinctness any definite purpose, for which the money is wanted, and that it is quite immaterial that the items of the expenditure should be set down or enumerated. And I am clear that the “general fund” has a constitutional and a legal signification and existence, sufficient to answer this rule.
There were, when the constitution was adopted, and there still are, a number of objects or purposes for which the state needs money, and obtains it, either from its revenues and income, or by taxation. Money may be wanted for paying the interest on the state debt, or the principal when due; or repairing or enlarging the canals; for the common schools, or for the support of the government in all its branches, including those incidental Appropriations which are made for different public purposes and to various public charities, on the
If the legislature are too lavish in amount, or profligate in expenditure, in any of their appropriations, the amount of the tax will reveal the fact, and the people can correct the evil. No constitutional prohibitions can accomplish more than this, from the very nature of the case, and this will be attained just as surely when the tax is levied for this class of both necessary and contingent expenditures, under one general designation of the “general fund,” as if the tax bill were tacked to the supply bill or the appropriation bill, and the legislature compelled not only to state the general object of the tax, but to proceed in the same law specially to appropriate its avails. The latter course must be adopted if the former be not permitted, and it is not easy to see what practical and beneficial object would he attained by compelling the legislature to pursue such a course. It might be a more literal, it would not be a more substantial, compliance with the constitution, than
I will only add to this imperfect, although somewhat extended, discussion of this question, that reflection, observation and experience, I think, will alike teach us that if our courts desire to preserve an undiminished respect for themselves, and for the constitution, they should be careful in their application of this last resort of the citizen.
Of course, in a clear case we cannot hesitate, but it ought to be a clear case. The sovereign law-making power of the state is entitled to at least as strong a presumption in favor of the validity of its acts as a criminal on trial in favor of his innocence. The conflict between a statute and the fundamental law must be plain beyond any reasonable doubt, before we can convict the legislature, and annul their laws. These are obvious truths, and have been again and again repeated by courts and judges who, perhaps, have not in all cases acted up to their requirements. Heither must it be forgotten that the power of the legislature of the state of Hew York is not derived from, or conferred by, the constitution of the state of Hew York. That instrument does indeed organize a legislature and transfer to them the power of legislation of the people of the state. But it does not create the power, but only the instrument for its exercise. The power is the sovereign power of the people, and in a poEtical and juridical sense, it is omnipotent and irresponsible, except where it is expressly restrained by the organic instrument. Whatever the people might do, the courts cannot prevent their representatives from doing, unless the people have positively and expressly forbidden it. The constitution of the state of Hew York is to be resorted to, therefore, not to see what powers are conferred upon the legislature, but what are withheld; not how they are authorized to act, but in what respects they are restrained
S. B. Strong, Emott and Birdseye, Justices.]
Constitutions will cease to be respected when they become common instruments of promoting litigation, and of defeating not only the actual and legitimately expressed will of the people, but the very end of government and laws. There are certain great principles of liberty and the security of property enshrined in the constitution of the United States, and repeated in our state constitutions. These may be justly called fundamental, and any attempts by the legislature to violate them will be met with prompt rebuke. But directory regulations or rules of legislative action and the like, of which there are many in the present constitution, should be palpably transgressed in a point of real consequence before the action of the legislature should be arrested by the courts. The constitution should not be invoked unless upon occasions which both require and deserve its interposition. It is almost as easy under our system of government to alter or repeal a constitution as a statute, and if we are not careful both of our courts and our constitutions, it will become almost as frequent. That certainly will not be a desirable result to accomplish by the changes we have made, or the doctrines we may introduce.
The judgment of the court below must be affirmed, and a peremptory mandamus awarded with costs.
S. B. Strong, J. dissented.
Judgment affirmed.
The opinion referred to was given on the decision of a motion to dissolve an injunction obtained by the Black Biver Bank, to restrain the supervisors of Jefferson county from collecting the tax which had been levied under this same act of 1855, and is as follows:
t! W. P. Aleen, J. The remaining objection is to the validity of the mill and a quarter tax levied in pursuance of chapter 335 of the laws of 1855. (Laws, p. 611.) The act imposing the tax directs that when collected it shall be paid into the treasury of the state to the credit of the general fund, and it is claimed that this is not a statement of the object to which the tax is to be applied, as required by the 18th section of the 7th article of the constitution. The objection assumes that the direction to place the amount of the tax to the credit of the general fund is equivalent to a direction to apply the same to the payment of the several sums chargeable to and payable out of that, which objects are to be ascertained by reference to the various statutes creating them; that thére is no general fund; but that the several claims upon the state which are not specifically charged upon a particular fund, are payable out of the treasury generally, and are called general fund debts, and that the term “ general fund” does not moan a particular fund, but is simply a convenient expression to denote a provision made or to be made for the payment of these general fund debts.
But this is not the view which the legislature took of it. They regarded the general fund as known to and recognized by law as a thing in esse, as
The revised statutes formed certain funds and property of the state known and distinguished as the “ general fund,” and it was then enacted that the same fund, together with the increase and resources thereof and the addition which might be made thereto, should be known and denominated as the “ general fund.” The amount of this tax was an addition to, and became, when paid into the treasury, a part of the general fund under this provision, and the same legislature by which the revised statutes were enacted supposed when they directed payments to be made to the general fund and what of the expenses of the government should be charged upon it, that the object and purpose of the payments and the source from which the appropriations were to be paid were stated intelligibly, and with sufficient explicitness and directness. (1 R. S. 189, § 1, &c.)
' The financial officers of the state have always treated of the general fund, and kept accounts with it, and spoken of it as a fund well known; and in 1843 the comptroller, in his report to the legislature, says, that “ many years since, the general fund had a capital of several millions of dollars, and the ordinary expenses of government were made a charge upon" this fund by statute.” The constitution of 1846, notwithstanding the capital of the general fund had been long since exhausted, treats it as still in existence and as a fund to which contributions may be made and which may be charged with the payment of appropriations. (Const, art. 7, §§ 2, 3.)
Our state prisons, our canals and asylums, all have an existence, and are objects to which appropriations may be made by name without a reference to the statutes under which they exist, or the purposes to which, in detail, the appropriations are to be applied.
It is not complimentary to the intelligence of the legislature or their constituents, to suggest that for the pmpose designed hy the constitutional provision, to wit, information to all interested of the object of the tax, and the general purposes to which the money raised is to he applied; that they may judge of the necessity and propriety of the measure, a more specific statement of the object is required than is here made.
Would it he urged that a tax for the benefit of the prisons should state in detail the amount to he paid to the officers for their salaries; the amount to the sheriff for transporting convicts, and the several amounts to be applied to the repair of the buildings, support of convicts, &c. 7 I think not, but a general statement that it was for the support of the prisons would be sufficient; and if so, then the statement in this law of the object of the tax is sufficient.
I have been unable to see any foundation for the objection taken to this law for unconstitutionality.
It is a serious matter to declare an act of the legislature deliberately passed unconstitutional, and disregard it as such ; and it should not be done, especially by bodies and tribunals acting in an inferior and subordinate capacity, except in a very clear case. I certainly should be unwilling to do so at circuit or special term, except for reasons which were entirely conclusive and satisfactory.
. The benefit of every doubt should be given to the well considered acts of the legislature, as the presumption is that they have not transcended their authority, and that every thing has been rightly done. Every act of the legislature may and should be thoroughly scanned; but a law may not, without danger of mischief, be regarded and treated as presumptively unconstitutional and void by the inferior tribunals for whose direction and control it has been enacted, without urgent cause and good reason. In regard to this law I canT not doubt that it is, so far as the only objection I have heard to it is concerned, in strict conformity, with the constitution and entirely valid.
The motion is granted with $10 costp to abide event.”
Affirmed By Oourt of Appeals. See 3 E. P. Smith, 235.